Fitzsimmons v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

KAREN F.1, Case No. 2:22-cv-2951

Plaintiff, Litkovitz, M.J.

vs.

COMMISSIONER OF ORDER

SOCIAL SECURITY,

Defendant.

Plaintiff Karen F. brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) for

judicial review of the final decision of the Commissioner of Social Security (Commissioner)

denying her application for disability insurance benefits (DIB). This matter is before the Court

on plaintiff’s Statement of Errors (Doc. 11) and the Commissioner’s response in opposition

(Doc. 12).

I. Procedural Background

On September 27, 2020, plaintiff protectively filed an application for DIB alleging

disability since July 27, 2019 due to bipolar disorder, manic depressive disorder, depression,

PTSD, herniated disc, arthritis, irritable bowel syndrome, anxiety, and insomnia. (Tr. 15, 242).2

The application was denied initially and on reconsideration. Plaintiff, through counsel, requested

and was granted a de novo hearing before administrative law judge (ALJ) Regina Carpenter on

February 17, 2022. (Tr. 34-90). Plaintiff and a vocational expert (VE) appeared via telephone

1 Pursuant to General Order 22-01, due to significant privacy concerns in social security cases, any opinion, order,

judgment, or other disposition in social security cases in the Southern District of Ohio shall refer to plaintiffs only

by their first names and last initials.

2 Plaintiff previously filed for benefits in March 2019, but her claims were denied initially and on reconsideration,

and she did not appeal further. (Tr. 15).

and testified at the hearing, during which plaintiff amended her alleged onset date to October 1,

2020. (Tr. 48-49). On March 4, 2022, the ALJ issued a decision finding that plaintiff was not

disabled. (Tr. 12-29). On June 1, 2022, the Appeals Council denied review, making the ALJ’s

decision the final decision of the Commissioner. (Tr. 1-6.)

II. Analysis

A. Legal Framework for Disability Determinations

To qualify for disability benefits, a claimant must suffer from a medically determinable

physical or mental impairment that can be expected to result in death or that has lasted or can be

expected to last for a continuous period of not less than 12 months. 42 U.S.C. § 423(d)(1)(A).

The impairment must render the claimant unable to engage in the work previously performed or

in any other substantial gainful employment that exists in the national economy. 42 U.S.C. §

423(d)(2).

Regulations promulgated by the Commissioner establish a five-step sequential evaluation

process for disability determinations:

1) If the claimant is doing substantial gainful activity, the claimant is not disabled.

2) If the claimant does not have a severe medically determinable physical or

mental impairment – i.e., an impairment that significantly limits his or her

physical or mental ability to do basic work activities – the claimant is not

disabled.

3) If the claimant has a severe impairment(s) that meets or equals one of the

listings in Appendix 1 to Subpart P of the regulations and meets the duration

requirement, the claimant is disabled.

4) If the claimant’s impairment does not prevent him or her from doing his or her

past relevant work, the claimant is not disabled.

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5) If the claimant can make an adjustment to other work, the claimant is not

disabled. If the claimant cannot make an adjustment to other work, the claimant

is disabled.

Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 652 (6th Cir. 2009) (citing 20 C.F.R. §§

404.1520(a)(4)(i)-(v), 404.1520(b)-(g)). The claimant has the burden of proof at the first four

steps of the sequential evaluation process. Id.; Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 548

(6th Cir. 2004). Once the claimant establishes a prima facie case by showing an inability to

perform the relevant previous employment, the burden shifts to the Commissioner to show that

the claimant can perform other substantial gainful employment and that such employment exists

in the national economy. Rabbers, 582 F.3d at 652; Harmon v. Apfel, 168 F.3d 289, 291 (6th

Cir. 1999).

B. The Administrative Law Judge’s Findings

The ALJ applied the sequential evaluation process and made the following findings of

fact and conclusions of law:

1. [Plaintiff] meets the insured status requirements of the Social Security Act

through December 31, 2025.

2. [Plaintiff] has not engaged in substantial gainful activity since October 1,

2020, the amended alleged onset date (20 CFR 404.1571 et seq.).

