Peters v. Commissioner of Social Security

Filing 22

REPORT AND RECOMMENDATION that the Court OVERRULE Plaintiff's Statement of Errors and AFFIRM the Commissioner of Social Security's decision. Objections to R&R due by 1/22/2019. Signed by Magistrate Judge Chelsey M. Vascura on 1/7/2019. (agm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
KATHY S. PETERS,
Plaintiff,
Civil Action 2:18-cv-197
Judge George C. Smith
Magistrate Judge Chelsey M. Vascura

v.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

REPORT AND RECOMMENDATION
Plaintiff, Kathy S. Peters (“Plaintiff”), 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 (“DSI”) and supplemental security income (“SSI”).
This matter is before the undersigned for a Report and Recommendation on Plaintiff’s Statement
of Errors (ECF No. 15), the Commissioner’s Response in Opposition (ECF No. 21), and the
administrative record (ECF No. 8). For the reasons that follow, it is RECOMMENDED that
Plaintiff’s Statement of Errors be OVERRULED and that the Commissioner’s decision be
AFFIRMED.
I.

BACKGROUND

Plaintiff protectively filed her applications for DIB and SSI on October 16, 2014, alleging
an onset date of disability of August 20, 2008. Plaintiff subsequently amended her alleged
onset date to June 4, 2015, her date last insured. Plaintiff’s applications were denied initially
and upon reconsideration. Plaintiff sought a hearing before an administrative law judge.

Administrative Law Judge Jason C. Earnhart (the “ALJ”) held a hearing on May 10, 2017, at
which Plaintiff, represented by counsel, appeared and testified. Vocational expert Eric W.
Pruitt (the “VE”) and medical expert Jonathan W. Nusbaum, M.D. (the “ME”), also appeared
and testified at the hearing.
On August 10, 2017, the ALJ issued a decision finding that Plaintiff was not disabled
within the meaning of the Social Security Act. (R. at 11-24.) At step one of the sequential
evaluation process,1 the ALJ found that Plaintiff had not engaged in substantial gainful activity
since June 4, 2015, the amended alleged onset date. At step two, the ALJ found that Plaintiff
has the following severe impairments: degenerative disc disease, stenosis and radiculopathy of
the thoracic and lumbar spine, obesity, hypertension, chronic obstructive pulmonary disease,

1. Social Security Regulations require ALJs to resolve a disability claim through a five-step
sequential evaluation of the evidence. See 20 C.F.R. § 416.920(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. Is the claimant engaged in substantial gainful activity?
2. Does the claimant suffer from one or more severe impairments?
3. 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?
4. Considering the claimant’s residual functional capacity, can the claimant
perform his or her past relevant work?
5. 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. § 416.920(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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depression, and anxiety. The ALJ also found that Plaintiff had the non-severe impairments of
dysphagia, carpal tunnel syndrome, headaches, and GERD.
At step three, the ALJ concluded that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled one of the listed impairments
described in 20 C.F.R. Part 404, Subpart P, Appendix 1. At step four of the sequential process,
the ALJ set forth Plaintiff’s residual functional capacity (“RFC”) as follows:
After careful consideration of the entire record, the [ALJ] finds that the
[Plaintiff] has the residual functional capacity to perform sedentary work as defined
in 20 CFR 404.1567(a) and 416.967(a) except the [Plaintiff] can sit for 1 hour at a
time, at which point she must stand for a minute or two before returning to the
seated position. The [Plaintiff] can sit for a total of 6 hours in an 8-hour workday.
She can stand and/or walk for 15 minutes at one time for a total of 2 hours in an 8hour workday. The [Plaintiff] needs a cane for ambulation. The [Plaintiff] can
occasionally climb ramps and stairs, stoop, kneel, crouch, and crawl. She can
tolerate frequent exposure to humidity, atmospheric conditions, and pulmonary
irritants, but is precluded from extreme temperatures, climbing ladders, ropes, and
scaffolds, and hazards, such as dangerous machinery, unprotected heights, and
commercial driving. Mentally, the [Plaintiff] can perform jobs with no fast
production pace. She can occasionally interact with supervisors and coworkers,
but is precluded from interaction with the public. The [Plaintiff] can also tolerate
occasional changes in the work setting.
(R. at 16.)
Relying on the VE’s testimony, the ALJ found that even though Plaintiff is unable to
perform her past work, she can perform jobs that exist in significant numbers in the national
economy. (R. at 22-23.) He therefore concluded that Plaintiff was not disabled under the
Social Security Act. (R. at 24.)
On January 8, 2018, the Appeals Council denied Plaintiff’s request for review and
adopted the ALJ’s decision as the Commissioner’s final decision. Plaintiff then timely
commenced the instant action.

