Bartels v. Commissioner of Social Security
Filing
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MEMORANDUM OPINION AND ORDER - IT IS ORDERED THAT Defendant's decision is SUPPORTED BY SUBSTANTIAL EVIDENCE, and is AFFIRMED, and that this case is CLOSED. Signed by Magistrate Judge Stephanie K. Bowman on 2/6/2024. (km)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
KATLYN B. 1
Case No. 2:23-cv-867
Plaintiff,
v.
Bowman, M.J.
COMMISSIONER OF SOCIAL SECURITY,
Defendants.
MEMORANDUM OF OPINION AND ORDER
Plaintiff Katlyn B filed this Social Security appeal in order to challenge the
Defendant’s finding that she is not disabled. See 42 U.S.C. § 405(g). Proceeding through
counsel, Plaintiff presents two claims of error, both of which the Defendant disputes. As
explained below, the Administrative Law Judge (ALJ)’s finding of non-disability should be
AFFIRMED, because it is supported by substantial evidence in the administrative record.
The parties have consented to the jurisdiction of the undersigned magistrate judge. See
28 U.S.C. §636(c).
I. Summary of Administrative Record
On August 26, 2020, Plaintiff filed applications for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income (“SSI) alleging she became disabled on March
26, 2020 based upon a combination of physical and mental impairments. After her claim
was denied initially and upon reconsideration, Plaintiff requested an evidentiary hearing
before an Administrative Law Judge (“ALJ”). At a telephonic hearing held on October 28,
The Committee on Court Administration and Case Management of the Judicial Conference of the United
States has recommended that, due to significant privacy concerns in social security cases, federal courts
should refer to claimants only by their first names and last initials. See General Order 22-01.
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2021, Plaintiff appeared with counsel and gave testimony before ALJ Jessica Hodgson.
Vocational Expert Pauline Pegram-Wargel also appeared by telephone. On December
27, 2021, the ALJ issued a written decision, concluding that Plaintiff was not disabled.
(Tr. 15-31).
Plaintiff was born on August 6, 1997, and was 22 years old on her alleged disability
onset date. (Tr. 29). She has a high school education and has past relevant work as a
pharmacy technician and cashier. She has a history of postural orthostatic tachycardia
syndrome (POTS), with syncope, dizziness, lightheadedness, loss of consciousness,
palpitations, and fatigue.
Based upon the record and testimony presented at the hearing, the ALJ found that
Plaintiff had the following severe impairments: “syncope, postural orthostatic tachycardia
syndrome (POTS), mixed anxiety and depressive disorder, generalized anxiety disorder
with panic attacks, persistent depressive disorder, major depressive disorder, panic
disorder, generalized anxiety disorder, and social anxiety disorder.” (Tr. 17-18). The ALJ
concluded that none of Plaintiff’s impairments alone or in combination met or medically
equaled a listed impairment in 20 C.F.R. Part 404, Subp. P, Appendix 1. Despite these
impairments, the ALJ determined that Plaintiff retains the RFC to perform light work
subject to the following limitations:
She can occasionally climb ramps and stairs, but never climb ladders, ropes, or
scaffolds; occasionally balance, stoop, kneel, crouch, and crawl; never work at
unprotected heights, no moving mechanical parts, and never operate a motor
vehicle; occasional work in weather, humidity and wetness, dust, odors, fumes,
pulmonary irritants, extreme cold, extreme heat, and vibration; can perform simple,
routine tasks; can perform simple work-related decisions; and she can interact
frequently with supervisors, coworkers, and the public.
(Tr. 20-21).
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Based upon her RFC and testimony from the vocational expert, the ALJ concluded
that Plaintiff could perform jobs that exist in significant numbers in the national economy,
including marking clerk, office helper, and routing clerk. (Tr. 30). Accordingly, the ALJ
determined that Plaintiff is not under disability, as defined in the Social Security
Regulations, and is not entitled to DIB and SSI. Id.
The Appeals Council denied Plaintiff’s request for review. Therefore, the ALJ’s
decision stands as the Defendant’s final determination. On appeal to this Court, Plaintiff
argues that the ALJ erred by: (1) improperly formulating her RFC; and (2) failing to
properly evaluate Plaintiff’s fibromyalgia. Upon close analysis, I conclude that Plaintiff’s
arguments are not well-taken.
I.
Analysis
A. Judicial Standard of Review
To be eligible for benefits, a claimant must be under a “disability.” See 42 U.S.C.