3. [Plaintiff] has the following severe impairments: degenerative disc disease and

degenerative joint disease of the cervical spine; insomnia; bipolar disorder;

generalized anxiety disorder; and post-traumatic stress disorder (20 CFR

404.1520(c)).

4. [Plaintiff] does not have an impairment or combination of impairments that

meets or medically equals the severity of one of the listed impairments in 20

CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and

404.1526).

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5. After careful consideration of the entire record, the [ALJ] finds that

[plaintiff] had the residual functional capacity to perform light work as defined in

20 CFR 404.1567(b) with the following limitations: no crawling or climbing as

defined in the DOT and SCO; no more than occasional overhead reaching; no

exposure to hazards such as dangerous moving machinery or unprotected

heights; can understand, remember, and carry out tasks that can be learned in one

month or less but no fast paced production, such as assembly line or piece meal

production quotas; no more than occasional changes in work routine or work

setting; no contact with the public; no more than occasional interaction with

coworkers and supervisors; and once work is assigned, it should be able to be

performed primarily without working in coordination with other employees.

6. [Plaintiff] is unable to perform any past relevant work (20 CFR 404.1565).3

7. [Plaintiff] was born [in] . . . 1973 and was 47 years old, which is defined as a

younger individual age 18-49, on October 1, 2020 (20 CFR 404.1563).

8. [Plaintiff] has at least a high school education (20 CFR 404.1564).

9. Transferability of job skills is not material to the determination of disability

because using the Medical-Vocational Rules as a framework supports a finding

that [plaintiff] is “not disabled,” whether or not the [plaintiff] has transferable job

skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).

10. Considering [plaintiff]’s age, education, work experience, and residual

functional capacity, there are jobs that exist in significant numbers in the national

economy that [plaintiff] can perform (20 CFR 404.1569 and 404.1569a).4

11. [Plaintiff] was not under a disability, as defined in the Social Security Act, at

any time from July 22, 2015, the alleged onset date, through March 31, 2019, the

date last insured (20 CFR 404.1520(g)).

(Tr. 17-28).

3 Plaintiff’s past relevant work was as a bookkeeper and an accounting clerk, both skilled, sedentary exertion jobs; a

sales clerk and a customer service clerk, both semi-skilled, light exertion jobs; a property manager, a skilled, light

exertion job; and an attendant in a children’s institution, a semi-skilled, medium (but performed by plaintiff as light)

exertion job. (Tr. 27, 84-85).

4 The ALJ relied on the VE’s testimony to find that plaintiff would be able to perform the requirements of representative light,

unskilled occupations such as routing clerk (106,000 jobs nationally), photocopy machine operator (8,600 jobs nationally), and

marker (131,000 jobs nationally). (Tr. 27-28, 86-87).

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C. Judicial Standard of Review

Judicial review of the Commissioner’s determination is limited in scope by 42 U.S.C. §

405(g) and involves a twofold inquiry: (1) whether the findings of the ALJ are supported by

substantial evidence, and (2) whether the ALJ applied the correct legal standards. See Blakley v.

Comm’r of Soc. Sec., 581 F.3d 399, 405 (6th Cir. 2009); see also Bowen v. Comm’r of Soc. Sec.,

478 F.3d 742, 745-46 (6th Cir. 2007).

The Commissioner’s findings must stand if they are supported by “such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill,

___ U.S. ___, 139 S. Ct. 1148, 1154 (2019) (citing Consolidated Edison Co. v. N.L.R.B., 305

U.S. 197, 229 (1938)). Substantial evidence consists of “more than a scintilla of evidence but

less than a preponderance. . . .” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir.

2007). In deciding whether the Commissioner’s findings are supported by substantial evidence,

the Court considers the record as a whole. Hephner v. Mathews, 574 F.2d 359 (6th Cir. 1978).

