Rouse v. Commissioner of Social Security

Filing 17

REPORT AND RECOMMENDATION that the Plaintff's statement of errors be overruled and that judgment be entered in favor of the commissioner. Objections to R&R due by 1/31/2017. Signed by Magistrate Judge Terence P. Kemp on 1/17/2017. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Jennifer L. Rouse,

:

Plaintiff,

:

v.

:
:

Commissioner of Social
Security,
Defendant.

Case No. 2:16-cv-0223
JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp

:
REPORT AND RECOMMENDATION
I.

Introduction

Plaintiff, Jennifer L. Rouse, 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.

Those applications were filed on

April 4, 2012, and alleged that Plaintiff became disabled on
December 18, 1998.
After initial administrative denials of her claim,
Plaintiff was given a hearing before an Administrative Law Judge
on May 14, 2014.

In a decision dated September 26, 2014, the ALJ

denied benefits.

That became the Commissioner’s final decision

on January 14, 2016, when the Appeals Council denied review.
After Plaintiff filed this case, the Commissioner filed the
administrative record on May 11, 2016.

Plaintiff filed a

statement of errors on June 24, 2016, to which the Commissioner
responded on October 12, 2016.

Plaintiff filed a reply brief on

October 26, 2016, and the case is now ready to decide.
II.

Plaintiff’s Testimony at the Administrative Hearing

Plaintiff, who was 36 years old as of the date of the
hearing and who has a ninth grade education, testified as
follows.

Her testimony appears at pages 35-49 of the

administrative record.
Plaintiff was first asked about her work history.

She said

she had not worked in 2009 even though her earnings record showed
some self-employment income that year, and the topic was dropped
after the ALJ noted that she had no past relevant work for social
security purposes.
Next, Plaintiff was asked what conditions prevented her from
working.

She said that she was in constant pain from her neck

down to her back.

She had surgery in 2013 for a crushed

tailbone, but no other surgical treatment.
injections in her back, however.

Plaintiff was getting

She thought she could sit for

fifteen minutes to half an hour, stand for about the same period
of time, and walk half a block.

She could lift a gallon of milk.

Additionally, she wore a TENS unit and a wrist brace every day.
Plaintiff further testified that she lived in a house with
one other person.
often.

The house had stairs but she did not use them

She did no household chores other than sweeping out a

small bathroom and starting some meals.

She had numbness in her

right (dominant) hand which affected her ability to complete
chores.

Plaintiff did not sleep well due to pain, but she tried

not to nap during the day.

She used a heating pad on a regular

basis and usually sat in a recliner.
Counsel also asked Plaintiff about migraine headaches.

She

said she had them almost daily and that they could last for more
than a day.
as well.

She had been seeing a counselor for bipolar disorder

Plaintiff described issues relating to other people and

said she did not have friends to socialize with.

She also used

an inhaler for breathing problems (something she had done her
entire life), and the medication she took for migraines made her
sick.
III.

The Medical Records

The pertinent medical records are found beginning at page
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320 of the administrative record.

Since Plaintiff’s statement of

errors focuses only on Plaintiff’s mental impairments, the
Court’s summary of the evidence will do the same.
Plaintiff was seen at Jefferson Behavioral Health on June
20, 2012 for an intake interview.

Her diagnoses at that time

included Bipolar I disorder, chronic PTSD, and personality
disorder.
of 55.

Her current GAF was rated at 50, down from a past GAF

Treatment goals were stated as “to decrease anger and

depression - to stabilize mood.”

She complained of anger,

depression, and racing thoughts.

Her mood was depressed and

anxious and she had impaired concentration and memory.
seeing a counselor at that agency.

She began

(Tr. 457-68).

David Bousquet, M.Ed., performed a consultative
psychological evaluation on July 24, 2012.

Plaintiff said that

she had lost jobs in the past due to absenteeism, which she
attributed to mental health issues.

She had been in counseling

for most of her life but had been in treatment at Jefferson
Behavioral for only a month and had yet to see the psychiatrist.
She was not currently on medication.

Her symptoms included lack

of appetite, difficulty sleeping, nightmares, tearfulness, low
energy, and moodiness.

Her daily activities included cleaning,

cooking, doing laundry, taking care of animals, watching
television, and cooking.

Her mood was depressed and anxious at

times and she reported hearing voices.

