Hardy v. Commissioner of Social Security

Filing 22

OPINION AND ORDER adopting Report and Recommendations re 20 Report and Recommendations. Signed by Judge James L. Graham on 9/7/21. (ds)

Case: 2:20-cv-04097-JLG-CMV Doc #: 22 Filed: 09/07/21 Page: 1 of 9 PAGEID #: 464

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

Case No. 2:20-cv-4097

Commissioner of
Social Security,
Defendant.
OPINION AND ORDER
Plaintiff Marcus L. Hardy brings this action under 42 U.S.C.
§405(g) for review of the final decision of the Commissioner of
Social Security (“Commissioner”) denying his applications for a
period

of

disability,

disability

security income benefits.

insurance,

and

supplemental

In a decision dated April 25, 2019, the

administrative law judge (“ALJ”) found that plaintiff has severe
impairments consisting of remote history of gunshot wound in the
right calf, with residual symptoms; remote left hand crush injury,
with residual symptoms; depression; anxiety; post-traumatic stress
disorder; and cannabis use disorder. PAGEID 68. The ALJ concluded
that plaintiff has the residual functional capacity (“RFC”) to
perform physical work, with limitations.

In regard to plaintiff’s

mental conditions, the ALJ stated that plaintiff:
can perform simple routine tasks at an average pace
without strict time or production demands; interact
occasionally with others but work duties should not
require him to work with large groups of unfamiliar
members of the public (defined as 20 or more at one
time); interaction should be limited to a straightforward
exchanges of information without negotiation, persuasion
or conflict resolution; and he can adapt to occasional
changes in duties that are explained or demonstrated.

Case: 2:20-cv-04097-JLG-CMV Doc #: 22 Filed: 09/07/21 Page: 2 of 9 PAGEID #: 465

PAGEID 70. After considering the testimony of a vocational expert,
the ALJ found that there are occupations in the national economy
that plaintiff could perform, and that plaintiff is not disabled.
PAGEID 80.
This matter is now before the court for consideration of
plaintiff’s August 16, 2021, objections to the August 2, 2021,
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)); 42 U.S.C.
§ 405(g).

“Substantial evidence exists when ‘a reasonable mind

could accept the evidence as adequate to support a conclusion [and]
... presupposes that there is a zone of choice within which the
decision-makers can go either way, without interference by the
courts.’”

Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th

Cir. 2009)(internal citation omitted).
2

A reviewing court will

Case: 2:20-cv-04097-JLG-CMV Doc #: 22 Filed: 09/07/21 Page: 3 of 9 PAGEID #: 466

affirm the Commissioner’s decision if it is based on substantial
evidence, even if substantial evidence would also have supported
the opposite conclusion. Gayheart v. Comm’r of Soc. Sec., 710 F.3d
365,

376

(6th

Cir.

2013).

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. Plaintiff’s Objections
Plaintiff objects to the recommendation of the magistrate
judge that the decision of the Commissioner should be affirmed.
Plaintiff argued below that the ALJ did not adequately discuss the
June

21,

2017,

consulting

evaluation

psychologist.

of

See

Dr.

Steven

PAGEID

J.

Meyer,

374-379,

Ex.

Ph.D.,
2F.

a

The

magistrate judge concluded that the ALJ gave sufficient reasons
why she adopted only some of Dr. Meyer’s recommendations.

This

court agrees with the analysis of the magistrate judge.
The claims in this case, which were filed after March 27,
2017, are governed by revised regulations concerning the evaluation
of opinion evidence.

The ALJ must consider and articulate how

persuasive he or she finds all of the medical opinions in a
claimant’s

case

supportability;

record
(2)

based

on

the

following

factors:

consistency;

(3)

relationship

with

(1)
the

claimant; (4) specialization; and (5) other factors that tend to
support or contradict the opinion.
(c)(1)-(5).

As

supportability
3

and

20 C.F.R. §404.1520c(b) and
consistency

are

the

most

Case: 2:20-cv-04097-JLG-CMV Doc #: 22 Filed: 09/07/21 Page: 4 of 9 PAGEID #: 467

important factors, the ALJ must address them in evaluating the
persuasiveness of medical opinions.

20 C.F.R. §404.1520c(b)(2).

The ALJ may comment on the other factors but generally has no
obligation to do so.

See 20 C.F.R. §404.1520c(b)(2)-(3).