The Court must also determine whether the ALJ applied the correct legal standards in the

disability determination. Even if substantial evidence supports the ALJ’s conclusion that the

plaintiff is not disabled, “a decision of the Commissioner will not be upheld where the SSA fails

to follow its own regulations and where that error prejudices a [plaintiff] on the merits or

deprives the [plaintiff] of a substantial right.” Rabbers, 582 F.3d at 651 (quoting Bowen, 478

F.3d at 746).

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D. Specific Errors

Plaintiff raises a single assignment of error—that the ALJ did not properly evaluate the

severity of her mental health symptoms.5 Plaintiff argues that the ALJ mischaracterized or

overstated her ability to engage in the activities of daily living without accounting for plaintiff’s

related explanations and qualifications. The Commissioner argues in response that the ALJ

reasonably evaluated not only plaintiff’s ability to engage in activities of daily living but also the

objective medical evidence and plaintiff’s treatment history. The Commissioner also argues that

the ALJ explicitly considered plaintiff’s explanations related to her activities of daily living. As

such, the Commissioner argues that plaintiff’s assertion of error amounts to an improper request

for the Court to reweigh the evidence.

ALJs are to “consider all of the evidence in an individual’s record” and determine

whether the individual is disabled by examining “all of the individual’s symptoms, including

pain, and the extent to which the symptoms can reasonably be accepted as consistent with the

objective medical evidence and other evidence in the individual’s record.” SSR 16-3p, 2016 WL

1119029, at *2 (March 16, 2016) (rescinding and superseding SSR 96-7p). ALJs also evaluate

what the agency formerly termed the “credibility” of a plaintiff’s statements about his or her

symptoms. See, e.g., Rogers, 486 F.3d at 246-49. In March 2016, the agency eliminated its use

of the term “credibility” and clarified “that subjective symptom evaluation is not an examination

of an individual’s character. . . .” SSR 16-3p, 2016 WL 1119029, at *1. To avoid such mistaken

5 Plaintiff discusses only the symptoms of her mental health impairments. Any argument regarding the symptoms of

her physical impairments is therefore deemed waived. See Kuhn v. Washtenaw Cnty., 709 F.3d 612, 624 (6th Cir.

2013) (“This court has consistently held that arguments not raised in a party’s opening brief, as well as arguments

adverted to in only a perfunctory manner, are waived.”) (citation omitted).

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emphasis, this analysis is now characterized as the “consistency” of a claimant’s subjective

description of symptoms with the record. See Lipanye v. Comm’r of Soc. Sec., 802 F. App’x

165, 171 n.3 (6th Cir. 2020) (citing Dooley v. Comm’r of Soc. Sec., 656 F. App’x 113, 119 n.1

(6th Cir. 2016)).

A two-step inquiry applies to symptom evaluation. The ALJ first determines if the record

contains objective medical evidence of an underlying medically determinable impairment that

could reasonably be expected to produce the individual’s symptoms. SSR 16-3p, 2016 WL

1119029, at *3; see also 20 C.F.R. § 404.1529(a); Jones v. Comm’r of Soc. Sec., 336 F.3d 469,

475-76 (6th Cir. 2003). Step two of symptom evaluation shifts to the severity of a claimant’s

symptoms. The ALJ must consider the intensity and persistence of the symptoms to determine

the extent to which the symptoms limit an individual’s ability to perform work-related activities.

See 20 C.F.R. §§ 404.1529(a) and (c); SSR16-3p, 2016 WL 1119029, at *4. In making this

determination, the ALJ will consider the following:

(i) Your daily activities;

(ii) The location, duration, frequency, and intensity of your pain or other

symptoms;

(iii) Precipitating and aggravating factors;

(iv) The type, dosage, effectiveness, and side effects of any medication you

take or have taken to alleviate your pain or other symptoms;

(v) Treatment, other than medication, you receive or have received for relief

of your pain or other symptoms;

(vi) Any measures you use or have used to relieve your pain or other

symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes

every hour, sleeping on a board, etc.); and

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(vii) Other factors concerning your functional limitations and restrictions due to

pain or other symptoms.

