Connell v. Commissioner of Social Security

Filing 21

OPINION AND ORDER adopting Report and Recommendations re 19 Report and Recommendations. Signed by Judge James L. Graham on 3/12/2018. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Sandra D. Connell,
Plaintiff,
v.

Case No. 2:17-cv-82

Commissioner of
Social Security,
Defendant.
OPINION AND ORDER
Plaintiff Sandra D. Connell 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 applications for
disability insurance benefits and supplemental security income. In
a decision dated October 23, 2015, the administrative law judge
(“ALJ”) found that plaintiff had severe impairments consisting of
obesity, degenerative joint disease in both knees, obstructive
sleep apnea, and generalized anxiety disorder.

PAGEID 106.

After

considering the entire record, the ALJ found that plaintiff’s
residual functional capacity (“RFC”) would permit her to perform
sedentary work with no balancing, kneeling, crawling or climbing
ladders, ropes or scaffolds; only occasional stooping, crouching
and climbing ramps and stairs; and no exposure to dangerous
machinery

and

unprotected

heights.

The

RFC

further

limited

plaintiff to work with simple, routine, and repetitive tasks, and
only occasional interaction with the public and coworkers.
109.

PAGEID

The ALJ stated, “In making this finding, I have considered

all symptoms and the extent to which these symptoms can reasonably
be accepted as consistent with the objective medical evidence and
other evidence[.]” PAGEID 110. After considering the testimony of

a vocational expert, the ALJ decided that there were jobs which
plaintiff could perform and that plaintiff was not disabled.
PAGEID 115-16.
This

matter

is

before

the

court

for

consideration

of

plaintiff’s February 19, 2018, objections to the February 6, 2018,
report and recommendation of the magistrate judge recommending that
the decision of the Commissioner be affirmed.
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.

Even if supported by

substantial evidence, however, “‘a decision of the Commissioner

2

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. Objections
A. Step Two Analysis
Plaintiff argues that the ALJ erred in not finding during the
step two analysis that her migraine headaches constituted a severe
impairment.

At step two of the five-step analysis set forth in 20

C.F.R. §404.1520(a)(4), the ALJ must determine whether the claimant
has a severe impairment.

20 C.F.R. §404.1520(a)(4)(ii).

A severe

impairment is “any impairment or combination of impairments which
significantly limits your physical or mental ability to do basic
work activities,” 20 C.F.R. §§404.1520(c), 416.920(c), and which
lasts or can be expected to last “for a continuous period of not
less than 12 months.”
the

burden

of

42 U.S.C. §423(d)(1)(A).

proving

the

existence

of

a

Plaintiff bears

severe,

medically

determinable impairment that meets the twelve-month durational
requirement.
Cir. 2003).

Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th
A

severe

impairment

is established by medical

evidence consisting of signs, symptoms, and laboratory findings,
not just by a claimant’s statement of symptoms.

Griffith v.

Comm’r, 582 F. App’x 555, 559 (6th Cir. 2014)(citing 20 C.F.R.
§416.908). A “symptom” consists of a claimant’s description of the
alleged impairment.

20 C.F.R. §404.1528(a).

At step two of the

evaluation process, no symptom or combination of symptoms by itself
can constitute a medically determinable impairment.

3

SSR 96-4p.

1996 WL 374187 at *2 (July 2, 1996)(“Symptoms, such as pain, ...
will not be found to affect an individual’s ability to do basic
work

activities

unless

the

individual

first

establishes

by

objective medical evidence (i.e., signs and laboratory findings)
that

he

or

she

impairment(s)

and

has

a

that

medically
the

determinable

impairment(s)

could

expected to produce the alleged symptom(s).”).

physical
reasonably

...
be

Further, the ALJ

need not find credible a claimant’s subjective complaints or
medical assessments which are not supported by the medical evidence
or the record as a whole.

Walters v. Comm’r of Soc. Sec., 127 F.3d

525, 531 (6th Cir. 1997).
Plaintiff argues that the ALJ erred in ignoring her hearing
testimony that she was still having migraine headaches four to five
times per week even with medication.

She contends that the ALJ

should have found her migraine headaches to be a severe impairment.
In his decision, the ALJ did acknowledge plaintiff’s hearing
testimony that she experiences daily migraines, four to five a week
on average, and that when this occurs, she has to go lie down for
hours in a dark room and wait until the headache subsides.

He also

noted that plaintiff completed a log documenting the frequency of
her headaches.

PAGEID 107.

plaintiff’s testimony.

Thus, the ALJ obviously considered

However, for several reasons outlined in

the decision, the ALJ concluded, “I find this condition nonsevere
as it causes no more than a minimal effect on the claimant’s
ability to do basic work activities.”

PAGEID 108; see also PAGEID

107 (finding, as to plaintiff’s hypertension and migraine headaches
that

“[m]edical

and

other

evidence

establish

that

these

impairment(s) cause(s) only sight abnormality (or a combination of

4

slight abnormalities) that have no more than a minimal effect on
the

claimant’s

ability

to

do

basic

work

activities.”)

