Gabrenya v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

PHIL G. 1 Case No. 2:22-cv-3909

Plaintiff,

v. Bowman, M.J.

COMMISSIONER OF SOCIAL SECURITY,

Defendants.

MEMORANDUM OF OPINION AND ORDER

Plaintiff Phil G. filed this Social Security appeal in order to challenge the

Defendant’s finding that he is not disabled. See 42 U.S.C. § 405(g). Proceeding through

counsel, Plaintiff presents two claims of error, both 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.

The parties have consented to the jurisdiction of the undersigned magistrate judge. See

28 U.S.C. §636(c).

I. Summary of Administrative Record

On October 28, 2019, Plaintiff filed applications for Disability Insurance Benefits

(“DIB”) and Supplemental Security Income (“SSI) alleging he became disabled on June

1, 2007, based upon a combination of physical and mental impairments. After his claim

was denied initially and upon reconsideration, Plaintiff requested an evidentiary hearing

before an Administrative Law Judge (“ALJ”). Before the hearing, Plaintiff amended his

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 claimants only by their first names and last initials. See General Order 22-01.

onset date of disability to May 20, 2019. At a telephonic hearing held on August 10, 2021,

Plaintiff appeared with counsel and gave testimony before ALJ Michael Schmitz.

Vocational Expert Michael Klein also appeared by telephone. On July 29, 2021, the ALJ

issued a written decision, concluding that Plaintiff was not disabled. (Tr. 13-25).

Plaintiff was born on October 14, 1974 and was 46 years old at the time of the

hearing. (Tr. 29). He has a high school education and has past relevant work as a janitor.

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

Plaintiff had the following severe impairments: “cervical degenerative disc disease;

lumbar degenerative disc disease with sciatica; internal derangement of right knee; right

rotator cuff strain; diverticulitis, irritable bowel syndrome and lower gastrointestinal

hemorrhage; bipolar disorder, mood disorder and depressive disorder; anxiety disorder;

and post-traumatic stress disorder (PTSD); and cannabis dependence.” (Tr. 16). 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 light work

subject to the following limitations:

He can never climb ladders, ropes, or scaffolds, but can occasionally climb ramps

and stairs. He can occasionally stoop, kneel, crouch, and crawl. He can frequently

reach overhead with his bilateral upper extremities. He must avoid concentrated

exposure to extreme cold and vibrations, and avoid all exposure to hazards such

as unprotected heights and moving mechanical parts. He can perform simple,

routine and repetitive tasks, but cannot perform tasks which require a high

production rate pace such as assembly line work. He can interact on an occasional

basis with supervisors, coworkers and the general public, but should be limited to

superficial contact meaning no sales, arbitration, negotiation, conflict resolution or

confrontation, no group, tandem or collaborative tasks, and no management,

direction or persuasion of others. He can respond appropriately to occasional

change in a routine and relatively static work setting, as long as any such changes

are easily explained and/or demonstrated in advance of gradual implementation.

(Tr. 18).

Based upon his RFC and testimony from the vocational expert, the ALJ concluded

that Plaintiff could perform jobs that exist in significant numbers in the national economy,

including marker, bagger and produce weigher. (Tr. 24). Accordingly, the ALJ determined

that Plaintiff is not under disability, as defined in the Social Security Regulations, and is

not entitled to DIB and 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) improperly formulating Plaintiff’s mental RFC; and (2)

applying the incorrect legal standard at step-five of the sequential evaluation. Upon close

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

I. 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).

When a court is asked to review the Commissioner’s denial of benefits, the court’s

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

the agency to determine whether a significant number of other jobs which the claimant

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

459 F.3d 640, 643 (6th Cir. 2006); see also Walters v. Comm’r of Soc. Sec., 127 F.3d

525, 528-29 (6th Cir. 1997) (explaining sequential process); 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

I. Mental RFC Determination

Plaintiff argues first that the ALJ’s RFC determination is not supported by

substantial evidence because it does not properly account for his mental impairments.