20 C.F.R. § 404.1529(c)(3).

An ALJ may not consider only objective medical evidence in determining disability

unless this evidence alone supports a finding of disability. SSR 16-3p, 2016 WL 1119029, at *5

(“If we cannot make a disability determination or decision that is fully favorable based solely on

objective medical evidence, then we carefully consider other evidence in the record in reaching a

conclusion about the intensity, persistence, and limiting effects of an individual’s symptoms.”);

20 C.F.R. § 404.1529(c)(2) (“[W]e will not reject your statements about the intensity and

persistence of your pain or other symptoms or about the effect your symptoms have on your

ability to work solely because the available objective medical evidence does not substantiate

your statements.”). Moreover,

[i]t is . . . not enough for our adjudicators simply to recite the factors described in

the regulations for evaluating symptoms. The 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.

SSR 16-3p, 2016 WL 1119029, at *9. See also id. at *7 (noting that the ALJ “will discuss the

factors pertinent to the evidence of record”).

At the same time, the ALJ is not required to cite or discuss every factor used to evaluate

the consistency of a plaintiff’s description of symptoms with the record evidence. See White v.

Comm’r of Soc. Sec., 572 F.3d 272, 287 (6th Cir. 2009) (“[T]he ALJ expressly stated that she

had considered [the predecessor to SSR 16-3p], which details the factors to address in assessing

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credibility. There is no indication that the ALJ failed to do so. This claim therefore lacks merit.

. . .”). Further, the ALJ’s determination regarding the consistency of a claimant’s subjective

complaints with the record evidence is “to be accorded great weight and deference. . . .” Walters

v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997) (citing Villarreal v. Sec’y of H.H.S.,

818 F.2d 461, 463 (6th Cir. 1987)).6

The Court finds that the ALJ’s evaluation of plaintiff’s symptoms is based on substantial

evidence. The ALJ considered plaintiff’s activities of daily living:

[Plaintiff] testified that she drives about three times per week, goes to the grocery

store, visits with her sister, and performs chores when she is in the mood. She

also testified that from early 2021 to June 2021, she cared for her brother who was

ill, going to his apartment for 3-4 hours a day to take care of him, including

cooking for him, taking him to appointments, washing clothes, and sweeping up.

On a form submitted to the District Office, [plaintiff] reported that on a typical

day, she generally does basic cooking and cleaning [Tr. 259]. She reported she is

able to feed her dog, attend to her own personal care, prepare meals, do light

housekeeping about two times a week (but it takes all day), drive, shop in stores,

go out alone, pay bills, handle finances, eat out with her mom, spend time with

others, crochet, and watch television [Tr. 259-63]. She reported she needs

reminders to get a bath and to take her medications, and she does not handle stress

or changes in routine well [Tr. 260, 264]. [Plaintiff] reported to a consultative

examiner that she will do general cleaning, grocery shop, watch television,

occasionally cook, and occasionally take walks with her husband and dog [Tr.

404]. Additionally, in the medical evidence, [plaintiff] reported caring for her

brother with stage 4 cancer full[-]time for six months [Tr. 441]; and going to a bar

[Tr. 865]. While somewhat limited, these activities appear inconsistent with

debilitating physical or mental symptoms and, absent any objective medical

findings that offer convincing support for the severity of symptoms or limiting

effects she alleged, appear to support a degree of functioning that is inconsistent

with her allegations.

6 The Walters court noted that substantial deference was appropriate due in large part to an ALJ’s unique

observation of a witness’s “demeanor and credibility.” With the elimination of the term “credibility” in SSR 16-3p,

it is questionable whether an ALJ’s observations should be given any deference. At least one Sixth Circuit decision

subsequent to the enactment of SSR 16-3p, however, has retained the notion of deference to the ALJ in the

symptom-consistency context. See, e.g., Lipanye, 802 F. App’x at 171 (“It is for the administrative law judge, not

t he reviewing court, to judge the consistency of a claimant’s statements.”).

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(Tr. 22). See 20 C.F.R. § 404.1529(c)(3)(i). The ALJ also considered plaintiff’s good work

history notwithstanding her “lifelong history of bipolar disorder. . . .” (Tr. 25).

