Blais v. Commissioner of Social Security
REPORT AND RECOMMENDATION re 3 Complaint: The Magistrate Judge RECOMMENDS that the Court OVERRULE Plaintiff's Statement of Errors & AFFIRM the Commissioner of Social Security's decision. Objections to R&R due by 2/21/2017. Signed by Magistrate Judge Elizabeth Preston Deavers on 2/6/2017. (er)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
MARIE ELIZABETH BLAIS,
Civil Action 2:15-cv-3038
Judge George C. Smith
Magistrate Judge Elizabeth P. Deavers
COMMISSIONER OF SOCIAL SECURITY,
REPORT AND RECOMMENDATION
Plaintiff, Marie Elizabeth Blais, brings this action under 42 U.S.C. §§ 405(g) and
1383(c)(3) for review of a final decision of the Commissioner of Social Security
(“Commissioner”) denying her application for Supplemental Security Income. This matter is
before the United States Magistrate Judge for a Report and Recommendation on Plaintiff’s
Statement of Errors (ECF No. 12), the Commissioner’s Memorandum in Opposition (ECF No.
15), and the administrative record (ECF No. 9). For the reasons that follow, it is
RECOMMENDED that the Court OVERRULE Plaintiff’s Statement of Errors and AFFIRM
the Commissioner’s decision.
Plaintiff protectively filed her application for benefits in February 2012, alleging that she
has been disabled since October 6, 2007 due to fibromyalgia, chronic fatigue, depression, and
trigyminal. (R. at 182-87, 205.) Plaintiff’s application was denied initially and upon
reconsideration. Plaintiff sought a de novo hearing before an administrative law judge.
Administrative Law Judge Ryan Glaze (“ALJ”) held a hearing on April 22, 2014, at which
Plaintiff, represented by counsel, appeared and testified. (R. at 90–101.) Jerry A.
Olsheski, Ph.D., a vocational expert, also appeared and testified at the hearing. (R. at 101-06.)
On June 1, 2014, the ALJ issued a decision finding that Plaintiff was not disabled within the
meaning of the Social Security Act. (R. at 58-77.) On September 24, 2015, the Appeals Council
denied Plaintiff’s request for review and adopted the ALJ’s decision as the Commissioner’s final
decision. (R. at 1–7.) Plaintiff then timely commenced the instant action.
Plaintiff testified at the administrative hearing that she is a college graduate with a degree
in hospitality and restaurant management. (R. at 90.) She indicated that resides with her mother,
in her mother’s home. (Id.) Plaintiff testified that she assisted her mother with caring for her
dogs and light household chores, such as doing small loads of laundry and preparing meals. (R.
at 91.) She drives but she does not own a vehicle. (R. at 92.)
Plaintiff testified that she last worked in 2007 doing part-time telephone work for a media
company. (R. at 92.) She indicated that she last held a full-time job in 1999. Prior to that
period of time, Plaintiff was married and was a stay-at-home mother. (R. at 92-93.) Plaintiff
represented that she left her job after being diagnosed with trigeminal neuralgia and fibromyalgia
because of the pain these conditions caused her. (R. at 93.) Plaintiff testified that she also
suffers from depression. Her symptoms include suicidal thinking without intent, daily crying
spells, and decreased energy. (R. at 94-95.) Plaintiff stated that her trigeminal neuralgia pain is
triggered by numerous things, including brushing her teeth, gargling, blow drying her hair,
walking outside in the wind, and sunlight. (R. at 95-96.)
Plaintiff testified that she experiences extreme trigeminal neuralgia pain on a daily basis.
(R. at 96.) She explained that when she engages in increased physical activity, such as assisting
her mother around the house, she experiences an exacerbation of her symptoms. This
exacerbation causes her to not be able to function twice a week. (Id.)
When questioned why she was wearing a brace on her right wrist, Plaintiff replied she
has tendinitis from overuse. (R. at 97.) She was unable to use her right hand for writing, holding
a utensil, and pinching due to pain that extended from her right thumb to her wrist. (Id.) She
identified her most comfortable position as sitting with her legs elevated. (Id.) She estimated
that she spent 80 percent of her day in this position. (R. at 98.) Plaintiff testified that she
exercises three times per day for five to ten minutes each, consisting of light stretching, band
exercises, and light weights. (Id.)
Her medication includes Gabapentin, with side effects of fatigue and drowsiness; and
Lithium, with side effects of a dry mouth, constipation, and hand tremors. (R. at 99.) She is
treated by her psychiatrist once per month and is treated by her mental health therapist once per
week. (R. at 100.)