§1382c(a). Narrowed to its statutory meaning, a “disability” includes only physical or
mental impairments that are both “medically determinable” and severe enough to prevent
the applicant from (1) performing his or her past job and (2) engaging in “substantial
gainful activity” that is available in the regional or national economies. See Bowen v. City
of New York, 476 U.S. 467, 469-70 (1986).
When a court is asked to review the Commissioner’s denial of benefits, the court’s
first inquiry is to determine whether the ALJ’s non-disability finding is supported by
substantial evidence.
42 U.S.C. § 405(g).
Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971) (additional citation and internal quotation
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omitted). In conducting this review, the court should consider the record as a whole.
Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial evidence supports
the ALJ’s denial of benefits, then that finding must be affirmed, even if substantial
evidence also exists in the record to support a finding of disability. Felisky v. Bowen, 35
F.3d 1027, 1035 (6th Cir. 1994). As the Sixth Circuit has explained:
The Secretary’s findings are not subject to reversal merely because
substantial evidence exists in the record to support a different conclusion....
The substantial evidence standard presupposes that there is a ‘zone of
choice’ within which the Secretary may proceed without interference from
the courts. If the Secretary’s decision is supported by substantial evidence,
a reviewing court must affirm.
Id. (citations omitted).
In considering an application for supplemental security income or for disability
benefits, the Social Security Agency is guided by the following sequential benefits
analysis: at Step 1, the Commissioner asks if the claimant is still performing substantial
gainful activity; at Step 2, the Commissioner determines if one or more of the claimant’s
impairments are “severe;” at Step 3, the Commissioner analyzes whether the claimant’s
impairments, singly or in combination, meet or equal a Listing in the Listing of
Impairments; at Step 4, the Commissioner determines whether or not the claimant can
still perform his or her past relevant work; and finally, at Step 5, if it is established that
claimant can no longer perform his or her past relevant work, the burden of proof shifts to
the agency to determine whether a significant number of other jobs which the claimant
can perform exist in the national economy. See Combs v. Commissioner of Soc. Sec.,
459 F.3d 640, 643 (6th Cir. 2006); see also Walters v. Comm’r of Soc. Sec., 127 F.3d
525, 528-29 (6th Cir. 1997) (explaining sequential process); 20 C.F.R. §§404.1520,
416.920.
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A plaintiff bears the ultimate burden to prove by sufficient evidence that she is
entitled to disability benefits. 20 C.F.R. § 404.1512(a). A claimant seeking benefits must
present sufficient evidence to show that, during the relevant time period, she suffered an
impairment, or combination of impairments, expected to last at least twelve months, that
left her unable to perform any job. 42 U.S.C. § 423(d)(1)(A).
B. The ALJ’s Decision is supported by Substantial Evidence
A. ALJ’s RFC Determination
Plaintiff argues first that the ALJ’s RFC determination is not supported by
substantial evidence because it does not properly account for her mental impairments as
well as her functional limitations associated with POTS.
Plaintiff’s contentions are
unavailing.
The RFC is the “most [an individual] can still do despite [his physical and mental]
limitations.” 20 C.F.R. § 416.945(a)(1). An ALJ determines the claimant's RFC using “all
the relevant evidence in [the] case record.” Id. Yet it is the claimant's burden to establish
her RFC. See id. § 416.945(a)(3) (“In general, you are responsible for providing the
evidence we will use to make a finding about your residual functional capacity.”); see also
Jordan v. Comm'r of Soc. Sec., 548 F.3d 417, 423 (6th Cir. 2008) (claimant bears the
burden of demonstrating a more restrictive RFC); Casey v. Sec'y of Health & Human
Servs., 987 F.2d 1230, 1233 (6th Cir. 1993) (“Plaintiff has the ultimate burden of
establishing the existence of disability.”).
Here, in formulating Plaintiff’s mental RFC, the ALJ found that the opinions of the
State agency experts and consultative examiner were persuasive in part, noting that the
opinions were not fully supported by the evidence of the record. Namely, in November
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2020, Christopher Ward, Ph.D., performed a consultative evaluation of Plaintiff and
opined that Plaintiff would have “difficulty” understanding and remembering instructions,
understanding and responding to questions, and concentrating and focusing. (Tr. 35156). Dr. Ward further opined that Plaintiff’s symptoms “may” impact her social
engagement in a work setting and her mood stability in a competitive work setting. (Tr.
356).
