Morgan v. Commissioner of Social Security

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

RICHARD M1 Case No. 1:20-cv-663

Plaintiff, Cole, J.

v. Bowman, M.J.

COMMISSIONER OF SOCIAL SECURITY,

Defendants.

REPORT AND RECOMMENDATION

Plaintiff filed this Social Security appeal in order to challenge the Defendant’s

determination that he is not disabled. Proceeding through counsel, Plaintiff presents three

claims of error, all of which the Defendant disputes. As explained below, the

Administrative Law Judge (ALJ)’s finding of non-disability should be AFFIRMED, because

it is supported by substantial evidence in the administrative record.

I. Summary of Administrative Record

Plaintiff applied for disability insurance benefits in October 2012 and supplemental

security income in September 2013, alleging a disability beginning in January 2012. (Tr.

325, 330-38). Plaintiff’s applications were denied initially and upon reconsideration. (Tr.

197, 204). An ALJ issued an unfavorable decision in March 2016, which was vacated and

remanded by the Appeals Council. (Tr. 164-76, 183-84). After a second hearing, Plaintiff’s

application for disability was again denied. (Tr. 31-48). In August 2018, by agreement of

the parties, the district court remanded the case, with instructions from the Appeals

1 The Committee on Court Administration and Case Management of the Judicial Conference of the

United States has recommended that, due to significant privacy concerns in social security cases, federal

A third hearing was held on April 16, 2019. (Tr. 979-1025). The ALJ issued a decision on

July 12, 2019, concluding that Plaintiff was not disabled within the meaning of the Social

Security Act. (Tr. 944-67). Plaintiff now seeks judicial review of the denial of his application

for benefits.

Plaintiff was born in 1974 and was 37 years old on the alleged date of disability.

He completed high school and has past relevant work as a truck driver. He alleges

disability after he was injured in a car accident in 2012.

Based upon the record and testimony presented at the hearing, the ALJ found that

Plaintiff had the following severe impairments: “disorders of the spine including lumbar

spine fracture, obesity, osteoarthritis of the right knee, right shoulder impairment,

cognitive disorder, borderline intellectual functioning, and mathematics and reading

disorders.” (Tr. 950). The ALJ concluded that none of Plaintiff’s impairments alone or in

combination met or medically equaled a listed impairment in 20 C.F.R. Part 404, Subp.

P, Appendix 1. Despite these impairments, the ALJ determined that Plaintiff retains the

RFC to perform a full range of work subject to the following limitations:

He can occasionally climb ramps and stairs and occasionally stoop, kneel,

crouch, and crawl. He can never climb ladders, ropes, or scaffolds. He can

occasionally operate foot pedals with the bilateral lower extremities. He can

frequently reach in all directions, including overhead, with the upper

extremities. He must avoid concentrated exposure to humidity, extreme

cold, extreme heat, wetness, vibration, and dangerous hazards of

unprotected heights. He is limited to performing simple, routine, repetitive

tasks in a work environment free of fast-paced production requirements and

involving only simple work-related decisions and routine workplace

changes. He is limited to occasional interaction with the public, coworkers,

and supervisors. He has the ability to read at a second grade level, write at

a fourth grade level, and perform math at a second grade level. He would

be off task 5% of the workday and absent from the work place one day per

month.

2

(Tr. 23). Based upon the record as a whole including testimony from the vocational expert,

and given Plaintiff’s age, limited education and work experience, and the RFC, the ALJ

concluded that while Plaintiff could no longer perform his past relevant work, he could

perform a significant number of unskilled jobs in the regional and national economy,

including addresser, printed circuit board touchup assembler screener, and table worker.

(Tr. 966). Accordingly, the ALJ determined that Plaintiff is not under disability, as defined

in the Social Security Regulations, and is not entitled to DIB and/or SSI. Id.

