McDaniel v. Commissioner of Social Security

Filing 10

REPORT AND RECOMMENDATIONS re 2 Complaint filed by Scott L McDaniel - IT IS THEREFORE RECOMMENDED THAT: 1. The Commissioners final decision concerning Plaintiffs July 17, 29013 applications for Disability Insurance Benefits and Supplemental Secur ity Income be affirmed; and 2. The case be terminated on the docket of this Court. Objections to R&R due by 6/2/2017. Signed by Magistrate Judge Sharon L. Ovington on 5/19/17. (pb)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
SCOTT L. McDANIEL,
Plaintiff,
vs.
NANCY A. BERRYHILL,
Commissioner of the Social Security
Administration,
Defendants.

: Case No. 3:16-cv-00231
:
: District Judge Thomas M. Rose
: Magistrate Judge Sharon L. Ovington
:
:
:
:
:
:
:

REPORT AND RECOMMENDATIONS1
Plaintiff Scott L. McDaniel brings this case pro se challenging the
Commissioner’s final decision to deny his applications for Disability Insurance Benefits
and Supplemental Security Income. The Commissioner denied Plaintiff’s applications
through a decision by Administrative Law Judge (ALJ) Lloyd E. Hubler, III who
concluded that Plaintiff was not under a benefits-qualifying disability. This case is
presently before the Court for review of ALJ Hubler’s decision by way of Plaintiff’s pro
se Statement of Errors (Doc. #8), the Commissioner’s Memorandum in Opposition (Doc.
#9), the administrative record (Doc. #6), and the record as a whole.
On June 13, 2013, the date Plaintiff’s asserted disability begin, he was 43 years
old. During elementary and high school, he was in special education classes. Over the
1

Attached is a NOTICE to the parties regarding objections to this Report and Recommendations.

years after graduating from high school, he worked as a truck driver and a tree-trimmer
helper.
During his proceedings with Social Security Administration, he was represented
by an attorney. His attorney argued, in part, that ALJ Hubler erred by not finding that
Plaintiff has a severe mental-health impairment and by not appropriately addressing
Plaintiff’s chronic pain. (Doc. #6, pp. 334-37; PageID #s 386-89).
Before issuing his non-disability decision, ALJ Hubler held a hearing during
which Plaintiff testified. He explained that he had been in excruciating back pain during
the 2-year period before he stopped working. He fought the pain but eventually he could
not walk. At the time of the ALJ’s hearing (April 2015), Plaintiff was taking pain
medications, muscle relaxers, and medication to help him sleep. His medications made
him severely drowsy. Id. at p. 60; PageID #108. He had also been treated with epidural
injections that gave him “a little bit of benefit.” Id. at p. 56; PageID #104. He estimated
his daily pain level at between a 4 and a 6, presumably on a 0-to-10 pain scale (0
equaling pain free; 10 equaling the worst pain). Id. At times, his pain level rises to and
8 or 9. Id. at p. 59; PageID #107. He wore a back brace at the time of the ALJ’s hearing.
Plaintiff’s pain was in the middle of his back on the right side. He also had
shooting pain down his leg. He described it as constant stabbing, aching pain. Id. at p.
58; PageID #106. He experienced pain all day long. He had not undergone surgery to
help relieve his pain but had gone to the emergency room for treatment and had been
through physical therapy twice. Physical therapy did not help relieve his pain. He found
aqua therapy helpful, but his pain restarted as soon as he got out of the pool. He used
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crutches at times when his pain level gets very severe. He also tried to hold on to stuff,
and took breaks, when he walks. He estimated that he can walk about 1 block. He can
lift about 6 or 7 or 8 pounds. His ability to reach overhead is limited. His most
comfortable position was bent over but his leg would get numb, requiring him to sit. Id.
at pp. 66, 71; PageID #s 114, 119.
During the summer of 2014, Plaintiff was treated for several blood clots: 1 in his
leg and 2 in his lungs. He explained that physicians were worried the blood clots might
return in his right leg. He also had experienced kidney disease (nephrotic syndrome),
which was in remission at the time of the ALJ’s hearing. Plaintiff explained, “I spill
protein into my urine, and I can swell, you know, that’s probably going to be a life given
thing for me to do that. I only have half of a kidney on my left side and no spleen. I’m
highly susceptible to pneumonias and colds and such. I have cataract—steroid cataracts
on my eyes that effect my vision. My right arm, I can’t straighten it ….” Id. at 65;
PageID #113.
Plaintiff received treatment from a psychiatrist who prescribed Wellbutrin. He
was also on Lexapro, prescribed by his family doctor. Plaintiff testified, “I cry. I’m
upset. I have a lot of unself [sic]-confidence with everything that’s going on with me.
I’ve had this history since I was a small child, but I never seek treatment for it. You
know, I cry daily and … things really got me upset…, I have thought about suicide ….”
Id. at 64; PageID #112. He further testified that had had always been depressed. He has
difficulty concentrating, memory problems, and understanding instructions and new
information due to his learning disability. Id. at 67; PageID #115. He also feels
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worthless–like no one cares about him. He noted, “I’m at the wits end of my world, you
know, where I don’t know what to do any more.” Id. at p.70; PageID #118.
During a normal day, he lies on his back watching television. He switches
position, usually to laying on his left side and uses pillows between his legs to keep
himself as comfortable as possible. He spends 3 quarters of his day lying down. Id. at
72; PageID #120. He will also alternate between sitting and standing, 15 minutes each.
He does not drive because he takes Morphine. He sleeps 4 or 5 hours each night and
naps on and off throughout the day. He is able to take a shower by holding on to
something. He does not do household chores. He makes sandwiches for himself but then
immediately returns to the couch. His daughter visits him and does the laundry and other
household tasks for him. When he goes to the grocery store, he holds onto a cart and
doesn’t carry milk or soft drinks.
Turning to ALJ Hubler’s decision, he found that Plaintiff was not under a
disability by conducting the 5-step evaluation required by social security law. See 20
C.F.R. § 404.1520(a)(4). 2 His more significant findings began with his conclusion that
Plaintiff had 2 severe impairments—“degenerative changes of lumbar spine; borderline
intellectual functioning”—but the ALJ determined that Plaintiff’s impairments did not
automatically constitute a disability.
The ALJ next assessed Plaintiff’s residual functional capacity or the most he could
do despite his impairments. See 20 C.F.R. 404.1545(a); see also Howard v. Comm’r of
2

