Opinion
1:21-CV-01708BYP
08-09-2022
DON FOWLER, Plaintiff, v. COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.
BENITA Y. PEARSON, JUDGE
REPORT AND RECOMMENDATION
DARRELL A. CLAY, UNITED STATES MAGISTRATE JUDGE
Introduction
Plaintiff Don Fowler filed a Complaint against the Commissioner of Social Security (Commissioner) seeking judicial review of the Commissioner's decision denying supplemental security income (SSI). (ECF #1). The District Court has jurisdiction under 42 U.S.C. §§ 1383(c) and 405(g). On September 7, 2021, pursuant to Local Rule 72.2, this matter was referred to me for preparation of a Report and Recommendation. (Non-document entry of September 2, 2021). Following review, and for the reasons stated below, I recommend the District Court AFFIRM the Commissioner's decision.
Procedural Background
Mr. Fowler filed for SSI on February 11, 2019, alleging a disability onset date of October 16, 2015. (Tr. 156, 284-91). His claims were denied initially and on reconsideration. (Tr. 155-68, 170-80). He then requested a hearing before an Administrative Law Judge. (Tr. 200-03). Mr. Fowler was represented by counsel during portions of the application process, but counsel withdrew on March 30, 2020. (Tr. 219). Mr. Fowler did not appear for his scheduled hearing on June 26, 2020. (Tr. 150-54).
After rescheduling, Mr. Fowler (appearing pro se) and a vocational expert (VE) testified at a hearing before the ALJ on August 19, 2020. (Tr. 105-149). On August 27, 2020, the ALJ issued a written decision finding Mr. Fowler not disabled. (Tr. 85-104). The Appeals Council denied Mr. Fowler's request for review, making the hearing decision the final decision of the Commissioner. (Tr. 1-6; see 20 C.F.R. §§ 416.1455, 416.1481). Mr. Fowler timely filed this action on September 2, 2021. (ECF #1).
Factual Background
I. Personal and Vocational Evidence
Mr. Fowler was 47 years old at the time of his alleged onset date, and 52 years old at the time the application was filed. (Tr. 97, 169). Mr. Fowler completed twelfth grade, but did not graduate. (Tr. 116). In the past, Mr. Fowler has been employed as a corrections officer. (Tr. 97).
II. Relevant Medical Evidence
| Dimension | Opined Limitation |
| Understanding, remembering, and carrying out instructions | “[Mr. Fowler] does not appear to have debilitating limitations with understanding or remembering instructions. . . . [he] appears to have limitations with carrying out instructions” due to general instability caused by his mental health symptoms. |
| Maintaining attention and concentration, and in maintaining persistence and pace to perform simple and multi-step tasks | [Mr. Fowler] experience[s] racing thoughts and paranoia that interfere with the clarity of his thought processing and district him from the here-and-now and serve to impair his ability to maintain attention and concentration and mental persistence. Additionally, his symptomology also causes him to experience states of general instability that impair his functioning, including his ability to follow through on and complete tasks. |
| Responding appropriately to supervision and coworkers in a work setting | Mr. Fowler “does not appear to have debilitating limitations on this functional assessment area.” However, Mr. Fowler's “odd and bizarre presentation that is outside of the normative range of functioning, as well as his paranoia, could interfere with his interpersonal functioning and ability to appropriately respond to supervisors and coworkers.” |
| Responding appropriately to work pressures in a work setting | The claimant appears to have limitations on this functional assessment area, which is evidenced by his unspecified schizophrenia diagnosis that has accompanying symptoms that cause the claimant to experience affective, reality perception, and thought processing limitations that would diminish his ability to appropriately respond to work pressures related to attendance, professional presentation, reliability, task completion and productivity, and maintaining general stability. |
State Agency Consultants. On June 15, 2019, Karla Delcour, Ph.D., assessed Mr. Fowler under Listing 12.03 (Schizophrenia Spectrum and Other Psychotic Disorders), but found insufficient evidence to assess his mental functioning. (Tr. 162-63). Dr. Delcour described Mr. Fowler as having “a consistent presentation which appears exaggerated and unsupported by actual treatment for the claimant's repeated complaints of psychosis.” (Tr. 163). Dr. Delcour described Mr. Fowler as able to maintain relationships as evidenced by a friend bringing him to two of his consultative examinations. (Id.). In addition, Dr. Delcour described Mr. Fowler as “appear[ing] to give purposefully wrong answers” during the consultative examination with Dr. Whitlow, and that he under-reports or falsely reports his drug, alcohol, or prior criminal history. (Id.). “In short, his presentation should have an extensive documented mental health history with it.” (Id.).
