Primmer v. Commissioner of Social Security
Filing
19
ORDER adopting Report and Recommendations re 16 Report and Recommendations.. Signed by Judge James L. Graham on 12/29/2015. (ds)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Trina Marie Primmer,
Plaintiff,
v.
Case No. 2:14-cv-2245
Commissioner of Social
Security,
Defendant.
ORDER
Plaintiff Trina Marie Primmer brings this action under 42
U.S.C. §§405(g) for review of a final decision of the Commissioner
of Social Security (“Commissioner”) denying her application for
disability insurance benefits and supplemental security income. In
a decision dated July 19, 2013, the administrative law judge
(“ALJ”) found that plaintiff had severe impairments consisting of
osteoarthritis, low back pain, obesity, depression, anxiety, and
adjustment disorder.
PAGEID 76.
After considering the entire
record, the ALJ found that plaintiff has the residual functional
capacity (“RFC”) to perform light work, except that she was: (1)
limited to frequent balancing, stooping, kneeling, crouching,
crawling, and climbing of ramps and stairs; (2) can never climb
ladders,
ropes
or
scaffolds;
(3)
must
have
no
exposure
to
operational control of machinery or unprotected heights; (4) is
limited to simple, routine, and repetitive tasks; and (5) can have
no interaction with the public, but can have occasional brief and
superficial interaction with coworkers.
PAGEID 81.
The ALJ found
that plaintiff was unable to perform her past relevant work as a
nurse’s
aide,
but
was
capable
of
identified by the vocational expert.
performing
available
PAGEID 97-99.
jobs
This
matter
is
before
the
court
for
consideration
of
plaintiff’s December 1, 2015, objections (Doc. 17) to the November
19, 2015, report and recommendation of the magistrate judge (Doc.
16),
recommending
affirmed.
objections.
that
the
decision
of
the
Commissioner
be
The Commissioner has filed a response to plaintiff’s
See Doc. 18.
I. Standard of Review
If a party objects within the allotted time to a report and
recommendation, the court “shall make a de novo determination of
those portions of the report or specified proposed findings or
recommendations
to
which
objection
is
made.”
§ 636(b)(1); see also Fed. R. Civ. P. 72(b).
28
U.S.C.
Upon review, the
court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”
28
U.S.C. § 636(b)(1).
The court’s review “is limited to determining whether the
Commissioner’s decision ‘is supported by substantial evidence and
was made pursuant to proper legal standards.’”
Ealy v. Comm’r of
Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010) (quoting Rogers v.
Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also,
42 U.S.C. § 405(g) (“The findings of the Commissioner of Social
Security as to any fact, if supported by substantial evidence,
shall be conclusive.”).
Put another way, a decision supported by
substantial evidence is not subject to reversal, even if the
reviewing court might arrive at a different conclusion.
Bowen, 800 F.2d 535, 545 (6th Cir. 1986).
Mullen v.
“Substantial evidence
exists when ‘a reasonable mind could accept the evidence as
adequate to support a conclusion [and] . . . presupposes that there
2
is a zone of choice within which the decision-makers can go either
way, without interference by the courts.’”
Blakley v. Comm’r of
Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (internal citation
omitted).
decision
Even if supported by substantial evidence, however, “‘a
of
the
Commissioner
will
not
be
upheld
where
the
[Commissioner] fails to follow its own regulations and where that
error prejudices a claimant on the merits or deprives the claimant
of a substantial right.’”
Rabbers v. Comm’r of Soc. Sec., 582 F.3d
647, 651 (6th Cir. 2009) (quoting Bowen v. Comm’r of Soc. Sec., 478
F.3d 742, 746 (6th Cir. 2007)).
II. Plaintiff’s Objections
A. General Objections
As
the
magistrate
judge
noted,
plaintiff’s
statement
of
specific errors addressed solely the ALJ’s assessment of her
psychological impairments. In addressing the issues raised by
plaintiff,
the
magistrate
judge
concluded
that:
(1)
the
ALJ
properly found that plaintiff’s psychological impairments did not
meet the requirements of Listing 12.04; (2) the ALJ’s observations
that plaintiff’s testimony concerning the severity of her symptoms
was not fully credible were supported by the record; (3) the ALJ
properly evaluated the opinion of Dr. Cindy Matyi, Ph.D., a state
agency consultant; and (4) the ALJ did not err in failing to obtain
an updated expert opinion evaluating whether plaintiff’s mental
impairments qualified under Listing 12.04.