Plaintiff correctly notes that the ALJ did not specifically
mention

the

words

“supportability”

discussing Dr. Meyer’s opinions.

and

“consistency”

while

However, this failure does not

necessarily mean that the ALJ did not consider these factors.

See

Hobbs v. Saul, Civil Action No. 2:20cv00004, 2021 WL 1574421, at
*10

(W.D. Va. April 22, 2021)(finding that the ALJ sufficiently

addressed the consistency factor even though he did not use the
term “consistency” in evaluating the expert’s opinion).
The ALJ was aware of the applicable standards for reviewing
the expert opinions in this case.

She observed in her decision

that the medical opinions in this case were to be considered under
the new medical evidence rules applicable to cases filed after
March 27, 2017, and noted that she had “considered the medical
opinion(s) ... in accordance with the requirements of 20 CFR
404.1520c[.]”

PAGEID 71, 75.

She summarized Dr. Meyer’s report

concerning his consultative examination of the plaintiff, in which
Dr. Meyer diagnosed plaintiff with major depressive disorder,
single episode, moderate and adjustment disorder, with anxiety.
PAGEID 77.

The ALJ found that Dr. Meyer’s opinions concerning

plaintiff’s limitations were not fully persuasive, agreeing with
some but not all of his recommendations.

PAGEID 77.

The ALJ

concluded that plaintiff should be limited, more restrictively, to
only simple routine tasks, whereas Dr. Meyer would have limited him
to simple and moderately complex routine instructions and tasks.

4

Case: 2:20-cv-04097-JLG-CMV Doc #: 22 Filed: 09/07/21 Page: 5 of 9 PAGEID #: 468

PAGEID 78.

The ALJ also adopted Dr. Meyer’s proposed limitations

regarding a low stress work setting by restricting plaintiff to
simple routine tasks at an average pace without strict time or
production demands, and occasional changes in duties that are
explained or demonstrated.
The

focus

of

PAGEID 70, 78.

plaintiff’s

objections

is

on

the

ALJ’s

disagreement with Dr. Meyer’s opinion that plaintiff could not
manage even minimal social demands in an ordinary work setting
without serious increases in psychological distress and adaptive
limitations. PAGEID 78. The ALJ stated, “While I have established
significant social limitations in the mental residual functional
capacity above, they are not as limiting as the limitations
established

by

Dr.

Meyer,

which

suggested

the

incapable of any socialization in the workplace.”

claimant

was

PAGEID 78.

Plaintiff’s RFC restricted him to only occasional interaction with
others, involving only a straightforward exchange of information,
with no duties which would require him to work with large groups of
unfamiliar members of the public (the last accommodation addressed
plaintiff’s hearing testimony, specifically noted by the ALJ, that
big crowds bothered him).

PAGEID 69, 70.

However, plaintiff

argues that the ALJ failed to adequately analyze the supportability
and

consistency

limitation.

of

Dr.

Meyer’s

proposed

social

interaction

The court concludes that the ALJ’s explanation for

finding unpersuasive this branch of Dr. Meyer’s opinion and her
discussion of the evidence elsewhere in her decision1 adequately

1

Review of an
opinion need not be
Comm’r of Soc. Sec.,
Ohio Oct. 2, 2020);

ALJ’s explanation for rejecting an expert
confined to a single paragraph. Parkinson v.
No. 2:19-cv-5051, 2020 WL 5875870, at *2 (S.D.
Heston v. Comm’r of Soc. Sec., 245 F.3d 528,
5

Case: 2:20-cv-04097-JLG-CMV Doc #: 22 Filed: 09/07/21 Page: 6 of 9 PAGEID #: 469

address the issues of supportability and consistency.
“‘Supportability’ means ‘[t]he extent to which a medical
source’s

opinion

is

supported

by

relevant

objective

medical

evidence and the source’s supporting explanation.’” Hobbs, 2021 WL
1574421, at *8, n. 7 (quoting Revisions to Rules, 82 Fed. Reg. at
5853.

“The more relevant the objective medical evidence and

supporting explanations presented by a medical source are to
support his or her medical opinion(s) ... the more persuasive the
medical opinions ... will be.”

20 C.F.R. §404.1520c(c)(1).

Relevant to supportability, the ALJ observed that Dr. Meyer’s
opinion

was

“the

result

of

his

own

observations,

clinical

interview, and mental status evaluation.” PAGEID 78. After noting
Dr. Meyer’s conclusion that plaintiff could not manage even minimal
social demands in an ordinary work setting, the ALJ pointed out
that plaintiff was able to interact effectively with Dr. Meyer.
PAGEID 78.

