Fernandes v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

MADINA F.,1 : Case No. 3:20-cv-321

:

Plaintiff, : Magistrate Judge Peter B. Silvain, Jr.

: (by full consent of the parties)

vs. :

:

COMMISSIONER OF THE SOCIAL :

SECURITY ADMINISTRATION, :

:

Defendant. :

DECISION AND ENTRY

Plaintiff Madina F. brings this case before the Court challenging the Social Security

Administration’s denial of her application for Supplemental Security Income (SSI). This case is

before the Court upon Plaintiff’s Statement of Errors (Doc. #13), the Commissioner’s

Memorandum in Opposition (Doc. #16), Plaintiff’s Reply (Doc. #17), and the administrative

record (Doc. #10).

I. Background

The Social Security Administration provides Supplemental Security Income to individuals

who are under a “disability,” among other eligibility requirements. Bowen v. City of New York,

476 U.S. 467, 470 (1986); see 42 U.S.C. § 1382(a). The term “disability” encompasses “any

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 courts should refer to

plaintiffs only by their first names and last initials. See also S.D. Ohio General Rule 22-01.

medically determinable physical or mental impairment” that precludes an applicant from

performing “substantial gainful activity.” 42 U.S.C. § 1382c(a)(3)(A); see Bowen, 476 U.S. at 469-

70.

In the present case,2 Plaintiff applied for benefits on August 16, 2017, alleging disability

due to several impairments, including a “worsening of Crohn’s disease, worsening ulcerative

colitis, worsening hydraditis supperativa, worsening Crohn’s related arthritis, major depression

disorder, and anxiety disorder.” (Doc. #10-6, PageID #295). After Plaintiff’s application was

denied initially and upon reconsideration, she requested and received a hearing before

Administrative Law Judge (ALJ) Stuart Adkins. Thereafter, the ALJ issued a written decision,

addressing each of the five sequential steps set forth in the Social Security Regulations. See 20

C.F.R. § 416.920. He reached the following main conclusions:

Step 1: Plaintiff has not engaged in substantial gainful employment since August

16, 2017, the application date.

Step 2: She has the severe impairments of obesity, hidradenitis suppurativa,

arthritis, fibromyalgia, Crohn’s disease, ulcerative colitis, anxiety, and

depression.

Step 3: She does not have an impairment or combination of impairments that meets

or equals the severity of one in the Commissioner’s Listing of Impairments,

20 C.F.R. Part 404, Subpart P, Appendix 1.

Step 4: Her residual functional capacity (RFC), or the most she could do despite her

impairments, see Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 239 (6th

Cir. 2002), consists of “sedentary work… subject to the following

limitations: (1) occasionally climbing ramps and stairs, balancing, stooping,

kneeling, crouching, and crawling; (2) never climbing ladders, ropes,

scaffolds; (3) frequently handling and fingering bilaterally; (4) frequently

reaching overhead bilaterally; (5) no exposure to hazards such as dangerous

2 Plaintiff previously applied for benefits in August 2012. This claim was denied by decision by the U.S. District

Court on August 13, 2018. (Doc. #10 at PageID #s 146-81).

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machinery or working at unprotected heights; (6) indoor, temperature-

controlled work with no exposure to extremes of heat, cold, wetness, or

humidity; (7) does not have to be replaced with another worker before going

to the restroom; (8) low-stress work with no strict production quotas or fast-

pace and only routine work with few changes in the work setting defined as

1-2 per week; (9) occasional contact with the public.”

She has no past relevant work.

Step 5: She can perform a significant number of jobs that exist in the national

economy.

(Doc. #10, PageID #s 49-60). Based on these findings, the ALJ concluded that Plaintiff was not

under a benefits-qualifying disability. Id. at 61.

The evidence of record is adequately summarized in the ALJ’s decision (Doc. #10, PageID

#s 49-60), Plaintiff’s Statement of Errors (Doc. #13), the Commissioner’s Memorandum in

Opposition (Doc. #16). To the extent that additional facts are relevant, they will be summarized in

the discussion section below.