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In her Statement of Errors (ECF No. 15), Plaintiff asserts that the ALJ erred by “cherry
picking” or selectively citing record evidence to arrive at his RFC determination and ignored
evidence that supported greater limitations. The Commissioner counters that the ALJ
reasonably assessed the record evidence in arriving at Plaintiff’s RFC assessment.
II.

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) (“The 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 & Human 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
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 (6th Cir. 2009) (quoting Key v. Callahan, 109 F.3d

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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)).
III.

ANALYSIS

Plaintiff contends that the ALJ’s RFC determination is not supported by substantial
evidence because he “cherry picked” or selectively cited medical records and activities of daily
living to support his conclusions. The undersigned disagrees and RECOMMENDS that
Plaintiff’s contention of error be OVERRULED.
A.

Medical Records
Plaintiff asserts that the ALJ neglected to address certain medical records related to her

lumbar spine impairments that supported greater physical limitations in her RFC. More
specifically, Plaintiff asserts that the ALJ ignored Certified Nurse Practitioner Jami Easterday’s
(“CNP Easterday”) treatment notes stating that Plaintiff had obesity, increased pain with spinal
flexion, increased pain with straight-leg raising, 1+ pitting edema of the extremities, increased
pain with Patrick’s test, limited range of motion, antalgic gait, positive Patrick’s test, and
positive straight-leg raise test. (Pl.’s Statement of Errors at 15-16, ECF No. 15 (citing R. at
348, 343, 381, 409-410, 535, and 523).) Plaintiff also asserts that the ALJ erroneously stated
that CNP Easterday noted no gait problems from September 2015 to June 2016. (Id. at 16
(citing R. at 503, 507, 500, 497, 494, 490, 485, 482, 479, and 599).) Additionally, Plaintiff

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contends that the ALJ failed to consider her physical therapist’s “observations of decreased hip
strength bilaterally, struggling to perform straight leg raise testing, positive slouch testing,
extreme obesity, increased spinal lordosis, anterior pelvic tilt, and tenderness to palpation.” (Id.
at 16 (citing R. at 386).) Finally, Plaintiff asserts that the ALJ failed to note Dr. Kort
Gronbach’s “observation of painful flexion of the spine, significantly limited and painful
extension of the spine, and decreased patellar reflexes bilaterally.” (Id. (citing R. at 445).)
The Commissioner counters that the ALJ evaluated both the abnormal and normal
medical findings in the record and that his RFC determination is supported by substantial
evidence. The Commissioner asserts that although an ALJ is not required to discuss every
piece of evidence, a fair reading of the ALJ’s decision shows that he discussed much of the
specific evidence Plaintiff maintains he omitted, and, at the very least, discussed the treatment
notes that contain the purportedly ignored evidence. (Def.’s Mem. in Opp. at 6-7, ECF No. 21.)
The Commissioner further posits that “the ALJ’s approach can more accurately be characterized
as weighing the record evidence.” (Id. at 7.) The undersigned agrees with the Commissioner
and finds Plaintiff’s contention of error to be without merit.
A plaintiff’s RFC “is defined as the most a [plaintiff] can still do despite the physical and
mental limitations resulting from her impairments.” Poe v. Comm’r of Soc. Sec., 342 F. App’x
149, 155 (6th Cir. 2009); see also 20 C.F.R. §§ 404.1545(a), 416.945(a). The determination of
RFC is an issue reserved to the Commissioner. 20 C.F.R. §§ 404.1527(e), 416.927(e).
Nevertheless, substantial evidence must support the Commissioner’s RFC finding. Berry v.
Astrue, No. 1:09CV000411, 2010 WL 3730983, at *8 (S.D. Ohio June 18, 2010).
It is well established that an ALJ is not required to “discuss every piece of evidence in the

