Ortman v. Commissioner of Social Security

Filing 20

OPINION and ORDER denying 19 Plaintiff's Objection to Magistrate Judge Order; adopting and affirming 18 the Report and Recommendation. Signed by Judge Michael H. Watson on 5/5/16. (jk)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

KIMBERLYJ. ORTMAN,
Plaintiff,
v.

Case No. 2:14-cv-1900

Judge Michael H. Watson
Magistrate Judge King
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

OPINION AND ORDER

Plaintiff seeks review of a final decision of the Commissioner of Social

Security denying her applications for a period of disability, disability insurance
benefits, and supplemental security income. The Magistrate Judge
recommended that the decision of the Commissioner be affirmed and that this

action be dismissed. Report and Recommendation, ECF No. 18. This matter is

now before the Court on plaintiff's objections to that recommendation. Objection,
ECF No. 19. The Court has considered the matter de novo. See 28 U.S.C.

§ 636(b); Fed. R. Civ. P. 72(b).
The administrative law judge found that plaintiffs severe impairments

consist of degenerative disc disease and bipolar disorder and leave plaintiff with
the residual functional capacity ("RFC") to

perform "medium" work as defined in 20 CFR §§ 404.1567(c) and

416.967(c) except that the claimant could lift and carry 25 pounds
frequently and 50 pounds occasionally. In an eight-hour workday,
the claimant could sit six hours, stand and/or walk six hours. She
could occasionally climb ladders, ropes, or scaffolds. She could

frequently climb stairs, balance, stoop, kneel, crouch, or crawl. From
a mental standpoint, the claimant could understand, remember, and
follow simple, routine tasks and occasionally more detailed or
complex tasks. Concentration, persistence, and pace would be
limited to occasional for any tasks that are more than routine tasks.
She is limited to occasional interaction with supervisors, coworkers,
and the public; and no tasks that involve working closely with others.
In addition, she is capable of work that involves relatively static
changes that can be easily explained.
PAGEID 71-73. Relying on the testimony of the vocational expert, the

administrative law judge found that this RFC permits plaintiff to perform a
significant number of jobs in the national economy, including such representative
jobs as cleaner, packager, and order picker. The Commissioner therefore
concluded that plaintiff is not disabled.

In her Statement of Errors, ECF No. 11, plaintiff argued that the

administrative law judge erred in her credibility determination, improperly failed to
secure the testimony of a medical expert to assist in the evaluation of the

record's medical source opinions, and relied on improper vocational testimony.
The Magistrate Judge considered, but rejected, each of these arguments. Report
and Recommendation.

In her Objection, plaintiff renews her argument that the administrative law
judge improperly discounted plaintiff's credibility because her treatment has been

routine and conservative. Id. at PAGEID 502. Plaintiff also again argues that,

because the administrative law judge failed to secure the testimony of a medical
expert to assist in the formulation of plaintiff's RFC, the hypotheticals posed to
the vocational expert improperly omitted "limitations regarding concentration,
persistence, and pace for simple, repetitive tasks." Objection, PAGEID# 503.
In considering plaintiffs challenge to the administrative law judge's
credibility determination, the Magistrate Judge concluded that the administrative

law judge properly applied the appropriate standards and that her credibility
determination enjoys substantial support in the record:

... The administrative law judge evaluated the medical evidence,
including plaintiffs reports of pain and treatment for back pain, and
found that the "record reveals relatively infrequent trips to the doctor
for the allegedly disabling physical and mental symptoms." PAGEID
74-76. The administrative law judge noted that there are relatively
few records from 2008 and 2009 and, although plaintiff reported
back pain in 2009, there were no significant objective findings noted
at that time. PAGEID 74. The administrative law judge evaluated
plaintiffs ongoing complaints of pain, but found that "the claimant
utilized relatively routine and conservative treatment methods, such
as pain medication and muscle relaxers." PAGEID 75. With regard
to plaintiffs reports of "'stroke-like' headaches," the administrative
law judge noted that "the record does not corroborate the severity or

