Long v. Commissioner of Social Security

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

TIMOTHY L.,1 : Case No. 3:20-cv-0152

:

Plaintiff, : Magistrate Judge Caroline H. Gentry

: (by full consent of the parties)

vs.

:

:

COMMISSIONER OF THE SOCIAL

:

SECURITY ADMINISTRATION,

:

Defendant. :

DECISION AND ORDER

I. INTRODUCTION

Plaintiff filed an application for Supplemental Security Income in October 2016.

Plaintiff’s claims were denied initially and upon reconsideration. After a hearing at

Plaintiff’s request, the Administrative Law Judge (ALJ) concluded that Plaintiff was not

eligible for benefits because he was not under a “disability” as defined in the Social

Security Act. The Appeals Council denied Plaintiff’s request for review. Plaintiff

subsequently filed this action.

Plaintiff seeks an order remanding this matter to the Commissioner for the award

of benefits or, in the alternative, for further proceedings. The Commissioner asks the

Court to affirm the non-disability decision. This matter is before the Court on Plaintiff’s

1 See S.D. Ohio General Order 22-01 (“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 claimants only by their first names and last

initials.”).

Statement of Errors (Doc. 10), the Commissioner’s Memorandum in Opposition (Doc.

12), Plaintiff’s Reply (Doc. 13), and the administrative record (Doc. 9).

II. BACKGROUND

Plaintiff asserts that he has been under a disability since December 16, 2015. At

that time, he was forty-three years old. He was forty-four years old on the application

date. Accordingly, Plaintiff was considered a “younger person” under Social Security

Regulations. See 20 C.F.R. §§ 404.1563(c), 416.963(c).2 Plaintiff has a high school

education. See 20 C.F.R. § 404.1564(b)(4).

The evidence in the administrative record is summarized in the ALJ’s decision

(Doc. 9, PageID 50-57), Plaintiff’s Statement of Errors (Doc. 10), the Commissioner’s

Memorandum in Opposition (Doc. 12), and Plaintiff’s Reply (Doc. 13). Rather than

repeat these summaries, the Court will discuss the pertinent evidence in its analysis

below.

III. STANDARD OF REVIEW

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. §§ 402, 423(a)(1), 1382(a).

The term “disability” means “the inability to do any substantial gainful activity by reason

of any medically determinable physical or mental impairment which … has lasted or can

be expected to last for a continuous period of not less than 12 months.” 20 C.F.R.

2 The remaining citations will identify only the pertinent Disability Insurance Benefits Regulations, as

they are similar in all relevant respects to the corresponding Supplemental Security Income Regulations.

§ 404.1505(a).

This Court’s review of an ALJ’s unfavorable decision is limited to two inquiries:

“whether the ALJ applied the correct legal standards and whether the findings of the ALJ

are supported by substantial evidence.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399,

406 (6th Cir. 2009); see 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social

Security as to any fact, if supported by substantial evidence, shall be conclusive.”).

“Unless the ALJ has failed to apply the correct legal standards or has made findings of

fact unsupported by substantial evidence,” this Court must affirm the ALJ’s decision.

Emard v. Comm’r of Soc. Sec., 953 F.3d 844, 849 (6th Cir. 2020). Thus, the Court “may

not try the case de novo, nor resolve conflicts in evidence, nor decide questions of

credibility.” Id.

“Under the substantial-evidence standard, a court looks to an existing

administrative record and asks whether it contains ‘sufficien[t] evidence’ to support the

agency’s factual determinations.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019)

(citation omitted). This limited standard of review does not permit the Court to weigh the

evidence and decide whether the preponderance of the evidence supports a different

conclusion. Instead, the Court is confined to determining whether the ALJ’s decision is

supported by substantial evidence, which “means—and means only—‘such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.’” Id.

(citation omitted).

