Howard v. Commissioner of Social Security

Filing 14

REPORT AND RECOMMENDATION THAT: (1) THE ALJ'S NON - DISABILITY FINDING BE FOUND SUPPORTED BY SUBSTANTIAL EVIDENCE AND AFFIRMED; AND (2) THIS CASE BE CLOSED ON THE COURT'S DOCKET - For the foregoing reasons, the Court finds Plaintiffs assig nments of error unmeritorious. IT IS THEREFORE RECOMMENDED THAT: (1) the Commissioners non-disability finding be found supported by substantial evidence, and AFFIRMED; and (2) this case be CLOSED. Objections to R&R due by 1/24/2018. Signed by Magistrate Judge Michael J. Newman on 1/10/2018. (srb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
KATHLEEN A. HOWARD,
Plaintiff,

Case No. 3:16-cv-472

vs.
COMMISISONER OF SOCIAL SECURITY,

District Judge Walter H. Rice
Magistrate Judge Michael J. Newman

Defendant.
______________________________________________________________________________
REPORT AND RECOMMENDATION1 THAT: (1) THE ALJ’S NON-DISABILITY
FINDING BE FOUND SUPPORTED BY SUBSTANTIAL EVIDENCE AND AFFIRMED;
AND (2) THIS CASE BE CLOSED ON THE COURT’S DOCKET
______________________________________________________________________________
This is a Social Security disability benefits appeal.

At issue is whether the

Administrative Law Judge (“ALJ”) erred in finding Plaintiff not “disabled” and therefore
unentitled to Disability Insurance Benefits (“DIB”).

This case is before the Court upon

Plaintiff’s Statement of Errors (doc. 10), the Commissioner’s memorandum in opposition (doc.
12), Plaintiff’s reply (doc. 13), the administrative record (doc. 9), and the record as a whole.
I.
A.

Procedural History

Plaintiff originally filed an application for DIB asserting disability as of June 15, 2009.
PageID 220-23. Plaintiff alleged disability as a result of multiple impairments including, inter
alia,

cervical

1

and

lumbar

disc

disease,

anxiety

and

depression.

PageID

46.

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

After an initial denial of her application, Plaintiff received a hearing before ALJ Scott R.
Canfield on February 1, 2013. PageID 68-108. ALJ Canfield issued a decision on May 17, 2013
finding Plaintiff not disabled. PageID 44-57. Specifically, ALJ Canfield found at Step 5 that,
based upon Plaintiff’s residual functional capacity (“RFC”) to perform a reduced range of light
work,2 “there are jobs that exist in significant numbers in the national economy that [Plaintiff]
can perform[.]” PageID 48-56.
Thereafter, the Appeals Council denied review on September 12, 2014. PageID 33-36.
On appeal to this Court, Judge Rice reversed ALJ Canfield’s non-disability finding and
remanded the case to the Commissioner for additional administrative proceedings. Howard v.
Comm’r, No. 3:14-CV-364, 2016 WL 99114, at *1 (S.D. Ohio Jan. 7, 2016).
On remand, Plaintiff received a second hearing before ALJ Elizabeth A. Motta on June 3,
2016. PageID 655-76. ALJ Motta issue a decision on July 19, 2016 finding Plaintiff not
disabled. PageID 628-46. Specifically, ALJ Motta found at Step 5 that, based upon Plaintiff’s
residual functional capacity (“RFC”) to perform a reduced range of medium work,3 “there are
jobs that exist in significant numbers in the national economy that [Plaintiff] can perform[.]”
PageID 634-46.
Thereafter, the Appeals Council denied review on July 19, 2016, making the ALJ’s nondisability finding the final administrative decision of the Commissioner. PageID 625-27. See

Light work “involves lifting no more than 20 pounds at a time with frequent lifting or carrying
of objects weighing up to 10 pounds” and “requires a good deal of walking or standing, or . . . sitting most
of the time with some pushing and pulling of arm or leg controls.” Id. § 404.1567(b). An individual who
can perform light work is presumed also able to perform sedentary work. Id. Sedentary work “involves
lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files,
ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain
amount of walking and standing is often necessary in carrying out job duties.” Id. § 404.1567(a).
3
Medium work “involves lifting no more than 50 pounds at a time with frequent lifting or
carrying of objects weighing up to 25 pounds.” 20 C.F.R § 404.1567(c). An individual who can perform
medium work, is presumed also able to perform sedentary and light work. Id.
2

2

Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993). Plaintiff then
filed this timely appeal. Cook v. Comm’r of Soc. Sec., 480 F.3d 432, 435 (6th Cir. 2007). The
Court now reviews just the final administrative decision by ALJ Motta (hereinafter “ALJ”).
B.