On July 5, 2019, Abraham Mikalov, M.D., provided a physical assessment of Mr. Fowler's residual functional capacity. (Tr. 163-66). Dr. Mikalov noted insufficient evidence to assess the severity of Mr. Fowler's conditions. (Tr. 163, 168). Even so, however, Dr. Mikalov determined limitations including occasionally lifting 50 pounds and frequently lifting 25 pounds, sitting, standing, and walking for six hours in an eight-hour day, and frequently climbing ladders, ropes, and scaffolds and stooping. (Tr. 165-66).
On September 18, 2019, Jennifer Swain, Psy.D., assessed Mr. Fowler's mental health record and also found insufficient evidence to assess his mental functioning. (Tr. 175-76).
On September 21, 2019, Steve McKee, M.D., also found insufficient evidence in the record to determine the current severity of Mr. Fowler's conditions. (Tr. 180). However, Mr. McKee made the same residual functional capacity assessment as Dr. Mikalov. (Tr. 176-78). IV. Other Relevant Evidence
Evidence presented after the administrative hearing on August 19, 2020, includes the following.
Physical Health Records. Mr. Fowler underwent an examination on October 21, 2020, with Benjamin Langford, PA-C that showed tenderness to the cervical and upper thoracic paraspinal muscles. (Tr. 22-23). The examination PA Langford recommended alternating ice and heat, and provided Mr. Fowler with prescriptions for Lidoderm, naproxen, prednisone, and Zanaflex. (Tr. 22-23). PA Langford recommended following up with spine health, physical therapy, and a chiropractor if symptoms persist or worsen. (Tr. 23).
Anantha Reddy, M.D., examined Mr. Fowler on October 28, 2020. (Tr. 39). She noted a positive Spurling sign on the left, left arm triceps weakness, left wrist extension weakness, brachioradialis weakness, and an absent left upper extremity reflex. (Id.). Provisional diagnosis was acute left cervical radiculopathy at ¶ 6/7 with left arm weakness, numbness, and mechanical low back pain. (Id.). Dr. Reddy recommended no chiropractic adjustments. (Id.).
An X-ray of Mr. Fowler's cervical spine on October 28, 2020, showed moderate narrowing of C4-C5 and C5-C6 disc spaces with endplate osteophytes; mild narrowing of C3-C4 disc space; no compression fracture or subluxation; and mild narrowing of the neural foramina at ¶ 4-C7. (Tr. 33). X-rays of the lumbosacral junction showed mild narrowing of the L5-S1 disc space suggestive of degenerative disc disease. (Tr. 35). The examination was interpreted by Hakan Ilaslan, M.D. (Id.).
On November 4, 2020, Mr. Fowler presented to the Cleveland Clinic emergency department complaining of neck and thoracic back pain with radiation to his left arm. (Tr. 24). Notes indicate Mr. Fowler had previously been seen in the emergency department. (Id.). Mr. Fowler had muscle X-rays and was on steroids and anti-inflammatories, without improvement. (Id.). Examination was positive for back and neck pain, and 2+ radial pulses bilaterally, but negative for arthralgias and myalgias. (Tr. 24-25). Mr. Fowler exhibited tenderness, pain, and decreased strength due to pain, but normal range of motion and no swelling, effusion, crepitus, or spasm. (Id.). On the same day, Mr. Fowler had an X-ray of his left shoulder that demonstrated left acromioclavicular joint arthrosis but no acute bony abnormality. (Tr. 15). Mr. Fowler was counseled by Andrew Sasak, PA-C on his X-ray results; PA Sasak discontinued Mr. Fowler's previous medications and recommended completing his steroid taper because they were not effective. (Tr. 27). PA Sasak discharged Mr. Fowler with prescriptions for Mobic, Voltaren topical gel, and Norflex. (Id.).
Mental Health Records. Records from March 24 through December 1, 2020, were submitted from Centers for Families and Children. (Tr. 41-79). Notes from December 1, 2020, indicated Mr. Fowler takes aripiprazole (Abilify) and hydroxyzine HCL (Atarax) for his mental health conditions, prescribed by Shaina Allen, APRN, CNP. (Tr. 48-50).
Mr. Fowler regularly met with Ms. Bolar (including on May 20, June 17 and 23, July 10, September 22, November 6, and 10, 2020), who noted Mr. Fowler was stable and compliant with his medication. (Tr. 52, 54-55, 57-60, 66, 70-74). Ms. Bolar also often assisted Mr. Fowler with housing, safety, and his mental health. (Id.).
Notes from May 20, 2020 indicate Mr. Fowler was compliant with his medication, but Ms. Bolar also described Mr. Fowler as not always taking his prescribed medication daily due to stomachache. (Tr. 74). Notes from September 4, 2020, indicate Mr. Fowler was not compliant with his medication, but he did present as stable during this visit. (Tr. 56).
V. Administrative Hearing
The following summarizes the testimony of Mr. Fowler and VE Paula Zinsmeister, presented during the hearing before the ALJ.
