Throckmorton v. Commissioner of Social Security
REPORT AND RECOMMENDATION that judgment be entered in favor of the Commissioner and that this case be dismissed. Objections to R&R due by 1/26/2017. Signed by Magistrate Judge Terence P. Kemp on 1/12/2017. (agm)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
Commissioner of Social
Case No. 2:15-cv-2772
JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp
REPORT AND RECOMMENDATION
Plaintiff, Karen Throckmorton, filed this action seeking
review of a decision of the Commissioner of Social Security
denying her applications for disability insurance benefits and
supplemental security income.
The former application was filed
on July 10, 2012, and the latter on June 21, 2012.
that Plaintiff became disabled on January 1, 2011.
After initial administrative denials of her claim,
Plaintiff was given a video hearing before an Administrative Law
Judge on June 25, 2014.
ALJ denied benefits.
In a decision dated July 31, 2014, the
That became the Commissioner’s final
decision on July 31, 2015, when the Appeals Council denied
After Plaintiff filed this case, the Commissioner filed the
administrative record on April 8, 2016.
Plaintiff has not filed
a statement of errors but, at the Court’s direction (Doc. 17),
the Commissioner filed, on September 19, 2016, a brief in support
of the administrative decision.
Plaintiff did not reply to that
brief, so the case is now ready to decide.
Plaintiff’s Testimony at the Administrative Hearing
Plaintiff, who was 42 years old as of the date of the
hearing and who is a high school graduate, testified as follows.
Her testimony appears at pages 43-61 of the administrative
Plaintiff was first asked about her work history.
she had worked at a hotel as a housekeeper, but not for long, and
also tried to work at a Subway restaurant.
Before that, she was
a caregiver for people with either physical or mental
disabilities, and she had also worked at a McDonald’s for seven
She was both a cook and a cashier, and did cleaning as
Additionally, she worked at a Go-Mart as a cashier, stock
person, and deli attendant.
In terms of medical problems, Plaintiff testified that her
depression was the worst.
She was being treated for that
condition and saw both a doctor and a therapist.
also on blood-thinning medication for a blood clot in her leg.
She still had pain in her left leg and in both hips.
She saw her
treating physician on a yearly basis.
Plaintiff said that she could stand for fifteen minutes at a
time and could not bend forward all the way.
She could squat a
little bit and had no problems with her arms or hands.
lift ten pounds and could sit for fifteen minutes as well.
Additionally, Plaintiff could take care of her personal needs
without help and cooked for her children.
On a typical day, Plaintiff stayed at home unless she walked
her children to school.
She took care of three dogs, did dishes,
vacuumed, dusted, and did laundry.
She shopped for groceries on
a weekly basis and attended her son’s basketball games.
went to teacher meetings for her children.
She had no hobbies
and did not belong to any organizations.
The Medical Records
The pertinent medical records are found beginning at page
311 of the record and can be summarized as follows.
will summarize the most significant of those, focusing on records
which might support a claim that the ALJ did not properly
evaluate Plaintiff’s ability to do work-related activities for
the time period after her alleged onset date of January 1, 2011.
Many of the records relate to Plaintiff’s deep venous
thrombosis, which developed in 2010.
She was started on blood
At the time, she was also taking medication for
Dr. Sethi evaluated her for purposes of her
disability claim on November 5, 2012, and noted her history of
His physical examination showed her to have some
mild tenderness behind her left knee.
Her range of motion was
normal and he found no muscle weakness or atrophy.
impression was a history of remote blood clot, a history of
scoliosis without neurological deficit, and depression.
Sethi believed Plaintiff could do medium work.
A consultative psychological evaluation was done by David
His report, dated November 7, 2012, states that
Plaintiff was taking medication for depression but did not have a
consistent response to it.
She had appetite problems and found
herself frequently depressed and isolated.
emotional and had low energy.
She was very
Plaintiff also described symptoms
of anxiety when being around others and said she was distracted
by her thoughts and feelings.
Mr. Bousquet diagnosed a bipolar
disorder, PTSD, and personality disorder with dependent and
avoidant features, and rated her symptom GAF at 50 and her
functional GAF at 60.
He thought that she could understand job
instructions, would at times have problems maintaining attention
and concentration, would have problems at times relating to
others in the work setting, and would have difficulties
responding appropriately to workplace stress and pressure.
There are a large number of treatment records from
Southeast, Inc., relating to Plaintiff’s mental health
Typically, they described her as having bipolar
disorder of moderate severity and a GAF of 50 (later increased to
An assessment from 2013 indicated that Plaintiff had
depressive symptoms on a daily basis and that she reported
anxious/fearful thoughts, decreased sleep, difficulty
concentrating, excessive worry, fatigue, racing thoughts, and
Her symptoms had worsened in the months prior to
Those symptoms improved with medication.
she reported stress from an abusive relationship and indicated
that she was looking for work.