Plaintiff argues that the ALJ’s assessment of her activities of daily living fails to take into

account her testimony and other evidence showing that she had to “mentally prepare herself” to

engage in these activities and sometimes could not engage in them if her mood was not

sufficiently stable. (Doc. 11 at PAGEID 919-20).7 In fact, however, the ALJ discussed

plaintiff’s testimony—noting in particular her reports of a long history with bipolar disorder and

difficulty dealing with daily life and other people. (See Tr. 21). The ALJ also qualified the

extent of plaintiff’s ability to engage in activities of daily living, which could be tempered by

plaintiff’s mood, could require “reminders,” and was otherwise “somewhat limited. . . .” (Tr.

22). See 20 C.F.R. § 404.1529(c)(3)(ii). Nevertheless, the ALJ concluded that that these

limitations, understood in conjunction with the “absen[ce]” of “any objective medical findings

that offer convincing support for the severity of symptoms or limiting effects” alleged by

plaintiff demonstrated “a degree of functioning . . . inconsistent with [plaintiff’s] allegations.”

(Id.).

Plaintiff also takes particular issue with the ALJ’s consideration of plaintiff’s care for her

terminally ill brother for several months at the end of his life. But the Court finds no error in the

ALJ’s consideration of plaintiff’s ability to function in the face of such an acute situational

stressor. The ALJ expressly acknowledged that this experience caused “fluctuating symptoms”

7 Plaintiff also argues that an October 2020 primary care office record shows that plaintiff experienced anxiety about

pursuing pain management. In fact, the Court finds that the record more plausibly demonstrates the contrary: “PT is

ANXIOUS TO GO TO PAIN MANAGEMENT She IS HAVING A LOT OF PAIN AND WANTS TO GO[.]” (Tr.

3 59).

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but also that plaintiff’s medication “was adjusted” accordingly. (Tr. 25, referring, e.g., to Tr. 819

(August 2021 (plaintiff reports that “[t]he medicine is doing good with what I’m going through.

My brother has 3 weeks to live, but I feel like my nerves are pretty damn good.”))). As

discussed below, the ALJ’s consideration of this and plaintiff’s other daily activities was only

one of several rationales for finding that plaintiff was not as limited as alleged. A “plaintiff’s

ability to engage in daily activities does not establish ipso facto that she is able to engage in

gainful activity 40 hours per week[,]” Barnhorst v. Comm’r of Soc. Sec., No. 1:10-cv-526, 2011

WL 3811462, at *16 (S.D. Ohio Aug. 5, 2011), report and recommendation adopted, 2011 WL

3812639 (S.D. Ohio Aug. 26, 2011), but “the ALJ may consider [a plaintiff]’s testimony of

limitations in light of other evidence of [a plaintiff]’s ability to perform other tasks. . . .”

Simpson, 2016 WL 74420, at *10 (citing Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 536 (6th

Cir. 2001)) (remaining citations omitted).

In terms of objective medical findings, the ALJ noted reports of normal mental status

examinations. 20 C.F.R. § 404.1529(c)(3)(ii). (See Tr. 24, referring to primary care records at

Tr. 434 (October 2020 (no reported depression, nervousness, or anxiousness and medical source

observed normal mood, affect, and judgment)) and Tr. 857 (December 2021 (plaintiff reported

depression, nervousness, and anxiousness but medical source observed normal mood, affect,

cognition, memory, and judgment))). The ALJ noted generally that “[a]lthough [plaintiff’s]

mental status evaluations periodically show a manic presentation” her “psychiatric evaluations . .

. did not show any significant defects.” (Tr. 25).8

8 While not directly referenced in her discussion of plaintiff’s mental impairments, the ALJ elsewhere highlighted a

June 2021 primary care record reflecting: “alert and oriented x3, normal memory, normal mood and affect. . . .” (Tr.