In her objections to the report and recommendation, plaintiff
incorporates the arguments set forth in her statement of errors.
However, the report and recommendation advised the parties of the
need
to
file
“written
objections
3
to
those
specific
proposed
findings or recommendations to which objection is made, together
with supporting authority for the objections.” Doc. 16, p. 15. “A
litigant is required to file specific and timely objections to a
magistrate judge’s report and recommendation.”
Thomas v. Michigan
Family Independence Agency, 67 F.App’x 908, 909 (6th Cir. 2003).
A party who does not file specific objections after being advised
to do so waives his right to appeal.
Kissinger v. Comm’r of Soc.
Sec., 28 F.App’x 478 (6th Cir. 2002).
The objection must be clear
enough to enable the district court to discern issues that are
dispositive and contentious.
(6th Cir. 1995).
Miller v. Currie, 50 F.3d 373, 380
A summary reference to previous briefing is a
general objection to the report and recommendation which is not
sufficient to meet this standard.
Pope v. Comm’r of Soc. Sec., 229
F.3d 1153 (table), 2000 WL 1140712 at *1 (6th Cir. Aug. 7, 2000).
Plaintiff’s
only
specific
objection
to
the
report
and
recommendation addresses the magistrate judge’s findings that the
ALJ correctly concluded that plaintiff’s mental impairments did not
meet the requirements of Listing 12.04.
opinion of Dr. Matyi.
Plaintiff quotes from the
However, in doing so, plaintiff does not
specifically refer to the magistrate judge’s ruling on her earlier
argument that the ALJ drew inconsistent conclusions from Dr.
Matyi’s opinion.
Rather, she appears to be citing Dr. Matyi’s
opinion in support of her argument concerning Listing 12.04.
Therefore, the court will address only the specific objection
regarding the ALJ’s Listing 12.04 analysis.
B. Listing 12.04
As noted by the ALJ, to qualify for a disability finding under
Listing 12.04(B), the mental impairments must result in at least
4
two of the following: (1) marked restriction of activities of daily
living; (2) marked difficulties in maintaining social functioning;
(3) marked difficulties in maintaining concentration, persistence,
or pace; and (4) repeated episodes of decompensation, each of an
extended duration. PAGEID 79. A marked limitation means more than
moderate but less than extreme.
PAGEID 79.
Plaintiff argued in
her statement of errors that her mental impairments constituted
marked
restrictions
in
the
areas
of
social
maintaining concentration, persistence and pace.
functioning
and
The magistrate
judge noted that the ALJ found that plaintiff had only moderate
difficulties
in
these
areas,
and
concluded
that
the
ALJ’s
determinations were supported by substantial evidence. Doc. 16, p.
9.
This court agrees.
As
to
social
functioning,
the
ALJ
addressed
plaintiff’s
hearing testimony, at which she claimed to have difficulty around
others and panic attacks.
PAGEID 80.
However, the ALJ found that
plaintiff’s testimony was not credible to the extent that it was
not consistent with the RFC.
PAGEID 83.
He noted that plaintiff
was able to go to the store with her sister-in-law, that she
attended doctor’s appointments on a regular basis, that plaintiff
reported talking with others on a daily basis and regularly
interacting with family.
PAGEID 80.
The ALJ also observed that
plaintiff was cooperative during mental status examinations and had
been observed interacting appropriately with others in a normal
manner. PAGEID 80. The ALJ took plaintiff’s moderate difficulties
with social interaction noted in the medical records into account
in formulating an RFC which required that plaintiff have no
interaction
with
the
public
and
5
only
brief
and
superficial
interaction with coworkers.
that
plaintiff
had
only
PAGEID 93.
moderate
The ALJ’s determination
difficulties
with
social
functioning is supported by substantial evidence in the record.
In regard to the issue of concentration, persistence or pace,
the ALJ noted that plaintiff is able to follow instructions, pay
bills, watch television, handle money, and care for her fifteenyear-old daughter and pets.
PAGEID 80.