Although she reported panic
attacks after her 2014 hysterectomy, by March of that year she
was doing better and said those were well-controlled and her mood
Other than some records relating to
her treatment for a pulmonary embolism in 2014, there is no other
significant medical evidence.
State agency reviewers also expressed opinions about
Plaintiff’s residual functional capacity.
On November 7, 2012,
Dr. Torello stated that Plaintiff could do a range of light work
with some restrictions (Tr. 73-74), and Dr. Perencevich later
Similarly, on November 8, 2012, Dr. Rudy said that
Plaintiff could work in an environment with only occasional
changes in duties and no demands for fast pace, could interact
superficially with others, and could carry out simple
Dr. Goldsmith, the second reviewer,
agreed with this assessment.
The Vocational Testimony
Dr. Ostrowski was called to testify as a vocational expert
at the administrative hearing.
His testimony begins at page 61
of the administrative record.
Dr. Ostrowski first testified about Plaintiff’s past
He said that the housekeeper job was unskilled
and light, as was the fast-food worker job.
station attendant job was also light but semi-skilled, and the
home attendant job was medium and semi-skilled.
Next, Dr. Ostrowski was asked some questions about someone
with Plaintiff’s background and who could work at the light
exertional level but could not climb ladders, ropes, or
scaffolds, and could climb ramps and stairs only occasionally.
Also, the person could stoop occasionally and had to avoid
exposure to hazards like moving machinery and unprotected
From a mental standpoint, the person could do simple,
routine, unskilled work with only occasional interaction with
supervisors, co-workers, and the public, and with no rapid
production quotas or assembly-line work.
Dr. Ostrowski said that
someone with those restrictions could do Plaintiff’s past job as
a housekeeper cleaner, and could also work as a storage facility
rental clerk, marker, or mail clerk.
Dr. Ostrowski gave the
numbers for those jobs which exist in the local and national
He confirmed that his testimony was consistent with
the Dictionary of Occupational Titles.
The Administrative Law Judge’s Decision
The Administrative Law Judge’s decision appears at pages 1729 of the administrative record.
The important findings in that
decision are as follows.
The Administrative Law Judge found, first, that Plaintiff
met the insured status requirements of the Social Security Act
through December 31, 2015.
Second, he found that Plaintiff had
not engaged in substantial gainful activity since her alleged
Going to the next step of the sequential evaluation
process, the ALJ concluded that Plaintiff had severe impairments
including history of a remote blood clot in the left iliac vein
status post stent placement and embolectomy in May 2010; history
of pulmonary embolism in January, 2014; major depressive
disorder/diagnosis of bipolar disorder; anxiety disorder/
diagnosis of posttraumatic stress disorder; and diagnosis of
The ALJ also found that these impairments
did not, at any time, meet or equal the requirements of any
section of the Listing of Impairments (20 C.F.R. Part 404,
Subpart P, Appendix 1).
Moving to the next step of the sequential evaluation
process, the ALJ found that Plaintiff could work at the light
exertional level but could not climb ladders, ropes, or
scaffolds, and could climb ramps and stairs only occasionally.
Also, she could stoop occasionally and had to avoid exposure to
hazards like moving machinery and unprotected heights.
mental standpoint, Plaintiff could do simple, routine, unskilled
work with only occasional interaction with supervisors, coworkers, and the public, and with no rapid production quotas or
With these restrictions, the ALJ concluded that Plaintiff
could not do any of her past relevant work, finding that although
she could work as a housekeeper cleaner, she had not done that
job long enough for it to qualify as past relevant work.
However, based on the vocational testimony, the ALJ found that
she could do a significant number of light jobs including storage
facility rental clerk, marker, or mail clerk.
ALJ decided that Plaintiff was not entitled to benefits.
Standard of Review.
Under the provisions of 42 U.S.C.
Section 405(g), "[t]he findings of the Secretary [now the
Commissioner] as to any fact, if supported by substantial
evidence, shall be conclusive. . . ."
Substantial evidence is
"'such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion'"
Richardson v. Perales, 402
U.S. 389, 401 (1971) (quoting Consolidated Edison Company v.
NLRB, 305 U.S. 197, 229 (1938)).
It is "'more than a mere
LeMaster v. Weinberger, 533 F.2d 337, 339 (6th
The Commissioner's findings of fact must be based
upon the record as a whole.