Mr. Bousquet reached the

same diagnoses as Jefferson Behavioral Health had done, rated her
overall GAF at 45 (although her functional GAF was 55), and said
that her self-reported data appeared reliable.

He thought she

would have the ability to understand and carry out basic work
instructions but would have difficulties with maintaining
concentration, attention, persistence, and pace in a work
setting, difficulties in conforming to social expectations in a
work setting, and trouble coping with work stress.
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(Tr. 470-78).

Plaintiff’s family doctor referred her to Neurobehavioral
Medicine Consultants in St. Clairsville for an evaluation, which
was conducted on January 9, 2013.

The report from a certified

nurse practitioner indicated that Plaintiff reported anxiety,
irritability, and depression.

She had recently become more

distracted and had anger issues as well.

Plaintiff presented as

downcast and glum but her memory appeared intact.

Her GAF was

rated at 45 and she was counseled and given medication.
referral for further counseling was also made.

A

(Tr. 553-55).

When next seen, Plaintiff had been taking Abilify and reported
improvement in her symptoms.

(Tr. 557-58).

Progress notes from

April and May, 2013 showed that in April, Plaintiff’s symptoms
had worsened and that she appeared minimally communicative,
tense, anxious, and unhappy, but by May her symptoms were
slightly improved.

Her domestic skills were described as “intact

and unimpaired” and her family relations were normal.
her GAF score remained at 45.

(Tr. 566-71).

However,

She apparently

discontinued treatment with that provider and went back to
Jefferson Behavioral Health on July 31, 2013 after voluntarily
discontinuing her medication.

She reported essentially the same

symptoms as before and her GAF was rated at between 50 and 55.
It appears that she did not follow that assessment up with any
actual treatment.

(Tr. 683-97).

Finally, the records were reviewed by two state agency
psychologists.

The first, Dr. Finnerty, concluded that Plaintiff

had moderate limitations in the areas of maintaining attention
and concentration, completing a workday or work week without
interruption from psychologically-based symptoms, interacting
with others, and responding appropriately to changes in the work
setting.

He thought, however, that she could adapt to a static

setting without frequent changes, could work with others on an
infrequent and superficial basis, and could sustain simple
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repetitive tasks without fast pace.

(Tr. 61-63).

Great weight

was given to Mr. Bousquet’s evaluation at that stage of the
process.

(Tr. 74).

The subsequent reviewer, Dr. Goldsmith, did

not change any of Dr. Finnerty’s findings, noting that
Plaintiff’s symptoms had improved with recent treatment.
94-96).

(Tr.

Both opinions were rendered before the April and May

treatment notes from Neurobehavioral Medicine Consultants were
made.
IV.

The Vocational Evidence

No vocational expert testified at the administrative
hearing, but interrogatories were sent to a vocational expert,
Dr. Ostrowski.

He was given a single hypothetical question to

answer which described a person with the residual functional
capacity which the ALJ attributed to Plaintiff in the
administrative decision (see Section V below).

In response, he

identified the jobs of document preparer, ampule sealer, and
surveillance system monitor - all unskilled positions - that such
a person could do.

He also said that his answers did not

conflict with the Dictionary of Occupational Titles.

(Tr. 311-

13).
V.

The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 823 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 March 31, 2008.

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 degenerative disc disease at L4-S1 with spondylotic
spondylolisthesis and left radiculopathy, status post laminectomy

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and fusion; sciatica; cervical/thoracic/lumbar sprain/sprain;
intermittent cephalgia/migraine headaches/low pressure headaches;
mood disorder; bipolar disorder; diagnosis of major depressive
disorder; posttraumatic stress disorder; and diagnosis of a
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 sedentary
exertional level with a sit/stand option that permitted her to
change positions every thirty minutes without breaking task.

She

could do only minimal squatting and could not climb ladders,
ropes, or scaffolds, and could not be exposed to temperature
extremes or wet or humid conditions.

She could not be exposed to

workplace hazards and needed to work in a low stress environment
with no production line or assembly line type of pace, no
independent decision-making responsibilities, and minimal changes
in the daily work routine.

Finally, she could do only unskilled

work involving only routine and repetitive instructions and
should have no interaction with the general public and no more
than occasional interaction with co-workers and supervisors.
With these restrictions, the ALJ concluded that Plaintiff,
although she had no past relevant work, could work as a document
preparer, ampule sealer, or surveillance system monitor.

He also

found that those jobs existed in significant numbers in the
national economy.