2 2). That record, along with the record of the follow-up visit in July 2021 (also highlighted by the ALJ at Tr. 23),

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The ALJ acknowledged certain abnormal mental status examination findings, but she also

pointed out normal observations from those same examinations. For example, while plaintiff’s

medication management nurse practitioner Lauryn Stone sometimes recorded elevated mood,

manic presentation, and rapid speech in the second half of 2021, she also recorded that plaintiff

was friendly, attentive, cooperative, and communicative with no attention, anxiety, or cognitive

issues. (Tr. 25, referring to, e.g., Tr. 811, 814, and 848-49). The ALJ noted that during some

visits with NP Stone, plaintiff showed no symptoms of depression, anxiety, or mania at all. (Id.,

referring to Tr. 817 (July 2021 (“[N]o signs of depression or manic process. . . . [T]here are no

signs of anxiety.”)); Tr. 819 (August 2021 (“[N]o signs of either depression or mood elevation. .

. . There are no signs of anxiety.”)); and Tr. 851 (December 2021 (Plaintiff reports: “I’m doing a

lot better. . . . I think the medicine is good. No mood swings and I’ve been pretty much calm. .

. . I feel more positive, I’m bathing every day now.”) (NP Stone records that “[f]eelings of

anxiety are denied. Symptoms of depression are convincingly denied. She describes no

symptoms of mania.”))). See 20 C.F.R. § 404.1529(c)(3)(iv).

The ALJ also considered plaintiff’s history of counseling since January 2019 and noted

that associated records documented “situational stressors” as opposed to “significant behavior

abnormalities or cognitive deficits[.]” (Tr. 24, referring to Tr. 353 (December 2020 (anger

toward sister)); Tr. 410-412 (March, June, and July 2021 (stress associated with the care of her

terminally ill brother)); Tr. 516-17 (August 2021 (marital issues)); Tr 862-69 (September,

support the ALJ’s later, general observations regarding plaintiff’s mental impairments. (See Tr. 22-23, referring to

Tr. 442-43 (June 2021 (plaintiff reported depression, nervousness, and anxiousness but medical source observed

normal mood, affect, cognition, memory, and judgment)) and Tr. 452-53 (July 2021 (no reported depression,

nervousness, or anxiousness and medical source observed normal mood, affect, and judgment))).

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November, and December 2021 (grief over brother’s death, personal health concern, marital

issues, conflict with sister))). See 20 C.F.R. §§ 404.1529(c)(3)(iii), (v).

Plaintiff lastly argues that contrary to the ALJ’s conclusion, objective medical evidence is

consistent with her alleged symptom severity—pointing to the assessment by consultative

examiner Tawnee Tanner, Psy.D. (Tr. 402-07). Plaintiff argues that Dr. Tanner’s assessment

“not[ed] many of the complaints that [plaintiff] testified to” and “concluded that [plaintiff’s]

impairment and the symptoms borne from the same would have significantly profound effects on

her abilities to perform basic aspects of work activity.” (Doc. 11 at PAGEID 921). But plaintiff

neither points to anything in particular in Dr. Tanner’s report that is clearly inconsistent with the

residual functional capacity assessment of the ALJ nor challenges the ALJ’s assessment of Dr.

Tanner’s opinion. This leaves, in essence, plaintiff’s disagreement with the ALJ’s weighing of

the evidence. Even where substantial evidence supports plaintiff’s position, the ALJ’s decision

must stand “if the evidence could reasonably support the conclusion reached.” Livingston v.

Comm’r of Soc. Sec., 776 F. App’x 897, 898 (6th Cir. 2019) (alteration in original) (quoting Her

v. Comm’r of Soc. Sec., 203 F.3d 388, 390 (6th Cir. 1999)).

All of the foregoing demonstrates due consideration by the ALJ of the relevant regulatory

factors. See 20 C.F.R. § 404.1529(c)(3). The ALJ’s determination regarding plaintiff’s

subjective symptoms is therefore based on substantial evidence.

III. Conclusion

Based on the foregoing, plaintiff’s Statement of Errors (Doc. 11) is OVERRULED, and

the Commissioner’s non-disability finding is AFFIRMED. IT IS THEREFORE ORDERED

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that judgment be entered in favor of the Commissioner and this case is closed on the docket of

the Court.

Karen L. Litkovitz

United States Magistrate Judge

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