The citations to the Regulations will identify Disability Insurance Benefits Regulations with full
knowledge of the corresponding Supplement Security Income Regulations.

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Soc. Sec., 276 F.3d 235, 239 (6th Cir. 2002). Doing so, the ALJ found that despite
Plaintiff’s impairments, he could still perform a limited range of sedentary work.3 And,
given that ability along with his education, work experience, and age, he could still
perform a significant number of jobs available to him in the national economy, according
to the ALJ. The availability of such jobs, namely “inspector,” “sorter,” and “bench
assembler” meant that Plaintiff was not under a benefits-qualifying disability. (Doc. #6,
pp. 16-29; PageID #s 64-77).
The present judicial review determines whether ALJ Hubler applied the correct
legal standards and whether substantial evidence supports his findings. Blakley v.
Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see Bowen v. Comm’r of Soc.
Sec., 478 F.3d 742, 745-46 (6th Cir. 2007). If ALJ Hubler failed to apply the correct
legal criteria, his decision may be fatally flawed even if the record contains substantial
evidence supporting his findings. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651
(6th Cir. 2009); see Bowen, 478 F.3d at 746; Wilson v. Comm’r of Soc. Sec., 378 F.3d
541, 546-47 (6th Cir. 2004). A conclusion is supported by substantial evidence when “a
‘reasonable mind might accept the relevant evidence as adequate to support a
conclusion.’” Blakley, 581 F.3d at 407 (quoting Warner v. Comm’r of Soc. Sec., 375
F.3d 387, 390 (6th Cir. 2004). Substantial evidence consists of “more than a scintilla of

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Under social security law, sedentary work involves the least strenuous work activities, such as
“lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files,
ledgers, and small tools.” 20 C.F.R. § 404.1567(a).