frequency of these headaches." Id. As to plaintiffs complaints of
mental health symptoms, the administrative law judge found that "the
evidence reveals relatively infrequent trips to the doctor for allegedly
disabling mental symptoms with inconsistent mental health treatment
throughout the relevant record." Id. The administrative law judge
also cited plaintiff's treatment at Six County Mental Health Center
and noted, inter alia, that she was found to be "generally functioning
pretty well" and reported the severity of her problems on a scale of
one to 10 as only a five. Id.
Plaintiff argues that the administrative law judge erred in

discounting plaintiffs credibility on the basis that she had undergone
only conservative treatment for her back pain. Plaintiff's Reply, pp.
1-3. According to plaintiff, she was "not required to pursue treatment
methods that are greater than conservative means" and she was not
required to undergo back surgery. Id. at p. 2. The administrative
law judge did not err in this regard. As noted by plaintiff, Plaintiff's
Reply, p. 2, persistent attempts by a claimant to obtain relief from
pain may lend support to allegations of intense and persistent
symptoms. SSR 96-7P, 1996 WL 374186, at *7 (July 2,1996).
However, the administrative law judge noted plaintiffs attempts to
obtain relief but found that her treatment was "relatively routine and
conservative." PAGEID 74-75. Plaintiff does not challenge the
administrative law judge's determination that her treatment was
"relatively routine and conservative." Moreover, the administrative
law judge's determination in this regard is supported by substantial
evidence. Dr. Sayegh classified plaintiffs treatment as conservative
and, as noted by the administrative law judge, PAGEID 75,
discussed more aggressive treatment options that plaintiff chose not
to pursue. PAGEID 422-23.
Plaintiffs arguments to the contrary notwithstanding, the
administrative did not "simply conclude)] that the Plaintiffs
statements and symptoms were not entirely credible." Statement of
Errors, p. 6. The administrative law judge's credibility determination
is clearly explained, and her analysis enjoys substantial support in
the record. Under these circumstances, this Court will not - and

indeed may not - revisit that credibility determination. See Jones v.
Comm'rofSoc. Sec, 336 F.3d 469, 476 (6th Cir. 2003).
Report and Recommendation, PAGEID 493-95. This Court agrees with that

conclusion. Considering the totality of the evidence considered by the

administrative law judge in determining plaintiffs credibility, the single fact that
plaintiffs treatment has been, as plaintiff concedes, routine and conservative
does not require a different result.

In considering plaintiffs complaint that the administrative law judge
should have secured the testimony of a medical expert in formulating plaintiffs

RFC and the hypotheticals posed to the vocational expert, the Magistrate Judge
reasoned:

An administrative law judge "has discretion to determine whether
further evidence, such as additional testing or expert testimony, is
necessary." Foster v. Halter, 279 F.3d 348, 355 (6th Cir. 2001)
(citing 20 C.F.R. §§ 404.1517,416.917). Further, the RFC
determination is an administrative finding of fact reserved to the

Commissioner, see 20 C.F.R. §§ 404.1527(d)(2), (3), 416.927(d)(2),
(3); Edwards v. Comm'rofSoc Sec, 97 F. App'x 567, 569 (6th Cir.
2004), and the administrative law judge, in formulating a claimant's
RFC, is not required to parrot medical opinions verbatim. See
Neace v. Comm'rofSoc Sec, No. 5:11-cv-00202-KKC, 2012 WL

4433284, at *8 (E.D. Ky. Sept. 25, 2012); Deaton v. Comm'rofSoc
Sec, No. 1:10-cv-00461, 2011 WL 4064028, at*6 (S.D. Ohio Sept.
13, 2011); Carroll v. Comm'rofSoc Sec, No. 1:09cv2910, 2011 WL
3648128, at *10 (N.D. Ohio Aug. 18, 2011). The administrative law
judge gave significant weight to the medical opinions of record and
incorporated similar limitations in her RFC determination;
significantly, the record contains no medical opinion of greater

limitations than those that the administrative law judge included in
her RFC determination. The record reflects sufficient evidence of

plaintiffs impairments and the effects of those impairments on
plaintiffs residual functional capacity. It cannot be said that the
administrative law judge relied on her own lay opinion in evaluating
the evidence. See Deskin v. Comm'rofSoc Sec, 605 F. Supp. 2d