The Appeals Council denied Plaintiff’s request for review. Therefore, the ALJ’s

decision stands as the Defendant’s final determination. On appeal to this Court, Plaintiff

argues that the ALJ erred by: (1) failing to find that Plaintiff met or equaled Listing 12.05(c)

that was in effect at the time of his initial application; (2) failing to find that Plaintiff met or

equaled Listing 12.05(c) as it now exists; and (3) improperly weighing the opinion

evidence. Upon close analysis, I conclude that Plaintiff’s arguments are not well-taken.

II. Analysis

A. Judicial Standard of Review

To be eligible for benefits, a claimant must be under a “disability.” See 42 U.S.C.

§1382c(a). Narrowed to its statutory meaning, a “disability” includes only physical or

mental impairments that are both “medically determinable” and severe enough to prevent

the applicant from (1) performing his or her past job and (2) engaging in “substantial

gainful activity” that is available in the regional or national economies. See Bowen v. City

of New York, 476 U.S. 467, 469-70 (1986).

3

first inquiry is to determine whether the ALJ’s non-disability finding is supported by

substantial evidence. 42 U.S.C. § 405(g). 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) (additional citation and internal quotation

omitted). In conducting this review, the court should consider the record as a whole.

Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial evidence supports

the ALJ’s denial of benefits, then that finding must be affirmed, even if substantial

evidence also exists in the record to support a finding of disability. Felisky v. Bowen, 35

F.3d 1027, 1035 (6th Cir. 1994). As the Sixth Circuit has explained:

The Secretary’s findings are not subject to reversal merely because

substantial evidence exists in the record to support a different conclusion....

The substantial evidence standard presupposes that there is a ‘zone of

choice’ within which the Secretary may proceed without interference from

the courts. If the Secretary’s decision is supported by substantial evidence,

a reviewing court must affirm.

Id. (citations omitted).

In considering an application for supplemental security income or for disability

benefits, the Social Security Agency is guided by the following sequential benefits

analysis: at Step 1, the Commissioner asks if the claimant is still performing substantial

gainful activity; at Step 2, the Commissioner determines if one or more of the claimant’s

impairments are “severe;” at Step 3, the Commissioner analyzes whether the claimant’s

impairments, singly or in combination, meet or equal a Listing in the Listing of

Impairments; at Step 4, the Commissioner determines whether or not the claimant can

still perform his or her past relevant work; and finally, at Step 5, if it is established that

claimant can no longer perform his or her past relevant work, the burden of proof shifts to

4

can perform exist in the national economy. See Combs v. Commissioner of Soc. Sec.,

459 F.3d 640, 643 (6th Cir. 2006); 20 C.F.R. §§404.1520, 416.920.

A plaintiff bears the ultimate burden to prove by sufficient evidence that he is

entitled to disability benefits. 20 C.F.R. § 404.1512(a). A claimant seeking benefits must

present sufficient evidence to show that, during the relevant time period, he suffered an

impairment, or combination of impairments, expected to last at least twelve months, that

left him unable to perform any job. 42 U.S.C. § 423(d)(1)(A).

B. The ALJ’s Decision is supported by Substantial Evidence

1.Previous version of Listing 12.05C

Plaintiff first argues that he met the requirements of the previous version of Listing

§ 12.05; however, whether Plaintiff meets the requirements under the old listings is

irrelevant to this matter. As noted by the Commissioner, the ALJ’s 2019 decision, correctly

analyzed Plaintiff’s claim under the version of Listing § 12.05 that was in effect at the time

of the decision. See 81 Fed. Reg. 66138 (the revised Listings became effective on

January 17, 2017, and applied to all claims pending on or after that date) (emphasis

added). The district court’s review is limited to final decisions of the Commissioner. 42

U.S.C. § 405(g) (“Any individual after any final decision of the Commissioner . . . may

obtain a review of such decision by a civil action . . .”). Because the Appeals Council

vacated both prior ALJ decisions upon remand, the only final decision for this Court to

review is the 2019 ALJ decision. (Tr. 183, 1147). Therefore, whether Plaintiff met the

requirements of the previous version of Listing § 12.05 is not relevant to this action.

