Page v. Commissioner of Social Security

Filing 12

REPORT AND RECOMMENDATION: It is RECOMMENDED that the Court OVERRULE Plaintiff's 9 Statement of Errors and AFFIRM the Commissioner of Social Security's decision. Objections to R&R due by 6/25/2018. Signed by Magistrate Judge Chelsey M. Vascura on 6/11/2018. (kpt)(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

ANTHONY PAGE,
Plaintiff,
Civil Action 2:17-cv-517
Judge Algenon L. Marbley
Magistrate Judge Chelsey M. Vascura

v.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

REPORT AND RECOMMENDATION
Plaintiff, Anthony Page (“Plaintiff”), who is proceeding without the assistance of
counsel, 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 his applications for
social security disability insurance benefits and 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. 9), the Commissioner’s Memorandum in Opposition (ECF No.
11), and the administrative record (ECF No. 5). For the reasons that follow, it is
RECOMMENDED that the Court OVERRULE Plaintiff’s Statement of Errors and AFFIRM
the Commissioner’s decision.
I. BACKGROUND
Plaintiff protectively filed his applications for benefits on October 18, 2013, alleging that
he has been disabled since April 5, 2010, as a result of a back injury. Following initial
administrative denials of Plaintiff’s applications, a hearing was held before Administrative Law

Irma J. Flottman (the “ALJ”) on August 5, 2015, at which Plaintiff, represented by counsel,
appeared and testified.
The ALJ subsequently issued a decision on February 25, 2016, denying Plaintiff benefits.
(R. at 25-28.) On April 25, 2017, the Appeals Council denied Plaintiff’s request for review and
adopted the ALJ’s decision. (R. at 1-3.)
As the Commissioner points out, pursuant to the Court’s October 25, 2017 Order and
Notice (ECF No. 10), the Court construes Plaintiff’s October 19, 2017 filing (ECF No. 9) as his
Statement of Errors. Construing this filing liberally, Plaintiff asserts that the ALJ erred in
finding that he had no mental diagnosis because he has been diagnosed with schizophrenia.
(ECF No. 9 at 3.) He attaches a letter dated May 30, 2017, from Nurse Practitioner Olympia
Pinto (“N.P. Pinto”) that states as follows:
Mr. Page was seen at this office on 5/30/17, his current diagnosis is Schizophrenia
F20.9. Symptoms were possibl[y] present in Mr. Page[’]s early years, and
controlled by Mr. Page. When Mr. Page was in the Army, the increase in stress,
decreased his ability to control his symptoms . . . [r]esulting in his current
psychiatric disorder.
(Id. at 5.)
In her Memorandum in Opposition, the Commissioner argues that that N.P. Pinto’s May
2017 statement does not warrant remand. The Commissioner points out that Plaintiff fails to
explain why he waited until 18 months after the ALJ’s decision to submit this statement. The
Commissioner further posits that Plaintiff cannot demonstrate that the statement could have
changed the ALJ’s conclusion that Plaintiff had no mental impairments that significantly affected
his work-related functioning.

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II.

THE ADMINISTRATIVE DECISION

On February 25, 2016, the ALJ issued a decision finding that Plaintiff was not disabled
within the meaning of the Social Security Act. At step one of the sequential evaluation process,1
the ALJ found that Plaintiff had not engaged in substantially gainful activity since April 5, 2010,
his alleged onset date of disability. (Id.)
The ALJ found that Plaintiff has the severe impairments of degenerative disc disease of
the lumbar spine and a synovial cyst of his right knee. The ALJ indicated that she had
considered Plaintiff’s mental health allegations, but declined to find that he had severe mental
health impairments “due to a lack of objective evidence supporting mental health impairments
and associated symptoms as well as consistent and routine treatment by acceptable medical
sources . . . .” (R. at 29.) The ALJ further found that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled one of the listed impairments
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Social Security Regulations require ALJs to resolve a disability claim through a fivestep sequential evaluation of the evidence. See 20 C.F.R. § 404.1520(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
questions:
1.
2.
3.

4.
5.

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
economy?

See 20 C.F.R. § 404.1520(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009);
Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001).
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described in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id.) At step four of the sequential
process, the ALJ set forth Plaintiff’s residual functional capacity (“RFC”) as follows:
The claimant has the residual functional capacity to lift and carry up to 20 pounds
occasionally and 10 pounds frequently. He could stand and/or walk up to 6 hours
out of an 8-hour workday and he could sit for up to 6 hours of an 8-hour workday.
He would be precluded from climbing ladders, ropes, and scaffolds. The claimant
could frequently stoop, crouch, kneel, and crawl.
(R. at 29.)
Relying on the vocational expert’s testimony, the ALJ concluded that Plaintiff can
perform jobs that exist in significant numbers in the national economy. She therefore concluded
that Plaintiff was not disabled under the Social Security Act. (R. at 37.)
III.

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
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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)).
IV.

