The opinion
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISON
JOSHUA MICHAEL COMBS, ) CASE NO. 5:20-CV-01028
)
)
Plaintiff,
) MAGISTRATE JUDGE
) WILLIAM H. BAUGHMAN, JR.
v.
)
) MEMORANDUM OPINION AND
COMMISSIONER OF SOCIAL
) ORDER
SECURITY,
)
)
Defendant.
Introduction
Before me1 is an action2 by Joshua Michael Combs under 42 U.S.C. § 405 seeking
judicial review of the 2019 decision3 of the Commissioner of Social Security that denied
Combs’ 2017 application for disability insurance benefits. The Commissioner has
answered4 and filed the transcript of the administrative proceedings.5 Pursuant to my
1 ECF No. 25. The parties consented to my exercise of jurisdiction and the matter was
transferred to me by United States District Judge James R. Knepp II.
2 ECF No. 1.
3 ECF No. 12 (transcript) at 11-20.
4 ECF No. 11.
5 ECF No. 12.
amended procedural order of December 15, 2020,6 the parties have briefed their positions,7
filed fact sheets8 and charts,9 and participated in a telephonic oral argument.10
For the reasons that follow, the decision of the Commissioner will be affirmed.
Facts
1. Background facts, decision of the ALJ
The relevant facts here are simply stated. Combs, who was 31 at the alleged onset
date of February 2017,11 had been working as a carpenter, landscape laborer, oil and lube
technician, and garbage collector when he was injured that February in a motor vehicle
accident that put him in the hospital.12 In the accident Combs sustained a concussion, a
right femur (thighbone) fracture, and a right calcaneus (heel bone) fracture.13 He then
underwent surgery for the right femur fracture and was put in a splint for the right calcaneus
fracture.14 He was discharged home with instructions to not put weight on his lower right
extremity.15
6 ECF No. 16.
7 ECF Nos. 18 (Combs), 21 (Commissioner), 22 (Combs reply).
8 ECF No. 18, Attachment (Combs).
9 ECF No. 21, Attachment 1 (Commissioner).
10 ECF No. 27.
11 Tr. at 19.
12 Id. at 16.
13 Id.
14 Id.
15 Id.
In a check-up the next month, Combs was not putting weight on his right leg and
was using a crutch.16 He was taking Oxycodone for pain, but claimed it wasn’t helping.17
A physical exam showed good motion in the right hip and knee, no pain with calf
palpitation, and intact neuromuscular function.18 His fractured femur was healing
properly.19
Later that month (March), Combs had an evaluation of the heel fracture that revealed
mild edema.20 He used a wheelchair for assistance in ambulating.21 He also underwent open
reduction and internal fixation of the right calcaneus fracture and debridement of a fracture
of the ankle.22 There was intact neurological functioning but thereafter he used crutches to
ambulate.23
Moving into the spring, Combs’ calcaneus fracture was healing,24 although in a May
follow-up, he remained non-weightbearing, with pain in his right leg into the foot.25 As
noted, he continued to use crutches but exhibited normal sensation with only mild edema.26
16 Id.
17 Id.
18 Id.
19 Id.
20 Id.
21 Id.
22 Id.
23 Id.
24 Id.
25 Id.
26 Id.
Later, he transitioned to a walking boot and worked on range of motion.27 Imaging at this
time showed a healed calcaneus fracture and posttraumatic arthritis.28
In May he had an examination for depression and anxiety that followed the
accident.29 There were, as the ALJ noted, “few substantive findings” from this exam,
although Combs was prescribed Celexa.30 At a pain management examination that same
month, where he exhibited an antalgic gait and his right leg was in an air cast, he was
prescribed Mobic and Acetominophen-Codeine.31
Yet by the next month (June), Combs was ambulating with full weightbearing and
“only a very slight limp.”32 He had intact neurovascular functioning and through the
summer his condition “was largely stable with well-controlled pain and a normal gait.”33
With regard to his mental status, Combs had a mental health evaluation in October
2017 where he described dealing with stress related to child custody and other legal
issues.34 He also had issues with pain, had flashbacks to the accident35 and complained of
poor concentration and loneliness.36
27 Id.
28 Id.
29 Id.
30 Id. at 17.
31 Id.
32 Id.
33 Id.
34 Id.
35 Combs stated to the consultative psychological examiner in May 2017 that the driver of
the other vehicle in the collision “burned to death while I watched.” Id. at 539.