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record to substantiate [his] decision.” Conner v. Comm’r of Soc. Sec., 658 F. App’x 248, 254
(6th Cir. 2016) (citing Thacker v. Comm’r of Soc. Sec., 99 F. App’x 661, 665 (6th Cir. 2004));
see also Dykes ex rel. Brymer v. Barnhart, 112 F. App’x 463, 467–68 (6th Cir. 2004) (“Although
required to develop the record fully and fairly, an ALJ is not required to discuss all the evidence
submitted, and an ALJ’s failure to cite specific evidence does not indicate that it was not
considered.” (citations omitted)). The Sixth Circuit has further explained that:
[a]n ALJ can consider all the evidence without directly addressing in his written
decision every piece of evidence submitted by a party. Nor must an ALJ make
explicit credibility findings as to each bit of conflicting testimony, so long as his
factual findings as a whole show that he implicitly resolved such conflicts.
Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 496, 508 (6th Cir. 2006) (quoting Loral Defense
Systems–Akron v. N.L.R.B., 200 F.3d 436, 453 (6th Cir.1999) (citations and internal quotation
marks omitted)).
Moreover, an allegation of “cherry picking” “is seldom successful because crediting it
would require a court to re-weigh record evidence.” DeLong v. Comm’r of Soc. Sec. Admin.,
748 F.3d 723, 726 (6th Cir. 2014); see also White v. Comm’r of Soc. Sec., 572 F.3d 272, 284 (6th
Cir. 2009) (“[W]e see little indication that the ALJ improperly cherry picked evidence; the same
process can be described more neutrally as weighing the evidence.”).
Here, although the ALJ did not address every piece of evidence in the record, his factual
findings reveal that he considered the record as a whole and did not “cherry pick” the medical
evidence to support his RFC determination. In fact, the ALJ explicitly discussed many
abnormal medical findings, including findings that Plaintiff asserts he ignored. For example,
the ALJ noted that Plaintiff had subjective tenderness, reduced and limited range of motion,
subjective pain, subjective tenderness to palpation, painful extension of her lumbar spine,
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positive straight-leg raise test, positive Patrick’s test, decreased strength, decreased deep tendon
reflexes, decreased sensation, palpable trigger points, difficulty raising from a seated position,
antalgic gait, and moderate difficulty transitioning from sitting to standing. (R. at 17-18.) The
ALJ also noted, however, that on various occasions Plaintiff had normal neurological
examinations, the ability to move all extremities without difficulty, normal strength, normal
flexion, negative straight-leg raise tests, 5/5 muscle strength, intact sensation, 2+ reflexes, no
trigger points, no tenderness, and a full range of motion. (Id. at 19.) Further, the ALJ
explicitly considered Plaintiff’s obesity. (Id.) (“In addition to the foregoing conditions, the
[ALJ] also considered the [Plaintiff’s] obesity and hypertension in assessing her residual
functional capacity. The limitation to a reduced range of sedentary reasonably accommodates
these impairments.”).) With respect to her gait, Plaintiff correctly points out that the ALJ erred
in stating that CNP Easterday’s records from September 2015 to June 2016 noted no gait
problems. (Pl.’s Statement of Errors at 16, ECF No. 15) (citing R. at 507, 503, 500, 497, 494,
490, 485, 482, 479, 599).) This error, however, is harmless, as the ALJ considered that Plaintiff
had an antalgic gait in other parts of his decision, and, in assessing her RFC, determined that she
“needs a cane for ambulation” and is limited to standing and walking “for 15 minutes at one time
for a total of 2 hours in an 8-hour work day.” (R. at 16-18.)
The undersigned concludes that the ALJ’s discussion of the medical evidence sufficiently
supports his conclusion that Plaintiff is capable of performing a significantly reduced range of
sedentary work. Although substantial evidence may also support an alternative finding, the
ALJ’s findings were within the ALJ’s permissible “zone of choice,” and the Court will not reweigh the evidence. See Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009);

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DeLong, 748 F.3d at 726; White, 572 F.3d at 284.
B.

