Stires v. Commissioner of the Social Security Administration

Filing 24

ORDER adopting Report and Recommendations re 19 Report and Recommendations.. Signed by Judge James L. Graham on 9/4/2018. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Jason L. Stires,
Plaintiff,
v.

Case No. 2:17-cv-811

Commissioner of
Social Security,
Defendant.
ORDER
Plaintiff Jason L. Stires 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 a
period of disability and disability insurance benefits.

In a

decision dated October 3, 2016, the administrative law judge
(“ALJ”) found at step two of the five-step analysis required under
the

social

security

regulations

that

plaintiff

had

severe

impairments consisting of degenerative disc disease of the spine;
and

affective

disorder;

personality

disorder;

specifically

opiate

an

and

abuse.

anxiety
a

disorder;

history

PAGEID

70.

of

an

antisocial

substance

The

ALJ

abuse,

found

that

plaintiff’s residual functional capacity (“RFC”) would permit him
to

perform

light

work.

The

RFC

also

limited

plaintiff

to

performing simple, routine, repetitive tasks involving only simple
work-related decisions and few if any workplace changes in an
environment without strict production quotas or fast-paced work,
such as on an assembly line, and with only occasional/superficial
interaction with the general public, coworkers, and supervisors.
PAGEID 74. 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.
This

matter

is

before

the

PAGEID 84-85.
court

for

consideration

of

plaintiff’s July 17, 2018, objections to the July 3, 2018, report
and recommendation of the magistrate judge recommending that the
decision of the Commissioner be affirmed. The government has filed
a response to the objections.
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

2

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
Plaintiff’s objections concern his second claim that the ALJ
erred in not finding, at step two of the sequential evaluation
process, that his diagnosed condition of posttraumatic stress
disorder (“PTSD”) constituted a severe impairment.
argues

that

because

the

ALJ

did

not

specifically

Plaintiff
identify

plaintiff’s PTSD condition as being either a severe or non-severe
impairment at step two, it is impossible to determine if the ALJ
considered PTSD in formulating his RFC.

Plaintiff contends that

this error requires remand.
Under 20 C.F.R. §404.1520(a)(4)(ii), at step two of the fivestep analysis, the Commissioner must determine whether the claimant
has a severe impairment.

Step two is the means by which the

Commissioner screens out totally groundless claims, see Farris v.
Sec’y of Health & Human Servs., 773 F.2d 85, 89 (6th Cir. 1985),
and is a “de minimis hurdle,” see Higgs v. Bowen, 880 F.2d 860, 862
(6th Cir. 1988). Where an ALJ finds at least one severe impairment
and considers all of a claimant’s impairments in the remaining
steps of the disability determination, an ALJ’s failure to find
additional severe impairments at step two does not constitute
reversible error.

Nejat v. Comm’r of Soc. Sec., 359 F. App’x 574,

577 (6th Cir. 2009)(citing Maziarz v. Sec’y of Health & Human
Servs., 837 F.2d 240, 244 (6th Cir. 1987)); Pompa v. Comm’r of Soc.
Sec., 73 F. App’x 801, 803 (6th Cir. 2003)(where the ALJ found a

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severe impairment at step two and considered all impairments in the
RFC assessment, “the question of whether the ALJ characterized any
other alleged impairment as severe or not severe is of little
consequence”).
A claimant’s RFC is the most that a claimant can do despite
his

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).

Regardless of whether an

impairment is severe or non-severe, limitations arising from the
impairment must be included in the RFC only if the impairment
affects a claimant’s capacity to work.

See

Griffeth v. Comm’r of

Soc. Sec., 217 F. App’x 425, 426 (6th Cir. 2007).
The court agrees with the magistrate judge’s recommendation
that

this

claim

of

error

be

overruled.

In

making

his

RFC

determination, the ALJ indicated that he carefully considered the
entire record, including “all symptoms and the extent to which
these symptoms can reasonably be accepted as consistent with the
objective medical evidence and other evidence[.]”

PAGEID 74.

Although the ALJ did not specifically mention PTSD at step two of
the

analysis,

the

ALJ

specifically

addressed

and

thoroughly

considered plaintiff’s history of treatment for PTSD during his
step four analysis of plaintiff’s RFC.
The ALJ stated that plaintiff reported that he was unable to
work due to a combination of conditions, “including a posttraumatic
stress disorder[.]”

PAGEID 74.

