Plummer v. Commissioner of Social Security

Filing 13

REPORT AND RECOMMENDATION1 THAT: (1) THE ALJS NON-DISABILITY FINDING BE FOUND SUPPORTED BY SUBSTANTIAL EVIDENCE, AND AFFIRMED; AND (2) THIS CASE BE CLOSED Objections to R&R due by 1/19/2018. Signed by Magistrate Judge Michael J. Newman on 1/5/18. (kma)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
LAURA E. PLUMMER,
Case No. 3:17-cv-35
Plaintiff,
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 upon

Plaintiff’s Statement of Errors (doc. 10), the Commissioner’s memorandum in opposition (doc.
11), Plaintiff’s reply (doc. 12), the administrative record (docs. 6, 7),2 and the record as a whole.
I.
A.

Procedural History

Plaintiff originally filed an application for SSI in October 2010 alleging disability s a
result of a number of alleged impairments including, inter alia, lumbar degenerative disc disease,
morbid obesity, depression and anxiety. PageID 1878.
After an initial denial of her application, Plaintiff received a hearing before ALJ Amelia
G. Lombardo who issued a decision on February 6, 2013 finding Plaintiff not disabled. PageID
Specifically, ALJ Lombardo found at Step 5 that, based upon Plaintiff’s residual

1854.
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.

functional capacity (“RFC”) to perform a reduced range of light work, 3 “there are jobs that exist
in significant numbers in the national economy that [Plaintiff] can perform[.]” Id. Thereafter,
the Appeals Council denied Plaintiff’s request for review. Id. On appeal to this Court, Judge
Rice reversed ALJ Lombardo’s non-disability finding and remanded the case to the
Commissioner for additional administrative proceedings. Plummer v. Comm'r of Soc. Sec., No.
3:14-cv-215, 2015 U.S. Dist. LEXIS 130601, at *1 (S.D. Ohio Sept. 28, 2015).
On remand, Plaintiff received a hearing before ALJ Mark Hockensmith on September 6,
2016. PageID 1780-1814. ALJ Hockensmith issued a decision on November 21, 2016 finding
Plaintiff not disabled.

PageID 1743-67.

In that decision, ALJ Hockensmith -- like ALJ

Lombardo -- found at Step 5, based upon Plaintiff’s residual functional capacity (“RFC”) to
perform a reduced range of light work, “there are jobs that exist in significant numbers in the
national economy that [Plaintiff] can perform[.]”
The Appeals Council denied Plaintiff’s request for review, making the ALJ
Hockensmith’s non-disability finding the final administrative decision of the Commissioner.
PageID 1740-42. 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). Thus, the court here reviews just the non-disability finding by ALJ Hockensmith
(hereafter “ALJ”).
B.

Evidence of Record

The evidence of record is adequately summarized in the ALJ’s decision (PageID 174367), Plaintiff’s Statement of Errors (doc. 10), the Commissioner’s memorandum in opposition
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.” 20 C.F.R. § 416.967(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. § 416.967(a).
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(doc. 11), and Plaintiff’s reply memorandum (doc. 12). 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
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
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“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 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?

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’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 (namely the opinions of treating psychiatrist Vicky Moody, D.O. and
treating physician Scott Shaw, M.D.); (2) improperly weighing the non-treating source opinions
(record-reviewing psychologists Steven J. Meyer, Ph.D., Irma Johnston, Psy.D. and Kevin
Edward, Ph.D.); (3) failing to consider all of her impairments -- namely, migraines and liver
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problems -- throughout the sequential review process; and (4) applying the incorrect legal
standard to her history of substance abuse/addiction. Doc. 10 at PageID 4285-95.
A. Medical Source Opinions
With regard to the weighing of opinion evidence, until March 27, 2017, “the
Commissioner’s regulations [which 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 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 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