Because Mr. Fowler appeared at the hearing without counsel or another representative, the ALJ presented Mr. Fowler with information on his rights to proceed with or without representation, and the types of assistance and cost involved with seeking representation. (Tr. 109112). Having been informed of his rights, Mr. Fowler waived his right to representation and elected to proceed pro se. (Tr. 111-12).
Mr. Fowler lives with a friend who he has known for a long time. (Tr. 114). Mr. Fowler used to have a driver's license but does not drive due to his mental health issues. (Tr. 115). He typically travels on public transportation or has a family member drive him. (Tr. 115-16). He attended school through twelfth grade but did not graduate or obtain a GED. (Tr. 116). His friend helps him with his hygiene. (Tr. 125). His friend takes care of most chores, but Mr. Fowler will sometimes sweep the floors, depending on how he is feeling that day. (Tr. 127-28). He does not use the internet. (Tr. 127).
Mr. Fowler previously worked as a corrections officer at Cuyahoga Reentry Agency in 20072008 and at Community Assessment and Treatment in 2013. (Tr. 117). In his most recent position, Mr. Fowler was required to monitor the people who came in with drug addictions; both in-person and on a video monitor. (Tr. 117-18). He was on his feet six out of eight hours per day and was required to lift up to twenty pounds. (Tr. 118). He performed similar work as a monitor at Cuyahoga Reentry Agency but was required to be on his feet the entire time. (Id.). He would conduct rounds of the facility every twenty minutes to ensure safety and make sure patients were not using or abusing drugs. (Tr. 119). He also was responsible for logging and checking patients in, conducting urinalysis and breathalyzer tests, and ensuring weapons were not carried into the facility. (Tr. 120). Mr. Fowler described going “in and out” with his mental health as the reason he had to stop this work. (Tr. 121).
Mr. Fowler described pain in his right knee, ranging from seven to ten on a ten-point scale, occurring both while sitting and standing. (Tr. 122-23). He could sit for twenty minutes comfortably, stand for ten minutes, walk a block, and lift five to ten pounds. (Tr. 123-24). The pain in his knee may be from a tumor. (Tr. 124). Mr. Fowler has gone to specialists regarding his knee but was unaware of next steps in his care. (Tr. 125). Mr. Fowler was given a knee brace in October, but he testified to having issues with his knee since he was twenty years old. (Tr. 131).
Mr. Fowler successfully completed a rehabilitation program at Stella Maris. (Tr. 130). He treats his depression with a case manager. (Tr. 131-32). Mr. Fowler described difficulty interacting with people, including with family members. (Tr. 132).
VE Zinsmeister then testified. She classified Mr. Fowler's past work (both positions) as correction officer, DOT 372.667-018, SVP 4, medium exertional level, but SVP 3 and light as performed. (Tr. 135).
The ALJ asked VE Zinsmeister to consider a hypothetical person of Mr. Fowler's age and education, limited to medium exertional level; frequent climbing of ladders, ropes, and scaffolds, frequently stoop. (Id.). She responded that hypothetical individual could perform such work as generally performed but not as actually performed. (Tr. 135-36). Representative jobs for such an individual included a store laborer (DOT 922.687-010, SVP 2, medium, 300,000 jobs in the national economy); hospital cleaner (DOT 323.687-010, SVP 2, medium, 600,000 jobs in the national economy); and kitchen helper (DOT 318.687-010, SVP 2, medium, 400,000 jobs in the national economy). (Tr. 136).
In a second hypothetical, the individual was limited to light work, occasional light foot controls, occasional climbing of ramps and stairs, never climbing ladders, ropes, or scaffolds; occasionally balance, stoop, kneel, crouch, crawl; no exposure to unprotected heights, moving mechanical parts, or operating a motor vehicle; occasional reaching overhead with left and right, and frequent reaching in all other directions. (Tr. 136-37). Such an individual could perform the position as actually performed but not as generally performed. (Tr. 137). Representative jobs included cleaner, housekeeping (DOT 323.687-014, SVP 2, light, 150,000 jobs in the national economy); cashier II (DOT 211.462-010, SVP 2, light, 1,100,000 jobs nationally); and delivery marker (DOT 222.587-038, SVP 2, light, 300,000 jobs in the national economy). (Id.).
In a third hypothetical, the individual was further limited from the second hypothetical, to include: limited to performing simple, routine, and repetitive tasks but not at a production-rate pace (no assembly line work), limited to simple work-related decisions, using his judgment, dealing with changes in the work setting, and able to frequently interact with supervisors, coworkers, and the public. (Tr. 137). Such an individual could not perform the past work identified. (Tr. 137-38). However, representative job included the ones previously identified (excluding the cashier position), as well as mail clerk (DOT 209.687-026, SVP 2, light, 100,000 jobs in the national economy).