Activities of Daily Living
Plaintiff also asserts that the ALJ neglected to discuss certain limitations Plaintiff

reported with respect to her activities of daily living. (Pl.’s Statement of Errors at 17-18, ECF
No. 15.) She asserts that the ALJ ignored the following notes from her physical therapy
evaluation:
She reports her left leg goes to sleep if she sits for too long 10-15 mins. Her back
pain is constant and her leg pain is intermittent. She [i]s unable to clean 1 room
in her house before her back hurts so bad she needs to sit down. She is unable to
walk through Walmart and needs to use a motorized scooter as a result of her back
pain.
(Id. at 17, ECF No. 15 (citing R. at 385).) Plaintiff also submits that the ALJ neglected to note
that she takes a long time to do household chores, does not drive far because she cannot sit for
long, takes 15-20 minute breaks between household chores to sit down and rest, has trouble
getting up the stairs in her home, can stand 20 minutes if she is able to lean on something like a
counter or a cane, cannot stand up straight on some days because of her back pain, uses her cane
all the time, uses a motorized scooter for shopping, and wakes up one or two times throughout
the night due to back pain. (Id. at 17-18.)
The undersigned is not persuaded that the ALJ cherry picked or otherwise
mischaracterized Plaintiff’s activities of daily living in reaching his RFC determination. In
assessing Plaintiff’s RFC, the ALJ properly considered Plaintiff’s activities of daily living and
her testimony regarding her symptoms and limitations. The ALJ concluded that Plaintiff’s
testimony was not fully supported by the evidence and that her subjective complaints did not
support further limitations in the RFC. (R. at 22.) As set forth above, in reaching this

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conclusion, the ALJ was not required to “discuss every piece of evidence in the record to
substantiate [his] decision.” Conner, 658 F. App’x at 254 (citations omitted). Nevertheless,
the ALJ offered the following lengthy discussion of Plaintiff’s testimony and activities of daily
living in which he found that she is not as limited as she alleged:
At the hearing, the [Plaintiff] testified she cannot work due to lower back pain that
goes all the way across her back. She testified she can only sit for 15 to 20 minutes
at a time and cannot stand long, maybe 20 minutes at most. She said her pain
“creeps up” her back once or twice a week and travels down her legs and hips once
every two weeks. The [Plaintiff] noted she uses a cane to ambulate. Mentally,
the [Plaintiff] testified she experiences anger and wants to isolate.
After careful consideration of the evidence, the [ALJ] finds that the [Plaintiff’s]
medically determinable impairments could reasonably be expected to produce the
above alleged symptoms; however, the [Plaintiff’s] statements concerning the
intensity, persistence, and limiting effects of these symptoms are not entirely
consistent with the medical evidence and other evidence in the record for reasons
explained in this decision. Accordingly, these statements have been found to
affect the [Plaintiff’s] ability to work only to the extent they can reasonably be
accepted as consistent with the objective medical evidence and other evidence.
*

*

*

The [ALJ] also considered the [Plaintiff’s] activities of daily living. During a
physical therapy evaluation in January 2015, the [Plaintiff] reported she cleaned
her house every morning and then got on the computer in the afternoon (Exhibit
5F). In May 2015, the [Plaintiff] said she did all the transporting and getting
groceries because she was the only one with a car. She also said she did the dishes,
played games, and spent time on Facebook (Exhibit 8F, p. 24). In August and
September 2015, the [Plaintiff] indicated she went to junkyards to get stuff for
money (Exhibit 8F, p. 14 and 16). The [Plaintiff] also said in October 2015 that
she took her family to work and to the store (Exhibit 8F, p. 10). She further
reported in December 2015 that she was going to make Christmas cookies and
ornaments. She also said she talked quite a bit on the phone with her sister
(Exhibit 15F). In January 2016, she noted they made 500 Christmas cookies over
three days (Exhibit 15F, p. 17). During another appointment in January 2016, the
[Plaintiff] said she had watched her grandbabies that day and played games with
them. She also noted she was driving whomever needed a ride to and from work
and getting to her appointments. The [Plaintiff] further remarked that she had
been busy going out to food banks and the grocery store (Exhibit 15F, p. 15). In
February, March, and May 2016, the [Plaintiff] indicated she had been able to have
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parties, such as Thirty-One party, a Tupperware party, and a Pampered Chef party
(Exhibit 15F, pp. 7, 9, and 11). The [Plaintiff] again noted in June 2016 that she
had been watching her grandchildren quite a bit and driving everyone to where they
needed to be (Exhibit 15F, p. 5).
At the hearing, the [Plaintiff] testified she does dishes, wipes off counters and the
table, puts dishes away and sweeps in the morning off and on. She also said she
can run to the store real quick [i]f she needs to. The [Plaintiff] further remarked
that she read a book and listens to the television. These activities are not
inconsistent with the residual functional capacity assessed herein.
*

