Colter v. Commissioner of Social Security

Filing 21

OPINION AND ORDER. The decision of the Commissioner is AFFIRMED. This action is hereby DISMISSED. Signed by Magistrate Judge Norah McCann King on 6/10/2015. (pes)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JAMES COLTER,
Plaintiff,
vs.

Civil Action 2:14-cv-1907
Magistrate Judge King

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
OPINION AND ORDER
I.

Background
This is an action instituted under the provisions of 42 U.S.C. §

405(g) for review of a final decision of the Commissioner of Social
Security denying plaintiff’s application for a period of disability
and disability insurance benefits.

This matter is before the Court,

with the consent of the parties pursuant to 28 U.S.C. § 636(c), for
consideration of Plaintiff’s Statement of Specific Errors (“Statement
of Errors”), Doc. No. 17, and the Commissioner’s Memorandum in
Opposition, Doc. No. 20.
Plaintiff James Colter filed his application for benefits on June
15, 2011, alleging that he has been disabled since May 20, 2011.
PAGEID 268, 415-21.

The claim was denied initially and upon

reconsideration, and plaintiff requested a de novo hearing before an
administrative law judge.
An administrative hearing was held on May 9, 2013, at which
plaintiff, represented by counsel, appeared and testified, as did John

R. Finch, Ph.D., who testified as a vocational expert.
285.

PAGEID 268,

In a decision dated June 27, 2013, the administrative law judge

concluded that plaintiff was not disabled from May 20, 2011, through
the date of the administrative decision.

PAGEID 268-80.

That

decision became the final decision of the Commissioner of Social
Security when the Appeals Council declined review on August 28, 2014.
PAGEID 34-37.
Plaintiff was 35 years of age on the date of the administrative
decision.

See PAGEID 280, 415.

He was insured for disability

insurance purposes through at least June 27, 2013.

PAGEID 270, 280.

Plaintiff has at least a high school education, is able to communicate
in English, and has past relevant work as a tow motor driver,
picker/packer, and laborer.

PAGEID 278.

He has not engaged in

substantial gainful activity since May 20, 2011, the alleged onset
date.
II.

PAGEID 270.
Administrative Decision
The administrative law judge found that plaintiff’s severe

impairments consist of degenerative disc disease of the lumbar spine,
degenerative changes of the right hand, chronic left acromioclavicular
joint separation, borderline intellectual functioning, anxiety
disorder, attention deficit-hyperactivity disorder, and an impulse
control disorder.

PAGEID 270.

The administrative law judge also

found that plaintiff’s impairments neither meet nor equal a listed
impairment and leave plaintiff with the residual functional capacity
(“RFC”) to

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perform light work as defined in 20 CFR § 404.1567(b)
except the claimant cannot climb ladders, ropes or
scaffolds and is limited to frequent use of the right upper
extremity for fingering, feeling and handling.
Mentally,
the claimant is capable of performing simple, repetitive
tasks in a relatively static environment not involving a
fast assembly line work pace, strict production quotas,
more
than
occasional
contact
with
co-workers
and
supervisors, or any public contact.
PAGEID 271-74.

Although this RFC precludes the performance of

plaintiff’s past relevant work as a tow motor driver, picker/packer,
and laborer, the administrative law judge relied on the testimony of
the vocational expert to find that plaintiff is nevertheless able to
perform a significant number of jobs in the national economy,
including such representative jobs as cleaner, sorter, and garment
folder.

PAGEID 278-79.

Accordingly, the administrative law judge

concluded that plaintiff was not disabled within the meaning of the
Social Security Act from May 20, 2011, through the date of the
administrative decision.

PAGEID 280.

III. Discussion
Pursuant to 42 U.S.C. § 405(g), judicial review of the
Commissioner’s decision is limited to determining whether the findings
of the administrative law judge are supported by substantial evidence
and employed the proper legal standards.

Richardson v. Perales, 402

U.S. 389 (1971); Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595
(6th Cir. 2005).

Substantial evidence is more than a scintilla of

evidence but less than a preponderance; it is such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.
See Buxton v. Haler, 246 F.3d 762, 772 (6th Cir. 2001); Kirk v. Sec’y

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of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1981).