Evidence of Record

The evidence of record is adequately summarized in the ALJ’s decision (PageID 44-57),
Plaintiff’s Statement of Errors (doc. 10), the Commissioner’s memorandum in opposition (doc.
12), and Plaintiff’s reply (doc. 13). The undersigned incorporates all of the foregoing and sets
forth the facts relevant to this decision herein.
II.
A.

Standard of Review

The Court’s inquiry on a Social Security appeal is to determine (1) whether the ALJ’s
non-disability finding is supported by substantial evidence, and (2) whether the ALJ employed
the correct legal criteria. 42 U.S.C. § 405(g); Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 74546 (6th Cir. 2007). In performing this review, the Court must consider the record as a whole.
Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978).
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). When
substantial evidence supports the ALJ’s denial of benefits, that finding must be affirmed, even if
substantial evidence also exists in the record upon which the ALJ could have found Plaintiff
disabled. Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001). Thus, the ALJ has a “‘zone of
choice’ within which he [or she] can act without the fear of court interference.” Id. at 773.
The second judicial inquiry -- reviewing the correctness of the ALJ’s legal analysis -may result in reversal even if the ALJ’s decision is supported by substantial evidence in the

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record. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009). “[A] decision of the
Commissioner will not be upheld where the [Social Security Administration] fails to follow its
own regulations and where that error prejudices a claimant on the merits or deprives the claimant
of a substantial right.” Bowen, 478 F.3d at 746.
B.

“Disability” Defined

To be eligible for disability benefits, a claimant must be under a “disability” as defined
by the Social Security Act. 42 U.S.C. § 423(d)(1)(A). Narrowed to its statutory meaning, a
“disability” includes physical and/or mental impairments that are both “medically determinable”
and severe enough to prevent a claimant from (1) performing his or her past job and (2) engaging
in “substantial gainful activity” that is available in the regional or national economies. Id.
Administrative regulations require a five-step sequential evaluation for disability
determinations. 20 C.F.R. § 404.1520(a)(4). Although a dispositive finding at any step ends the
ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), the complete sequential
review poses five questions:
1.

Has 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 (the “Listings”), 20 C.F.R. Subpart P,
Appendix 1?;

4.

Considering the claimant’s RFC, can he or she perform his or her past
relevant work?; and

5.

Assuming the claimant can no longer perform his or her past relevant
work -- and also considering the claimant’s age, education, past work
experience, and RFC -- do significant numbers of other jobs exist in
the national economy which the claimant can perform?

4

20 C.F.R. § 404.1520(a)(4); see also Miller v. Comm’r of Soc. Sec., 181 F. Supp.2d 816, 818
(S.D. Ohio 2001). A claimant bears the ultimate burden of establishing disability under the
Social Security Act’s definition. Key v. Comm’r of Soc. Sec., 109 F.3d 270, 274 (6th Cir. 1997).
III.
In her Statement of Errors, Plaintiff argues that the ALJ erred by: (1) improperly
weighing opinion evidence, including the opinions of consulting psychologists Mary Hill, Ph.D.
and Ty Payne, Ph.D.; record reviewing psychologist Caroline Lewin, Ph.D.; and treating
psychologist David Lombard, Ph.D.; and (2) improperly assessing her credibility. Doc 10 at
PageID 1145-55. Having carefully reviewed the administrative record and the parties’ briefs,
and also having carefully considered the ALJ’s analysis leading to the non-disability finding here
at issue, the Court finds the ALJ carefully and reasonably developed and reviewed the record;
appropriately considered the medical evidence at issue; properly weighed opinion evidence
based upon reasons supported by substantial evidence; reasonably assessed Plaintiff’s credibility;
accurately determined Plaintiff’s RFC; and appropriately determined that Plaintiff can perform a
significant number of jobs in the national economy.
A. Medical Source Opinions
Until March 27, 2017, “the Commissioner’s regulations [that apply to this appeal]
establish[ed] a hierarchy of acceptable medical source opinions[.]” Snell v. Comm’r of Soc. Sec.,
No. 3:12-cv-119, 2013 WL 372032, at *9 (S.D. Ohio Jan. 30, 2013). In descending order, these
medical source opinions are: (1) treaters; (2) examiners; and (3) record reviewers. Id. Under the
regulations then in effect, which control here, the opinions of treaters are entitled to the greatest
deference because they “are likely to be . . . most able to provide a detailed, longitudinal picture
of [a claimant’s] medical impairment(s) and may bring a unique perspective to the medical