Thereafter, in November 2020, following Dr. Ward’s evaluation, Karla Delcour,
Ph.D., reviewed the record and found that Plaintiff retained the capacity to perform simple
tasks, sustain simple tasks without fast pace (ex: without the consistent, fast pace
required in assembly line work), interact with others superficially and infrequently, and
adapt to settings where duties are relatively static and changes are infrequent and can
be adjusted to over time. (Tr. 87-88, 90-92). In April 2021, Ermias Seleshi, M.D., reviewed
the record and found that Plaintiff could carry out routine tasks without expectation for
sustained close concentration, fast paced performance, or meeting high production
standards; interact with others on a brief, intermittent, and superficial basis; and adapt to
stable work settings with clear and predictable expectations and infrequent changes in
routine. (Tr. 108-09, 111- 13).
With respect to Dr. Ward’s suggestion that Plaintiff’s symptoms “may” impact her
social engagement in a work setting and her mood stability in a competitive work setting,
the ALJ found this opinion was not fully persuasive. (Tr. 24, 356). Notably, the ALJ found
these portions inconsistent with Plaintiff’s sparce mental health treatment. (Tr. 22-24, 2627). The ALJ also found Dr. Ward’s findings to be inconsistent with subsequent
unremarkable mental status examinations performed by Sharon Lyon-Paul, C.N.P. (Tr.
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24). In this regard, the ALJ noted that Ms. Lyon-Paul reported that Plaintiff appeared
alert, oriented, cooperative, and calm with normal speech, clear and linear thought
process, intact memory, normal attention and concentration, intact insight and judgment,
and appropriate mood and affect. (Tr. 19-20, 25-27, 559, 572, 584-85, 597, 610-11).
Similarly, the ALJ determined that Dr. Delcour and Dr. Seleshi’s opinions were
somewhat persuasive because they were generally consistent with Dr. Ward’s medical
opinion. Tr. 28. She found that their medical findings are not fully persuasive because
they are not fully supported by the unremarkable mental status examinations documented
by Ms. Lyon-Paul. As such, she declined to include more restrictive limitations including
more restrictive social interaction limitations due to the unremarkable mental status
examinations documented by Ms. Lyon-Paul and the limited course of outpatient mental
health treatment.
Plaintiff argues that the ALJ ’s RFC determination does not properly account for
Plaintiff’s moderate limitations in maintaining concentration, persistence, and pace and
interacting with others. In this regard, Plaintiff contends that the ALJ improperly cherry
picked the opinions of the reviewing and examining psychologists and, instead, relied on
her lay opinion of the medical evidence to determine which limitations should be included
in the RFC. According to Plaintiff, the evidence of record documents Plaintiff’s panic
attacks, mixed anxiety and depressive disorder, difficulty living independently, irritability,
poor sleep, fear of letting others down, difficulty making decisions for herself, purposefully
avoiding conflicts and/or confrontations at all costs, tendency to quit jobs when serious
discussion or conflict occurs; and her issues with anger and communicating. Tr. 454, 457,
465, 478, 481, 501, 503, 519, 523, 534-535, 537, 543, 702. In light of the foregoing,
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Plaintiff argues that the record evidence indicates that she may be unable to meet quotas,
stay alert, or work at a consistent pace, even at a simple, unskilled, routine job. As such,
Plaintiff contends that the ALJ’s RFC and subsequent hypothetical question to the
vocational expert fail to account for Plaintiff’s moderate limitations of concentration,
persistence, and pace.
Contrary to Plaintiff’s contention, however, numerous cases from the Sixth Circuit,
have held that limitations similar to those the ALJ included in Plaintiff's RFC adequately
addressed the claimant's moderate limitations in concentration, persistence, or
maintaining pace. See Reinartz v. Comm'r of Soc. Sec., 795 F. App’x 448, 449 (6th Cir.
2020) (ALJ’s hypothetical question that asked if someone could perform work who could
“comprehend, retain, and execute simple, routine and repetitive tasks” properly
accounted for the earlier finding that she had “moderate limitation in concentration,
persistence, or maintaining pace[.]”). See Smith-Johnson v. Comm'r of Soc. Sec., 579 F.
App'x 426, 437 (6th Cir. 2014) (concluding that a “limitation to simple, routine, and
repetitive tasks” adequately accounted for the plaintiff's “moderately-limited ability ‘to
maintain attention and concentration for extended periods’ ”); Wood v. Comm'r of Soc.
Sec., No. 19-1560, 2020 WL 618536, at *2–4 (6th Cir. Jan. 31, 2020) (RFC limitation to
“performing simple and routine tasks” was not inconsistent with ALJ's step three finding
that the plaintiff had moderate limitations in concentration, persistence, and pace because
the plaintiff failed to show that the evidence warranted additional limitations). Here, the
ALJ’s RFC properly accounts for the moderate limitations.
