# Bush v. Commissioner of Social Security

> District Court, S.D. Ohio · March 16, 2023

URL: https://www.frixlaw.com/law-library/cases/10381984

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** March 16, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Shaun B., :

Plaintiff, :
Case No. 2:22-cv-02442-TPK
vs. :

: Magistrate Judge Kemp
Commissioner of
Social Security, :
Defendant. :
OPINION AND ORDER
Plaintiff filed this action seeking review of a final decision of the Commissioner of Social
Security. That decision, issued by the Appeals Council on April 6, 2022, denied his application
for social security disability benefits. Plaintiff filed a statement of errors on October 12, 2022
(Doc. 13) to which the Commissioner responded on November 21, 2022 (Doc. 15). For the
following reasons, the Court will OVERRULE Plaintiff’s statement of errors and DIRECT the
entry of judgment in favor of the Defendant.
I. INTRODUCTION
Plaintiff filed his application on October 28, 2019, alleging that he became disabled on
September 17, 2019. After administrative denials of his claim, Plaintiff was given a hearing
before an Administrative Law Judge on February 26, 2021. Plaintiff and a vocational expert,
Diamond Warren, testified at the hearing.
In a decision dated March 15, 2021, the ALJ determined that Plaintiff was not entitled to
benefits. She first found that Plaintiff met the insured status requirements of the Social Security
Act through December 31, 2023, and that he had not engaged in substantial gainful activity since
the alleged onset date. The ALJ next concluded that Plaintiff suffered from severe impairments
including degenerative disc disease, fracture of the left hip and pelvis, status-post surgery on the
left hip, and obesity. However, the ALJ also found that none of these impairments, taken singly
or in combination, met the criteria for disability found in the Listing of Impairments.
Moving to the next step of the sequential evaluation process, the ALJ found that, during
the relevant time period, Plaintiff could perform a reduced range of light work. He could stand
and walk for four hours in an eight-hour workday, sit for six hours, occasionally climb ramps
and stairs (but never ropes, ladders, or scaffolds), occasionally stoop, kneel, crouch, and crawl,
and frequently balance. Finally, he had to avoid all exposure to hazards including moving
machinery, heavy machinery, and unprotected heights.
Moving on with the process, the ALJ determined that with these limitations, Plaintiff
could not, based on testimony given by the vocational expert, perform his past relevant work as a
shuttle driver, assembler, dietary aide, or group home worker. However, the ALJ found that
there were still light, unskilled jobs he could do, including mail clerk, office helper, and storage
rental clerk, and that these jobs existed in substantial numbers in the national economy. As a
result, the ALJ concluded that Plaintiff was not disabled within the meaning of the Social
Security Act.
In his statement of errors, Plaintiff raises two arguments. He contends (1) that the ALJ
improperly discounted his subjective report of symptoms; and (2) that the ALJ did not properly
assess the opinion evidence or develop the record with respect to medical opinions.
II. STANDARD OF REVIEW
As this Court said in Jeter v. Comm'r of Soc. Sec. Admin., 2020 WL 5587115, at *1–2
(S.D. Ohio Sept. 18, 2020),
Judicial review of an ALJ's non-disability decision proceeds along two lines:
“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 Bowen v. Comm'r of Soc. Sec., 478 F.3d
742, 745-46 (6th Cir. 2007). Review for substantial evidence is not driven by
whether the Court agrees or disagrees with the ALJ's factual findings or by
whether the administrative record contains evidence contrary to those factual
findings. Gentry v. Comm'r of Soc. Sec., 741 F.3d 708, 722 (6th Cir. 2014);
Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). Instead, the
ALJ's factual findings are upheld if the substantial-evidence standard is met—that
is, “if a ‘reasonable mind might accept the relevant evidence as adequate to
support a conclusion.’ ” Blakley, 581 F.3d at 407 (quoting Warner v. Comm'r of
Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004)). Substantial evidence consists of
“more than a scintilla of evidence but less than a preponderance....” Rogers, 486
F.3d at 241 (citations and internal quotation marks omitted); see Gentry, 741 F.3d
at 722.
