Horst v. Commissioner of Social Security

Filing 10

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. Objections to R&R due by 1/31/2018. Signed by Magistrate Judge Michael J. Newman on 1/17/2018. (srb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
BRIAN L. HORST,
Plaintiff,

Case No. 3:17-cv-13

vs.
COMMISSIONER 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
______________________________________________________________________________
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 Supplemental Security Income (“SSI”).

This case is before the Court on

Plaintiff’s Statement of Errors (doc. 7), the Commissioner’s memorandum in opposition (doc. 8),
Plaintiff’s reply (doc. 9), the administrative record (doc. 5),2 and the record as a whole.
I.
A.

Procedural History

Plaintiff filed an application for SSI on October 29, 2013 alleging disability as a result of
a number of impairments including, inter alia, bipolar disorder and a personality disorder.
PageID 58-60, 236-41.
After an initial denial of his application, Plaintiff received a hearing before ALJ Henry
Kramzyk on June 16, 2015. PageID 78-114. The ALJ issued a decision on November 23, 2015
1

Attached hereto is a NOTICE to the parties regarding objections to this Report and
Recommendation.
2
Hereafter, citations to the electronically-filed administrative record will refer only to the
PageID number.

finding Plaintiff not disabled. PageID 56-70. Specifically, the ALJ found at Step Four that,
based upon Plaintiff’s residual functional capacity (“RFC”) to perform a full range of work at all
exertional levels subject to specific non-exertional limitations, he “was capable of performing
past relevant work as a hand packager.” PageID 762-70.
Thereafter, the Appeals Council denied Plaintiff’s request for review, making the ALJ’s
non-disability finding the final administrative decision of the Commissioner. PageID 44-46.
See 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).
B.

Evidence of Record

The evidence of record is adequately summarized in the ALJ’s decision (PageID 56-70),
Plaintiff’s Statement of Errors (doc. 7), the Commissioner’s memorandum in opposition (doc. 8),
and Plaintiff’s reply (doc. 9). The undersigned incorporates all of the foregoing and sets forth
the facts relevant to this appeal 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

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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
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. § 416.920(a)(4). Although a dispositive finding at any step ends the
ALJ’s review, see Colvin, 475 F.3d at 730, 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
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experience, and RFC -- do significant numbers of other jobs exist in
the national economy which the claimant can perform?
20 C.F.R. § 416.920(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. Key v. Comm’r of Soc. Sec., 109 F.3d 270, 274 (6th Cir. 1997).
III.
In his Statement of Errors, Plaintiff argues that the ALJ failed to: (1) appropriately weigh
the opinion of his treating psychiatrist, Stephanie Fitz, M.D.; (2) find him credible; and (3)
account for his moderate limitation in concentration, persistence, or pace in the hypothetical
questions to the vocational expert (“VE”). Doc. 7 PageID 1031-40.
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;
posed appropriate hypothetical questions to the VE; accurately determined Plaintiff’s RFC; and
appropriately concluded, at Step Four, that Plaintiff can perform his past-relevant work.
A. Dr. Fitz
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. § 416.927(c)(2).
A treater’s opinions 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 opinions 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 opinions, consistency of the
opinions 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. § 416.927(c).
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. “The

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)).
Plaintiff alleges the ALJ erred in assigning his treating psychiatrist Dr. Fitz’s opinion “no
weight.” PageID 1032-35. On January 23, 2007, Dr. Fitz opined he had extreme limitations in
his ability to maintain attention and concentration for extended periods; in his ability to perform
activities within a schedule, maintain regular attendance, and be punctual with customary
tolerances; and in his ability to complete a normal workday and workweek without limitations.
PageID 805.

