Stewart v. Commissioner of Social Security
Filing
16
OPINION AND ORDER adopting Report and Recommendations re 14 Report and Recommendations. Signed by Judge James L. Graham on 4/27/2018. (ds)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Richard E. Stewart II,
Plaintiff,
v.
Case No. 2:17-cv-706
Commissioner of
Social Security,
Defendant.
OPINION AND ORDER
Plaintiff Richard E. Stewart II brings this action under 42
U.S.C. §§405(g) for review of a final decision of the Commissioner
of Social Security (“Commissioner”) denying his applications for
disability insurance benefits and supplemental security income. In
a decision dated May 19, 2016, the administrative law judge (“ALJ”)
found
that
plaintiff
had
severe
impairments
consisting
of
osteoarthritis and allied disorders, degenerative disc disease of
the cervical spine, status post right rotator cuff repair, rightsided carpal tunnel syndrome and other arthraligias.
PAGEID 86.
After considering the entire record, the ALJ found that plaintiff’s
residual functional capacity (“RFC”) would permit him to perform
work with specified physical restrictions.
After considering the
testimony of a vocational expert, the ALJ decided that there were
sedentary jobs which plaintiff could perform, taking plaintiff’s
additional physical restrictions into account, and that plaintiff
was not disabled.
PAGEID 96-97.
This matter is before the court
for consideration of plaintiff’s April 6, 2018, objections to the
March 23, 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
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. Nonsevere Mental Impairments
Plaintiff argues that the ALJ and the magistrate judge erred
2
in finding during the step two analysis that his mental impairments
of
depression,
nonsevere.
anxiety
and
substance
addition
disorder
were
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.”
42 U.S.C. §423(d)(1)(A).
If the degree of
limitation due to a mental impairment is rated as “mild,” the
impairment is generally deemed to be not severe, unless the
evidence otherwise indicates that there is more than a minimal
limitation in the claimant’s ability to do basic work activities.
20 C.F.R. §404.1520a(d)(1).
A
severe
impairment
is
established
by
medical
evidence
consisting of signs, symptoms, and laboratory findings, not just by
a claimant’s statement of symptoms.
App’x
555,
559
(6th
Cir.
Griffith v. Comm’r, 582 F.
2014)(citing
20
C.F.R.
§416.908).
Plaintiff bears the burden of proving the existence of a severe,
medically determinable impairment that meets the twelve-month
durational requirement.
469, 474 (6th Cir. 2003).
Jones v. Comm’r of Soc. Sec., 336 F.3d
The failure to categorize an impairment
as severe at step two is not prejudicial error if the ALJ found
other severe impairments at step two and considered all of the
claimant’s impairments, including the nonsevere impairments, in the
remaining steps of the disability determination.
See Nejat v.
Comm’r of Soc. Sec., 359 F. App’x 574, 577 (6th Cir. 2009).
3
The magistrate judge concluded that the ALJ reasonably relied
on record evidence in finding that plaintiff’s mental impairments
did not result in significant limitations.
The magistrate judge
further noted that even assuming the ALJ erred at step two in not
classifying plaintiff’s mental impairments as severe, no reversible
error occurred because the ALJ also considered all of plaintiff’s
impairments, including his mental impairments, in the remaining
steps of the disability analysis.
Doc. 14, p. 13.
The court
agrees with the conclusions of the magistrate judge.
At step two, the ALJ found that plaintiff has mild limitations
in the activities of daily living, noting that the February 4,
2014, report of plaintiff’s consultative psychological examination
by James N. Spindler, M.S., and treatment notes from the Guernsey
Counseling Center revealed no signs that plaintiff is unable to
care for his personal needs.
PAGEID 87.
As to the area of social functioning, the ALJ concluded that
plaintiff had mild limitations.
The ALJ noted that although
plaintiff testified that he did not engage in social activities due
to
his
physical
regularly
limitations,
attended
church
he
lived
services.
with
his
Plaintiff
fiancee
told
and
the
consultative psychological examiner, James Spindler, M.S., that
although he did not get along with his siblings, he did get along
with his mother and his children.
PAGEID 87.
In regard to concentration, persistence or pace, the ALJ found
mild limitations.