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); see Bowen, 478 F.3d at 746. “[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.’
” Rabbers, 582 F.3d at 651 [quotations and citations omitted].
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III. FACTUAL BACKGROUND
A. Hearing Testimony
Plaintiff, who was 40 years old at the time of the administrative hearing, testified, first,
that he had last worked between eight months and a year before. At various times, he had driven
a shuttle bus, worked as a funeral attendant, worked on an assembly line, and served as a dietary
aide at a nursing home. He had also been a supervisor at a juvenile detention facility. He
stopped working altogether due to a bad back which caused constant daily pain. Plaintiff said he
had pursued various avenues of treatment but nothing seemed to help.
When asked about the limitations arising from his back condition, Plaintiff said that he
could not sit for long periods of time, nor could he stand, sit, or walk for more than thirty
minutes. He used a cane every day. He had also suffered a broken hip and knee in a car accident
and had two surgeries on his hip (but not a hip replacement). He needed help with personal care
and did no household chores. Plaintiff said that he stayed home every day unless he had to go to
medical appointments.
The vocational expert, Ms. Warren, first classified all of Plaintiff’s past jobs as either
light or medium in exertional level. She was then asked questions about a person with Plaintiff’s
vocational profile who was limited to light work with certain postural and environmental
restrictions. She said that such a person could do several of Plaintiff’s past jobs. If the person
were limited to standing and walking only four hours per day, however, those jobs would not be
available. Ms. Warren testified, however, that there would be other jobs such a person could do,
such as mail clerk, office helper, and storage rental clerk, and she provided numbers for such
jobs as they exist in the national economy. She also said that if the person were restricted to
sedentary work and needed some version of a sit/stand option, he or she could do jobs such as
document preparer, porter, and final assembler. Being off task for 15% of the work day was
work-preclusive, however, as was missing two days of work per month.
B. Relevant Medical Records
As early as 2014, when he was 33 years old, Plaintiff had been diagnosed with mild
degenerative disc disease, which apparently resulted from a 2011 work injury. An MRI done in
2014 showed thecal sac narrowing at L4-5 as well as bilateral facet arthropathy and a small disc
protrusion at L5-S1. In 2015, he had an epidural steroid injection after other treatment methods
provided little relief. In 2019, he also developed right shoulder pain after lifting a suitcase at
work. He was still having back pain made worse by prolonged standing, and he had been taking
medication since the 2015 injection, including Percocet and gabapentin. At an examination done
three days after he stopped working, he demonstrated pain in the back on palpation and had
decreased range of motion.
In October, 2020, Plaintiff was hospitalized for ten days following a motor vehicle
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accident. He had hip surgery on October 5, 2020 and again on October 9, 2020, and was also
diagnosed with a fracture of the patella. After discharge, he was referred to occupational
therapy. He was treated for left foot pain in November and December, 2020. A note from
November, 2020, showed that he walked with a normal gait, although records from seveeral
2019 examinations done by Nurse Practitioner Ingersoll indicate that he walked with a limp and
was using a cane for assistance.
C. Opinion Evidence
Rebecca Ingersoll, the certified nurse practitioner who saw Plaintiff in 2019, completed a
form on January 14, 2020, indicating that due to his back problems, Plaintiff would need to lie
down multiple times in an eight-hour workday, could walk or stand for only an hour, could not
lift as much as twenty pounds, was restricted in the use of his arms for reaching, and would miss
work more than four times a month. (Tr. 479-80).
Dr. Crennan, a state agency physician, reviewed the records and, in an opinion dated
February 19, 2020, concluded that Plaintiff could perform the lifting, standing, and walking
requirements of light work but had some postural limitations. (Tr. 54-56). Dr. Das, a second
state agency reviewer, concurred with that assessment, and also determined that Ms. Ingersoll’s
opinion that Plaintiff had various disabling symptoms was not supported by clinical evidence.