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evidence that cannot be obtained from the objective medical findings alone or from reports of
individual examinations[.]” 20 C.F.R. § 404.1527(c)(2).
A treater’s opinion must be given “controlling weight” if “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and . . . not inconsistent with the other
substantial evidence in [the] case record.” LaRiccia v. Comm’r of Soc. Sec., 549 F. App’x 377,
384 (6th Cir. 2013). Even if a treater’s opinion is not entitled to controlling weight, “the ALJ
must still determine how much weight is appropriate by considering a number of factors,
including the length of the treatment relationship and the frequency of examination, the nature
and extent of the treatment relationship, supportability of the opinion, consistency of the opinion
with the record as a whole, and any specialization of the treating physician.” Blakley v. Comm’r
of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see also 20 C.F.R. § 404.1527(c).4
After treaters, “[n]ext in the hierarchy are examining physicians and psychologists, who
often see and examine claimants only once.” Snell, 2013 WL 372032, at *9.
Record reviewers are afforded the least deference and these “non-examining physicians’
opinions are on the lowest rung of the hierarchy of medical source opinions.” Id. Put simply,
“[t]he regulations provide progressively more rigorous tests for weighing opinions as the ties
between the source of the opinion and the individual [claimant] become weaker.” Id. (citing
SSR 96-6p, 1996 WL 374180, at *2 (July 2, 1996)). In the absence of a controlling treating
source opinion, an ALJ must “evaluate all medical opinions” with regard to the factors set forth
in 20 C.F.R. § 404.1527(c), i.e., length of treatment history; consistency of the opinion with

In essence, “opinions of a treating source . . . must be analyzed under a two-step process, with
care being taken not to conflate the steps.” Cadle v. Comm’r of Soc. Sec., No. 5:12-cv-3071, 2013 WL
5173127, at *5 (N.D. Ohio Sept. 12, 2013). Initially, “the opinion must be examined to determine if it is
entitled to controlling weight” and “[o]nly if . . . the ALJ does not give controlling weight to the treating
physician’s opinion is the opinion subjected to another analysis based on the particulars of”
20 C.F.R. § 404.1527. Id.
4

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other evidence; supportability; and specialty or expertise in the medical field related to the
individual’s impairment(s). Walton v. Comm’r of Soc. Sec., No. 97-2030, 1999 WL 506979, at
*2 (6th Cir. June 7, 1999).
The record in this case contains an opinion from treating psychologist Dr. Lombard.
PageID 569-71. The record also contains opinions from consulting psychologists Drs. Hill and
Payne, as well as record reviewing psychologist Dr. Lewin. PageID 124-30, 486-92, 110-15.
In weighing these medical source opinions, the ALJ reasonably gave the opinions of Drs.
Lewin and Hill “significant weight,” and gave the opinions of Drs. Payne and Lombard “little
weight.” PageID 641-43. The undersigned finds the ALJ’s assessment of these medical source
opinions supported by substantial evidence. As a result, the ALJ’s findings in this regard should
be affirmed.
B. Credibility
Plaintiff next challenges the ALJ’s credibility finding, arguing that the ALJ’s credibility
finding was “unreasonable and without support.” Doc. 10 at PageID 1154-55. The ALJ, and not
this Court, “evaluate[s] the credibility of witnesses, including that of the claimant.” Rogers v.
Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007). A reviewing Court must “accord the
ALJ’s determinations of credibility great weight and deference particularly since the ALJ has the
opportunity, which we do not, of observing a witness’s demeanor while testifying.” Jones v.
Comm’r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003) (citations omitted).
Nevertheless, in setting forth a credibility finding, the ALJ’s determination “cannot be
based on an intangible or intuitive notion about an individual’s credibility[,]” and instead, “[t]he
reasons for the credibility finding must be grounded in the evidence and articulated in the
determination or decision.” See SSR 96-7p, 1996 WL 374186, at *7 (July 2, 1996). In fact, the