Although plaintiff reported during an intake
interview that his attention span, ability to concentrate, and
memory were impaired, the ALJ noted that there was no evidence that
the social workers who completed the intake interview did a mental
4
status
examination.
PAGEID
87-88.
The
ALJ
pointed
to
a
psychiatric examination in September, 2014, which showed that:
plaintiff’s thought process was clear and linear; his judgment and
insight were intact; he was well oriented to person, time and
place; and no memory problems or problems with his attention level
or concentration were noted.
The ALJ observed that plaintiff
exhibited no difficulty completing basic calculations during his
psychological consultative exam.
PAGEID 88.
The ALJ also noted
the opinions of the state agency psychological consultants, Paul
Tangeman, Ph.D. and Janet Souder, Psy.D., who reviewed plaintiff’s
records
and
came
to
limitations were mild.
the
conclusion
that
plaintiff’s
mental
PAGEID 88.
In her step five discussion of the plaintiff’s residual
functional
capacity,
the
ALJ
continued
to
reference
records
relating to plaintiff’s mental impairments, including: plaintiff’s
counseling for anxiety and depression in 2014 and 2015; plaintiff’s
treatment
for
depression
by
Dr.
Aline
Daou,
who
prescribed
antidepressant medication but noted that plaintiff’s mental status
exams showed normal thought content, insight and judgment through
January,
2014;
the
March
10,
2014,
physical
consultative
examination by Dr. Mark Weaver, who noted that plaintiff was alert
and well oriented with a pleasant affect and appropriate mood; a
November,
2014,
neurological
exam
report
which
noted
that
plaintiff’s mood and affect were normal; the March 26, 2015, exam
notes
of
Dr.
Philip
Kennedy
which
stated
that
plaintiff’s
psychiatric exam was normal; and the December 10, 2015, exam notes
of Dr. Anthony Reichley stating that plaintiff’s psychiatric exam
showed a normal mood and affect.
PAGEID 90-93.
5
The ALJ gave “significant weight” to the opinions of the state
agency psychological consultants, Dr. Tangeman and Dr. Souder, that
plaintiff’s mental impairments resulted in mild restrictions in
activities of daily living, social functioning, and concentration,
persistence or pace.
The ALJ also stated that these agency
opinions were consistent with the mental status consultative exam
completed by James Spindler in February of 2014.
reported
that
plaintiff
knew
the
date,
Mr.
could
Spindler
complete
basic
calculations, had a girlfriend and a good relationship with his
children, had no major difficulty maintaining his focus during the
exam,
and
appeared
capable
of
understanding,
carrying out instructions in most job settings.
remembering
and
PAGEID 94.
Plaintiff argues that Mr. Spindler’s statement that plaintiff
was
capable
of
understanding,
remembering
and
carrying
out
instructions only in “most job settings” must mean that plaintiff’s
mental impairments more than minimally affected plaintiff’s ability
to perform basic work functions.
Plaintiff argues that the ALJ’s
reliance on Mr. Spindler’s opinion therefore rendered the ALj’s
findings of mild impairments inconsistent. Plaintiff’s argument is
not well taken in light of the applicable regulations, which define
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
“Basic work activities” are defined as “the abilities
aptitudes
“[u]nderstanding,
instructions[.]”
necessary
carrying
20
C.F.R.
to
do
out,
most
jobs[,]”
and
remembering
§404.1522(b)(3).
Mr.
including
simple
Spindler’s
finding that plaintiff was capable of understanding, remembering
6
and carrying out instructions “in most job settings,” see PAGEID
670, amounts to a finding that plaintiff is capable of engaging in
basic work activities, which only requires that plaintiff have the
abilities necessary “to do most jobs.” Mr. Spindler’s findings are
consistent with the opinions of the state agency consultants and
with the ALJ’s conclusion that plaintiff’s mental impairments were
mild and nonsevere.
The ALJ’s finding that plaintiff’s mental impairments are
nonsevere is supported by sufficient evidence, and the ALJ did not
err
in
failing
to
include
restrictions
in
plaintiff’s
RFC
specifically addressing his mild mental impairments.