(Tr. 61-63).
IV. DISCUSSION
A. Self-Reported Symptoms
In his first claim of error, Plaintiff argues that the reasons given by the ALJ for finding,
as she did, that Plaintiff’s subjective descriptions of his symptoms was not entirely consistent
with the evidence, are flawed. This claim requires a close analysis of the reasoning provided by
the ALJ for her finding.
The ALJ first summarized what Plaintiff had to say about his limitations, noting that he
said that his lower back injury prevented him from working and that the Percocet which had
been prescribed did not provide much relief. He also testified that the 2020 automobile accident
made his back worse. In concluding that these complaints did not support total disability, the
ALJ pointed out that “[u]biquitously noted was the claimant’s history and current misuse of
opiate medications calling into question to [sic] supportability of the claimant’s subjectively
reported pain.” (Tr. 22). She also relied on the fact that “despite orders to establish with pain
management, for evaluation for opiate use for pain, the record does not show that the claimant
ever established with such a provider during the period.” Id. Further, she noted that nothing in
the record indicated that his use of a cane was medically necessary or that any provider had
prescribed a cane; that he was walking normally in November, 2020; and that there did not
appear to be any functional limitations arising from his fractured kneecap. Id. These
conclusions led her to find that he could do a limited range of light work.
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Plaintiff’s statement of errors interprets the evidence about opiate use in a different way.
He argues that some of the alleged noncompliance related to his not taking his medication on
occasion, thus resulting in a negative test for opiates, and that other notations of noncompliance
were merely suspicions, none of which resulted in the discontinuance of his medication. He also
asserts that there may have been valid reasons why he did not more aggressively seek out other
treatment for his back, although he appears to concede that these reasons do not directly appear
in the record. Finally, he argues that evidence about his use of a cane is not really relevant to the
problems caused by his back and that it stands to reason that no provider would have ordered a
cane when he was already using one. The Commissioner’s response summarizes in detail the
evidence that supports the ALJ’s interpretation of the record and relies on case law holding that
an ALJ has broad discretion when it comes to making this type of determination.
The Court is guided in its determination of Plaintiff's claim of error by this statement
from Gursky v. Colvin, 2017 WL 6493149, at *8 (W.D. Tenn. Dec. 19, 2017):
The Sixth Circuit has “held that an administrative law judge's credibility findings
are virtually unchallengeable” absent compelling reasons. Shepard v. Comm'r of
Soc. Sec., No. 17-1237, 2017 WL 4251707, at *4 (6th Cir. Sept. 26, 2017)
(quoting Ritchie v. Comm'r of Soc. Sec., 540 Fed.Appx. 508, 511 (6th Cir. 2013)).
Those compelling reasons appear when ALJs' credibility determinations are not
“supported by substantial evidence.”
It is certainly true that “[a]n ALJ is not required to accept a claimant's subjective symptom
complaints ... and may properly discount the claimant's testimony about her symptoms when it is
inconsistent with objective medical and other evidence.” Avery v. Comm'r of Soc. Sec., 2020 WL
2496917, at *11 (N.D. Ohio May 14, 2020). However, as stated in Davis v. Comm'r of Soc. Sec.,
2017 WL 1044773, at *8 (S.D. Ohio Mar. 20, 2017), report and recommendation adopted, 2017
WL 4221459 (S.D. Ohio Sept. 21, 2017),
[a]lthough the ALJ is given wide latitude to make determinations about a
claimant's credibility, the ALJ is still required to provide an explanation of the
reasons why a claimant is not considered to be entirely credible, and the Court
may overturn the ALJ's credibility determination if the reasons given do not have
substantial support in the record. See, e.g. Felisky v. Bowen, 35 F.3d 1027 (6th
Cir. 1994).