Vocational Expert Testimony
Jerry A. Olsheski testified as the vocational expert (“VE”) at the administrative hearing.
(R. at 101-06.) The ALJ proposed a series of hypotheticals regarding Plaintiff’s residual
functional capacity (“RFC”) to the VE. (R. at 56-58.) Based on Plaintiff’s age, education, and
work experience and the RFC ultimately determined by the ALJ, the VE testified that Plaintiff
could perform light, unskilled jobs in the national economy, such as a hand packer with 275,000
nationally, mail clerk with 126,000 nationally or cleaner with 700,000 nationally. If the
exertional level is reduced to sedentary, the Plaintiff could perform unskilled jobs in the national
economy, such as an assembler with 500,000 nationally, production inspector with 75,000
nationally, or hand packager with 75,000 nationally. (R. at 56-57.)
The VE further testified that competitive work would be eliminated if the hypothetical
individual diverted her attention and focus away from instruction, production and safety for more
than 10% of the workday. (R. at 58.)
The sole issue in this case involves the opinions provided by the state agency
psychologists. In May 2012, after review of Plaintiff’s medical record, Vicki Warren, Ph.D., a
state agency psychologist, assessed Plaintiff’s mental condition. (R. at 109-18.) Dr. Warren
opined that Plaintiff was mildly restricted in her activities of daily living; mildly limited in
maintaining social functioning; and moderately limited in maintaining concentration, persistence,
or pace; with no episodes of decompensation of an extended duration. (R. at 114.) She further
determined that the evidence did not establish the presence of the “C” criteria. (Id.) Dr.
Warren found Plaintiff would be moderately limited in her ability to understand and remember
detailed instructions; to carry out detailed instructions; to maintain attention and concentration
for extended periods; to 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; and to respond appropriately to changes in the work setting.
(R. at 118-19.) Dr. Warren concluded that Plaintiff demonstrates overall moderate limitations
due to concentration, persistence, and pace. (R. at 118.) In February 2013, state agency
psychologist Karla Voyten, Ph.D., reviewed the file upon reconsideration and affirmed Dr.
Warren’s assessment. (R. at 122-37.) Both doctors opined that Plaintiff had mild limitations in
activities of daily living, mild limitations in social functioning, and moderate difficulties in
maintaining concentration, persistence, or pace. (R. at 114, 133.) The doctors also indicated that
Plaintiff retained the ability to perform simple, routine tasks and maintained good memory and
cognitive skills. (R. at 117-18, 136-37).
On June 18, 2014, the ALJ issued his decision. (R. at 58-77.) At step one of the
sequential evaluation process,1 the ALJ found that Plaintiff had not engaged in substantially
Social Security Regulations require ALJs to resolve a disability claim through a fivestep sequential evaluation of the evidence. See 20 C.F.R. § 416.920(a)(4). Although a
dispositive finding at any step terminates the ALJ’s review, see Colvin v. Barnhart, 475 F.3d
727, 730 (6th Cir. 2007), if fully considered, the sequential review considers and answers five
Is the claimant engaged in substantial gainful activity?
Does the claimant suffer from one or more severe impairments?
Do the claimant’s severe impairments, alone or in combination, meet or
equal the criteria of an impairment set forth in the Commissioner’s Listing of
Impairments, 20 C.F.R. Subpart P, Appendix 1?
Considering the claimant's residual functional capacity, can the claimant
perform his or her past relevant work?
Considering the claimant’s age, education, past work experience, and residual
functional capacity, can the claimant perform other work available in the national
See 20 C.F.R. § 416.920(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009);
gainful activity since February 21, 2012, the application date. (R. at 60.) The ALJ found that
Plaintiff had the following severe impairments: fibromyalgia, trigeminal neuralgia, obesity, and
a depressive disorder, not otherwise specified. (Id.) He further found that Plaintiff did not have
an impairment or combination of impairments that met or medically equaled one of the listed
impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 62.) At step four of
the sequential process, the ALJ set forth Plaintiff’s RFC as follows:
After careful consideration of the entire record, the undersigned finds that
[Plaintiff] has the residual functional capacity to perform light work as defined in
20 CFR 416.967(b), except that she can frequently stoop, kneel, crouch, and crawl
and occasionally climb ladders, ropes, and scaffolding. The claimant retains the
capacity to understand, remember, and carry out simple instructions. She can
make judgments on simple work tasks and respond appropriately to usual work
situations and changes in a routine work setting. She can respond appropriately to
superficial interaction with supervisors, coworkers, and the public on trivial
matters (e.g., dispensation and sharing of factual information that is not likely to
generate an adversarial setting).