II. Standard of Review

Judicial review of an ALJ’s decision is limited to whether the ALJ’s findings are supported

by substantial evidence and whether the ALJ applied the correct legal standards. Blakley v. Comm’r

of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see Bowen v. Comm’r of Soc. Sec., 478 F.3d 742,

745-46 (6th Cir. 2007). Substantial evidence is such “relevant evidence that a reasonable mind

might accept as adequate to support a conclusion.” Gentry v. Comm’r of Soc. Sec., 741 F.3d 708,

722 (6th Cir. 2014) (citing Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir.2007)). It is

“less than a preponderance but more than a scintilla.” Id.

The second judicial inquiry—reviewing the correctness of the ALJ’s legal analysis—may

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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). Under this review, “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 (citing Wilson v. Comm’r of Soc. Sec., 378 F.3d 541,

546-47 (6th Cir. 2004)).

III. Discussion

In her Statement of Errors, Plaintiff raises one assignment of error, which is that the “ALJ

reversibly erred by failing to include any allowance for off-task or absences in the accepted

hypothetical to the vocational expert despite [Plaintiff’s] severe fibromyalgia, hypermobility

syndrome, hidradenitis suppurativa, and other severe physical and mental impairments.” (Doc.

#13, PageID #2481).3 The Commissioner maintains that the ALJ’s decision is supported by

substantial evidence. (Doc. #16, PageID #s 2492-2502).

During the hearing, ALJ Adkins posed a series of hypotheticals to the vocational expert

about the availability of jobs in the national economy for an individual with certain hypothetical

limitations. (Doc. #10-2, PageID #s 97-99). In the first two hypotheticals posed by the ALJ, the

vocational expert was able to identify a significant number of jobs that would be available in the

national economy for an individual with the specified limitations. Id. In the next hypothetical,

the vocational expert was asked whether the identified jobs would allow the hypothetical

3 Plaintiff’s assignment of error was limited to the ALJ’s decision to not include the work-preclusive limitations from

the final hypotheticals in her RFC. Accordingly, she has waived her right to challenge any other findings, as she failed

to adequately raise them. See Swain v. Comm’r of Soc. Sec., 379 F. App’x 512, 517-18 (6th Cir. 2010) (finding plaintiff

had waived its challenge to the ALJ’s findings on certain impairments by not raising it in the merits brief).

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individual to have two additional fifteen-minute breaks where they were permitted to leave the

workstation randomly throughout the day. Id. at 99. In response, the vocational expert indicated

that such a limitation would be work-preclusive. Id. Similarly, the vocational expert testified that

such an individual would not be able to maintain gainful employment if she were off-task more

than twelve percent of the day or absent two days per month. Id. at 99.

In assessing Plaintiff’s RFC, ALJ Adkins ultimately decided not to incorporate any of the

final three hypothetical limitations related to additional breaks, off-task behavior, and absenteeism.

See id. at 55-58. Plaintiff contends that the failure to include these limitations in the RFC

constitutes reversible error as she would have been found disabled had these limitations been

included. (Doc. #13, PageID #s 2481-83).

A plaintiff’s RFC is an assessment of “the most [she] can still do despite [her] limitations.”

20 C.F.R. § 416.945(a)(1) (2012). The ALJ is responsible for assessing an individual’s RFC. 20

C.F.R. § 416.920(a)(4). The ALJ’s RFC assessment must be “based on all of the relevant evidence

in the case record, including information about the individual’s symptoms and any ‘medical source

statements’ -- i.e., opinions about what the individual can still do despite his or her impairment(s)

-- submitted by an individual’s treating source or other acceptable medical sources.” Soc. Sec. R.

96-8p, 1996 WL 374184, *2 (footnote omitted). Furthermore, in assessing a plaintiff’s RFC, the

ALJ is not required to incorporate every limitation included in the hypothetical questions posed to

the vocational expert—rather, the ALJ need only incorporate the limitations he deems credible.

Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1235 (6th Cir. 1993) (“It is well

established that an ALJ may pose hypothetical questions to a vocational expert and is required to

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incorporate only those limitations accepted as credible by the finder of fact.”) (internal citation

omitted).

In this case, substantial evidence supports ALJ Adkins’ assessment of Plaintiff’s RFC. ALJ

Adkins explained the history of Plaintiff’s physical and mental impairments, including her

fibromyalgia, hypermobility syndrome, hidradenitis suppurativa, arthritis, Crohn’s disease,

ulcerative colitis, obesity, anxiety, and depression. (Doc. #10-2, PageID #s 49-54). He reviewed

the medical evidence, the assessments of the examining and reviewing sources, Plaintiff’s

subjective complaints, and other factors relevant to assessing Plaintiff’s pain and other symptoms.

See id. Upon reviewing this evidence, ALJ Adkins incorporated the limitations that he found to

be supported by the record into her RFC and excluded limitations that he found not to be supported,

including the work-preclusive limitations advocated for by Plaintiff. See id.

Notably, the administrative record does not contain any medical opinion detailing how

Plaintiff’s mental or physical impairments, either individually or in combination, impact her

functioning to the point that they would cause her to need two additional fifteen-minute breaks, be

off-task more than twelve percent of the day, or be regularly absent more than two days a month.

Instead, Plaintiff relies on generalities in her medical records, such as her diagnoses and treatment

for fibromyalgia and hypermobility syndrome, to support her claim that her RFC should have

included these work-preclusive restrictions. (Doc. #13, PageID #s 2481-83). Specifically, Plaintiff

points to records of “multiple surgeries” and to generic reports in her treatment records showing

“unsteady gait, poor balance, fall risk, confusion, visual problems, meds side effects, weakness,

fatigue, shortness of breath with minimal activity, needs reminders to take medication, constant

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wound pain only relieved by rest and relaxation, high risk for hospitalization, and depression.” Id.

at 2482. Noticeably absent from Plaintiff’s argument is the fact that none of the records endorse

the work-preclusive restrictions she believes should have been included in her RFC. Indeed, while

the record confirms that Plaintiff has been diagnosed with and receives regular treatment for her

pain and symptoms associated with her fibromyalgia and hypermobility syndrome, there is no

medical opinion of record stating that these impairments would cause Plaintiff to need two

additional fifteen-minute breaks, be off-task more than twelve percent of the day, or be regularly

absent more than two days a month.

Finally, Plaintiff’s reliance on her subjective complaints to support including these

limitations in her RFC is unavailing. When a plaintiff alleges symptoms of disabling severity, the

ALJ must follow a two-step process for evaluating those symptoms. See 20 C.F.R. § 416.929

Social Security Ruling (SSR) 16-3p, 2016 WL 1119029, *3 (March 16, 2016).4 First, the ALJ

must determine whether the individual has a medically determinable physical or mental

impairment that can reasonably be expected to produce the symptoms alleged; second, the ALJ

must evaluate the intensity, persistence, and functional limitations of those symptoms by

considering objective medical evidence and other evidence, including: (1) daily activities; (2) the

location, duration, frequency, and intensity of pain or other symptoms; (3) precipitating and

aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medication taken

4SSR 16-3p, 2016 WL 1119029, which “provides guidance about how [the SSA] evaluate[s] statements regarding the

intensity, persistence, and limiting effects of symptoms,” superseded SSR 96-7p and became applicable to decisions

issued on or after March 28, 2016. See SSR 16-3p, 2017 WL 5180304 (October 25, 2017) (clarifying applicable date

of SSR 16-3p).