Specifically, Plaintiff argues that in making his residual functional capacity determination,

the ALJ found the opinions of the State agency psychologists “persuasive”, however, he

failed to include all of these limitations in his residual functional capacity determination.

Plaintiff’s contention lacks merit.

The RFC is the “most [an individual] can still do despite [his physical and mental]

limitations.” 20 C.F.R. § 416.945(a)(1). An ALJ determines the claimant's RFC using “all

the relevant evidence in [the] case record.” Id. Yet it is the claimant's burden to establish

his RFC. See id. § 416.945(a)(3) (“In general, you are responsible for providing the

evidence we will use to make a finding about your residual functional capacity.”); see also

Jordan v. Comm'r of Soc. Sec., 548 F.3d 417, 423 (6th Cir. 2008) (claimant bears the

burden of demonstrating a more restrictive RFC); Casey v. Sec'y of Health & Human

Servs., 987 F.2d 1230, 1233 (6th Cir. 1993) (“Plaintiff has the ultimate burden of

establishing the existence of disability.”).

Here, in formulating Plaintiff’s RFC, the ALJ determined that the opinions of the

state agency psychologists and consultative psychologists were persuasive. (Tr. 22).

Notably, in July 2020, Amanda Conn, Psy.D., performed a consultative evaluation and

opined that Plaintiff could perform simple and complex instructions, had some limitations

in concentration and persistence, had some limitations in interacting with others, and may

have difficulty dealing with normal work pressures. (Tr. 365-78). The ALJ found “the

opinion of Dr. Conn to be persuasive, as it seems to take into consideration all factors,

and comports with the balance of the medical evidence and the claimant’s own testimony

to the extent that it indicates that the claimant has some moderate limitations due to his

mental impairments.” (Tr. 22). At the same time, however, the ALJ also found Dr. Conn’s

opinion to be vague.

Also, in July 2020, Irma Johnston, Psy.D., reviewed the record and found that

Plaintiff could carry out simple, routine tasks in a static setting without demands for fast

pace or high production; could interact with the public, supervisors, and co-workers on an

occasional, brief, and superficial basis; could adapt to occasional workplace changes with

some supervisory support; and could perform work activities in a predictable and

structured setting. (Tr. 71-72). In November 2020, Vicki Warren, Ph.D., reviewed the

record and affirmed Dr. Johnston’s findings. (Tr. 92-93). The ALJ found that the opinions

of these experts to be persuasive, since their determination of the “B” criteria and resultant

limitations are supported by the Plaintiff’s health records, conservative mental health

treatment, and testimony. However, the ALJ noted the proposed limitation of supervisory

support by the state agency examiners was not defined but appeared to be limited to work

changes. (Tr. 22, 72, 93). As such, the ALJ did not include a limitation of “supervisory

support” in the RFC finding. Instead, the ALJ found that Plaintiff could adapt to occasional

workplace changes, in a routine and relatively static work setting, that are easily explained

and/or demonstrated in advance of gradual implementation. (Tr. 18).

In light of the forgoing, the ALJ found that Plaintiff could perform simple, routine,

and repetitive tasks that did not require a high production rate and could interact

superficially on an occasional basis with supervisors, co-workers, and the general public.

(Tr. 18, 71-72, 92-93).

Plaintiff takes issue that the ALJ indicated that he found the opinions of the State

agency psychologists and consultative examiner to be “persuasive” but yet he failed to

include all of the limitations in his residual functional capacity determination. In this

regard, Plaintiff contends the ALJ’s residual functional capacity determination does not

adequately account for the limitations associated with Plaintiff’s ability to understand, to

concentrate, and his inability to accept criticism. Plaintiff asserts that such limitations are

supported by the evidence in the record, noting frequent anxiety, problems with

concentration, trouble focusing, lack of motivation, memory problems, and difficulty being

around other people. (See Tr. 43, 45, 48-50, 266, 289, 304, 318, 328, 340, 368, 377, 411,

450, 464, 476, 541, 600).

