Colbert v. Commissioner of Social Security

Filing 12

ORDER adopting Report and Recommendations re 10 Report and Recommendations.. Signed by Judge James L. Graham on 5/14/2018. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Dana Colbert,
Plaintiff,
v.

Case No. 2:17-cv-876

Commissioner of
Social Security,
Defendant.
ORDER
Plaintiff Dana Colbert 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
supplemental security income.

In a decision dated March 24, 2017,

the administrative law judge (“ALJ”) found that plaintiff had
severe impairments consisting of various physical impairments
relating to a history of right femur fracture, knee problems, and
asthma/chronic

obstructive

pulmonary

disease,

as

well

depressive disorder and a history of alcohol dependence.
52.

as

a

PAGEID

After considering the entire record, the ALJ found that

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

perform

restrictions.

light

work

with

PAGEID 55-56.

certain

physical

and

mental

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 66-67.
This

matter

is

before

the

court

for

consideration

of

plaintiff’s April 26, 2018, objection to the April 12, 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. Objection
Plaintiff’s objection concerns the opinions of the state

2

agency psychological consultants.

In a June 1, 2013, evaluation,

state agency consultant Melanie Bergsten, Ph.D., was asked to rate
the degree of plaintiff’s mental symptoms, including sustained
concentration and persistence limitations, the section highlighted
in

plaintiff’s

objection.

Dr.

Bergsten

rated

plaintiff

“[m]oderately limited” in the “ability to complete a normal workday
and workweek without interruptions from psychologically based
symptoms

and

to

perform

at

a

consistent

pace

without

an

unreasonable number and length of rest periods.” PAGEID 252. When
asked to “[e]xplain in narrative form the sustained concentration
and persistence limitations indicated above[,]” Dr. Bergsten stated
that plaintiff “is able to sustain concentration and persistence to
perform simple and some complex tasks that are not fast paced.”
PAGEID 253.
In her November 19, 2013, report, Kristen Haskins, Psy.D.,
rated plaintiff as being moderately limited in her ability to
complete a normal workday and workweek without interruptions from
psychologically based symptoms. PAGEID 266. When asked to explain
this

limitation

in

narrative

form,

Dr.

Haskins

stated

that

plaintiff “is able to sustain concentration and persistence to
perform simple and some multistep not complex tasks that are not
fast paced.”

PAGEID 266.

In the heading of Issue II of plaintiff’s statement of errors,
plaintiff stated that the ALJ’s decision should be reversed because
he improperly relied on the internally inconsistent opinions of the
state psychologists.
that

heading

did

Doc. 8, p. 12.
not

clearly

“internally inconsistent.”

However, the argument under

state

why

the

opinions

were

Instead, plaintiff noted that the ALJ

3

only accorded some weight to the agency opinions and modified the
psychologists’
relevant

recommendations

terms

before

to

including

state
them

them
in

in

the

vocationally
RFC,

without

specifically noting the moderate limitations found by those experts
in the RFC.

Doc. 8, pp. 13-14.

The magistrate judge construed

plaintiff’s statement of error as arguing that the ALJ failed to
properly account for all these moderate limitations in his RFC
determination or in his hypothetical to the vocational expert.
Doc. 10, p. 18.

The magistrate judge concluded that the ALJ

properly considered the moderate limitations, as well as the
accommodations expressed in the narrative sections of the state
agency opinions and the other record evidence, in formulating
plaintiff’s mental RFC.

Doc. 10, pp. 18-21.

Plaintiff contends in her objection that the opinions of the
state agency psychological consultants are internally inconsistent
because the psychologists did not repeat the ratings section
language that plaintiff was “moderately limited” in certain areas,
including “[t]he ability to complete a normal workday and workweek
without interruptions from psychologically based symptoms[,]” in
the narrative sections of the form.

Plaintiff contends that since

the ALJ failed to address this alleged inconsistency, his RFC
determination “cannot be deemed an accurate depiction of” her
functional capabilities.

Doc. 11, p. 3.

The court first notes that there is no internal inconsistency
because the ratings sections are not the consultant’s opinion.
Courts have rejected the argument that the ALJ should have included
items from the ratings sections of the form in the RFC, holding
that the ratings sections of the evaluation form are merely

4

worksheets

for

the

evaluator

which

do

not

constitute

the

evaluator’s residual functional capacity assessment. Rather, it is
the narrative portion of the form that embodies the consultant’s
actual assessment.

See Griffith v. Comm’r of Soc. Sec., 582 F.

App’x 555, 563 (6th Cir. 2014)(the explanation section of the form
reflects the doctor’s actual findings); Velez v. Comm’r of Soc.
Sec., No. 1:09CV0715, 2010 WL 1487599, *6 (N.D. Ohio Mar. 26,
2010)(citing cases).
The

reasoning

behind

this

rule

of

interpretation

is

illustrated by the rating category noted by plaintiff in her
objection, which includes two main components: (1) the ability to
complete a normal workday and workweek without interruptions from
psychologically based symptoms; and (2) the ability to perform at
a consistent pace without an unreasonable number and length of rest
periods.

Without looking to the narrative explanation, it cannot

be said with any degree of certainty that the consultants were
applying

the

“moderately

limited”

rating

to

both

of

those

components. Dr. Bergsten was apparently concerned about the second
component because, in her narrative, she stated that plaintiff “is
able to sustain concentration and persistence to perform simple and
some

complex

tasks

that

are

not

fast

paced.”