36 Id.
Combs continued counseling into 2018 where he continued to deal with issues
related to child custody.37 He continued in counseling through the spring and summer of
2018 and his mental condition was described as mostly stable.38 He stopped attending
counseling in August because he met his treatment goals.39
Combs had an orthopedic examination in November 2018 after another injury.40 He
was weightbearing but there was redness, bruising and pain in his foot due to an injury.41
Although he had an antalgic gait and some tenderness with motion, he had intact sensation
and no edema.42 He was advised to use his walking boot for a month and to limit activity
to relieve pain.43
In his 2019 opinion, the ALJ found that Combs had the following severe
impairments: fracture of the lower limb/ankle dysfunction/arthritis, depression,
posttraumatic stress disorder, and anxiety.44 However, the ALJ then found that Combs did
not meet any relevant listing, with particular attention to Listings 1.06, 12.04 and 12.06.45
As to Listing 1.06 (fracture of the femur, tibia, pelvis or one or more tarsal bones),
the ALJ found that the fracture healed within twelve months with no subsequent failure of
37 Id.
38 Id.
39 Id.
40 Id. Combs stated he was injured when his “son was jumping on the couch and landed
on his foot.” Id. at 801, 803-04.
41 Id.
42 Id.
43 Id.
44 Id. at 13.
45 Id.
the healing.46 Moreover, the ALJ noted that while Combs had used ambulatory aids after
surgery, he displayed normal gait and ambulated independently within six months.47 The
ALJ further noted that in 2018 there was antalgic gait after another injury but that this was
not ongoing, nor was there further use of ambulatory aids.48
As to Listings 12.04 (depressive, bipolar and related disorders) and 12.06 (anxiety
and obsessive-compulsive disorders),49 the ALJ considered the four elements of the
common B criteria of both listings50 and found that Combs had mild limitations in
understanding, remembering and applying information, as well as in interacting with
others, while he had moderate limitations with regard to concentrating, persisting or
maintaining pace and in adapting or managing oneself.51 The ALJ also found that the
common C criteria were not met because Combs could perform personal care and other
daily activities independently and “had sufficient ability to make adjustments to provide
care for his young children.”52
46 Id. at 14.
47 Id.
48 Id.
49 On January 17, 2017 Listing 12.15 replaced Listing 12.06 as the listing applicable to
trauma and stressor related disorders, including PTSD. Compton v. Berryhill, 2018 WL
37952288, at *4 (W.D. Ky. Aug. 9, 2018). Since Combs was found to have severe
impairments of both anxiety and posttraumatic stress disorder, Listing 12.06 would
properly be applicable to the anxiety impairment but would no longer apply to
posttraumatic stress. Listing 12.04 properly applies to the severe impairment of
depression. See, Cox v. Comm’r, 2020 WL 8768317, at *3 (W.D. Mich. Dec. 28, 2020),
report and recommendation adopted, Cox v. Saul, 2021 WL 423119 (W.D. Mich. Feb. 8,
2021).
50 Bowman v. Comm’r of Soc. Sec., 683 Fed. Appx. 367, 372 (6th Cir. 2017)
51 Tr. at 14-15.
52 Id. at 15.
As regards opinion evidence, the ALJ gave “weight” to the opinion of a 2017
consultative psychological examiner, Dr. Sudhir Dubey, Psy. D., who described Combs as
having anxiety, trouble sleeping and concentrating, and impaired memory, but otherwise
had a logical thought process, displayed average cognitive functioning and could
understand and carryout multi-step instructions while not having problems dealing with
co-workers or work stress.53
The ALJ then gave “some weight” to the mental function opinions of state agency
consultants.54 The ALJ concluded that Combs’ depression and anxiety resulted in more
than the minimal mental limitations opined by the state agency consultants.55
The ALJ gave little weight to the physical function opinions of two state agency
physicians. He cited update evidence that the combination of physical impairments would
restrict Combs to sedentary work, rather than medium work with postural restrictions as
stated by the consultants.56
The ALJ then gave weight to a statement from Combs’ counselor/therapist and the
supervisor who attested to Combs’ attendance at counseling until August 2018 “but there
was [then] no description of any particular limitation.”57
53 Id. at 17.
54 Id.
55 Id. at 17-18.
56 Id. at 18.
57 Id.
Finally, the ALJ found that Combs’ own claims as to his symptoms and limitations
were only partially credible.58 Specifically, as to Combs’ physical condition, the ALJ stated
that while Combs did require surgery and subsequent physical therapy for his physical
injuries, and experienced some delayed healing of his fractures, “within six months he had
returned to full weight-bearing with normal gait.”59 He also noted that Combs had returned
to “largely normal neurovascular functioning” with only “one instance of recurrence of
symptoms with limited treatment over the past year.”60 As to mental condition, the ALJ
noted that Combs had attended counseling and received medication for his depression and
anxiety, but further noted that Combs stopped attending counseling when his treatment
goal – obtaining custody of his children – was met.61 The ALJ concluded that Combs has
only “relatively modest mental symptoms” that are receiving “effective treatment.”62
Based on the record, the ALJ found that Combs had the residual functional capacity
for sedentary work, with the provision that he can frequently stoop, kneel, crouch, crawl
and climb ramps and stairs, but only occasionally climb ladders, ropes, or scaffolds.63 He
also can perform simple, routine tasks.64
After finding that Combs could no longer perform any past relevant work and
hearing the testimony of a vocational expert, the ALJ determined that, under the terms of