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evidence but less than a preponderance ....” Rogers v. Comm’r of Soc. Sec., 486 F.3d
234, 241 (6th Cir. 2007).
Plaintiff relies on, and has attached to his Statement of Errors, a Memorandum his
former attorney submitted to the Social Security Administration’s Appeals Council. His
attorney contended in this Memorandum that ALJ Hubler (1) failed to give sufficient
weight to Plaintiff’s treating physician, (2) failed to appropriately evaluate Plaintiff’s
credibility, and (3) failed to appropriately evaluate the record in conjunction with the
Social Security Administration’s pain regulations. His counsel also presented the
Appeals Council with additional evidence. The Appeals Council denied further review.
The ALJ placed great weight on the opinions of treating physicians Dr. Page, Dr.
Ajlouini, and Dr. Mehta when finding that Plaintiff could perform a limited range of
sedentary work. The ALJ reasoned that their treatment records support the conclusion
that Plaintiff “experiences some physical limitations as a result of his impairment and
symptoms.” (Doc. #6, p. 25; PageID #73). No error occurred here because the ALJ
credited these treating physicians’ opinions with great weight, thus favoring Plaintiff, and
because substantial evidence justified the ALJ in doing so. See Doc. #6, pp. 484-85, 644707, 830-944; PageID #s 537-38, 698-761, 884-997.
Plaintiff’s counsel argued in his Memorandum that the ALJ failed to mention or
address Dr. Page’s opinions, id. at pp. 484-85; PageID #s 537-38. (Doc. #8, PageID
#1002). Although this could be error, see Blakley v. Comm’r of Soc. Sec., 581 F.3d 399,
407 (6th Cir. 2009), the ALJ did not ignore Dr. Page’s opinions. Instead, he placed great
weight on them. Doing so, he accepted Dr. Page’s opinion in his assessment of
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Plaintiff’s residual functional capacity and, more specifically, when finding Plaintiff
limited to standing and walking for 2 hours, and needed to change position every 15
minutes. (Doc. #6, p. 23; PageID # 71). The ALJ therefore did not err as suggested by
Plaintiff’s former attorney.
Plaintiff (or his former attorney) does not challenge the ALJ’s consideration of any
other specific treating or non-treating medical source’s opinion. As to state agency
physicians, the ALJ properly placed some weight on the opinions of Drs. Bolz and
Southerland. The ALJ accurately observed that Drs. Bolz and Southerland each believed
that Plaintiff could perform a range of unskilled light work. The ALJ did not fully credit
their opinions due to Plaintiff’s testimony and medical evidence. This led the ALJ to find
Plaintiff more limited than either Dr. Bolz or Dr. Southerland thought by concluding he
was could perform a limited range of sedentary work (rather than more strenuous light
work). The ALJ committed no error when he decided not to fully credit these physicians’
opinions. See Kepke v. Comm’r of Soc. Sec., 636 F. App’x 625, 632-33 (6th Cir. 2016)
(no error in evaluation of non-examiners’ opinions); see also McGrew v. Comm’r of Soc.
Sec., 343 F. App’x 26, 32 (6th Cir. 2009); see also Soc. Sec. Ruling 96-6p, 1996 WL
374180 (July 2, 1996) (instructing ALJs on how to evaluate opinions from state agency
medical sources).
Plaintiff’s attorney next challenged the ALJ’s evaluation of Plaintiff’s credibility.
The ALJ, according to Plaintiff’s attorney, did little more than recite the applicable
factors and his conclusion that Plaintiff was not fully credible, and omitted sufficiently
specific reasons for discounting Plaintiff’s testimony. These contentions lack merit.
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The ALJ recognized that objective evidence showed only mild abnormalities. For
example, the ALJ noted that while x-ray and MRIs revealed degenerative changes at
multiple levels, there was no evidence of vertebral misalignment or definite evidence of
central or exiting nerve root compromise. (Doc. #6, p. 18, PageID #66). Plaintiff’s
EMG testing was normal, and an MRI study in September 2014 showed no evidence of
any changes or worsening of Plaintiff’s degenerative disc disease. Id. The ALJ wrote
that Plaintiff’s “neurologic and sensory examinations have been normal (Ex 27F/13), and
he has exhibited normal strength in his bilateral lower extremities (Ex 27F/58).” (Doc.
#6, pp. 19, 842, 887; PageID #s 67, 896, 941). This constitutes substantial evidence
supporting the ALJ’s decision to discount Plaintiff’s credibility. See Tyra v. Sec’y of
HHS, 896 F.2d 1024, 1030 (6th Cir. 1990) (“Though claimant’s physicians consistently
reported Tyra’s subjective complaints of pain, he had no underlying neurological
abnormalities, atrophy or proportionate loss of sensory and reflex reactions.”). The ALJ
also accurately noted that “clinicians observed that [Plaintiff] exhibits 5/5 muscle