Plaintiff further argues that case management notes consistently documented his

need for additional support, due to his mental health issues, such as: assistance with

applying for food and medical benefits and assistance/supervision with grocery shopping.

(Tr. 399, 409, 494). In addition, he argues that the record consistently documents bipolar

disorder, depression, anxiety, panic issues, numbness, sleeps a lot, trouble focusing,

difficulty remembering things, lack of motivation, panic attacks, lack of patience when

dealing with other people, lack of energy, history of suicide attempt in 2010, self-harm

behaviors including cutting himself, nightmares, pink slip due to suicidal intent and plan.

(Tr. 3, 45, 48-50, 266, 289, 304, 318, 328, 340, 368, 377, 411, 450, 464, 476, 541, 600).

As such, Plaintiff argues that the record supports a finding that he may be unable to meet

quotas, stay alert, or work at a consistent pace, even at a simple, unskilled, routine job.

In light of the foregoing, Plaintiff argues that ALJ’s RFC and hypothetical question is not

adequate on the issue of moderate limitations of concentration, persistence, and pace.

Plaintiff’s contentions are unavailing.

As noted by the Commissioner, the ALJ RFC’s assessment adequately addressed

Plaintiff’s mental limitations. Namely, Drs. Johnston and Warren found that Plaintiff could

carry out simple, routine tasks in a static setting without demands for fast pace or high

production; could interact with the public, supervisors, and co-workers on an occasional,

brief, and superficial basis; and could adapt to occasional workplace changes with some

supervisory support and perform work activities in a predictable and structured setting.

(Tr. 71-72, 92-93). As discussed above, the ALJ included those limitations that he found

persuasive from the prior administrative medical findings into the RFC. (Tr. 18, 22). The

ALJ found that the consultants’ findings regarding the paragraph “B” criteria, as well as

their characterization of Plaintiff’s functional limitations, were supported by Plaintiff’s

health records, conservative mental health treatment, and testimony. (Tr. 22). The ALJ

also properly considered that Plaintiff was able to drive, prepare meals, play games,

manage funds, use the internet, and handle his own medical care. (Tr. 18). See SSR 16-

3p (an ALJ may consider statements about a claimant's daily activities when assessing

the consistency of the claimant's statements).

Additionally, numerous cases from the Sixth Circuit, have held that limitations

similar to those the ALJ included in Plaintiff's RFC in this case adequately addressed

Plaintiff’s moderate limitations in concentration, persistence, or maintaining pace. See

Smith-Johnson v. Comm'r of Soc. Sec., 579 F. App'x 426, 437 (6th Cir. 2014) (concluding

that a “limitation to simple, routine, and repetitive tasks” adequately accounted for the

plaintiff's “moderately-limited ability ‘to maintain attention and concentration for extended

periods’”); Wood v. Comm'r of Soc. Sec., No. 19-1560, 2020 WL 618536, at *2–4 (6th Cir.

Jan. 31, 2020) (RFC limitation to “performing simple and routine tasks” was not

inconsistent with ALJ's step three finding that the plaintiff had moderate limitations in

concentration, persistence, and pace because the plaintiff failed to show that the evidence

warranted additional limitations)

Although Plaintiff may disagree with the ALJ's decision, he has not shown that it

was outside the ALJ's permissible “zone of choice” that grants ALJs discretion to make

findings without “interference by the courts.” Blakley v. Comm’r of Soc. Sec., 581 F.3d

399, 406. Even if a reviewing court would resolve the factual issues differently, when

supported by substantial evidence, the Commissioner's decision must stand. See Foster

v. Halter, 279 F.3d 348, 353 (6th Cir. 2001). Indeed, the Sixth Circuit upholds an ALJ's

decision even where substantial evidence both contradicts and supports the decision.

Casey v. Sec'y of H.H.S., 987 F.2d 1230, 1235 (6th Cir. 1993). For these reasons, the

ALJ's decision is substantially supported in this regard and should not be disturbed.