(R. at 65-66.) The ALJ found Plaintiff’s statements concerning the intensity, persistence, and
limiting effects of her symptoms are not entirely credible. (R. at 67.) The ALJ determined that
Plaintiff experiences a moderate restriction in her ability to maintain concentration, persistence
and pace, specifically noting that Plaintiff’s pace for task completion was somewhat slow during
her consultative psychological evaluation with Dr. Swearingen. (R. at 64.) The ALJ assigned
“partial weight” to the State agency psychological opinions of Drs. Warren and Voyten,
explaining that the objective evidence of record documents a moderate limitation of social
functioning, that is more limiting than opined by State agency reviewers. (R. at 73.)
Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001).
Relying on the VE’s testimony, the ALJ concluded that Plaintiff can perform jobs that
exist in significant numbers in the national economy. (R. at 75-77.) He therefore concluded that
Plaintiff was not disabled under the Social Security Act. (R. at 77.)
STANDARD OF REVIEW
When reviewing a case under the Social Security Act, the Court “must affirm the
Commissioner’s decision if it ‘is supported by substantial evidence and was made pursuant to
proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009)
(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. §
405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial evidence is
defined as ‘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.’” Rogers, 486
F.3d at 241 (quoting Cutlip v. Sec’y of Health & Hum. Servs., 25 F.3d 284, 286 (6th Cir. 1994)).
Although the substantial evidence standard is deferential, it is not trivial. The Court must
“‘take into account whatever in the record fairly detracts from [the] weight’” of the
Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting
Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, “if substantial
evidence supports the ALJ’s decision, this Court defers to that finding ‘even if there is
substantial evidence in the record that would have supported an opposite conclusion.’” Blakley
v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir.
1997)). Finally, even if the ALJ’s decision meets the substantial evidence standard, “‘a decision
of the Commissioner will not be upheld where the SSA 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, 582 F.3d at 651 (quoting Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746
(6th Cir. 2007)).
In her Statement of Errors, Plaintiff asserts that the ALJ did not adequately explain
the weight he gave to the opinions of the state agency reviewing psychologists. (ECF No. 12 at
Pgs. 4-8). Relying on Ealy v. Commissioner of Social Security, 594 F.3d 504 (6th Cir. 2010),
Plaintiff contends that the ALJ failed to incorporate all of her mental health limitations,
specifically her ability to maintain concentration, persistence and pace, into the RFC. For the
reasons that follow, the Undersigned disagrees.
The ALJ gave only “partial” weight to the opinions of the state agency reviewing
psychologists, Vicki Warren, Ph.D., and Karla Voyten, Ph.D. Both doctors opined that Plaintiff
had mild limitations in activities of daily living, mild limitations in social functioning, and
moderate difficulties in maintaining concentration, persistence, or pace. (R. at 114, 133.) The
doctors also opined that Plaintiff retained the ability to perform simple, routine tasks and
maintained good memory and cognitive skills. (R. at 117-18, 136-37). The ALJ gave these
opinions only “partial” weight because the ALJ found the evidence supported additional
limitations in social functioning. (R. at 73.) The ALJ, therefore, concluded that Plaintiff had
greater limitations than those found by Drs. Warren and Voyten in social functioning.
Plaintiff argues that the ALJ ignored the findings of Drs. Warren and Voyten with regard
to their opinions that Plaintiff was moderately limited in concentration, persistence and pace and
failed to include this limitation in his RFC finding. A review of the ALJ’s decision reveals,
however, that the ALJ did not ignore Plaintiff’s difficulties with concentration, persistence, or
pace. In fact, as Plaintiff points out, the ALJ specifically considered her concentration and pace
limitations in evaluating the Paragraph B criteria in his earlier analysis. Here, the ALJ reviewed
all of the evidence, including the state agency reviewing psychologists’ opinions, and reasonably
concluded that Plaintiff retained “the capacity to understand, remember, and carry out simple
instructions . . . make judgments on simple work tasks and respond appropriately to usual work
situations and changes in a routine work setting.” (R. at 66.) This conclusion is supported by
Dr. Warren and Dr. Voyten opined that Plaintiff had moderate limitations in certain areas,
such as her ability to maintain attention and concentration for extended periods. Nevertheless,
their ultimate conclusion was that, despite these moderate limitations, Plaintiff retained the
ability to perform simple, routine tasks. The ALJ adopted these limitations into his RFC finding.