B. Consideration of Plaintiff’s Headaches
Plaintiff argues that the ALJ erred by failing to classify his
headaches
as
a
medically
determinable
impairment
considering the impact of his headaches on his RFC.
and
by
not
The ALJ did
not specifically discuss plaintiff’s complaints of headaches at
step two of the analysis.
Plaintiff contends that the ALJ must
therefore have concluded that his headaches did not constitute a
medically determinable impairment.
that
the
ALJ’s
failure
to
The magistrate judge concluded
specifically
designate
plaintiff’s
headaches as a medically determinable impairment was not error
because there was no objective medical evidence to support such a
finding, and because plaintiff made no mention of his headaches in
his
allegations
of
impairment
when
applying
for
disability
benefits, citing Griffith v. Colvin, No. 6:13-23, 2013 WL 5536476,
*3 (E.D. Ky. Oct. 7, 2013).
At
step
two
of
the
The magistrate judge was correct.
evaluation
process,
no
symptom
or
combination of symptoms by itself can constitute a medically
7
determinable impairment.
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 has a medically
determinable physical ... impairment(s) and that the impairment(s)
could reasonably be expected to produce the alleged symptom(s).”).
The Sixth Circuit has affirmed the denial of benefits in cases
involving
complaints
of
migraine
headache
unsupported by objective medical evidence.
pain
which
were
See Long v. Comm’r of
Soc. Sec., 56 F. App’x 213, 214 (6th Cir. 2003); McCormick v. Sec’y
of Health & Human Servs., 861 F.2d 998, 1002 (6th Cir. 1988).
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).
The magistrate judge correctly noted that the medical records
documented plaintiff’s reports or complaints of headaches, which
were noted in most cases in the medical history section of the
records.
However, there is no objective medical evidence or
medical opinion diagnosing the cause of these headaches or opining
that
plaintiff’s
headaches.
ability
to
work
would
be
impaired
by
his
Plaintiff never sought treatment for headaches alone;
his reports concerning headaches occur in the context of receiving
treatment for some other medical problem.
As the magistrate judge
noted, plaintiff did not allege in his application for disability
benefits that he was disabled because of his headaches.
Plaintiff
reported during an emergency room visit in 2011, PAGEID 742, that
8
he has had daily headaches for twenty years, during a period of
time when he was working.
In addition, no reversible error has been shown because the
ALJ did address and consider plaintiff’s headaches at step five of
the analysis.
The ALJ noted that plaintiff “indicated that he
experienced pain in his neck that caused headaches on a daily basis
and muscle spasms.”
PAGEID 89.
The ALJ thoroughly discussed
plaintiff’s medical records concerning his treatment for neck pain,
including: a 2013 MRI and CT scan of the cervical spine which
showed residual spurring but no impingement on the spinal cord; a
2013 exam by Dr. Jeffrey Lobel which revealed a normal range of
neck motion; the 2014 consultative examination by Dr. Mark Weaver,
who diagnosed chronic neck pain; plaintiff’s 2014 treatment at
Genesis Pain Management Center for neck pain; a March, 2015,
examination by Dr. Philip Kennedy which showed a normal range of
motion in plaintiff’s neck; plaintiff’s treatment in the fall of
2015 by Dr. Abhay Anand for neck pain; and a December 10, 2015,
exam by Dr. Anthony Reichley, who reported that plaintiff’s neck
was supple, with a normal range of motion.
PAGEID 90-93.
The ALJ
took plaintiff’s neck pain into account by limiting plaintiff to
work which only requires him to lift up to ten pounds and requires
overhead lifting only occasionally.
PAGEID 95.
By accommodating
plaintiff’s neck pain, the ALJ also accommodated the alleged cause
of plaintiff’s headaches.
This objection is denied.
III. Conclusion
In accordance with the foregoing, the court concludes that the
ALJ’s
finding
of
nondisability
9
is
supported
by
substantial
evidence.
court
The plaintiff’s objections (Doc. 15) are denied.
adopts
and
affirms
the
magistrate
judge’s
report
The
and
recommendation (Doc. 14). The Commissioner’s decision is affirmed,
and this action is dismissed. The clerk shall enter final judgment
affirming the decision of the Commissioner.
Date: April 27, 2018
s/James L. Graham
James L. Graham
United States District Judge
10
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