This

Court does not try the case de novo, nor does it resolve conflicts in
the evidence or questions of credibility.

See Brainard v. Sec’y of

Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989); Garner v.
Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
In determining the existence of substantial evidence, this
Court must examine the administrative record as a whole.
F.2d at 536.

Kirk, 667

If the Commissioner's decision is supported by

substantial evidence, it must be affirmed even if this Court would
decide the matter differently, see Kinsella v. Schweiker, 708 F.2d
1058, 1059 (6th Cir. 1983), and even if substantial evidence also
supports the opposite conclusion.

Longworth, 402 F.3d at 595.

In his Statement of Errors, plaintiff first argues that the
administrative law judge erred by failing to include in his RFC
determination all the limitations opined by the state agency
psychological consultants, to whose opinions the administrative law
judge assigned great weight.

Statement of Errors, pp. 16-17.

Plaintiff specifically argues that “the ALJ should have recognized
that Mr. Colter would have limitations in his ability to understand,
remember and carry out very short and simple instructions as well as
would require some level of special supervision.

The RFC does not

reflect such limitations rendering the finding unsupported by
substantial evidence.”

Id. at p. 17.

An RFC determination is an indication of an individual's workrelated abilities despite his limitations.

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See 20 C.F.R. §

404.1545(a).

The RFC is an administrative finding of fact reserved to

the Commissioner.

20 C.F.R. §§ 404.1527(d)(2), (3); Edwards v. Comm'r

of Soc. Sec., 97 F. App'x 567, 569 (6th Cir. 2004).

A claimant’s RFC

represents the most, not the least, that a claimant can do despite his
impairments.

20 C.F.R. § 404.1545(a); Griffeth v. Comm’r of Soc.

Sec., 217 F. App'x 425, 429 (6th Cir. 2007).

In assessing a

claimant's RFC, an administrative law judge must consider all relevant
record evidence, including medical source opinions, on the severity of
a claimant's impairments.

See 20 C.F.R. §§ 404.1527(d), 404.1545(a).

Furthermore, courts have stressed the importance of medical opinions
to support a claimant's RFC, and have cautioned administrative law
judges against relying on their own claimed expertise in drawing RFC
conclusions from raw medical data.

See Isaacs v. Astrue, No. 1:08-CV-

828, 2009 WL 3672060, at *10 (S.D. Ohio Nov. 4, 2009) (quoting Deskin
v. Comm’r of Soc. Sec., 605 F. Supp. 2d 908, 912 (N.D. Ohio 2008)).
Plaintiff does not challenge the weight assigned to the state
agency psychological consultants.

Instead, plaintiff argues that the

administrative law judge failed to include in his RFC determination
all the limitations opined by the state agency psychological
consultants.

Statement of Errors, pp. 16-17.

Karen Steiger, Ph.D.,

reviewed the record and completed a mental RFC assessment on October
16, 2011.

PAGEID 333-35.

According to Dr. Steiger, plaintiff is

moderately limited in his ability to understand and remember very
short and simple instructions and markedly limited in his ability to
understand and remember detailed instructions.

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PAGEID 333.

When

asked to explain these limitations in narrative form, Dr. Steiger
noted that plaintiff “is likely to have difficulty understanding and
remembering complex, multi-step instruction.

However, he demonstrates

the ability to follow simple 1-2 step tasks.”

Id.

Dr. Steiger also

opined that plaintiff was moderately limited in his ability to carry
out very short and simple instruction; maintain attention and
concentration for extended periods; perform activities within a
schedule, maintain regular attendance, and be punctual within
customary tolerances; sustain an ordinary routine without special
supervision; make simple work-related decisions; and complete a normal
workday and workweek without interruptions from psychologically based
symptoms and to perform at a consistent pace without an unreasonable
number and length of rest periods.

PAGIED 334.

Plaintiff was

markedly limited in his ability to carry out detailed instructions.
Id.

Dr. Steiger explained that these limitations in sustained

concentration and persistence would limit plaintiff to the performance
of “simple tasks performed at a reasonable rate.
regularly scheduled breaks.”