The other line of judicial inquiry—reviewing the correctness of the ALJ’s legal

criteria—may result in reversal even when the record contains substantial evidence

supporting the ALJ’s factual findings. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651

(6th Cir. 2009). “[E]ven if supported by substantial evidence, ‘a decision of the

Commissioner will not be upheld where the SSA fails to follow its own regulations and

where that error prejudices a claimant on the merits or deprives the claimant of a

substantial right.’” (Id.) (citations omitted). Such an error of law will require reversal

even if “the outcome on remand is unlikely to be different.” Cardew v. Comm’r of Soc.

Sec., 896 F.3d 742, 746 (6th Cir. 2018) (internal quotations and citations omitted).

IV. THE ALJ’S DECISION

As noted previously, the ALJ was tasked with evaluating the evidence related to

Plaintiff’s application for benefits. In doing so, the ALJ considered each of the five

sequential steps set forth in the Social Security Regulations. See 20 C.F.R. § 404.1520.

The ALJ made the following findings of fact:

Step 1: Plaintiff has not engaged in substantial gainful activity since October

18, 2016, the Supplemental Security Income application date.

Step 2: He has the severe impairments of “degenerative disc disease of the

lumbar and thoracic spine, post-laminectomy syndrome, peripheral

neuropathy, and trochanteric bursitis and impingement of the right

hip.”

Step 3: He 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: His residual functional capacity (RFC), or the most he can do despite

his impairments, see Howard v. Comm’r of Soc. Sec., 276 F.3d 235,

239 (6th Cir. 2002), consists of the following limitations: “lift and

carry up to 20 pounds occasionally and ten pounds frequently, and

could stand and/or walk for two hours in an eight hour work day and

sit for six hours in an eight hour work day. He would be able to

engage in occasional pushing and pulling with the lower extremities,

but not on a continuous basis, and could engage in occasional foot

controls bilaterally, but not on a continuous basis. The claimant

could also occasionally balance, stoop, kneel, crouch, and climb

ramps and stairs, but could never crawl, climb ladders, ropes, or

scaffolds, work at unprotected heights or around dangerous

machinery, or operate a motor vehicle. He must also avoid

concentrated exposure to extreme cold.”

He is unable to perform any of his past relevant work.

Step 5: Considering Plaintiff’s age, education, work experience, and RFC,

there are jobs that exist in significant numbers in the national

economy that he can perform.

(Doc. 9-2, PageID 47-57.) These findings led the ALJ to conclude that Plaintiff does not

meet the definition of disability and so is not entitled to benefits. (Id., 57.)

V. ANALYSIS

Plaintiff asserts that the ALJ reversibly erred in evaluating the symptom severity

and by interpreting objective medical data in functional terms. (Doc. 10, PageID 1279,

1283.)

The Social Security Administration uses a two-step process for evaluating an

individual’s symptoms. Social Security Ruling (“SSR”) 16-3p, 2017 WL 5180304, *3

(Oct. 25, 2017) (effective March 28, 2016). First, the ALJ must determine whether an

individual has a medically determinable impairment that could reasonably be expected to

produce the individual’s alleged symptoms. Id. Second, the ALJ must evaluate the

intensity and persistence of the individual’s symptoms and determine the extent to which

the individual’s symptoms limit her ability to perform work-related activities. Id. at *4.

The ALJ must examine “the entire case record, including the objective medical evidence;

the individual’s relevant statements; statements and other information provided by

medical sources and others; and any other relevant evidence in the record.” Id. at *4-5.

In addition to all of the evidence, the ALJ should consider the following factors:

1. Daily activities;

2. The location, duration, frequency, and intensity of pain or other symptoms;

3. Factors that precipitate and aggravate the symptoms;

4. The type, dosage, effectiveness, and side effects of any medication an individual

takes or has taken to alleviate pain or other symptoms;

5. Treatment, other than medication, an individual receives or has received for

relief of pain or other symptoms;

6. Any measures other than treatment an individual uses or has used to relieve pain

or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20

minutes every hour, or sleeping on a board); and

7. Any other factors concerning an individual's functional limitations and

restrictions due to pain or other symptoms.