58 Id.
59 Id.
60 Id.
61 Id.
62 Id.
63 Id. at 15.
64 Id.
the RFC, Combs could perform the requirements of three jobs – charge account clerk,
circuit board tester and eyeglass assembler – which are available nationally in sufficient
numbers.65
Therefore, Combs was found not disabled.66
Issues for judicial review
Combs sets forth three issues for judicial review:
1. The ALJ committed harmful error when he failed to properly evaluate
the evidence documenting [Combs’] severe impairments.67
2. The ALJ committed harmful error when he failed to find [Combs’]
testimony credible and failed to properly consider [Combs’] pain.68
3. The ALJ committed harmful error when he failed to satisfy his burden
at Step Five of the Sequential Evaluation.69
65 Id. at 19.
66 Id. at 20.
67 ECF No. 18 at 1.
68 Id.
69 Id.
Analysis
1. Standard of Review
This matter is reviewed under the well-established substantial evidence standard,
which need not here be restated. Further, the opinion evidence is considered under the new
rubric for addressing medical opinions for claims filed after March 27, 2017.70 Claims as
to the evaluation of a claimant’s credibility are assessed as set forth by the Sixth Circuit in
Rogers v. Commissioner.71
2. Application of standards
(a) Evidence of impairment
Essentially, Combs contends that the ALJ erred in finding that his mental
impairments of anxiety and posttraumatic stress produced only moderate or mild
limitations.72 He further contends that the ALJ erred in finding that his right leg was stable
with well-controlled pain and a normal gait when he continued to have “residual problems
with his right foot” despite the fact that the fracture had healed.73
In his reply brief, Combs focuses on the fact that he told Dr. Dubey that he had
problems with concentration, memory and attention, as well as mood swings, irritability,
70 20 C.F.R. § 404.1520c.
71 486 F.3d 234, 249 (6th Cir. 2007)
72 ECF No. 18 at 9.
73 Id. at 11.
poor sleep and fluctuating appetite since the accident.74 He also mentions that he received
counseling for trauma.75 He claims that the ALJ failed to support his conclusions with
substantial evidence.76
The ALJ gave weight to the opinion of the examining consultant who heard Combs’
complaints about concentration and memory, as well as with weight loss, and concluded –
in a two-page functional assessment77 - that he would, in a work environment, (1) be
capable of understanding, remembering and carrying out simple instructions; (2) be able to
maintain persistence and pace; (3) not have issues dealing with supervisors or co-workers
and (4) not have issues with work pressures.78
It is well-settled that the functional opinion of an examining source is substantial
evidence for the ALJ in formulating an RFC.79 Thus, Combs’ complaint that the ALJ here
lacked substantial evidence is not well-taken.
Moreover, the mental health counseling, cited here by Combs, ended in 2018 when
Combs achieved his goal in that regard.
Finally, as to physical impairments, the evidence is clear that Combs was disabled
for approximately six months due to the auto accident and then again for a month due to
74 ECF No. 22 at 1.
75 Id.
76 Id.
77 Tr. at 540-41.
78 Id.
79 See, Jones v. Saul, 2021 WL 4342720 (E.D. Ky. Sept. 21, 2021).
an incident with his son. As related above in this opinion, the ALJ set out the evidence in
this regard carefully and fully. Moreover, there is no other opinion evidence in the record
detailing greater limitations as a result of physical impairment. The two state agency
physicians actually stated that Combs was capable of medium work, not sedentary as the
ALJ found.80
Thus, I find no error in how the ALJ evaluated the physical and mental impairments.
(c) Credibility
As the Commissioner observes, Combs in this argument attempts to infer that
somehow notes from the Crystal Clinic where he was receiving counseling show that the
ALJ was in err about the disabling nature of his pain.81 Yet, notes from his treating
counselor state that in April 2018 Combs was “not having many symptoms at this time”,82
and in May state that he was riding a bike and mowing on a tractor with his son.83 In
addition, Combs told the consulting examining psychologist in 2017 that his anxiety
symptoms are only triggered by being in a car.84
80 Tr. at 18.
81 ECF No. 18 at 14.
82 Tr. at 749.
83 Id. at 743.
84 Id. at 537.
Thus, the ALJ had substantial evidence for concluding that Combs’ complaints of
disabling pain were “only partially consistent with the evidence,”85 finding the pain to be
not disabling.
I find no error in the ALJ assessment of Combs’s complaints of disabling pain nor
in the ALJ’s articulation of his findings.
(d) Step Five
As the Commissioner also observes, Combs’ argument that the ALJ erred at Step
Five by finding that Combs could perform other work – and thus failing to consider his
“continuing pain, nightmares and flashbacks”86 – is actually an attack on the RFC.87 As
stated above, the RFC is supported by substantial evidence.
Conclusion
For the foregoing reasons, the decision of the Commissioner is affirmed.
IT IS SO ORDERED.
Dated: September 27, 2021 s/William H. Baughman Jr.
United States Magistrate Judge
85 Id. at 18.
86 ECF No. 18 at 15.
87 ECF No. 21 at 7.