5

Plaintiff argues that he met the requirements for Listing § 12.05(B), which requires

him to prove (1) significant below average general intellectual functioning, proven by IQ

testing; (2) significant deficits in adaptive functioning, demonstrated by marked or extreme

mental functioning limitations; and (3) evidence suggesting the disorder began prior to

age 22. 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05(B)(1)-(3).

Here, the ALJ acknowledged that Plaintiff’s IQ scores met the first requirement

under paragraph B, but she determined that he did not satisfy the second. (Tr. 953). To

prove that he met the second paragraph B requirement, Plaintiff must provide evidence

of a marked limitation in two, or extreme limitation in one, of the following functional areas:

(1) understand, remember, or apply information; (2) interact with others; (3) concentrate,

persist, or maintain pace; and (4) adapt or manage oneself. 20 C.F.R. pt. 404, subpt. P,

app. 1, § 12.05(B)(2). In this regard, the Commissioner contends that the ALJ reasonably

found that Plaintiff exhibited only a moderate limitation in all four functional areas, a finding

that was consistent with the consultative examinations and supported by the opinions of

the reviewing psychologists (Tr. 953-54, 1065, 1105). The undersigned agrees.

With respect to the paragraph B criteria, the ALJ found that Plaintiff had no more

than a moderate limitation in understanding, remembering, or applying information. In so

concluding, the ALJ relied upon Plaintiff’s work history, results from his consultative

examinations, and education records. As noted by the ALJ, after high school, Plaintiff

performed work ranging from unskilled to semiskilled, and he was not fired from any of

2 Under the current regulations Listing 12.05 now only has two paragraphs, A and B and

drops the previous 12.05(C).

6

953, citing to Tr. 1651). See Joyce v. Comm’r of Soc. Sec., 662 F. App’x 430, 434 (6th

Cir. 2016) (the claimant’s ability to perform semi-skilled work undercut his claims of

adaptive functioning deficits). Further, the consultative examiners and reviewing

psychologists found that Plaintiff’s intellectual deficits would limit him to simple tasks,

indicating that his functioning in this area was at least “fair.” (Tr. 744, 1070-71, 1110-11).

Next, the ALJ found that Plaintiff was moderately limited in his ability to interact

with others, based on his own statements regarding his employment history and the

observations of the consultative examiners. (Tr. 953). 20 C.F.R. pt. 404, subpt. P, app. 1,

§ 12.05(E)(2). As noted by the Commissioner, Plaintiff stated his past relationships with

coworkers and supervisors were “alright” or “pretty good,” and consultative examiners

observed him to be cooperative, pleasant socially, and have direct eye contact. (Tr. 953,

citing to Tr. 742, 1651-52). Additionally, Dr. Sed opined that Plaintiff would be able to

respond appropriately with supervisors and coworkers. (Tr. 1654).

The ALJ then found Plaintiff to have a moderate limitation in concentrating,

persisting, and maintaining pace. (Tr. 953-54). Id. § 12.05(E)(3). The ALJ acknowledged

some evidence of concentration deficits, but she also noted exams where Plaintiff’s

attention and concentration were observed to be adequate, as well as Plaintiff’s stated

interests of performing car repair and reading magazines, both of which require a degree

of concentration. (Tr. 953-54, citing to Tr. 655, 663, 668, 744, 1652-54, 1852). Last, the

ALJ found only a moderate limitation in Plaintiff’s ability to adapt or manage himself, given

evidence that he could drive a car, maintain personal hygiene, and remember to take his

medications. (Tr. 954, citing to Tr. 742, 770, 997, 1651, 1825).