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of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see also 20 C.F.R. § 416.927(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. § 416.927(c), i.e., length of treatment history; consistency of the opinion with 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).
Plaintiff first alleges the ALJ erred in the evaluating medical opinions from treaters Drs.
Moody and Shaw. In August 2009, Dr. Moody offered an assessment of Plaintiff’s work-related
limitations and concluded that she was markedly limited in her ability to maintain attention and
concentration; in her ability to interact appropriately with the general public; and in her ability to
perform activities within a schedule, maintain regularly attendance, and be punctual within
customary tolerances. PageID 667. The ALJ reasonably assigned these limitations no weight,
finding that they were inconsistent with clinical and laboratory diagnostic techniques and
inconsistent with other substantial evidence in the record. PageID 1754. Dr. Moody also opined
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. § 416.927. Id.
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that Plaintiff was “unemployable.” PageID 668. 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. § 416.1527(d)(1). The
undersigned finds no reversible error in the ALJ’s assessment of Dr. Moody’s opinion.
The record also contains opinions from treating physician Dr. Shaw. PageID 1736-37.
In December 2012, Dr. Shaw found that Plaintiff was limited to lifting 10 pounds occasionally
and 10 pounds frequently; could stand 15 minutes at one time; could sit 30 minutes at one time;
could work 2 hours per day; could never bend or stoop; and would occasionally need to elevate
legs or lay down. PageID 1736. The ALJ reasonably gave Dr. Shaw’s opinion “little weight” as
it did not conform to actual objective medical evidence or clinical findings. PageID 1761. Any
error in this regard is 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 and finds no reversible error in the ALJ’s assessment of Dr.
Shaw’s opinion.
Plaintiff also alleges the ALJ erred in weighing the non-treating source opinions, namely
record-reviewing psychologists Meyer, Johnston and Edward.

PageID 4293-24.

The ALJ

reasonably assigned each of these medical source opinions “significant weight” as each was
consistent with the overall evidence of record. PageID 1755-56. The undersigned finds no
reversible error in the ALJ’s assessment.
Based upon the foregoing, 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.

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B. Migraine and Liver Impairments
Contrary to Plaintiff’s assertions, the ALJ reasonably accounted for Plaintiff’s migraines
and liver impairments in his assessment of her RFC. PageID 1762-64. Although the ALJ found
Plaintiff’s hepatitis C and migraine problems each to be a severe impairment, “[a] claimant’s
severe impairment may or may not affect his or her functional capacity to do work. One does
not necessarily establish the other.” Walker v. Astrue, No. 3:11-cv-142, 2012 WL 3187862, at
*5 (S.D. Ohio 2012), quoting Griffeth v. Comm’r of Soc. Sec., 217 Fed. Appx. 435, 429 (6th Cir.
Feb. 7, 2007) (internal quotation marks and additional citation omitted). In other words, there is
no legal requirement for a specific limitation to be included in a hypothetical RFC in order to
represent every “severe” impairment. Although the RFC selected by the ALJ might not be the
same RFC that Plaintiff would have selected, the ALJ clearly explained his rationale based upon
objective evidence in the record, and the RFC he determined is, without question, within the
permissible “zone of choice” that the Sixth Circuit discussed in Felisky v. Bowen, 35 F.3d 1027,
1035 (6th Cir. 1994).
Based upon the foregoing, the undersigned finds the ALJ’s assessment of Plaintiff’s RFC
supported by substantial evidence. Thus, the ALJ’s findings in this regard should be affirmed.
C. Substance Abuse/Addiction
Plaintiff last argues that the ALJ erred in assessing her history of substance dependence
and abuse. PageID 4294-95. Social Security Ruling 13-2p governs the evaluation of cases
involving drug addiction and alcoholism (“DAA”). SSR 13-2p, 2013 SSR LEXIS 2, (Feb. 20,
2013), amended, March 22, 2013. SSR 13-2p provides that the analysis -- of whether DAA is a
contributing factor material to a disability determination -- should be undertaken when a claim
includes evidence from “acceptable medical sources . . . establishing that DAA is a medically
determinable impairment(s).” Id. (citing 20 C.F.R. §§ 404.1513, 416.913). The ALJ thus need
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make a DAA materiality determination only when: (1) there is “medical evidence from an
acceptable medical source establishing that a claimant has a Substance Use Disorder,” and (2)
the claimant is found to be disabled “considering all impairments, including the DAA.” Id.
Here, the ALJ determined that Plaintiff is not disabled, even when considering the effect
of her drug addiction and/or alcoholism. PageID 1758, 1767. Therefore, the ALJ properly
followed the requirements set forth in SSR 13-2p. As a result, ALJ’s findings in this regard
should be affirmed.
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 5, 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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