Finally, SSR 16-3p provides that “[t]he determination or decision must contain specific reasons
for the weight given to the individual's symptoms, be consistent with and supported by the
evidence, and be clearly articulated so the individual and any subsequent reviewer can assess
how the adjudicator evaluated the individual's symptoms.” It is worthwhile noting that SSR 16-
3p no longer uses the term “credibility” in this context, but focuses on the extent to which the
claimant’s testimony is consistent with, or in conflict with, the other evidence of record.
Here, the Court does not find Plaintiff’s argument persuasive. A reasonable person could
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conclude from this record, as the ALJ did, that even Plaintiff’s health care providers raised
questions about the consistency of his reports of disabling pain and about his opiate medication
use. Additionally, it is pure speculation, on this record, to conclude that Plaintiff had otherwise
valid reasons for not seeking out pain management care as recommended; the fact remains that
he did not do so. There are also, as the Commissioner points out, differences between what
Plaintiff was reporting and the objective findings made when he was examined; the ALJ noted
this discrepancy as well, stating that the physical examinations done in 2020 “noted an obese
body habitus ... but [were] otherwise completely unremarkable.” (Tr. 21). All of these are
legitimate factors for discounting, to some extent, a claimant’s self-report of severe symptoms.
Given the broad leeway granted to an ALJ in making this determination, and given that the ALJ
relied on matters which find support in the record, the Court finds that this claim provides no
basis for disturbing the ALJ’s finding or for ordering a remand for further consideration of this
issue.
B. Opinion Evidence
Plaintiff’s second claim of error takes issue with the way in which the ALJ evaluated the
opinion evidence. He notes that the ALJ found all three sets of opinions - from Nurse
Practitioner Ingersoll and from the two state agency reviewers - to be unpersuasive, and also that
the automobile accident post-dated all of the opinions, thus rendering any reliance on them to be
unreasonable. He further contends that the ALJ did not properly determine that Nurse
Ingersoll’s opinion was unsupported because the decision focused only on the evaluation form
itself and not the underlying treatment notes. The Commissioner responds that Plaintiff is
simply inviting the Court to reweigh the evidence and that nothing about the automobile accident
and its impact on Plaintiff’s functioning called into question the accuracy of the prior opinions.
The ALJ had this to say about the medical opinions. First, as to Nurse Ingersoll, the ALJ
reasoned that
[t]he undersigned has found this assessment unpersuasive. The undersigned notes
that at no time did Nurse Ingersoll identify any specific treatment or evaluative
evidence to substantiate any of the limitations assessed. Furthermore, her opinions
are radically divergent from the other opinions of record, which evaluated a
greater body of evidence prior to the claimant’s October 2020 accident. For these
reasons, the undersigned cannot place greater reliance on this statement.
(Tr. 23). As far as the state agency physician’s opinions were concerned, the ALJ said that
[t]he undersigned has found these assessments unpersuasive. Consistent with the
claimant’s acute injuries after the State agencies respective assessments, and
postoperative recovery period, the undersigned has further reduced the claimant’s
residual functional capacity to a reduced range of light exertion, with an
allowance for 4 hours standing and walking during an 8 hour workday, in addition
to postural and environmental limitations to further mitigate potentials for
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symptoms exacerbation.
Id.
Plaintiff appears to be making two separate arguments about why this analysis is
incorrect. One of those arguments is that the residual functional capacity finding, because it
does not track any of the medical opinion evidence and because those opinions were all rendered
prior to additional developments in the record, must have been the product of the ALJ’s lay
evaluation of the raw medical data. And, as this Court has said, “[a]s ALJs are not qualified to
interpret raw medical data, a RFC determination must be supported by medical opinions in the
record.” Dillman v. Comm'r of Soc. Sec., 990 F. Supp. 2d 787, 795 (S.D. Ohio 2013).