7

because she relied on medical sources that had not review Plaintiff’s IQ testing. Contrary

to this assertion, both consultative examiners had information relating to Plaintiff’s

education history and noted that Plaintiff’s poor grades, special education classes and

prescription for ADHD. More importantly, the ALJ found that Plaintiff satisfied the IQ

testing Listing requirement. Plaintiff also fails to point to any evidence supporting

limitations greater than those found by the ALJ. See 20 C.F.R. § 404.1512(a)(A plaintiff

bears the ultimate burden to prove by sufficient evidence that he or she is entitled to

disability benefits).

Based on the foregoing, the undesigned finds that the ALJ’s determination that

Plaintiff did not meet or equal the requirements of Listing 12.05(C) is supported by

substantial evidence and should not be disturbed.

3. Opinion Evidence

Plaintiff argues last that the ALJ did not properly weigh the opinion evidence in

accordance with Agency Regulations. Specifically, Plaintiff argues that the ALJ failed to

give controlling weight to the findings of Plaintiff’s treating sources, Dr. Provoznik and

Audrey Howard, LSW-MSW. Plaintiff’s contention lacks merit.

Agency regulations provide that the ALJ is required to consider every medical

opinion in the record and weigh each according to factors like the nature of the

relationship, supportability, consistency, and specialization. 20 C.F.R. § 404.1527(c)(1)-

(6). Here, in formulating Plaintiff’s RFC, the ALJ first considered the opinions provided

by the reviewing psychologists, reasonably assigning great weight to these opinions. (Tr.

960-61). Drs. Orosz and Tishler, who reviewed Plaintiff’s file in 2013, both found him to

8

accommodate his attention and concentration deficiencies. (Tr. 137, 154). Both

psychologists recommended only simple, unchanging tasks, in a work environment with

no strict production standards, and limited interactions with supervisors and coworkers.

(Tr. 140-42, 158-59). Finding these opinions consistent with Plaintiff’s work history, his

ability to perform household chores, and mental status exams demonstrating some

attention and concentration deficits, the ALJ assigned them great weight and largely

adopted these findings in the RFC. (Tr. 960-61). The ALJ also provided additional

restrictions based on evidence later produced. (Tr. 955, 960-61).

The ALJ next reasonably gave great weight to the opinions of the reviewing

psychologists who considered Plaintiff’s file in 2018, both of whom also found moderate

limitations in all four functional areas. (Tr. 761). Drs. Edwards and Tangeman

recommended very similar workplace restrictions to the prior reviewing psychologists,

including the limitation to simple, repetitive work, in an environment without strict

production demands and with only occasional contact with others. (Tr. 1070-72, 1110-

11). These psychologists further noted Plaintiff’s intellectual limitations and his likelihood

to be off-task 5% of the workday. The ALJ determined that their limitations were

consistent with other evidence of record, and also noted that the reviewing psychologists’

opinions were bolstered by the narrative support they provided for their analyses. (Tr.

961). 20 C.F.R. § 404.1527(c)(2). Thus, the ALJ found that the opinions of all four

reviewing psychologists were consistent with, and supported by, the record evidence.

As noted by the Commissioner, the ALJ next considered the opinions of the

consultative examiners, Drs. Heiskell and Sed, assigning partial weight to their findings.

9

could only carry out simple instructions, and that he may have some difficulty responding

to supervision. (Tr. 962, citing to Tr. 744). To the extent that the ALJ did not adopt some

of Dr. Heiskell’s more extreme opinions, she explained that she was discounting them

due to Dr. Heiskell’s limited interactions with Plaintiff and his reliance on Plaintiff’s and his

mother’s subjective statements, rather than Dr. Heiskell’s objective observations. (Tr.

961-62). The ALJ assigned little weight to findings of Dr. Sed because those findings

were inconsistent with the evidence of record. However, many of Dr. Sed’s opinions were

consistent with the ultimate RFC findings, namely the limitation that only simple, routine

tasks would accommodate any memory deficits or difficulties with multi-step tasks.

With respect to Plaintiff’s treating sources, Plaintiff’s primary care physician, Dr.