*

*

In summary, while the [Plaintiff] has medically determinable impairments that
could reasonably cause some symptoms and limitations, the above evidence shows
that the [Plaintiff’s] testimony regarding the extent of such symptoms and
limitations is not fully supported. However, the [Plaintiff’s] complaints have not
been completely dismissed, but rather, have been included in the residual functional
capacity to the extent that they are consistent with the evidence as a whole.
Nevertheless, in considering the criteria enumerated in the Regulations, Rulings,
and case law for evaluating the [Plaintiff’s] subjective complaints, the [Plaintiff’s]
testimony was not persuasive to establish an inability to perform the range of work
assessed herein. The location, duration, frequency, and intensity of the
[Plaintiff’s] alleged symptoms, as well as the precipitating and aggravating factors
are adequately addressed and accommodated in the above residual functional
capacity.
As the subjective complaints in the record do not support further reduction of the
established residual functional capacity, the [Plaintiff] retains the residual
functional capacity as described above.
(R. at 17, 20-22.) The undersigned finds no error with the ALJ’s consideration of Plaintiff’s
activities of daily living in evaluating Plaintiff’s allegations and formulating her RFC. See
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 532 (6th Cir. 1997) (“An ALJ may also consider
household and social activities engaged in by the claimant in evaluating a claimant’s assertions
of pain or ailments.”).2

2 Plaintiff does not challenge the ALJ’s credibility determination, and the undersigned declines
to disturb it. McPherson v. Kelsey, 125 F.3d 989, 996-96 (6th Cir. 1997) (“[I]ssues adverted to
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In summary, substantial evidence supports the ALJ’s RFC determination, and he did not
err in his consideration or discussion of the record evidence. As explained above, the
undersigned will not re-weigh the evidence where the ALJ’s findings were within the
permissible “zone of choice.” See Blakley, 581 F.3d at 406; DeLong, 748 F.3d at 726; White, 572
F.3d at 284. Accordingly, it is RECOMMENDED that Plaintiff’s contention of error be
OVERRULED.
IV.

DISPOSITION

From a review of the record as a whole, the undersigned concludes that substantial
evidence supports the ALJ’s decision denying benefits. Accordingly, it is RECOMMENDED
that the Court OVERRULE Plaintiff’s Statement of Errors and AFFIRM the Commissioner of
Social Security’s decision.
V.

PROCEDURE ON OBJECTIONS

If any party objects to this Report and Recommendation, that party may, within fourteen
(14) days of the date of this Report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection is made, together with
supporting authority for the objection(s).

A Judge of this Court shall make a de novo

determination of those portions of the Report or specified proposed findings or recommendations
to which objection is made. Upon proper objections, a Judge of this Court may accept, reject,
or modify, in whole or in part, the findings or recommendations made herein, may receive

in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed
waived.” (internal quotation marks and citations omitted)); see also Sullenger v. Comm’r of Soc.
Sec., 255 F. App’x 988, 995 (6th Cir. 2007) (declining to disturb the ALJ’s credibility
determination, stating that: “[w]e will not try the case anew, resolve conflicts in the evidence, or
decide questions of credibility” (citation omitted)).
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further evidence or may recommit this matter to the Magistrate Judge with instructions. 28
U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the District Judge review the Report
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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

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