The ALJ further observed
that mental status examinations revealed intact memory, attention,
and concentration, and that plaintiff had demonstrated consistently
coherent and concrete thought processes.
PAGEID 80.
In his RFC,
the ALJ limited plaintiff to simple, routine, and repetitive tasks
to
accommodate
her
moderate
persistence and pace.
deficiencies
in
concentration,
The magistrate judge concluded that the
ALJ’s findings that plaintiff’s limitations in this area did not
satisfy Listing 12.04 were supported by substantial evidence. Doc.
16, p. 9.
Plaintiff argues generally in her objections that the ALJ’s
conclusion that plaintiff does not satisfy the requirements of
Listing
12.04
is
treatment record[.]”
contrary
to
her
Doc. 17, p. 1.
“longitudinal
psychiatric
However, she does not cite to
specific parts of that record which support this argument.
regard
to
social
functioning
and
maintaining
In
concentration,
persistence and pace, plaintiff argues that the fact that she may
function reasonably well in treatment does not indicate that she
would be able to withstand the demands and pressures of a lowstress job.
She notes Dr. Matyi’s statement that plaintiff
“becomes flustered in the fact of perceived stressors” and has
“difficulties
with
sustainability,
6
adaptation,
and
social
interactions.”
Doc. 17, p. 2.
The ALJ thoroughly summarized plaintiff’s treatment history,
and his conclusions regarding plaintiff’s failure to satisfy the
requirements of Listing 12.04 are supported by the record.
In
regard to the issue of social functioning, for example, the ALJ
summarized
the
report
concerning
the
September
26,
2011,
consultative examination of plaintiff by Sudhir Dubey, Psy. D., in
which it was noted that plaintiff showed no anxiety or distress,
interacted appropriately, and talked to others in the waiting area.
PAGEID 88.
This refutes plaintiff’s claim that she was only
capable of socially interacting with family at home.
Dr. Matyi
opined that plaintiff was capable of performing in a setting which
entailed minimal interaction and could relate adequately on a
superficial basis.
plaintiff
The ALJ also noted Dr. Matyi’s opinion that
could
instructions,
carry
that
she
out
could
simple
maintain
and
occasional
attention,
make
complex
simple
decisions and adequately adhere to a schedule, and that she could
adapt to a setting in which duties are routine and predictable,
with changes being well-explained and introduced slowly.
96.
also
PAGEID
As the magistrate judge observed, Doc. 16, p. 9, Dr. Dubey
concluded
that
plaintiff
could
maintain
sufficient
concentration and attention to perform simple work tasks.
The ALJ
took the above evidence into account in formulating plaintiff’s
RFC, which restricted her to simple, routine, and repetitive tasks
with no interaction with the public and only occasional brief and
superficial interaction with coworkers.
Plaintiff also argues that her inability to cope with the
stresses of employment is supported by her termination from a part-
7
time job with the Department of Job and Family Services, which
involved preparing documents for shredding in an office with five
other employees.
The Commissioner notes in response that because
this job involved more than minimal interaction with others, it
would
not
fall
Commissioner
within
further
the
RFC
observes
formulated
that
there
by
is
the
ALJ.
The
evidence
that
plaintiff’s termination from that job was due to her arrest on an
outstanding warrant, which resulted in missed work. Doc. 18, p. 4.
The court concludes that plaintiff’s termination from this former
job does not establish that she would be incapable of performing
work within the bounds of the RFC.
The magistrate judge correctly found that the ALJ’s decision
that plaintiff did not meet the requirements of Listing 12.04 was
supported by substantial evidence.
III. Conclusion
Having reviewed the record de novo, the court determines that
there is substantial evidence supporting the ALJ’s determination
that plaintiff is not disabled, as defined in the Social Security
Act.
The court hereby adopts and affirms the magistrate judge’s
report and recommendation (Doc. 16).
17) are denied.
Plaintiff’s objections (Doc.
The Commissioner’s decision is affirmed, and this
action is dismissed. Pursuant to Sentence Four of 42 U.S.C. §
405(g), the clerk shall enter final judgment affirming the decision
of the Commissioner and dismissing this action.
Date: December 29, 2015
s/James L. Graham
James L. Graham
United States District Judge
8
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