The

magistrate judge correctly concluded that substantial evidence in
the record supported this finding.
First, the ALJ stated that plaintiff’s “course of treatment”
did not support her allegations of frequent disabling headaches.
The ALJ summarized the records of Bryan Bjornstad, M.D., a treating
neurologist who evaluated plaintiff in August, 2013, for headaches.
The ALJ noted that: no physical abnormalities were detected upon
neurological examination; that CPAP titration improved plaintiff’s
sleep

apnea,

a

possible

cause

of

her

headaches;

and

that

plaintiff’s condition improved after the dosage of her prescription
for Nortriptyline was increased.

PAGEID 107-08.

In her review of

the record, the magistrate judge also noted: that Dr. Bjornstad’s
findings that imaging results from 2010, when plaintiff was still
working, were largely unremarkable and that no updated imaging was
necessary; that plaintiff was not always compliant with prescribed
medication and waited much longer between her appointments than Dr.
Bjornstad recommended; that the state agency reviewing physicians,
Gerald Klyop, M.D., and William Bolz, M.D., did not identify
plaintiff’s migraines as a medically determinable impairment and
concluded that plaintiff was not credible, see Exhibits 5A (January
8, 2014, report of Dr. Klyop) and 10A (March 31, 2014, report of
Dr. Bolz); and that plaintiff’s treating physician, Dr. Jeffrey
Haggenjos, D.O., did not identify headaches as an impairment that
limited plaintiff’s ability to work in either of his opinions.
Doc. 19, p. 10.
Second,

the

ALJ

concluded

5

that

plaintiff’s

statements

concerning the intensity, persistence and limiting effects of her
symptoms were not entirely credible.1

The ALJ observed that: 1)

plaintiff’s hearing testimony concerning having to get out of the
car and stretch while traveling to the hearing conflicted with the
testimony of plaintiff’s boyfriend, who stated they drove straight
through; 2) plaintiff’s receipt of unemployment benefits after her
alleged disability onset date conflicted with her disability claim,
as receipt of those benefits would have required her to agree that
she was ready, willing and able to work; 3) plaintiff’s daily
activities (including preparing meals, cleaning, sweeping and
dusting, shopping, taking public transportation, paying bills,
maintaining a residence, personal care and grooming, and going to
visit a friend) were not limited to the extent one would expect
based on her complaints; and 4) plaintiff’s alleged symptoms were
“not

consistent

entirety.”

with

the

objective

medical

evidence

in

its

PAGEID 108, 112-114.

For the first time in her objections, plaintiff argues that
the ALJ erred in relying on the lack of objective medical evidence
of her migraine headaches in the medical records, citing BlevinsBryant v. Colvin, No. 3:14-cv-237, 2015 WL 4498573 (S.D. Ohio July
23, 2015).

Because plaintiff did not make this argument in her

statement of errors before the magistrate judge, she has waived it.

1

At the time of the ALJ’s decision, SSR 96-7p, 1996 WL
374186 (July 2, 1996) directed the ALJ to assess the credibility
of plaintiff’s statements concerning her symptoms. That ruling
was later superseded by SSR 16-3p, 2016 WL 1119029, at *7 (Mar.
16, 2016), which directs the ALJ to look at whether the
claimant’s statements about the intensity, persistence and
limiting effects of symptoms are consistent with the objective
medical evidence and other evidence of record. The ALJ’s
analysis in this case passes muster under either ruling.
6

See Swain v. Comm’r of Soc. Sec., 379 F. App’x 512, 517-18 (6th
Cir. 2010).
Even assuming that this argument is not waived, this court is
not persuaded that the reasoning in Blevins-Bryant requires the
reversal of the ALJ’s decision in this case.

The magistrate judge

in that case noted that pain can be severe and disabling even in
the

absence

of

objective

medical

findings,

and

that

the

pathophysiology of migraine headaches is not yet fully understood.
2015 WL 4498573 at *4-5.

The Sixth Circuit has recognized that

subjective complaints of pain may support a claim for disability,
see Wyatt v. Sec’y of Health & Human Servs., 974 F.2d 680, 686 (6th
Cir. 1992), particularly in the case of fibromyalgia, see Rogers,
486 F.3d at 247.

However, the Sixth Circuit has affirmed the

denial of benefits in cases involving complaints of migraine pain
which were unsupported by objective medical evidence.

See Long v.

Comm’r of Soc. Sec., 56 F. App’x 213, 214 (6th Cir. 2003)(ALJ
affirmed where medical records included a diagnosis of migraines
which allegedly occurred several times a week, but brain scans and
other tests were normal and there was a lack of objective evidence
substantiating the allegedly disabling headaches); McCormick v.
Sec’y of Health & Human Servs., 861 F.2d 998, 1002 (6th Cir.
1988)(denial of benefits affirmed where the only evidence to
support complaints of migraine pain was plaintiff’s testimony,
which two ALJ’s found to be not credible, and where no objective
medical evidence support the existence or severity of migraines).
Under SSR 96-4p, objective medical evidence showing a medically
determinable physical impairment is required to support a step two
finding of a severe impairment.