The ALJ cited information (which was contained in Dr.

Meyer’s report) that plaintiff was able to socialize with family
and to see his children, and that plaintiff had not sought mental
health counseling or taken any medication for his psychological
impairments prior to his consultation with Dr. Meyer.
ALJ

implicitly

observed

that

Dr.

Meyer’s

Thus, the

proposed

social

functioning limitation was not supported by information in his
report and his own observations of plaintiff’s behavior during the
evaluation.
Elsewhere in her decision, the ALJ stated that plaintiff’s
failure to seek any treatment for his alleged mental impairments

535 (6th Cir. 2001)(review of the Commissioner’s findings must be
based on the record as a whole).
6

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until September, 2017, “suggests that the claimant’s symptoms were
tolerable and not as severe as he has alleged.”

PAGEID 74.

The

ALJ also indicated that after plaintiff sought mental health
treatment in September, 2017, the progress notes of that treatment
reported that there was significant improvement in his symptoms
with medications, and showed that plaintiff was able to interact
effectively with his treating psychological sources.

PAGEID 78.

This medical evidence further undermines the supportability of Dr.
Meyer’s opinion concerning plaintiff’s ability to manage minimal
social demands.
The ALJ’s comments also adequately addressed the issue of
consistency.

“‘Consistency’” denotes ‘the extent to which the

opinion is consistent with the evidence from other medical sources
and nonmedical sources in the claim.’”

Hobbs, 2021 WL 1574421, at

*8, n. 7 (quoting Revisions to Rules, 82 Fed. Reg. at 5853).

“The

more consistent a medical opinion[] ... is with the evidence from
other medical sources and nonmedical sources in the claim, the more
persuasive

the

medical

opinion[]

discussed

evidence,

...

will

be.

20

C.F.R.

§404.1520c(c)(2).
The

ALJ

including

medical

treatment

records and plaintiff’s hearing testimony, which was inconsistent
with Dr. Meyer’s opinion regarding plaintiff’s inability to manage
even minimal social demands.

The ALJ noted that: plaintiff was

able to interact effectively with Dr. Meyer, his treating mental
health

sources,

and

Dr.

Whitehead,

a

consultative

physician;

plaintiff presented at the hearing with no observable social
difficulty, showing no aberrant behaviors or oddities in his
mannerisms, and did not have any problems interacting with the
other participants or answering questions; plaintiff acknowledged
7

Case: 2:20-cv-04097-JLG-CMV Doc #: 22 Filed: 09/07/21 Page: 8 of 9 PAGEID #: 471

his ability to socialize with family, to shop in stores, to run
errands on his own, to use the bus, and to care for his children;
plaintiff enjoyed spending time with his daughters and recently
attended one of his daughter’s school plays; plaintiff had not
sought psychological treatment or taken medication for his mental
health

conditions

evaluation;

and

until

progress

September,
notes

2017,

after

concerning

his

Dr.
mental

Meyer’s
health

treatment reported significant improvement of plaintiff’s symptoms
with medications.

PAGEID 69-70, 74, 78.

The ALJ observed that

plaintiff “has not generally received the type of medical treatment
one would expect for a totally disabled individual” and that
plaintiff’s failure to seek any treatment for his alleged mental
impairments until September, 2017, “suggests that the claimant’s
symptoms were tolerable and not as severe as he has alleged.”
PAGEID 74.
The

ALJ’s

decision

demonstrates

that

she

considered

the

factors of supportability and consistency in evaluating Dr. Meyer’s
opinions.

Her decision is sufficient to permit this court to

review the ALJ’s evaluation of those factors.

The ALJ’s decision

substantially complied with the requirements of §404.1520c, and her
failure

to

specifically

use

the

“supportability”

and

“consistency” in her analysis, even if error, was harmless.

The

court concludes that the ALJ’s

terms

decision to reject Dr. Meyer’s

opinion that plaintiff could not manage even minimal social demands
in an ordinary work setting is supported by substantial evidence,
and plaintiff’s objections are not well taken.
III. Conclusion
For

the

reasons

stated

above,

the

court

overrules

the

plaintiff’s objections (Doc. 21), and adopts and affirms the
8

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magistrate judge’s report and recommendation (Doc. 20).

The

decision of the Commissioner is affirmed, and the clerk is directed
to enter final judgment in this case.

It is so ordered.

Date: September 7, 2021

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

9