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to alleviate pain or other symptoms; (5) treatment, other than medication, received for relief of

pain or other symptoms; (6) any measures used to relieve pain or other symptoms; and (7) other

factors concerning functional limitations and restrictions due to pain or other symptoms. See also

20 C.F.R. § 416.929(c)(3).

In performing this assessment, the ALJ is not required to analyze all seven factors but must

still show that he considered the relevant evidence. Roach v. Comm’r Soc. Sec., No. 1:20-CV-

01853-JDG, 2021 WL 4553128, at *10–11 (N.D. Ohio Oct. 5, 2021). Indeed, the ALJ’s

assessment of an individual’s subjective complaints and limitations must be supported by

substantial evidence and be based on a consideration of the entire record. Rogers, 486 F.3d at 247

(internal quotation omitted). Nonetheless, it remains the province of the ALJ and not the reviewing

court to assess the consistency of subjective complaints about the impact of a plaintiff’s symptoms

with the record as a whole. See id. Therefore, “absent a compelling reason,” an ALJ’s

credibility/consistency determination will not be disturbed. Smith v. Halter, 307 F.3d 377, 379 (6th

Cir. 2001).

As an initial matter, it is notable that none of the subjective complaints cited by Plaintiff

actually demonstrate that her impairments would cause the limitations she advocates for.

Specifically, in support of her argument, Plaintiff points to her documented reports of ongoing

pain and fatigue as well as her difficulty with daily activities, such as dressing, showering, and

overhead reaching and lifting. (Doc. #13, PageID #2482). Absent from Plaintiff’s argument,

however, is how the difficulty she has in completing these tasks translates to a finding that she

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would require two additional fifteen-minute breaks a day, be off-task more than twelve percent of

the day, or be regularly absent more than two days a month.

Further, even if Plaintiff had provided such citations to the record, substantial evidence

exists to support ALJ Adkins’ decision not to include those limitations in the RFC. For example,

in response to Plaintiff’s subjective complaints regarding the severity of her symptoms, ALJ

Adkins concluded that Plaintiff’s statements concerning the intensity, persistence and limiting

effects of these symptoms were not entirely consistent with the medical evidence and other

evidence in the record. (Doc. #10-2, PageID #s 58-59). Here, the ALJ appropriately relied on

objective medical evidence, including the fact that Plaintiff “is neurologically intact and maintains

normal gait and station and muscle tone.” Id. at 59. See 20 C.F.R. § 416.929(a) (“[W]e consider

the extent to which your symptoms can reasonably be accepted as consistent with the objective

medical evidence…”); 20 C.F.R. § 416.929(c)(2) (“Objective medical evidence… is a useful

indicator to assist us in making reasonable conclusions about the intensity and persistence of your

symptoms, such as pain, may have on your ability to work.”).

Additionally, and contrary to Plaintiff’s contentions, the ALJ did not overly rely on

objective evidence. Instead, the ALJ considered a variety of “other evidence,” such as Plaintiff's

daily activities and the effectiveness of her treatment. (Doc. #10-2, PageID #59); see also 20

C.F.R. § 416.1529(c)(3)(v). For example, the ALJ pointed out that Plaintiff is able to “attend to

personal care needs, care for a dependent child and mother who walks with a cane, operate a motor

vehicle even for short distances, shop, and perform household chores ranging from laundry to

cleaning.” Id. (record citations omitted). He also noted the “repeated references in the medical

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record that speak to the positive effects [that] compliance with her treatment regimen has on

[Plaintiff’s] conditions, both physical and mental.” Id.

Hence, ALJ Adkins carefully considered the totality of the evidence, applied the proper

standards, and clearly explained his consistency/credibility findings. In doing so, he did not find

Plaintiff’s alleged impairments to be wholly inconsistent or uncredible, rather, he simply found

that they did not support the additional hypothetical limitations advocated by Plaintiff. Under

these circumstances, this Court is without authority to disturb that finding.

For these reasons, Plaintiff’s statement of error is not well taken.

IT IS THEREFORE ORDERED THAT:

1. Plaintiff’s Statement of Errors (Doc. #13) is OVERRULED;

2. The Commissioner’s non-disability determination is AFFIRMED; and

3. The case is terminated on the Court’s docket.

March 21, 2022 s/Peter B. Silvain, Jr.

Peter B. Silvain, Jr.

United States Magistrate Judge

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