908 (N.D. Ohio 2008). Rather, the administrative law judge was
called upon to evaluate the various medical opinions and determine
the weight to be assigned to each. The administrative law judge
properly engaged in this process and her findings in this regard
enjoy substantial support in the record. It follows that the
administrative law judge did not err in failing to secure the testimony
of a medical expert for this purpose.
In a related argument, plaintiff contends that the administrative
law judge erred in relying on the testimony of the vocational expert.
Statement of Errors, pp. 8-10. Plaintiff specifically argues that the
hypothetical posed to the vocational expert was incomplete because
it was based on improper RFC and credibility determinations. Id.
"In order for a vocational expert's testimony in response to a
hypothetical question to serve as substantial evidence in support of

the conclusion that a claimant can perform other work, the question
must accurately portray a claimant's physical and mental
impairments." Ealy v. Comm'rofSoc Sec, 594 F.3d 504, 516 (6th
Cir. 2010). "Hypothetical questions, however, need only incorporate
those limitations which the [administrative law judge] has accepted
as credible." Parks v. Soc Sec Admin., 413 F. App'x 856, 865 (6th
Cir. 2011) (citing Casey, 987 F.2d at 1235).
The administrative law judge posed to the vocational expert a
complete hypothetical question that incorporated all of plaintiffs
impairments as found by the administrative law judge. The
vocational expert responded that such an individual could not
perform plaintiffs past relevant work as a gas station cashier, fast
food worker, and sales promotion representative, but could perform
such jobs as picker, cleaner, and packager. PAGEID 133,136. The
administrative law judge relied on this portion of the vocational
expert's testimony in determining that plaintiff can perform a
significant number of jobs that exist in the national economy, even
though she could not perform her past relevant work. PAGEID 7778.

Plaintiff argues that the administrative law judge erred in not
accepting the vocational expert's testimony in response to an
alternative hypothetical containing additional limitations in
concentration, persistence, and pace. Statement of Errors, p. 9. It is
true that the administrative law judge posed different hypotheticals to
the vocational expert, which contained different functional limitations.
See PAGEID 136-37. Nevertheless, the administrative law judge
relied only on the hypothetical posed to the vocational expert that
included all of the limitations contained in the RFC eventually found
by the administrative law judge. The administrative law judge
therefore did not err in relying on the vocational expert's testimony in
this regard. See Parks, 413 F. App'x at 865 ("In order for a
vocational expert's testimony in response to a hypothetical question
to serve as substantial evidence in support of the conclusion that a
claimant can perform other work, the question must accurately
portray a claimant's physical and mental impairments
Hypothetical questions, however, need only incorporate those
limitations which the ALJ has accepted as credible.") (internal
citations and quotations omitted); Felisky, 35 F.3d at 1036 (where a
hypothetical accurately described the plaintiff in all relevant respects,
the vocational expert's response to the hypothetical question
constitutes substantial evidence).

Id. at PAGEID 495-98.

This Court agrees with this analysis and nothing stated

in plaintiffs Objection persuades the Court that the Report and Recommendation
should be rejected.

Accordingly, plaintiff's Objection, ECF No. 19, is DENIED. The Report
and Recommendation, ECF No. 18, is ADOPTED AND AFFIRMED. The
decision of the Commissioner is AFFIRMED and that this action is DISMISSED.

The Clerk is DIRECTED to enter FINAL JUDGMENT pursuant to

Sentence 4 of 42 U.S.C. § 405(g).
IT IS SO ORDERED.

.(J^dfcnn
MICHAEL H. WATSON, JUDGE
UNITED STATES DISTRICT COURT