Consequently, the ALJ decided that Plaintiff

was not entitled to benefits.
VI.

Plaintiff’s Statement of Errors

In her statement of errors, Plaintiff raises these issues:
(1) the ALJ’s formulation of Plaintiff’s mental residual
functional capacity was not supported by substantial evidence;

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and (2) the ALJ’s findings at step two of the sequential
evaluation process (severe impairments) were impermissibly vague,
rendering the ALJ’s decision essentially unreviewable.

These

issues are considered under the following legal standard.
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)).
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).
A.

The Step Two Findings

If Plaintiff is correct that the ALJ made an error at step
two and that a remand on that basis is required, it will not be
necessary to determine whether the ALJ’s mental residual

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functional capacity finding is supported by substantial evidence.
Therefore the Court will address this issue first.
This argument focuses on the ALJ’s discussion of severe,
non-severe, and non-medically determinable impairments.

The

parties both agree that placing an impairment into one of these
three categories has implications for the administrative
decision-making process.

Obviously, if an impairment is deemed

to be severe, the limitations arising from that impairment must
be factored into the ALJ’s residual functional capacity finding.
The same is true, however, for non-severe impairments.

20 C.F.R.

§404.1523 states that the ALJ must “consider the combined effect
of all of [a claimant’s] impairments without regard to whether
any such impairment, if considered separately, would be of
sufficient severity.”

See also Simpson v. Comm’r of Social

Security, 344 Fed.Appx. 181, 190-91 (6th Cir. Aug. 27, 2009).

On

the other hand, a claimed condition which is not “medically
determinable” need not be considered at all.

As stated in 20

C.F.R. §404.1527(a), an ALJ is only required to consider
impairments which “result from anatomical, physiological, or
psychological abnormalities which are demonstrable by medically
acceptable clinical and laboratory diagnostic techniques.”

The

mere statement of symptoms by a claimant cannot establish the
existence of a medically determinable impairment.

20 C.F.R.

§404.1508.
Here, in his step two analysis, the ALJ made the statement
that “all other impairments other than those enumerated above,
alleged and found in the record, are non-severe or not medically
determinable as they have been responsive to treatment, cause no
more than minimally vocationally relevant limitations, have not
lasted or are not expected to last at a ‘severe’ level for a
continuous period of 12 months or expected to result in death, or
have not been properly diagnosed by an acceptable medical source

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....”

(Tr. 11).

The ALJ then listed the conditions subject to

this analysis, including optic nerve edema, idiopathic in-cranial
hypertension, headache/possible seizure type activity, incidental
Chiari I malformation, abnormal uterine bleeding, asthma/upper
respiratory infections, remote diagnosis of pathological grief,
remote diagnosis of cannabis abuse, thoracolumbar
neuritis/radiculitis, myofasciitis/myositis/myofibrosis, possible
mild bilateral carpal tunnel syndrome, and possible peripheral
neuropathy, concluding that they were “considered not medically
determinable/not severe for purposes of this decision....”

Id.

Plaintiff argues that because it is not possible to determine
which of these impairments the ALJ placed in each category, it is
also impossible to know if he properly considered the non-severe
impairments - whichever ones those were - in arriving at his
residual functional capacity determination.
Although acknowledging that it can, in some cases, make a
difference whether any particular impairment is categorized as
non-severe or not medically determinable, the Commissioner argues
that it did not do so here.

Making what amounts to a harmless

error argument, the Commissioner notes that “Plaintiff has not
indicated in any way how any of the impairments that the ALJ did
not list as severe affected her functioning in any way” and “has
not shown how any of these impairments ... would have limited her
ability to do the work described in her RFC.”

Doc. 15, at 9.

In

her reply, Plaintiff essentially repeats her argument that the
ALJ erred, but does not identify any limitations which might have
arisen from any of these conditions, no matter how they were
categorized, which should have been factored into the residual
functional capacity analysis.
If the ALJ had resolved this issue in Plaintiff’s favor by
finding that all of the impairments he listed were medically
determinable but non-severe - which is the best result Plaintiff
could hope for were the case to be remanded - the key question
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would then be “whether the ALJ's decision not to find any
limitations arising from the condition in question is supported
by substantial evidence.”