Id.

He would need

Dr. Steiger opined that plaintiff

is moderately limited in his ability to interact appropriately with
the general public, accept instructions and respond appropriately to
criticism from supervisors, and get along with coworkers or peers
without distracting them or exhibiting behavioral extremes.

Id.

Dr.

Steiger specifically commented in this regard that plaintiff “would be
able to interact with others on a superficial/occasional basis.”

Id.

Dr. Steiger further opined that plaintiff would be moderately limited

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in his ability to respond appropriately to changes in the work setting
and to set realistic goals or make plans independently of others.
PAGEID 335.

Dr. Steiger explained that plaintiff “can adapt to a

setting in which duties are routine and predictable and which does not
involve strict time limitations or production standards.”

Id.

Katherine Fernandez, Psy.D., reviewed the record on May 29,
2012, and affirmed Dr. Steiger’s mental RFC assessment, except that
Dr. Fernandez opined that plaintiff is markedly limited in his ability
to interact appropriately with the general public.

PAGEID 353-55.

Dr. Fernandez also opined that plaintiff “[s]hould not be required to
interact with the public” and “[s]hould work in a setting without
requirements for fast pace.

No frequent distractions.”

PAGEID 353-

54.
The administrative law judge assigned “great weight” to the
opinions of Dr. Steiger and Dr. Fernandez, and found that,
“[m]entally, the claimant is capable of performing simple, repetitive
tasks in a relatively static environment not involving a fast assembly
line work pace, strict production quotas, more than occasional contact
with co-workers and supervisors, or any public contact.”
74.

PAGEID 273-

Plaintiff argues that the administrative law judge failed to

“include a limitation addressing some need for special supervision”
and “should have recognized that Mr. Colter would have limitations in
his ability to understand, remember and carry out very short and
simple instructions as well as would require some level of special
supervision.”

Statement of Errors, p. 17.

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Plaintiff’s arguments are

not well taken.
Dr. Steiger and Dr. Fernandez each completed a mental RFC
assessment addressing 20 areas of functioning related to understanding
and memory, sustained concentration and persistence, social
interaction, and adaptation.

See PAGEID 333-35, 353-55.

Dr. Steiger

and Dr. Fernandez then explained in narrative form plaintiff’s
limitations in each area of functioning.

The administrative law judge

included limitations in plaintiff’s RFC to account for the limitations
addressed in the doctors’ narrative reports.

Plaintiff argues that

the administrative law judge should have included “a limitation
addressing some need for special supervision” in his RFC
determination.

Statement of Errors, p. 17.

However, the narrative

reports of Dr. Steiger and Dr. Fernandez did not include a limitation
for special supervision.

The Court finds no error in the

administrative law judge’s decision to rely on Dr. Steiger’s and Dr.
Fernandez’s narrative reports.
Plaintiff next argues that, “[a]lthough the ALJ found that Mr.
Colter’s chronic left acromioclavicular joint separation was a severe
impairment, his RFC finding did not reflect any limitations arising
from said impingement.”

Id. at pp. 17-18. In determining plaintiff’s

RFC, the administrative law judge expressly considered the medical
evidence and plaintiff’s testimony regarding his chronic left
acromioclavicular joint separation.

PAGEID 275-76.

The

administrative law judge concluded that plaintiff can perform “light
work as defined in 20 CFR § 404.1567(b) except the claimant cannot

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climb ladders, ropes or scaffolds and is limited to frequent use of
the right upper extremity for fingering, feeling and handling.”
PAGEID 273.

This determination is supported by substantial evidence,

see PAGEID 333, 351, and, plaintiff’s arguments to the contrary
notwithstanding, reasonably accounts for plaintiff’s left shoulder
impairment.

See PAGEID 311 (plaintiff’s testimony that his shoulder

injury causes “difficulty lifting things”).
evidence of a “left shoulder impairment.”

Plaintiff has pointed to
Statement of Errors, p. 18.

Plaintiff has not, however, pointed to any evidence that his shoulder
impairment causes greater limitations than those found by the
administrative law judge.

