Throckmorton v. Commissioner of Social Security

Filing 19

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
EASTERN DIVISION
Karen Throckmorton,

:

Plaintiff,

:

v.

:
:

Commissioner of Social
Security,
Defendant.

Case No. 2:15-cv-2772
JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp

:
REPORT AND RECOMMENDATION
I.

Introduction

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.

Both alleged

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
review.
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.
II.

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
record.
Plaintiff was first asked about her work history.

She said

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
years.

She was both a cook and a cashier, and did cleaning as

well.

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.

Plaintiff was

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.

She could

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 also

She had no hobbies

and did not belong to any organizations.
III.

The Medical Records

The pertinent medical records are found beginning at page
311 of the record and can be summarized as follows.
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The Court

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.
thinners then.
depression.

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
thrombosis.

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.

His

impression was a history of remote blood clot, a history of
scoliosis without neurological deficit, and depression.
Sethi believed Plaintiff could do medium work.

Dr.

(Tr. 564-66).

A consultative psychological evaluation was done by David
Bousquet, M.Ed.

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.
572-79).
There are a large number of treatment records from
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(Tr.

Southeast, Inc., relating to Plaintiff’s mental health
conditions.

Typically, they described her as having bipolar

disorder of moderate severity and a GAF of 50 (later increased to
55).

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
mood swings.

Her symptoms had worsened in the months prior to

the assessment.

Those symptoms improved with medication.

Later,

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
was stable.

(Tr. 590-711).

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
concurred.

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
instructions.

(Tr. 75-77).

Dr. Goldsmith, the second reviewer,

agreed with this assessment.
IV.

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
relevant work.

He said that the housekeeper job was unskilled
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and light, as was the fast-food worker job.

The self-serve

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
heights.

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
economies.

He confirmed that his testimony was consistent with

the Dictionary of Occupational Titles.
V.

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
onset date.

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

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disorder/diagnosis of bipolar disorder; anxiety disorder/
diagnosis of posttraumatic stress disorder; and diagnosis of
personality disorder.

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.

From a

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
assembly-line work.
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.

Consequently, the

ALJ decided that Plaintiff was not entitled to benefits.
VI.
Standard of Review.

Analysis

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.

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NLRB, 305 U.S. 197, 229 (1938)).
scintilla.'" Id.
Cir. 1976).

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.
1984).

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.

The

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.

Both

Given the

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.

Again,

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

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assessment.

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
evaluation.

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
treating counselor.

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

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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
record.

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.
VII.

Recommended Decision

Based on the above discussion, it is recommended that
judgment be entered in favor of the Commissioner and that this
case be dismissed.
VIII.

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
portions

of the report or specified proposed findings or

recommendations to which objection is made.

Upon proper

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
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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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