ANALYSIS

As set forth above, construing Plaintiff’s October 19, 2017 filing liberally, it appears that
Plaintiff maintains that the ALJ erred in failing to find that he has severe mental impairment in
light of the May 2017 statement from N.P. Pinto he attaches in which N.P. Pinto opines that he
has a diagnosis of schizophrenia and that it is possible that he had symptoms in his “early years.”
(ECF No. 9 at p.5.)
Clearly, the ALJ did not have the benefit of N.P. Pinto’s May 2017 statement when she
issued her decision in February 2016. The issue, then, is whether N.P. Pinto’s May 2017
statement constitutes new and material evidence warranting remand for consideration under
sentence six of 42 U.S.C. § 405(g).
Sentence six of 42 U.S.C. § 405(g) provides in relevant part as follows:
The Court may, on motion of the Secretary made for good cause shown before he
files his answer, remand the case to the Secretary for further action by the
Secretary, and it may at any time order additional evidence to be taken before the
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Secretary, but only upon a showing that there is new evidence which is material
and that there is good cause for the failure to incorporate such evidence into the
record in a prior proceeding . . . .
42. U.S.C. § 405(g). “Sentence-six remands may be ordered in only two situations: where the
Secretary requests a remand before answering the complaint, or where new, material evidence is
adduced that was for good cause not presented before the agency.” Shalala v. Schaefer, 509 U.S.
292, 297 n.2 (1993) (citations omitted). The requirements that the evidence be “new” and
“material,” and that “good cause” be shown for the failure to present the evidence to the ALJ
have been defined by the United States Court of Appeals for the Sixth Circuit as follows:
“For the purposes of a 42 U.S.C. § 405(g) remand, evidence is new only if it was
‘not in existence or available to the claimant at the time of the administrative
proceeding.’ . . . Such evidence is ‘material’ only if there is ‘a reasonable
probability that the Secretary would have reached a different disposition of the
disability claim if presented with the new evidence.’ . . . A claimant shows ‘good
cause’ by demonstrating a reasonable justification for the failure to acquire and
present the evidence for inclusion in the hearing before the ALJ . . . . [T]he
burden of showing that a remand is appropriate is on the claimant.”
Ferguson v. Comm’r of Soc. Sec., 628 F.3d 269, 276 (6th Cir. 2010) (quoting Foster v. Halter,
279 F.3d 348, 357 (6th Cir. 2001)).
Even assuming that N.P. Pinto’s May 2017 statement is new, the undersigned concludes
that Plaintiff has failed to establish good cause for failing to timely acquire and present the
evidence. Plaintiff fails to offer any explanation for why he did not acquire and submit the atissue letter until 18 months after the ALJ issued her decision.
Regardless, the undersigned further finds that Plaintiff has failed to satisfy his burden to
show that the evidence is material. As noted above, the ALJ concluded that Plaintiff had not
satisfied his burden to demonstrate that he has a severe mental health impairment “due to a lack

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of objective evidence supporting mental health impairments and associated symptoms as well as
consistent and routine treatment by acceptable medical sources . . . .” (R. at 29.) As the ALJ
points out, at step two of the sequential evaluation process, Plaintiff bears the burden of proving
the existence of a severe, medically determinable impairment that meets the twelve-month
durational requirement. See Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003);
Harley v. Comm’r of Soc. Sec., 485 F. App’x 802, 803-04 (6th Cir. 2012). “A severe mental
impairment is ‘established by medical evidence consisting of signs, symptoms, and laboratory
findings, not only by [a plaintiff’s] statement of symptoms.’” Griffith v. Comm’r, 582 F. App’x
555, 559 (6th Cir. 2014) (quoting 20 C.F.R. § 416.908). Thus, if no signs or laboratory findings
substantiate the existence of an impairment, it is appropriate to terminate the disability analysis.
See SSR 96-4p, 1996 WL 374187, at *2 (July 2, 1996) (“In claims in which there are no medical
signs or laboratory findings to substantiate the existence of a medically determinable physical or
mental impairment, the individual must be found not disabled at step 2 of the sequential
evaluation process set out in 20 CFR 404.1520 and 416.920 . . . .”). Consistently, the Sixth
Circuit has advised that “[w]hen mental illness is the basis of a disability claim, clinical and
laboratory data may consist of the diagnosis and observations of professionals trained in the field
of psychopathology.” Blankenship v. Bowen, 874 F.2d 1116, 1121 (6th Cir. 1989) (internal
quotation marks and citations omitted).
N.P. Pinto’s May 2017 statement falls short for a number of reasons. As the
Commissioner points out, N.P. Pinto, who does not specialize in psychological treatment, is an
“other source” under the applicable agency regulations such that she cannot establish a medically
determinable impairment. See SSR 06-3p, 2006 WL 2329939, at *2 (“[W]e need evidence from
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‘acceptable medical sources’ to establish the existence of a medically determinable impairment.”
(citations omitted)). Moreover, N.P. Pinto produced no medical evidence consisting of signs,
symptoms, and laboratory findings to substantiate her diagnosis. Finally, “[t]he mere diagnosis
of [the condition] . . . says nothing about the severity of the condition.” Higgs v. Bowen, 880
F.2d 860, 863 (6th Cir. 1988). N.P. Pinto’s opinion that Plaintiff may have exhibited symptoms
in his “early years,” fails to provide any insight as to whether his diagnosed schizophrenia
impacted his work-related functioning during the relevant period. On this point, however, the
ALJ reviewed the medical record and concluded that it fails to document any such impairment.
(See R. at 28-29.)
In summary, the undersigned concludes that Plaintiff has failed to satisfy his burden to
establish with a reasonable probability that the ALJ would have altered her determination upon
consideration of N.P. Pinto’s May 2017 statement. It is therefore RECOMMENDED that the
Court DENY Plaintiff’s request to order a § 405(g) sentence six remand.
V.

DISPOSITION

Based on the foregoing analysis, it is RECOMMENDED that Plaintiff’s Statement of
Errors be OVERRULED and the Commissioner’s decision AFFIRMED.
VI.

PROCEDURES 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.
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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
omitted).

/s/ Chelsey M. Vascura
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE

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