Id. at *7-8; see also 20 C.F.R. § 404.1529(c)(3). However, an ALJ does not necessarily

need to discuss every factor in every case – for example, if there is no evidence regarding

one of the factors, that factor will not be discussed because it is not relevant to the case.

SSR 16-3p at *8.

In this case, the ALJ followed the required steps. The ALJ first determined that

Plaintiff has medically determinable impairments (degenerative disc disease of the

lumbar and thoracic spine, post-laminectomy syndrome, peripheral neuropathy, and

trochanteric bursitis and impingement of the right hip) that could reasonably cause the

type of symptomatology alleged. (Doc. 9-2, PageID 47, 54.) Next, the ALJ considered

the evidence in the record and concluded that Plaintiff’s statements about the intensity,

persistence, and limiting effects of these symptoms are not entirely consistent with the

medical evidence and other evidence of record. (Id. at PageID 50.)

Plaintiff challenges the ALJ’s analysis at the second step, arguing that his reports

of symptoms are “‘reasonably’ consistent with the record.” (Doc. 10, PageID 1279-82.)

This argument fails because the ALJ adequately considered the objective medical and

other evidence when evaluating the intensity and persistence of Plaintiff’s symptoms, and

substantial evidence supports her conclusion.

For example, the ALJ provided a detailed summary of Plaintiff’s medical records

and treatment history. (Doc. 9-2, PageID 51-55.) The ALJ acknowledged many of the

abnormal examination findings in the record, including those identified in Plaintiff’s

brief, and weighed these abnormal findings against other normal findings in the record.

(Id.) The ALJ found some limited improvement with treatment. (Id.) She explained that

although Plaintiff’s providers sometimes documented findings including positive straight

leg raising, lower extremity paresthesia and weakness, and an antalgic gait, Plaintiff also

presented with a non-antalgic gait on several occasions. (Id. at PageID 54-55.) Plaintiff

also generally retained normal strength and tone, was able to heel/toe walk and tandem

gait without noted difficulty, and was capable of ambulating without an assistive device.

(Id.) The ALJ concluded that the balance of the objective evidence of record did not

support Plaintiff’s allegations of symptom severity. Nevertheless, she accounted for the

objective findings by limiting Plaintiff to the range of sedentary to light work set forth in

the RFC. The ALJ’s conclusion is supported by substantial evidence.

Plaintiff also references two heart attacks in support of his argument that his

symptom reports are reasonably consistent with the medical record. (Doc. 10, PageID

1279, 1281, 1284.) The ALJ addressed these cardiac events at Step Two and concluded

that Plaintiff’s cardiovascular history is not “severe.” (Doc. 9-2, PageID 48.) In support

of this conclusion, the ALJ explained that the record documents “no more than minimal

treatment” following the September 2016 event. (Id.) The ALJ also cited to testing

performed after the August 2018 myocardial infarction, which showed only “mild

residual coronary artery disease with mild inferior wall hypokinesis and overall preserved

left ventricular systolic function with an ejection fraction of 55 to 60 percent.” (Id.)

Further, the ALJ recognized that Plaintiff was treated with an anticoagulation regimen

and had “[n]o further issues or treatment” after that time (Id.). These conclusions at Step

Two are supported by substantial evidence.

Plaintiff points out that the State agency reviewers found that Plaintiff’s

statements regarding symptoms were “fully consistent” with the medical and non-medical

evidence of record, thereby implying the ALJ should have also found Plaintiff’s

allegations to be consistent with the record. (Doc. 10, PageID 1279, citing Doc. 9-3,

PageID 117, 131.) However, these physicians reviewed the record as it existed in

November 2016 and March 2017, just a few months after the application date, and they

actually found that Plaintiff was somewhat less limited than the ALJ’s RFC. (Id. at

PageID 120, 133.) Moreover, as discussed above, the ALJ provided a detailed summary

and analysis of Plaintiff’s medical records and treatment history. (Doc. 8-2, PageID 50-