The ALJ further noted plaintiff’s

claims that as a result of his mental health conditions, “including
PTSD,”

he

has

difficulty

remembering

4

things,

has

trouble

interacting

with

hypervigilance.
supports

a

others,

and

PAGEID 74;

remote

experiences

see

history

also

of

panic

attacks

and

PAGEID 77 (“The record

...

posttraumatic

stress

disorder[.]”).
The ALJ noted that in November, 2015, when plaintiff was
admitted for emergency inpatient mental health treatment stemming
from abuse of opiate medications, he reported symptoms of PTSD,
including

flashbacks,

avoidance

and

nightmares.

PAGEID

77.

Plaintiff was prescribed medication for his conditions and his
mental health functioning improved with treatment. PAGEID 77. The
ALJ summarized later treatment notes from 2015 which showed no
significant mental health problems.

PAGEID 77.

In January, 2016,

plaintiff reported difficulties getting along with others and
concentrating, and he showed some anxiousness and irritability.
PAGEID 77. However, the ALJ observed that later in 2016, plaintiff
showed progress with his mental health treatment and was able to
attend social events. PAGEID 78.
The ALJ concluded that the objective evidence in the record
did not support plaintiff’s subjective complaints. PAGEID 80. The
ALJ noted that despite his mental health conditions, plaintiff is
able to live independently, to care for his own personal needs and
those of his five-year-old daughter, to drive, and to manage his
medications and health care.

PAGEID 78, 80.

although

that

plaintiff

reported

his

“PTSD

The ALJ noted that
and

other

mental

conditions” resulted in reduced concentration, plaintiff was able
to obtain a commercial driver’s license, engage in five to ten
hours of video game play, and several hours of online poker play
per week without an noted deficits or distractions.

5

PAGEID 80.

The ALJ observed that although plaintiff claimed to be isolated,
records indicated that he talks with his family daily on Facebook,
has regular contact with his daughter, and engages in social
activities two to three times per week.

Plaintiff reported having

trouble finishing tasks and following written instructions, but
admitted to reading up to three books per week.

PAGEID 80.

The

ALJ also noted that plaintiff missed mental health counseling
appointments and went for months without prescribed medications.
PAGEID 81.
The ALJ acknowledged that in September, 2015, the Veteran’s
Administration (“VA”) issued a notice finding plaintiff to be “100
percent disabled due to PTSD dating back to May 2015" based on
social impairment and other conditions noted in Exhibit 7F. PAGEID
74-75.

The ALJ gave some weight to the VA’s notice as supporting

plaintiff’s severe mental health conditions.

See PAGEID 81;

Exhibit 7F. However, the ALJ gave little weight to the VA’s rating
system, noting that it is unique to the VA and not synonymous with
social security disability standards.

PAGEID 81.

As outlined

above, the ALJ also discussed at length plaintiff’s mental health
treatment records from November, 2015, to July, 2016, the period
after the VA’s notice, noting reports of plaintiff’s improvement
with medication and mental health counseling.

See PAGEID 77-78.

The ALJ afforded some weight to Exhibit 4F, the report of Dr.
Christopher C. Ward, Ph.D., a consultative examiner.

PAGEID 82.

The ALJ noted that Dr. Ward merely summarized his observations of
the

plaintiff

and

restated

plaintiff’s

subjective

reports.

However, the ALJ acknowledged Dr. Ward’s opinion that plaintiff may
have some limitations in responding to work pressures due to PTSD,

6

in completing tasks in a timely manner, in maintaining attention
and concentration, and in engaging with others in the workplace.
PAGEID 82. The ALJ concluded that Dr. Ward’s opinion supported the
RFC, which limited plaintiff to the performance of simple, routine
tasks, simple decisions, and a generalized static work setting,
with no production quotas or fast-paced work.

PAGEID 82.

The ALJ

also gave some weight to the opinions of Cindy Matyi, Ph.D., and
Leslie Rudy, Ph.D., the state agency consultants who reviewed
plaintiff’s mental health treatment records, including those for
PTSD, and addressed work limitations they suggested in the RFC.
See PAGEID 83; Exhibits 1A and 3A.
The court agrees with the magistrate judge’s finding that the
ALJ extensively discussed plaintiff’s history of mental health
issues, including PTSD specifically, and gave good reasons for
accepting or rejecting the limitations allegedly stemming from
plaintiff’s mental impairments in formulating plaintiff’s RFC.

As

the magistrate judge noted, plaintiff “has failed to identify a
particular limitation arising from his PTSD that the ALJ failed to
consider or that the ALJ would have included in the RFC had he
identified PTSD as an impairment at step two.”

Doc. 19, p. 16.

Plaintiff’s 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

7

affirming the decision of the Commissioner.
It is so ordered.

Date: September 4, 2018

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

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