II. Step-Five Determination

Plaintiff argues next that the ALJ failed to apply the correct legal standards in

evaluating his claims. Namely, Plaintiff argues that the ALJ erred by stating that he filed

an application for disability insurance benefits. In this regard, Plaintiff argues that the

ALJ’s reference to a claim for disability insurance benefits was harmful because it is

unclear what time period the ALJ evaluated. Plaintiff’s contentions are unavailing.

As noted above, Plaintiff filed an application for disability insurance benefits under

Title II of the Act, wherein Plaintiff alleged that he became disabled on June 1, 2007. (Tr.

at 180). Notably, a claimant who seeks disability insurance benefits must have disability

insured status in the month in which he became disabled. See 20 C.F.R. § 404.131(b).

Certain earnings as a government employee do not count toward disability insured status,

but “may constitute Medicare qualified government employment,” or MQGE. 20 C.F.R. §

404.1018b(a). Plaintiff had a history of working for the local school system and, as such,

did not pay into Social Security for a period of time. Thus, this work did not count toward

disability insured status but did constitute MQGE (R. at 84, 189, 202, 207). As a result,

the ALJ found that Plaintiff was insured for Medicare purposes through June 30, 2025,

the “date last insured.” (Tr. 14-15).

At the hearing, Plaintiff’s counsel amended Plaintiff’s alleged onset date to May

20, 2019. Because he was no longer insured for disability insurance benefits in 2019,

this amendment purportedly withdrew the disability insurance benefits application (Tr.

205). However, the ALJ did not state that Plaintiff’s amendment of his alleged onset date

effectively withdrew his disability insurance benefits claim and converted the application

to a Medicare application based on MQGE.

The Commissioner contends that such omission is harmless because the same

legal standards apply to applications for disability insurance benefits and Medicare

benefits based on MQGE. See 42 U.S.C. § 426(b)(2)(C)(ii) (providing that individual is

entitled to Medicare Part A benefits if MQGE were treated as covered employment for

Social Security benefits); POMS DI 25501.365 (“For the disability requirement of the law,

we evaluate MQGE using the same criteria we use to evaluate title II DIB claims.”); Dimas

v. Kijakazi, No. CV 20-0345 JHR, 2021 WL 4847272, at *1 (D.N.M. Oct. 18, 2021) (“The

same sequential evaluation process applicable to disability insurance claims applies [to

Medicare claims based on MQGE]”).

Here, the state agency determined that Plaintiff’s date last insured for Medicare

purposes was December 31, 2024. (Tr. 66). Thus, the Commissioner contends that this

discrepancy is immaterial in this case as both dates were years after the ALJ’s decision

and could have no impact on the outcome. Plaintiff, however, argues that this error of fact

cannot be considered harmless error because it cannot be clear to subsequent reviewers

which time period the ALJ was considering and/or if the evidence he was considering was

associated with this claim.

As noted above, at the hearing, Plaintiff’s amended his alleged onset date to May

20, 2019. (Tr. 15, 19-23). The ALJ’s decision explicitly determined that Plaintiff had “not

been under a disability within the meaning of the Social Security Act from May 20, 2019,

through the date of this decision.” (Tr. 14). The ALJ’s decision clearly shows that he

considered the evidence from Plaintiff’s alleged onset date of disability of May 2019

through the date of the decision. He did not discuss any evidence prior to May 2019. As

noted by the Commissioner, there is no indication that the ALJ considered Plaintiff’s

disability outside of the relevant time period.

Accordingly, the undersigned finds that the ALJ properly evaluated Plaintiff’s

claims.

III. Conclusion

For the reasons explained herein, IT IS ORDERED THAT Defendant's decision is

SUPPORTED BY SUBSTANTIAL EVIDENCE, and is AFFIRMED, and that this case is

CLOSED.

s/Stephanie K. Bowman

Stephanie K. Bowman

United States Magistrate Judge