Dr. Fitz also opined he was markedly limited in his ability to understand,

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remember and carry out detailed instructions; in his ability to sustain an ordinary routine without
special supervision; in his ability to work in coordination with or proximity to others without
being distracted by them; and in his ability to make simple work related decisions. Id. Dr. Fitz
also opined that Plaintiff was “unemployable.” PageID 804. In weighing Dr. Fitz’s opinion, the
ALJ stated
[it] significantly predates the application filing date, and would be mere
speculation regarding [Plaintiff’s] functioning six and seven years later in 2013
and 2014…. The opinion is not consistent with the findings on multiple mental
status examinations during the relevant period, or with [Plaintiff’s] performance
at college. Finally, it is not consistent with the suggestions in the record of
improvement with compliance with treatment and medications. For this reasons,
it is given no weight.
PageID 67.
“The proper inquiry in an application for SSI benefits is whether the [P]laintiff was
disabled on or after [his or] her application date.” See Casey v. Sec’y of Health and Human
Servs., 987 F.2d 1230, 1233 (6th Cir. 1993). For purposes of SSI, which is not retroactive, the
relevant period here is October 29, 2013, the date Plaintiff filed his application, to November 18,
2015, the date of the ALJ’s decision. 20 C.F.R. § 416.335; PageID 56-70, 236-41.
With regard to Dr. Fitz’s opinion that Plaintiff was “unemployable,” the ALJ properly
weighed and provided a meaningful explanation for not relying on it to find Plaintiff disabled for
purposes of disability under the Social Security Act. PageID 67. A medical source’s opinion -including the opinion of a treating medical source -- that a claimant is disabled is an issue
“reserved to the Commissioner” and not entitled to “any special significance.” 20 C.F.R. §
416.927(d).
While such an opinion must be considered, see SSR 96-5p, 1996 WL 374183, at *2-3
(1996), the ALJ did so in this case. See id. Thus, the ALJ followed the proper regulatory

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procedures in considering the portion of Dr. Fitz’s opinion stating Plaintiff was “unemployable,”
and his conclusion concerning such opinion is supported by substantial evidence.
In weighing Dr. Fitz’s more specific workplace limitations contained in her 2007 opinion,
however, the undersigned notes the ALJ’s failure to mention the concept of “controlling weight.”
PageID 67. Any error in this regard can be harmless if the ALJ “has otherwise met the
regulation’s goal.” Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 380 (6th Cir. 2013). The
undersigned finds that the ALJ otherwise met the regulation’s goal in assigning Dr. Fitz’s 2007
opinion “no weight,” by noting that it was of minimal relevance to the relevant period because it
was created six years prior to the application date; was not supported by multiple mental status
examinations or with Plaintiff’s performance in college; and was inconsistent with the record
showing Plaintiff’s improvement with treatment and medications. PageID 67.
Based upon the foregoing, the undersigned finds the ALJ’s assessment of Dr. Fitz’s
opinion 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
evaluation was unsupported by substantial evidence. PageID 1036-39. 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

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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
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. § 416.929(c)(3).
In considering the entire case record, 20 C.F.R. § 416.929(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. § 416.929(c)(3); see
Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007).

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The ALJ’s credibility analysis, when reviewing the ALJ’s decision as a whole, extends
beyond boilerplate language and sets forth a specific explanation as to why he found Plaintiff
only “partially credible.”

PageID 65-66.

Such conclusions are supported by substantial

evidence and, as a result, the undersigned finds Plaintiff’s contention regarding the ALJ’s
credibility assessment to be without merit.
C. Hypothetical Question
In his last assignment of error, Plaintiff contends that the VE’s testimony during the
administrative hearing, which Plaintiff suggests was given in response to one or more incomplete
or insufficient hypothetical questions is not substantial evidence upon which the ALJ could rely
in concluding that he can perform past relevant work as a hand packager. PageID 1039-10.
The ALJ must make a finding “supported by substantial evidence that [Plaintiff] has the
vocational qualifications to perform specific jobs.” Howard v. Comm’r of Soc. Sec., 276 F.3d
235, 238 (6th Cir. 2002) (internal citation omitted). “This kind of ‘substantial evidence may be
produced through reliance on the testimony of a [VE] in response to a ‘hypothetical’ question,
but only if the question accurately portrays [Plaintiff's] individual physical and mental
impairments.’” Id. (internal citation omitted). In formulating hypothetical questions, the ALJ
need incorporate only those limitations accepted as credible. Casey, 987 F.2d at 1235.
The undersigned finds that the limitations set forth by the ALJ in the hypothetical
questions to the VE (and the ALJ’s resulting RFC) are supported by substantial evidence.
Accordingly, the undersigned finds Plaintiff’s alleged error in this regard 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

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finding be found supported by substantial evidence, and AFFIRMED; and (2) this case be
CLOSED.
Date:

January 17, 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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