Plaintiff surmises that the ALJ limited her to simple, routine tasks solely because
the state agency physicians found that she had moderate limitations in maintaining concentration,
persistence, or pace. This conclusion, however, is based on speculation. The ALJ considered the
fact that the state agency psychologists’ concluded that Plaintiff had moderate limitations in
concentration, persistence, or pace, but also looked to Plaintiff’s activities of daily living,
consultative exams, and treatment notes from counseling sessions to form his RFC
Plaintiff relies on Ealy v. Comm’r of Soc. Sec., 594 F.3d 504 (6th Cir. 2010), to argue that
the ALJ’s RFC failed to account for the moderate limitations in concentration, persistence, or
pace. Plaintiff contends that Ealy stands for the proposition that limiting a claimant to simple,
repetitive tasks and instructions does not properly account for a claimant’s moderate limitations
in concentration, persistence, or pace. The Undersigned finds this contention of error to be
A plaintiff’s RFC “is defined as the most a [plaintiff] can still do despite the physical and
mental limitations resulting from her impairments.” Poe v. Comm’r of Soc. Sec., 342 F. App’x
149, 155 (6th Cir. 2009); see also 20 C.F.R. §§ 404.1545(a), 416.945(a). The determination of
RFC is an issue reserved to the Commissioner. 20 C.F.R. §§ 404.1527(e), 416.927(e).
Here, the Undersigned finds that substantial evidence demonstrates that the ALJ’s RFC
adequately accounted for all of the limitations he found credible. Ealy, the case upon which
Plaintiff relies, is distinguishable. On this point, Smith-Johnson v. Comm’r of Soc. Sec., 579 F.
App’x 426 (6th Cir. 2014), is instructive. The Smith-Johnson Court analyzed the argument
Plaintiff advances here:
Smith–Johnson’s first challenge concerns her concentration, persistence,
or pace. She relies on Ealy, 594 F.3d 504, to support her argument that more
specific limitations should have been included in the hypothetical to the VE. Yet,
Ealy is distinguishable from this case. In Ealy, the claimant’s doctor limited him
to “simple, repetitive tasks [for] [two-hour] segments over an eight-hour day
where speed was not critical.” Ealy, 594 F.3d at 516. In that RFC assessment,
however, the ALJ included only a limitation to “simple repetitive tasks and
instructions in nonpublic work settings.” Id. That RFC finding was included in
the hypothetical to the VE. Id. This court held that the RFC assessment and the
hypothetical did not adequately reflect the claimant’s limitations because it
truncated the doctor’s specific restrictions. Id.
Here, the limitation to simple, routine, and repetitive tasks adequately
conveys Smith–Johnson’s moderately-limited ability “to maintain attention and
concentration for extended periods.” Unlike in Ealy, Dr. Kriauciunas did not
place any concrete functional limitations on her abilities to maintain attention,
concentration, or pace when performing simple, repetitive, or routine tasks.
Instead, Dr. Kriauciunas plainly determined that Smith–Johnson could perform
simple tasks on a “sustained basis,” even considering her moderate limitations in
maintaining concentration and persistence for “extended periods.” In other
words, the limitation to simple tasks portrays the tasks that she can perform
without being affected by her moderate limitations. The ALJ thus did not fail to
include a restriction on her ability to maintain concentration, persistence, or pace
while performing simple tasks, and he further reduced the required attention and
concentration by restricting her to routine and repetitive tasks.
579 F. App’x at 436–37. Here, Drs. Warren and Voyten, like Dr. Kriauciumas in Smith-Johnson,
did not place functional limitations on Plaintiff’s ability to maintain pace when performing
simple, repetitive, or routine tasks. Given that the ALJ did not find that Plaintiff had nonexertional limitations greater than those set forth by Drs. Warren and Voyten, and Plaintiff has
pointed to no evidence in the record supporting more restrictive limitations, Ealy does not
undermine the Undersigned’s conclusion that substantial evidence supports the ALJ’s RFC
determination. Accordingly, Plaintiff’s sole contention of error lacks merit.
In sum, from a review of the record as a whole, the Undersigned concludes that
substantial evidence supports the ALJ’s decision denying benefits. Accordingly, it is
RECOMMENDED that the Court OVERRULE Plaintiff’s Statement of Errors and AFFIRM
the Commissioner of Social Security’s decision.
PROCEDURE ON OBJECTIONS
If any party seeks review by the District Judge of this Report and Recommendation, that
party may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District Judge and
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation). Even when timely objections are filed,
appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d
981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to
specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation
Date: February 6, 2017
/s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge
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