This argument is not persuasive in the context of this record. Both state agency
reviewers thought that Plaintiff could perform a relatively full range of light work activities. The
ALJ, finding that those opinions were both too optimistic and that they did not take into account
Plaintiff’s later hospitalization and hip surgery, opted for a more restrictive RFC that
accommodated additional limitations. That is a judgment that the ALJ was entitled to make. As
explained in Gross v. Comm'r of Soc. Sec., 247 F. Supp. 3d 824, 829 (E.D. Mich. 2017),
the social security statute does not contemplate a bright line rule requiring the
ALJ to base his or her RFC finding on a physician's opinion. For example, ... 20
C.F.R. § 404.1527(d) provides that the final responsibility for deciding issues
such as the claimant's residual functional capacity is reserved to the
Commissioner. However, [case law] also do[es] not require the ALJ to entirely
base his or her RFC finding on the opinion of a physician—they require the ALJ's
RFC assessment be supported by substantial evidence and not merely on the
ALJ's own medical interpretation of the record.
Here, the evidence relied on by the ALJ to reduce Plaintiff’s functional capacity beyond
that described by the state agency reviewers is, as the Court in Chamberlin v. Comm'r of Soc.
Sec., 2020 WL 2300240, at *3 (E.D. Mich. May 8, 2020) described it, “not complicated
diagnostic and/or highly-specialized medical data that requires professional training to interpret.”
It consisted mainly of Plaintiff’s own testimony about his limitations and the records following
his hospitalization showing mainly normal findings concerning the effect of his broken kneecap
and hip surgery. Consequently, the ALJ did not err in giving this evidence some credence and
adding limitations to those contained in the state agency opinions.
The other portion of Plaintiff’s argument is directed to the ALJ’s decision to give little
weight to the opinion of Nurse Practitioner Ingersoll. As this Court has noted, explaining how
such claims are currently analyzed under the regulations currently in effect, which specify five
separate factors to be used by an ALJ in evaluating medical opinions, because
two factors–supportability and consistency–are the “most important” ones, the
ALJ “will explain” how he or she considered them. 20 C.F.R. § 416.920c(b)(2)
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(emphasis added). As to the first factor (supportability), “[t]he more relevant the
objective medical evidence and supporting explanations presented by a medical
source are to support his or her medical opinion(s) ... the more persuasive the
medical opinions ... will be.” 20 C.F.R. § 416.920c(c)(1). As to the second factor
(consistency), “[t]he more consistent a medical opinion(s) ... is with the evidence
from other medical sources and nonmedical sources in the claim, the more
persuasive the medical opinion(s) ... will be.” 20 C.F.R. § 416.920c(c)(2).
Wilson C. v. Comm'r of Soc. Sec. Admin., 2022 WL 4244215, at *6 (S.D. Ohio Sept. 15, 2022).
Here, although the ALJ’s discussion of Nurse Ingersoll’s opinion is brief, it adequately
addresses these two key factors, finding that the record did not support the opinion and that it
was not consistent with other evidence, particularly the opinions expressed by the two state
agency reviewers. Plaintiff has also claimed that the ALJ improperly limited her discussion of
supportability to the evidence cited in the form completed by Nurse Ingersoll, but, taking the
ALJ’s decision as a whole, the ALJ also discussed how the objective evidence did not support
the types of extreme limitations set forth in Nurse Ingersoll’s opinion. Further, the second state
agency opinion, which, as the ALJ acknowledged, is inconsistent with Nurse Ingersoll’s opinion,
states that there is no clinical support in the records for the restrictions expressed by Nurse
Ingersoll. Overall, the Court finds no error in the way in which the ALJ evaluated the medical
opinion evidence, and thus no basis for overturning her decision.
V. CONCLUSION AND ORDER
For the reasons stated above, the Court OVERRULES Plaintiff’s statement of errors
(Doc. 13) and DIRECTS the Clerk to enter judgment in favor of the Defendant Commissioner of
Social Security.
/s/ Terence P. Kemp
Terence P. Kemp
United States Magistrate Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10381984. Public record. Not legal advice.