55.) The ALJ included the records submitted after the State agency assessments in this

summary and analysis. (Id.) The ALJ subsequently evaluated the opinions of the State

agency reviewers, assigned weight pursuant to the rules for evaluating medical opinions,

and found that additional limitations are warranted. (Id.at PageID 54-55.) The ALJ based

these conclusions on the preponderance of the evidence for the entire relevant time

period. (Id.) Accordingly, the ALJ adequately considered the State agency reviewers’

conclusions when evaluating Plaintiff’s symptom severity. The applicable legal

framework did not require her to do more, and her conclusions are supported by

substantial evidence.

Plaintiff also challenges the ALJ’s consideration of Plaintiff’s daily activities.

(Doc. 10, PageID 1282-83.) Plaintiff states in his brief: “The ALJ specifically found that

her RFC determination ‘is supported by the claimant’s testimony that she (sic) can

perform a variety of daily activities’ (ID 54), but [Plaintiff] testified that his pain was ‘a

lot worse’ since December 2015.” (Doc. 10, PageID 1282.) Plaintiff also asserts that

minimal daily functions are not comparable to typical work activities. (Id.)

Plaintiff’s contentions are not well-taken. As an initial matter, it is well-

established that Plaintiff’s daily activities are relevant to the ALJ’s evaluation of

symptom severity. See 20 C.F.R. § 404.1529(c)(3)(i); SSR 16-3p, 2016 SSR WL

5180304, at *7; Davis v. Comm’r of Soc. Sec. Admin, No. 3:19-CV-117, 2020 WL

3026235, at *6 (S.D. Ohio June 5, 2020) (Ovington, M.J.), report and recommendation

adopted sub nom., Davis v. Comm’r of Soc. Sec., No. 3:19-CV-117, 2020 WL 6273393

(S.D. Ohio Oct. 26, 2020) (citing Warner v. Comm'r of Soc. Sec., 375 F.3d 387, 392 (6th

Cir. 2004) (holding that the ALJ justifiably considered Warner's ability to conduct daily

life activities in the face of his claim of disabling pain.)).

Here, the ALJ appropriately considered Plaintiff’s daily activities. The ALJ

acknowledged Plaintiff’s reported difficulties, which included “sit[ting] around at home,”

having “difficulty walking,” and “tr[ying]” to wipe off surfaces and clean up after

himself. (Doc. 9-2, PageID 54.) The ALJ also acknowledged that Plaintiff’s provider

“prescribed a handicap placard so he could park close when running errands and going to

appointments” while taking care of his aging mother. (Id.) The ALJ balanced these

statements with Plaintiff’s other statements of daily activities for the entire relevant time

period, as well as the objective medical evidence discussed above, and concluded that the

evidence does not support Plaintiff’s alleged symptom severity and degree of functional

limitations. (Id., PageID 53-54.) The ALJ’s analysis of Plaintiff’s testimony and daily

activities is supported by substantial evidence and cannot be reversed by this Court.

Plaintiff cites to several cases in support of his argument that minimal daily

functions are not comparable to typical work activities. (Doc. 10, PageID 1282, citing

Rogers v. Commissioner of Social Security, 486 F.3d 234, 248 (6th Cir. 2007); Cohen v.

Secretary of Department of Health and Human Services, 964 F.2d 524-28 (6th Cir.

1992); Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012).) However, all of these

cases are distinguishable from the current case.

The Rogers court found that the ALJ’s description “mischaracterize[d] [the

claimant’s] testimony regarding the scope of her daily activities” and “fail[ed] to examine

the physical effects coextensive with their performance.” 486 F.3d at 248-49. However,

the ALJ in that case described the claimant as “fairly active.” Id., 248. The ALJ in this

case accurately characterized Plaintiff’s daily activities and their physical effects. As

discussed above, the ALJ weighed Plaintiff’s testimony about what he could do against

his statements about his difficulties with daily activities, and she considered this with the

objective evidence to limit Plaintiff to a range of sedentary to light work. (Doc. 9-2,

PageID 50-54.)