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ALJ must set forth “specific reasons for the finding on credibility, supported by the evidence in
the case record, and must be sufficiently specific to make clear to the individual and to any
subsequent reviewers the weight the adjudicator gave to the individual’s statements and the
reasons for that weight.” Id.
Pursuant to SSR 96-7p, upon determining that “an underlying physical or mental
impairment” exists “that could reasonably be expected to produce the individual’s pain or other
symptoms[,]” the ALJ must “evaluate the intensity, persistence, and limiting effects of the
individual’s symptoms to determine the extent to which the symptoms limit the individual’s
ability to do basic work activities.”

See SSR 96-7p, 1996 WL 374186, at *7.

Where a

claimant’s subjective complaints concerning “the intensity, persistence, or functionally limiting
effects of pain or other symptoms are not substantiated by objective medical evidence,” the ALJ
must then determine the claimant’s credibility “based on a consideration of the entire case
record.” See id.; 20 C.F.R. § 404.1529(c)(3).
In considering the entire case record, 20 C.F.R. § 404.1529(c)(3) and SSR 96-7p also
require consideration of the following factors: (1) the claimant’s daily activities; (2) the location,
duration, frequency, and intensity of symptoms; (3) factors that precipitate and aggravate
symptoms; (4) the type, dosage, effectiveness, and side effects of any medication taken to
alleviate the symptoms; (5) treatment undertaken by the claimant; (6) measures undertaken by
the claimant to relieve symptoms, such as lying on one’s back; and (7) any other factors bearing
on the limitations of the claimant to perform basic functions. 20 C.F.R. § 404.1529(c)(3); see
Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007).
Contrary to Plaintiff’s assertion, the ALJ’s credibility analysis sets forth a specific
explanation as to why she found Plaintiff’s statements concerning the intensity, persistence and

8

limiting effects of her symptoms “not entirely consistent.” PageID 634-36. The ALJ cites
numerous inconsistencies between the objective evidence in the record and Plaintiff’s testimony.
See PageID 280, 639, 664, 665-66, 667, 661, 852. The ALJ’s analysis of Plaintiff’s credibility is
therefore supported by substantial evidence and, as a result, the undersigned finds Plaintiff’s
contention regarding the ALJ’s credibility assessment to be without merit.
IV.
For the foregoing reasons, the Court finds Plaintiff’s assignments of error unmeritorious.
IT IS THEREFORE RECOMMENDED THAT: (1) the Commissioner’s non-disability
finding be found supported by substantial evidence, and AFFIRMED; and (2) this case be
CLOSED.

Date:

January 10, 2018

s/ Michael J. Newman
Michael J. Newman
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 Recommendation. This period is not extended by virtue of Fed. R.
Civ. P. 6(d) if served on you by electronic means, such as via the Court’s CM/ECF filing system.
If, however, this Report and Recommendation was served upon you by mail, this deadline is
extended to SEVENTEEN DAYS by application of Fed. R. Civ. P. 6(d). Parties may seek an
extension of the deadline to file objections by filing a motion for extension, which the Court may
grant upon a showing of good cause.
Any objections filed shall specify the portions of the Report and Recommendation
objected to, and shall be accompanied by a memorandum of law in support of the objections. If
the Report and Recommendation is 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. As noted above, this period is not extended by virtue of Fed. R. Civ.
P. 6(d) if served on you by electronic means, such as via the Court’s CM/ECF filing system. If,
however, this Report and Recommendation was served upon you by mail, this deadline is
extended to SEVENTEEN DAYS by application of Fed. R. Civ. P. 6(d).
Failure to make objections in accordance with this procedure may forfeit rights on appeal.
See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d 947, 949-50
(6th Cir. 1981).

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