The mere fact that the record documents a

shoulder impairment says little about whether and to what degree the
condition results in work-related limitations.

See Lee v. Comm’r of

Soc. Sec., 529 F. App’x 706, 713 (6th Cir. 2013) (“But not every
diagnosable impairment is necessarily disabling.”); Higgs v. Bowen,
880 F.2d 860, 863 (6th Cir. 1988) (“The mere diagnosis of arthritis,
of course, says nothing about the severity of the condition.”) (citing
Foster v. Brown, 853 F.2d 483, 489 (6th Cir. 1988)).

The Court finds

no error in this regard.
Plaintiff next argues that the administrative law judge erred
in evaluating the opinion of Lari Meyer, Ph.D.
pp. 18-20.

Statement of Errors,

“Dr. Meyer’s opinion that Mr. Colter would require

increased supervision with frequent redirection in order to maintain
attention to complete simple tasks was based on Plaintiff’s tangential
thinking and frequent redirection required during her examination,”

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id. at p. 19,

is “consistent with the medical evidence in the record”

and is “mirrored by the opinions of . . . Drs. Steiger and Fernandez.”
Id. at pp. 19-20.

Plaintiff also complains that the administrative

law judge “did not consider Dr. Meyer’s explanation” with regard to
intellectual testing.

Id. at p. 19.

Plaintiff was consultatively examined by Dr. Meyer on October 4,
2011.

PAGEID 526-41.

IQ score of 67.

On the WAIS-IV, plaintiff achieved a full-scale

PAGEID 535.

However, Dr. Meyer commented that

plaintiff’s test “results are likely at least somewhat of an underprediction of true levels of abilities” and opined that “it is likely
that he functions within at least the borderline range overall.”

Id.

Dr. Meyer also diagnosed impulse control disorder, NOS, and attention
deficit hyperactivity disorder, NOS; she assigned a global assessment
of functioning (“GAF”) score of 60, PAGEID 537-38, which is suggestive
of only moderate symptomatology. See Norris v. Comm’r of Soc. Sec.,
461 F. App’x 433, 436 n.1 (6th Cir. 2012).
According to Dr. Meyer, plaintiff “would be able to understand,
remember, and follow simple verbal or visual-spatial instructions in
order to complete a basic work task, but would demonstrate difficulty
with more complex verbal or visual-spatial instructions.”

PAGEID 538.

“In order to maintain attention to complete simple tasks, [plaintiff]
would require increased supervision with frequent redirection.

He

would demonstrate increased difficulty in maintaining attention for
more complex tasks.”

PAGEID 539.

Plaintiff “would be able to relate

to others on a simple level only due to impairments in verbal

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comprehension skills related to borderline intellectual functioning,”
id., and “would be able to relate to others on a time-limited basis
only.”

Id.

Dr. Meyer further opined that plaintiff “would be able to

respond appropriately to simple, rote, and repetitive work tasks only,
and only in low stress work situations.

He would demonstrate

difficulty with more complex tasks due to impairments in problem
solving abilities and borderline intellectual functioning.”

Id.

As a consultative examiner, Dr. Meyer is properly classified as a
nontreating source.

See 20 C.F.R. § 404.1502 (“Nontreating source

means a physician, psychologist, or other acceptable medical source
who has examined [the claimant] but does not have, or did not have, an
ongoing treatment relationship with [the claimant].”).

With regard to

nontreating sources, the agency will simply “give more weight to the
opinion of a source who has examined [the claimant] than to the
opinion of a source who has not examined” the claimant.

Id.

In

determining the weight to be given the opinion of a nontreating
source, an administrative law judge should consider such factors as
“the evidence that the physician offered in support of her opinion,
how consistent the opinion is with the record as a whole, and whether
the physician was practicing in her specialty.”