In Cohen, the court noted that the ALJ’s conclusions “were based primarily on the

evidence of [the claimant’s] level of activities for the period in question, which the ALJ

found substantially undermined her credibility.” 964 F.2d 524-28 (6th Cir. 1992). In this

case, the ALJ based her conclusion primarily on the objective evidence, as demonstrated

by her detailed analysis of the medical records. (Doc. 9-2, PageID 50-55.) The ALJ

considered Plaintiff’s reports of daily activities only as one additional factor in the

analysis of Plaintiff’s symptom severity, which is consistent with 20 C.F.R.

§ 404.1529(c)(3) and Social Security Ruling 16-3p.

Finally, Bjornson is a Seventh Circuit case which is not binding on this Court. 671

F.3d 640 (7th Cir. 2012). Moreover, even if it were governing law, it would be

inapplicable here. The Bjornson court opined that the failure to recognize the differences

between activities of daily living and work activities “is a recurrent, and deplorable,

feature of opinions by administrative law judges in social security disability cases.” Id.

But in this case, the ALJ did not directly equate Plaintiff’s reports of daily activities with

the ability to perform work activity. Instead, the ALJ considered Plaintiff’s daily

activities as only one factor in her consideration of the entire record, as set forth in the

symptom severity analysis required by SSR 16-3p. The ALJ’s evaluation of Plaintiff’s

daily activities is consistent with the applicable legal requirements and does not warrant

reversal.

Plaintiff’s contention that the ALJ “erred by attempting to translate the material

raw medical data into functional limitations” (Doc. 10, PageID 1283) is also without

merit. Plaintiff specifically cites to an October 15, 2017, lumbar CT scan. (Id.) However,

the ALJ did not interpret the objective medical data beyond her ability to do so when she

evaluated this and other imaging reports in the RFC analysis. (Doc. 9-2, PageID 49-55).

The regulations require ALJs to evaluate the medical evidence to determine disability.

See 20 C.F.R. § 404.1545(a)(3); Webb v. Comm'r of Soc. Sec., 368 F.3d 629, 633 (6th

Cir. 2004) ( “[T]he ALJ is charged with the responsibility of evaluating the medical

evidence”); Coldiron v. Comm'r of Soc. Sec., 391 F. App’x. 435, 439 (6th Cir. 2010)

(“The Social Security Act instructs that the ALJ—not a physician—ultimately determines

a claimant's RFC.... An ALJ does not improperly assume the role of a medical expert by

weighing the medical and non-medical evidence before rendering an RFC finding.”).

In this case, a radiologist read and interpreted the October 2017 lumbar CT scan.

(Doc. 9-8, PageID 614.) The other imaging reports in the record were also read or

interpreted by radiologists or other physicians. (See, e.g., Doc. 9-9, PageID 1183, 1269,

1271.) The ALJ's conclusions regarding Plaintiff’s spinal condition—and the limitations

that she included in the RFC—are consistent with the doctors’ interpretations of imaging

and other evidence discussed in the decision. Accordingly, the ALJ did not make her own

independent medical findings or interpret raw medical data in functional terms. This

argument is therefore not well-taken.

VI. CONCLUSION

For the reasons discussed above, the ALJ properly applied the governing legal

framework and substantial evidence supports her conclusions. Specifically, the ALJ

evaluated Plaintiff’s symptom severity pursuant to the applicable regulations, including

Social Security Ruling 16-3p. The ALJ further provided reasonable explanations,

supported by substantial evidence, for how she weighed the evidence. Accordingly,

Plaintiff’s Statement of Errors lacks merit.

IT IS THEREFORE ORDERED THAT:

1. Plaintiff’s Statement of Errors (Doc. 10) is OVERRULED;

2. The Court AFFIRMS the Commissioner’s non-disability determination;

and

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

s/Caroline H. Gentry

Caroline H. Gentry

United States Magistrate Judge