Plaintiff further argues that the ALJ’s finding that she could “frequently” interact
with supervisors, coworkers and the public is not supported by substantial evidence.
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Namely, Plaintiff’ contends that the state agency psychologists found that Plaintiff could
interact with others on a brief, intermittent, and superficial basis. However, as noted
above, the ALJ declined to include more restrictive social interaction limitations due to the
unremarkable mental status examinations documented by Ms. Lyon-Paul and limited
mental health treatment. As noted by the Commissioner, Ms. Lyon-Paul reported that
Plaintiff appeared alert, oriented, cooperative, and calm with normal speech, clear and
linear thought process, intact memory, normal attention and concentration, intact insight
and judgment, and appropriate mood and affect. (Tr. 19-20, 25-27, 559, 572, 584-85, 597,
610-11). Additionally, the record contains treatment notes showing that Plaintiff appeared
cooperative, pleasant, and calm (Tr. 310, 318, 392, 395, 655, 704); she demonstrated
average intelligence, intact memory, and intact thought processes (Tr. 310, 318, 321,
386, 392, 395, 446, 454, 461, 466); and had appropriate mood and affect (Tr. 386, 392,
395, 413, 417, 421, 436, 440, 446, 454, 461, 466, 489, 719, 725, 731).
Moreover, the vocational expert testified that, if the hypothetical person was further
limited to simple, routine, repetitive tasks not at a production rate pace (meaning
assembly line work) and occasional interaction with co-workers and the public, the person
could perform light and sedentary jobs (Tr. 78-79). For these reasons, the undersigned
finds that the ALJ’s mental RFC is supported by substantial evidence and should not be
disturbed.
With respect to Plaintiff’s physical limitations, Plaintiff also argues that the ALJ’s
RFC fails to fully consider the severity of her postural orthostatic tachycardia syndrome
(POTS). Plaintiff’s contentions lack merit.
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In evaluating Plaintiff’s physical impairments, the ALJ found the prior administrative
medical findings of the state agency providers to be persuasive. (Tr. 28). Notably, the
records indicates that in November 2020, Leon Hughes, M.D., reviewed the record and
found that Plaintiff had no exertional limitations but she could never climb ladders, ropes,
or scaffolds and must avoid all exposure to unprotected heights, dangerous machinery,
and commercial driving due to syncope. (Tr. 89-90). In April 2021, Gary Hinzman, M.D.,
reviewed the updated record and affirmed Dr. Hughes’ findings (Tr.110-11). Drs. Hughes
and Hinzman considered Plaintiff’s postural orthostatic tachycardia syndrome (POTS)
demonstrated by the positive tilt table test (Tr. 90, 111).
The ALJ’s decision acknowledged the positive tilt table test done by Dr. Addo in
October 2020 that resulted in syncope. (Tr. 23, 27, 340, 343). However, the ALJ noted
that Dr. Addo’s conservative treatment which encouraged Plaintiff to stay hydrated, avoid
dehydration, avoide prolonged standing and liberalize salt intake. Dr. Addo prescribed
Midodrine, salt tablets and compression stockings. The ALJ noted that there was no
evidence of injuries from her alleged six episodes of passing out a month. (Tr. 27, 58).
Moreover, as noted by the Commissioner, Plaintiff has presented no medical opinion that
her POTS imposed greater limitations than those included in the RFC. Accordingly, the
undersigned finds that the ALJ’s decision is substantially supported in this regard.
Although Plaintiff may disagree with the ALJ's decision, she has not shown that it
was outside the ALJ's permissible “zone of choice” that grants ALJs discretion to make
findings without “interference by the courts.” Blakley, 581 F.3d at 406. Even if a reviewing
court would resolve the factual issues differently, when supported by substantial
evidence, the Commissioner's decision must stand. See Foster v. Halter, 279 F.3d 348,
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353 (6th Cir. 2001). Indeed, the Sixth Circuit upholds an ALJ's decision even where
substantial evidence both contradicts and supports the decision. Casey v. Sec'y of H.H.S.,
987 F.2d 1230, 1235 (6th Cir. 1993). For these reasons, the ALJ's decision is substantially
supported in this regard and should not be disturbed.
B. Fibromyalgia
Plaintiff argues next that the ALJ erred in failing to find that her fibromyalgia was a
severe impairment. This contention also lacks merit.