See Rose v. Comm’r of Social Security,

2015 WL 6735313, *5 (S.D. Ohio Nov. 4, 2015), adopted and
affirmed 2015 WL 7779300 (S.D. Ohio Dec. 2, 2015).

Where, as

here, Plaintiff identifies no such limitations, and it is not
apparent that any exist, the error made by the ALJ is harmless.
It would certainly be better practice were an ALJ to say
explicitly which impairments are found to be non-severe and which
are found not to be medically determinable, but ordering a remand
for clarification of that question when the ALJ’s residual
functional capacity finding would not change would be an exercise
in futility.

Consequently, the Court finds that, while error

occurred here, it does not justify a remand.
B.

Mental Residual Functional Capacity

Plaintiff’s other argument is that the ALJ did not properly
determine her mental residual functional capacity.

The bulk of

her argument is directed to the ALJ’s decision to give no weight
to the assessment done by David Bousquet, the consultative
examiner.

The Commissioner concedes that the ALJ also made

errors in evaluating Mr. Bousquet’s report, but argues that these
errors did not ultimately affect the residual functional capacity
finding and that the ALJ’s decision on this issue is supported by
substantial evidence.
There is no treating source opinion here, so the ALJ was
tasked with reconciling the differences in the three opinions he
had - one from Mr. Bousquet and two from the state agency
reviewers - and deciding on a residual functional capacity
finding based on those opinions and the treatment records.

As

noted above, the treatment records are sparse, showing that
Plaintiff attended less than half a dozen counseling sessions in
total after her June, 2012 intake interview with Jefferson
Behavioral Health.

Those records are fairly consistent in terms
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of Plaintiff’s reported symptoms, but they do show periodic
improvement as well as periodic lapses into more serious
symptoms.

The ALJ described them as showing sporadic treatment

which appeared to be successful when Plaintiff complied with
recommendations, and that is a fair reading of the record.
Plaintiff’s main issue, though, is with how the ALJ discounted
Mr. Bousquet’s report.
The ALJ did not appear to recognize that Mr. Bousquet
assigned Plaintiff an overall GAF of 45, citing instead the
functional GAF score of 55.

He gave Mr. Bousquet’s opinions as

to functional capacity “no weight” for several reasons: the heavy
reliance on Plaintiff’s report of symptoms, the lack of
corroboration in treatment notes, the fact that she was not
taking medications at the time of the evaluation, the “vague”
nature of the opinions, and the weight given to the state agency
reviewers’ opinions, who clearly concluded that Plaintiff could
function in a work environment that had specific restrictions.
The ALJ did misstate the GAF score and to some extent relied
on that misstatement, saying that the score suggested only
moderate limitations (and, implicitly, that to the extent that
Mr. Bousquet found more serious limitations, his report was
internally inconsistent).

However, the ALJ said elsewhere in his

decision that he placed very little weight on GAF scores, so it
does not appear likely that this issue had much effect on his
decision about Mr. Bousquet’s opinion.

Plaintiff makes a cogent

argument that it is somewhat inconsistent for an ALJ to discount
a consultative examiner’s opinion because it is not specific as
to limitations when the Social Security Administration itself
discourages such specificity, but, on the other hand, as the
Commissioner points out, the state agency psychologists
apparently had little trouble interpreting Mr. Bousquet’s
opinions as to functionality, giving his report great weight and
finding that it supported various limitations on Plaintiff’s
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ability to function in the workplace.

The ALJ’s reliance on

those opinions cured any problem with his critique of the
specificity of Mr. Bousquet’s report.

Finally, the ALJ was

correct that the treatment history was sporadic and showed that
when Plaintiff actually followed through with either counseling
or medication, she got better.

He also discounted the

credibility of her testimony to some extent - a finding that is
not contested here - and that permitted him to give somewhat less
weight to a report that was based at least in part on selfreported symptoms (although almost all psychological reports rely
to some extent on the claimant’s report of symptoms, and that
cannot serve as the only basis for discounting such a report).
Taking all of these factors into account, and considering that
the ALJ was permitted to give less deference to Mr. Bousquet’s
opinion that an opinion from a treating source, see, e.g., Jones
v. Comm’r of Social Security, 336 F.3d 469, 477 (6th Cir. 2003),
the Court cannot find reversible error in the ALJ’s decision to
craft a mental residual functional capacity more in keeping with
the opinions of the state agency reviewers.

Consequently, this

statement of error also does not support a remand.
VII.

Recommended Decision

Based on the above discussion, it is recommended that the
Plaintiff’s statement of errors be overruled and that judgment be
entered in favor of the Commissioner.
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.
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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
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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