Ealy v. Comm’r of

Soc. Sec., 594 F.3d 504, 514 (6th Cir. 2010) (citing 20 C.F.R. §
404.1527(d)).
The administrative law judge evaluated Dr. Meyer’s opinion and
afforded it “some weight:”
In
October
independent

2011,
Lari
psychological

Meyer,
Ph.D.,
performed
consultative
examination

11

an
and

opined that the claimant could understand, remember and
follow simple instructions, but would have some degree of
limitation in maintaining attention and concentration,
interacting
with
others,
and
tolerating
work-related
stressors (Exhibit 6F).
Dr. Meyer’s opinion is only given some weight as much of
her assessment was based entirely on the claimant’s
subjective report of symptoms.
Furthermore, while she
noted some issues relating to intellectual functioning, she
also noted that intelligence testing was of questionable
validity.
Third, she reported a GAF score of 60, which
suggest limitations in functioning at the upper end of the
moderate range and which is not consistent with a finding
of mental disability.
PAGEID 274.
The administrative law judge did not err in evaluating Dr.
Meyer’s opinion.

The administrative law judge was sufficiently

specific as to the weight assigned to Dr. Meyer’s opinion and the
reasons for assigning that weight, and his reasons are supported by
substantial evidence.

Plaintiff does not contest that much of Dr.

Meyer’s opinion appears to be based on plaintiff’s subjective reports
of symptoms.

The Court also notes that it is not improper for an

administrative law judge to consider whether a medical opinion is
dependent on the claimant’s reports of symptoms and limitations,
especially where, as here, the administrative law judge also finds
that the claimant’s subjective symptoms and reported limitations are
not entirely credible.1

See PAGEID 275-78.

Plaintiff challenges the

administrative law judge’s discounting of Dr. Meyer’s opinion
regarding plaintiff’s attention and concentration as based on

1

Plaintiff does not challenge the administrative law judge’s credibility
determination.

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plaintiff’s subjective reports; according to plaintiff, Dr. Meyer’s
opinion in this regard was “based on Plaintiff’s tangential thinking
and frequent redirection required during her examination.”
of Errors, p. 19.

Statement

However, even this portion of Dr. Meyer’s opinion,

PAGEID 539, notes plaintiff’s subjective reports of “attentional
impairments.” Id. Moreover, and consistent with the administrative law
judge’s analysis, Dr. Meyer also noted that plaintiff’s full-scale IQ
score was “likely at least somewhat of an under-prediction of true
levels of abilities,” and she assigned a GAF of 60, which is “at the
upper end of the moderate range.”
n.1.

See Norris, 461 F. App’x at 436

Accordingly, the Court finds that the administrative law judge’s

evaluation of Dr. Meyer’s opinion enjoys substantial support in the
record.
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. 20-21.

Plaintiff

specifically argues that the hypothetical posed to the vocational
expert was incomplete because it “did not include the State agency
opinions regarding Mr. Colter’s limitations in understanding,
remembering and carrying out very short and simple instructions and
requiring some type of special supervision nor did it incorporate any
limitations addressing his left shoulder impairment.”

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

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must accurately portray a claimant’s physical and mental impairments.”
Ealy, 594 F.3d at 516.

“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 v. Sec’y of Health & Human Servs.,
987F.2d 1230, 1235 (6th Cir. 1993)).
The administrative law judge posed to the vocational expert a
complete hypothetical question that incorporated all of plaintiff’s
impairments as found by the administrative law judge.

The vocational

expert responded that such an individual could not perform plaintiff’s
past relevant work as a tow motor driver, picker/packer, and laborer,
but could perform such jobs as cleaner, sorter, and garment folder.
PAGEID 319-20.

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 he could not perform his past relevant work.
PAGEID 278-79.

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);

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Felisky v. Bowen, 35 F.3d 1027, 1036 (6th Cir. 1994) (where a
hypothetical accurately described the plaintiff in all relevant
respects, the vocational expert’s response to the hypothetical
question constitutes substantial evidence).
Having carefully considered the entire record in this action,
the Court concludes that the decision of the Commissioner is supported
by substantial evidence.

Accordingly, the decision of the

Commissioner is AFFIRMED.
This action is hereby DISMISSED.

The Clerk shall enter FINAL

JUDGMENT pursuant to Sentence 4 of 42 U.S.C. § 405(g).

June 10, 2015

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

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