strength in all four of his extremities, as well as normal range of motion in his lower
extremities.” (Doc. #6, pp. 24, 533, 611; PageID #s 72, 586, 664). This was a valid
reason to discount Plaintiff’s testimony about his levels of pain and resulting
impairments. See Crouch v. Sec’y of HHS, 909 F.2d 852, 856-57 (6th Cir. 1990) (“the
absence of any significant neurological deficits and atrophy supports the Secretary’s
conclusion [that Plaintiff was not disabled]….”).
ALJs, moreover, must look at both the objective medical evidence and other
evidence to assess a claimant’s allegations of pain and resulting limitations. See 20
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C.F.R. § 404.1529(c). Consistent with the regulations, the ALJ discussed Plaintiff’s
testimony regarding the frequency and intensity of his symptoms, his medications and
side effects, and his treatment history. (Doc. #6, pp. 18-27, PageID #s 66-75); see 20
C.F.R. §404.1529; see also Soc. Sec. Ruling 96-7p, 1996 WL 374186 (July 2, 1996);
Chapman v. Astrue, No. 1:10-cv-155, 2011 WL 1897434 at *6 (S.D. Ohio Mar. 10, 2011)
(Bowman, M.J.) (“[A]n ALJ is not required to accept a claimant’s subjective complaints
and may properly consider the credibility of a claimant when making a determination of
disability.”) (quoting Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003)).
The ALJ noted, for instance, that while Plaintiff “alleges he has trouble walking and
spends most of his days lying down, he has characterized himself as being very active,
including walking his dog three times per week.” (Doc. #6, p. 24; PageID #72) (citations
omitted). Substantial evidence supports this. Id. at 553, 768; PageID #s 606, 822.
Substantial evidence also supports the ALJ’s recognition that despite Plaintiff’s
references to his anxiety and depression, he exhibited appropriate mood and affect, and
normal memory. Id. at pp. 24, 472; PageID #s 72, 525). The ALJ accurately noted that
clinicians described Plaintiff’s affect as normal, his judgment as normal and mood as
normal. Id. at pp. 24-25, 605; PageID#s 72-73, 658. The ALJ reasonably observed,
“[c]linicians have also reported that Plaintiff does not appear nervous or anxious, and that
his behavior is normal.” Id. at pp. 25, 422, 605, 742; PageID#s 73, 475, 658, 796. And,
the ALJ accurately recognized that Plaintiff “generally denied symptoms of depression.”
Id. at pp. 20, 376-77, 379, 394, 425-26, 432, 436-37, 591; PageID #s 68, 429-30, 432,
447, 474, 475, 478-79, 485, 489-90, 644. The ALJ also documented the fact that the vast
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majority of Plaintiff’s clinical psychiatric evaluations have been normal and accurately
cited supporting evidence. Id. at p. 20). The ALJ noted, and the evidence bears out, that
Plaintiff started family counseling in October 2014, and by December 2014, his mental
status examination was completely normal, with normal appearance, normal speech,
euthymic mood, goal directed thoughts, no hallucinations or suicidal ideation, and no
abnormal movements. Id. at pp. 20, 756; PageID #s 68, 810. Lastly, the ALJ properly
considered Plaintiff’s ability to engage in certain daily activities when crafting the RFC.
See Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 392 (6th Cir. 2004) (“The
administrative law judge justifiably considered Warner’s ability to conduct daily life
activities in the face of his claim of disabling pain.”);
Accordingly, Plaintiff’s Statement of Errors lacks merit.
IT IS THEREFORE RECOMMENDED THAT:
1.

The Commissioner’s final decision concerning Plaintiff’s July 17, 29013
applications for Disability Insurance Benefits and Supplemental Security Income
be affirmed; and

2.

The case be terminated on the docket of this Court.

May 19, 2017

s/Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within fourteen days after
being served with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d),
this period is extended to seventeen days because this Report is being served by one of
the methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F). Such
objections shall specify the portions of the Report objected to and shall be accompanied
by a memorandum of law in support of the objections. If the Report and
Recommendations are based in whole or in part upon matters occurring of record at an
oral hearing, the objecting party shall promptly arrange for the transcription of the record,
or such portions of it as all parties may agree upon or the Magistrate Judge deems
sufficient, unless the assigned District Judge otherwise directs. A party may respond to
another party’s objections within fourteen days after being served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See United States v. Walters, 638 F. 2d 947 (6th Cir. 1981); Thomas v. Arn, 474
U.S. 140 (1985).

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