For an impairment to be “severe,” it must be expected to last more than 12 months
and more than “minimally” affect a claimant's work ability. See 42 U.S.C. § 423(d)(1)(A);
Higgs v. Bowen, 880 F.2d 860, 862 (6th Cir. 1988) (“an impairment can be considered
not severe only if it is a slight abnormality that minimally affects work ability regardless of
age, education, and experience”). In her step two finding, the ALJ noted that Plaintiff also
had several impairments he found to be non-severe. (Tr. 18). However, the ALJ found
that there is no evidence that any of Plaintiff's non-severe impairments imposed more
than minimal functional limitations on the Plaintiff's ability to perform work related activity.
Accordingly, the undersigned finds that the ALJ's decision is substantially supported in
this regard.
Regardless, even if the Court found the ALJ erred, errors at step two of the
sequential analysis will not necessarily require reversal, if the ALJ finds at least one
“severe” impairment and therefore continues with the remaining steps in the sequential
process. That is because in determining a plaintiff's residual functional capacity and ability
to work later in the sequential process, the ALJ must consider even the impairments found
not to be “severe” at step two. See Maziarz v. Secretary of Health and Human Servs.,
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837 F.2d 240, 244 (6th Cir. 1987); 20 C.F.R. § 404.1520. Thus, regulations require an
ALJ to “consider the limiting effects of all [the claimant's] impairment(s), even those that
are not severe, in determining [the claimant's] residual functional capacity. Pain or other
symptoms may cause a limitation of function beyond that which can be determined on the
basis of the anatomical, physiological or psychological abnormalities considered alone....”
20 C.F.R. § 404.1545(e).
In this case, the ALJ found several “severe” impairments including syncope,
postural orthostatic tachycardia syndrome (POTS), mixed anxiety and depressive
disorder, generalized anxiety disorder with panic attacks, persistent depressive disorder,
major depressive disorder, panic disorder, generalized anxiety disorder, and social
anxiety disorder, and, therefore proceeded through the five-step sequential analysis.
Even if there was an error, the ALJ's failure to consider Plaintiff's fibromyalgia as “severe”
at Step 2 of the sequential analysis, will not necessarily require reversal or remand.
Contrary to Plaintiff's claim, the ALJ also reasonably considered her impairments in
combination. As stated above, the ALJ found that Plaintiff had several severe
impairments. (Tr. 17-18).
She also discussed Plaintiff’s non-severe impairments,
including, panic attacks, gastroesophageal reflux disease, orthostatic hypertension,
incontinence, fibromyalgia, conversion disorder, mild hand tremors, headaches, delayed
gastric emptying, chronic pain syndrome and neuralgia of the lower extremities. The ALJ
specifically noted that although the record contains the diagnosis of fibromyalgia, there is
insufficient evidence to demonstrate compliance with Social Security Ruling 12-2p,
Evaluation of Fibromyalgia. (Tr. 18). As such the ALJ determined that fibromyalgia has
not been properly established as a medically determinable impairment.
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As noted by the Commissioner, the purpose of the severity inquiry at the second
step of the sequential disability evaluation process is merely to screen out claims that are
medically groundless. See Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988) (“as this
court has recognized, the severity requirement may still be employed as an administrative
convenience to screen out claims that are ‘totally groundless’ solely from a medical
standpoint.”). Where an ALJ determines that one or more impairments is severe at step
two and proceeds with the sequential process, the ALJ's failure to find additional severe
impairments at step two does not constitute reversible error. See Maziarz, 837 F.2d at
244 (failure of Secretary to find that an impairment was severe was not reversible error
because he found that claimant had other severe impairments); Pompa v. Comm'r of Soc.
Sec., 73 F. App'x 801, 803 (6th Cir. 2003) (“Because the ALJ found that Pompa had a
severe impairment at step two of the analysis, the question of whether the ALJ
characterized any other alleged impairment as severe or not severe is of little
consequence.”). Thus, Plaintiff has not established reversible error because the ALJ did
not “screen out” her claim at step two. Rather, she found that Plaintiff had severe
impairments at step two and proceeded to the remaining steps of the sequential
evaluation process, and explained her reasons for finding that Plaintiff did not have severe
fibromyalgia.
Accordingly, the undersigned finds that the ALJ adequately considered all of
Plaintiff's conditions in determining her RFC and therefore did not err at step-two of the
sequential evaluation.
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III.
Conclusion
For the reasons explained herein, IT IS ORDERED THAT Defendant's decision is
SUPPORTED BY SUBSTANTIAL EVIDENCE, and is AFFIRMED, and that this case is
CLOSED.
s/Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge
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