Harris v. Heckler, 756 F.2d 431, 435
(6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366 (6th
Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir.
In determining whether the Commissioner's decision is
supported by substantial evidence, the Court must "'take into
account whatever in the record fairly detracts from its weight.'"
Beavers v. Secretary of Health, Education and Welfare, 577 F.2d
383, 387 (6th Cir. 1978) (quoting Universal Camera Corp. v. NLRB,
340 U.S. 474, 488 (1951)); Wages v. Secretary of Health and Human
Services, 755 F.2d 495, 497 (6th Cir. 1985).
Even if this Court
would reach contrary conclusions of fact, the Commissioner's
decision must be affirmed so long as that determination is
supported by substantial evidence.
Kinsella v. Schweiker, 708
F.2d 1058, 1059 (6th Cir. 1983).
The Commissioner’s brief argues that the ALJ reasonably
evaluated both Plaintiff’s physical and mental limitations.
ALJ found no ongoing problems from the 2010 blood clot or any
significant physical limitations from the 2014 embolism.
were short-term problems and were treated adequately.
medical evidence, that is a reasonable conclusion to reach.
As far as other physical conditions are concerned, the
Commissioner notes that Dr. Sethi found, on the basis of his
examination, that Plaintiff could do medium work, but that the
ALJ resolved the issue in favor of the opinions of the state
agency reviewers, who limited Plaintiff to light work.
there is no contrary evidence from any treating source, and in
the absence of such evidence, the ALJ was entitled to rely on the
state agency physicians’ opinions, which were consistent with the
medical evidence and more favorable to Plaintiff than Dr. Sethi’s
These were all reasonable conclusions.
As to Plaintiff’s mental impairments, which she testified
were the more severe ones preventing her from working, the
Commissioner notes that, again, there is no opinion evidence on
the issue of Plaintiff’s mental abilities other than those
expressed by Mr. Bousquet, the consultative examiner, and the two
state agency reviewers, both of whom had the benefit of his
A reasonable person could conclude, from a review of
these opinions, that Plaintiff could work although she had some
psychological limitations which affected her ability to deal with
a high-stress work environment or more than occasional
interaction with others in the workplace.
The ALJ did not ignore the evidence from Plaintiff’s
He noted that the records from Southeast,
Inc., showed that Plaintiff’s symptoms were fairly well
controlled with medication and that her symptoms increased in
response to situational stress, after which they improved again.
He also pointed out that Mr. Bousquet rated her functional GAF at
60 which indicates limitations of only mild to moderate severity.
Finally, as required, the ALJ considered Plaintiff’s activities
of daily living and correctly observed that she could care for
herself, do household chores, care for her children and animals,
go shopping, and attend school events.
He thought that these
activities were not necessarily supportive of a claim of
disabling mental symptoms, and a reasonable person could have
reached that conclusion also.
Lastly, the ALJ had, in the record, testimony from a
vocational expert that someone of Plaintiff’s background and with
her physical and psychological limitations could still work.
Again, he was entitled to rely on that testimony since it was not
contradicted by any other evidence.
It is important to note that, when reviewing a decision like
the one made by the ALJ in this case, this Court does not “try
the case de novo, resolve conflicts in evidence, or decide
questions of credibility.”
(6th Cir. 2007).
Bass v. McMahon, 499 F.3d 506, 509
It can review the ALJ’s decision to make sure
that the law was properly followed - which it was in this case and to see if there is enough credible evidence to support the
conclusions reached by the ALJ.
That standard is satisfied here,
since the ALJ essentially relied on both medical and vocational
evidence that was not contradicted by anything else in the
Under those circumstances, there is no basis on which
the Court can either reverse the ALJ’s decision or remand the
case for further proceedings.
Consequently, the ALJ’s decision
should be affirmed.
Based on the above discussion, it is recommended that
judgment be entered in favor of the Commissioner and that this
case be dismissed.
Procedure on Objections
If any party objects to this Report and Recommendation,
that party may, within fourteen (14) days of the date of this
Report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection
is made, together with supporting authority for the objection(s).
A judge of this Court shall make a de novo determination of those
of the report or specified proposed findings or
recommendations to which objection is made.
objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.
28 U.S.C. §636(b)(1).
The parties are specifically advised that failure to
object to the Report and Recommendation will result in a
waiver of the right to have the district judge review the
Report and Recommendation de novo, and also operates as a
waiver of the right to appeal the decision of the District
Court adopting the Report and Recommendation.
See Thomas v.
Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d
947 (6th Cir. 1981).
/s/ Terence P. Kemp
United States Magistrate Judge
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