PAGEID

253.

Similarly, Dr. Haskins commented that plaintiff “is able to sustain
concentration and persistence to perform simple and some multistep
not complex tasks that are not fast paced.”

PAGEID 266.

Even if the rating sections are viewed as expressing the
consultants’ opinions, there is nothing in the record to indicate
that the “moderately limited” ratings are inconsistent with the
work restrictions included in the narrative sections.

5

The mere

rating of “moderately limited” does not describe the nature of
plaintiff’s limitations or how those limitations will impact her
ability to work.

Rather, the consultants explained restrictions

which would apply to plaintiff’s actual workplace setting in the
narrative sections of the form.

The mere failure to include the

“moderately limited” ratings language in the narrative sections did
not result in an inconsistency in the state agency opinions.
The court also agrees with the magistrate judge’s conclusion
that the ALJ’s evaluation of the consultants’ opinions and his RFC
determination were supported by the record.

A claimant’s RFC is

the most that a claimant can do despite his or her limitations.
U.S.C. §404.1545(a)(1).

20

The ALJ, not a medical expert, ultimately

determines the claimant’s RFC.

Coldiron v. Comm’r of Soc. Sec.,

391 F.App’x 435, 439 (6th Cir. 2010); 20 C.F.R. §§404.1527(e)(2)
and 404.1546(c).

An ALJ’s decision to give weight to medical

opinion evidence does not require the ALJ to incorporate every
restriction proposed by the medical source. Salisbury v. Comm’r of
Soc. Sec., No. 5:11-CV-2277, 2013 WL 427733, *7 (N.D. Ohio Feb. 1,
2013).

The

ALJ

is

not

required

to

describe

the

claimant’s

limitations using the exact language of those medical sources as
long as substantial evidence demonstrates that the ALJ adequately
portrayed the claimant’s limitations in the RFC. See Smith-Johnson
v. Comm’r of Soc. Sec., 579 F. App’x 426, 436 (6th Cir. 2014).
The ALJ recognized that plaintiff had moderate limitations in
understanding,

remembering,

and

applying

information,

in

interacting with others, and in concentration, persistence and
pace.

PAGEID 54.

He noted plaintiff’s daily activities, which

included caring for her personal needs, performing some household

6

chores, walking to the store, using public transportation, paying
bills, making purchases, and watching television.

PAGEID 54-55.

The ALJ further observed that although plaintiff claimed to have
some mental difficulties around confusion and people, she had
contacts with her family and neighbors and could interact with
people

in

public

transportation.

settings,

such

PAGEID 62.

as

in

stores

and

on

public

He noted that although plaintiff

claimed to have memory problems, she was never diagnosed with any
confusion or memory problems, and she correctly performed math
problems and other memory tests during a consultative psychological
examination by Lisa M. Thornton, Ph.D., on May 8, 2013.
62-64; Ex. 4F.

The ALJ also found that the record showed no

specialized mental health treatment or medications.
The

ALJ

consultants,

See PAGEID

considered
who

the

concluded

opinions
that

of

the

plaintiff

PAGEID 55.
state

showed

agency
moderate

limitations in social functioning, attention and concentration, and
interaction with others.

The ALJ gave these mental assessments

some weight.

Dr. Bergsten commented that plaintiff

PAGEID 65.

“would be limited to simple and some complex familiar tasks[;]”
that she “is able to sustain concentration and persistence to
perform simple and some complex tasks that are not fast paced[;]”
that

plaintiff

interactions

“would

be

w/others[;]”

limited
and

that

to

occasional

“[d]ue

to

[a

superficial
history]

of

substance abuse, she may have difficulty responding to changes” but
she is “able to perform work related tasks in an environment where
duties are relatively static and changes can be explained.” PAGEID
253. Dr. Haskins rendered a similar opinion, noting that plaintiff
“would be limited to simple and some multistep tasks that are not

7

complex” and that she “is able to sustain concentration and
persistence to perform simple and some multistep not complex tasks
that are not fast paced.

PAGEID 266-267.

The ALJ explained that after these opinions were rendered,
changes were made to the mental listings, rules and regulations,
and that he considered these changes and applied them.

PAGEID 65.

The ALJ also “modified the moderate limitations found in the
functional capacity [evaluations] to contain vocationally relevant
terms[.]” PAGEID 65. The ALJ formulated the following mental RFC:
The claimant could perform simple, routine, repetitive
tasks involving only simple work related decisions with
few, if any, workplace changes in a setting without
strict production quotas or fast paced work, such as on
an assembly line. The claimant could have occasional
interaction with the general public, coworkers, and
supervisors.
PAGEID 65.
the

state

This RFC largely incorporated the recommendations of
agency

consultants,

although

it

is

slightly

more

restrictive as it makes no reference to complex or multistep tasks.
The court finds that the ALJ did not commit error in his
consideration of the state agency opinions or in arriving at
plaintiff’s mental RFC, and plaintiff’s objection is not well
taken.
III. Conclusion
In accordance with the foregoing, the court concludes that the
ALJ’s RFC determination and his finding of nondisability are
supported by substantial evidence. The plaintiff’s objection (Doc.
11) is denied. The court adopts and affirms the magistrate judge’s
report and recommendation (Doc. 10).

The Commissioner’s decision

is affirmed, and this action is dismissed.

The clerk shall enter

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

Date: May 14, 2018

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

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