Provaznik, provided two opinions regarding Plaintiff’s mental health functioning (Tr. 898-

900, 1717-21), both of which recommended extreme limitations. The ALJ noted that those

two opinions were disproportionate to the observations of the consultative examiners and

Dr. Provaznik’s own treatment notes. (Tr. 963, citing to Tr. 1539, 1546, 1642, 1705, 1714).

20 C.F.R. 404.1527(c)(2). The ALJ reasonably discounted his opinions because of these

inconsistencies, and also because Dr. Provaznik was not a mental health specialist, as

he was Plaintiff’s primary care physician, and did not provide any mental health treatment.

20 C.F.R. § 404.1527(c)(5) (“We generally give more weight to the medical opinion of a

specialist about medical issues related to his or her area of specialty than to the medical

opinion of a source who is not a specialist.”).

Next, the ALJ assigned little weight to Plaintiff’s treating therapist Audrey Thomas,

LSW-MSW. (Tr. 964). Notably, after treating Plaintiff for two months, Ms. Thomas

10

limitations in almost all areas of mental functioning. (Tr. 1805-09). Ms. Howard indicated

that her opinion was largely based on Plaintiff’s reports of his own abilities since his car

accident and his inability to perform work due to his physical impairments. (Tr. 1806-08).

Ms. Howard opined Plaintiff would be absent three to four days or more each month

because of his impairments. (Tr. 1808). In discounting Ms. Thomas’ findings, the ALJ

found that her extreme findings were inconsistent with other record evidence as well as

her own treatment notes. (Tr. 964). The ALJ also considered the short duration of their

treating relationship, and Plaintiff’s history of conservative treatment, both of which

undermined the reliability of the opinion. (Tr. 964). 20 C.F.R. § 404.1527(c)(2)(i)

(“Generally, the longer a treating source has treated you and the more times you have

been seen by a treating source, the more weight we will give to the source's medical

opinion.”); see also Lester v. Soc. Sec. Admin., 596 F. App’x 387, 389 (6th Cir. 2015)

(holding that the ALJ reasonably discounted the treating source’s opinion where the

proposed limitations were inconsistent with the source’s own treatment notes, the

claimant’s conservative treatment, the generally benign examination, and the claimant’s

daily activities).

Plaintiff argues that the ALJ improperly discounted the opinion of Ms. Howard and

Dr. Provoznik. Plaintiff’s contention is not well-taken. Notably, although Plaintiff argues

broadly that the ALJ erred by elevating the opinions of non-examining psychologists over

his treating sources, he fails to support this argument in any meaningful way. As noted

by the Commissioner and as described above, the ALJ thoroughly explained why she

gave great weight to the opinions of the reviewing psychologists, properly relying on the

11

is not cause for remand. See Blakely v. Comm’r of Soc. Sec., 581 F. 3d 399, 409 (6th Cir.

2009) (“Certainly, the ALJ’s decision to accord greater weight to state agency physicians

over [Plaintiff]’s treating sources was not, by itself, reversible error.”).

III. Conclusion

For the reasons explained herein, IT IS RECOMMENDED THAT Defendant's

decision is SUPPORTED BY SUBSTANTIAL EVIDENCE, and should be AFFIRMED,

and that this case be CLOSED.

s/ Stephanie K. Bowman

Stephanie K. Bowman

United States Magistrate Judge

12

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

RICHARD M, Case No. 1:20-cv-663

Plaintiff, Cole, J.

v. Bowman, M.J.

COMMISSIONER OF SOCIAL SECURITY,

Defendants.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written

objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS after

being served with a copy thereof. That period may be extended further by the Court on

timely motion by either side for an extension of time. All objections shall specify the

portion(s) of the R&R objected to, and shall be accompanied by a memorandum of law in

support of the objections. A party shall respond to an opponent’s objections within

FOURTEEN DAYS after being served with a copy of those objections. Failure to make

objections in accordance with this procedure may forfeit rights on appeal. See Thomas

v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

13