1996 WL 374187 at *2.

7

In addition, the facts of this case are distinguishable from
those

in

Blevins-Bryant,

where

the

ALJ

misstated

the

record

evidence regarding the documentation of plaintiff’s emergency room
visits and made few findings regarding the plaintiff’s migraines.
Blevins-Bryant, 2015 WL 4498573 at *4.

Rather, the circumstances

in this case mirror those found in Ison v. Acting Comm’r of Soc.
Sec., No. 2:16-cv-464, 2017 WL 4124586, *10 (S.D. Ohio September
18,

2017)(distinguishing

Blevins-Bryant

where

the

ALJ

found

inconsistencies between plaintiff’s testimony and the objective
medical record, extensively reviewed the medical opinions, which
contained no evidence that the plaintiff was in acute distress such
that her headaches would be disabling, and considered plaintiff’s
daily activities in making his credibility determination), and
Descott v. Comm’r of Soc. Sec. Admin., No. 1:16CV1271, 2017 WL
1050379, at *9 (N.D. Ohio Mar. 20, 2017)(upholding the ALJ’s
credibility findings based on the lack of evidence to support the
complaints of debilitating pain from migraines, conflicting reports
between

her

testimony,

the

objective

medical

evidence

and

plaintiff’s daily activities, and plaintiff’s failure to comply
with her doctor’s treatment recommendations).
Plaintiff also argues that the magistrate judge erred in
noting that the ALJ gave some weight to the opinions of the state
agency physicians, who, following their review of plaintiff’s
medical records, did not identify plaintiff’s migraines as a
medically determinable impairment.

There was no error in noting

the ALJ’s consideration of these opinions.

Even more relevant to

the issue of plaintiff’s credibility is the fact that these state
agency consultants reviewed plaintiff’s medical records, including

8

Dr. Bjornstad’s treatment notes, as a result of her initial claim
for disability filed on August 12, 2013, which did not include
migraine headaches in the list of her allegations of impairment.
See Exhibits 5A, 10A.
Substantial
plaintiff’s

evidence

migraine

supports

headaches

did

the

ALJ’s

finding

not

constitute

a

that
severe

impairment, and this objection is not well taken.
A. RFC Determination
Plaintiff argues that the ALJ erred in formulating her RFC.
A claimant’s RFC is the most that a claimant can do despite his or
her

limitations.

20

U.S.C.

§404.1545(a)(1).

Disability

is

determined by the functional limitations imposed by a condition,
not the mere diagnosis of it.

Hill v. Comm’r of Soc. Sec., 560

F.App’x 547, 551 (6th Cir. 2014). In making the RFC determination,
the ALJ must evaluate all the medical evidence as well as the
claimant’s testimony.

Webb v. Comm’r of Soc. Sec., 368 F.3d 629,

633 (6th Cir. 2004); see also Coldiron v. Comm’r of Soc. Sec., 391
F.App’x 435, 443-44 (6th Cir. 2010)(ALJ considers numerous factors
in constructing a claimant’s RFC, including the medical and nonmedical evidence and the claimant’s credibility).
medical

expert,

ultimately

determines

the

The ALJ, not a

claimant’s

RFC.

Coldiron, 391 F.App’x at 439; 20 C.F.R. §§404.1527(e)(2) and
404.1546(c).
Plaintiff argues in her objections that the ALJ erred by
failing

to

accommodate

her

migraine

headaches

in

the

RFC.

Plaintiff points to her testimony that she experiences migraine
headaches four to five times a week, which require her to lie down
in a dark room for up to six hours.

9

She contends that limiting her

to simple, routine tasks ignores these periods of incapacity which
are likely to result in unscheduled absences, late arrival to or
early departure from work, or unscheduled breaks.

She contends

that allowing for these periods of incapacity in her RFC would have
resulted in a finding that she is unable to work full time.
This argument assumes that the ALJ was required to fully
accept her testimony concerning the nature of her limitations,
which is not the case.

As indicated above, the ALJ thoroughly

explained his reasons for concluding that plaintiff’s “statements
concerning the intensity, persistence and limiting effects of these
symptoms

are

not

entirely

credible”

and

that

“the

symptoms/limitations alleged by the claimant cannot be accepted as
she alleges, as they are not consistent with the objective medical
evidence in its entirety.”

PAGEID 112-14.

The court agrees with the magistrate judge’s conclusion that
the ALJ’s RFC determination is supported by substantial evidence
and adequately accounts for all of the limitations the ALJ found to
be credible.

This objection is denied.

III. Conclusion
In accordance with the foregoing, the court concludes that the
ALJ’s

finding

evidence.
court

of

nondisability

is

supported

by

substantial

The plaintiff’s objections (Doc. 20) are denied.

adopts

and

affirms

the

magistrate

judge’s

report

The
and

recommendation (Doc. 19). The Commissioner’s decision is affirmed,
and this action is dismissed. The clerk shall enter final judgment
affirming the decision of the Commissioner.

10

It is so ordered.

Date: March 12, 2018

s/James L. Graham
James L. Graham
United States District Judge

11