Next, the ALJ crafted a hypothetical including the limitations from the second and third hypotheticals, but modified the interaction with supervisors, coworkers, and the public to occasional. (Tr. 138). The previously identified jobs from the second and third hypotheticals would still apply, excluding the cashier position. (Tr. 138).
Finally, the VE opined that twenty percent off-task time would exceed what an employer would tolerate in a work setting, as would two days absent every month. (Tr. 138-39). After Mr. Fowler described his mental health limitations, the VE clarified that up to fifteen percent of off-task behavior would be tolerated, but more than that would be work-preclusive. (Tr. 142). One absence per month would be tolerated (including arriving late and leaving early). (Id.).
Mr. Fowler described feeling threatened being around people, wanting to isolate all the time, and wanting to be alone, including from friends and relatives. (Id.). He described being “in fear all the time.” (Id.). Responding to these statements, the ALJ presented a hypothetical to the VE to include a restriction of no public contact. (Tr. 143). The only job affected by this limitation was the cashier position. (Id.). Further, if the individual could have occasional interaction with supervisors but no contact with coworkers or the public, all work would be precluded. (Id.).
The ALJ's Decision
The ALJ's decision, dated August 27, 2020, included the following findings of fact and conclusions of law:
1. The claimant has not engaged in substantial gainful activity since February 11, 2019, the application date (20 CFR 416.971 et seq.).
2. The claimant has the following severe impairments: advanced cervical spondylosis and mild to moderate diffuse AP narrowing of the cervical spinal canal and multilevel foraminal narrowing; ganglion cyst and sclerotic changes in the right knee; unspecified schizophrenia and other psychotic disorder; depression; anxiety; and mood disorder (20 CFR 416.920(c)).
3. The claimant 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 416.920(d), 416.925 and 416.926).
4. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 416.967(b) except the claimant can occasionally operate right foot controls. Can occasionally reach overhead with the right and the left. Can frequently reach in all other directions with the right and the left. Can occasionally climb ramps and stairs. He can never climb ladders, ropes, or scaffolds. Can occasionally balance, stoop, kneel, crouch, and crawl. Can never be exposed to unprotected heights, moving mechanical parts, or operate a motor vehicle. Is limited to performing simple, routine, and repetitive tasks, but not at a production rate pace (i.e. assembly line work). Is limited to simple work related decisions in using his judgment and dealing with changes in the work setting. Is able to frequently interact with supervisors, coworkers, and the public.
5. The claimant is unable to perform any past relevant work (20 CFR 416.965).
6. The claimant was born on April 23, 1968, and was 50 years old, which is defined as an individual closely approaching advanced age, on the date the application was filed (20 CFR 416.963).
7. The claimant has a limited education (20 CFR 416.964).
8. 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 the claimant is “not disabled,” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
9. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 416.969 and 416.969(a)).
10. The claimant has not been under a disability, as defined in the Social Security Act, since February 11, 2019, the date the application was filed (20 CFR 416.920(g)).(Tr. 90-99).
Standard of Review
In reviewing the denial of Social Security benefits, the Court “must affirm the Commissioner's conclusions absent a determination that the Commissioner has failed to apply the correct legal standards or has made findings of fact unsupported by substantial evidence in the record.” Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). “Substantial evidence is more than a scintilla of evidence but less than a preponderance and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Besaw v. Sec'y of Health & Human Servs., 966 F.2d 1028, 1030 (6th Cir. 1992). The Commissioner's findings “as to any fact if supported by substantial evidence shall be conclusive.” McClanahan v. Comm'r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006) (citing 42 U.S.C. § 405(g)).
In determining whether the Commissioner's findings are supported by substantial evidence, the court does not review the evidence de novo, make credibility determinations, or weigh the evidence. Brainard v. Sec'y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989). Even if substantial evidence or indeed a preponderance of the evidence supports a claimant's position, the court cannot overturn “so long as substantial evidence also supports the conclusion reached by the ALJ.” Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003). This is so because there is a “zone of choice” within which the Commissioner can act, without fear of court interference. Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (citing Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984)).
However, “a substantiality of evidence evaluation does not permit a selective reading of the record. Substantiality of evidence must be based upon the record taken as a whole. Substantial evidence is not simply some evidence, or even a great deal of evidence. Rather, the substantiality of evidence must take into account whatever in the record fairly detracts from its weight.” Brooks v. Comm'r of Social Security, 531 Fed.Appx. 636, 641 (6th Cir. 2013) (cleaned up).
A district court cannot uphold an ALJ's decision, even if there “is enough evidence in the record to support the decision, [where] the reasons given by the trier of fact do not build an accurate and logical bridge between the evidence and the result.” Fleischer v. Astrue, 774 F.Supp.2d 875, 877 (N.D. Ohio 2011) (internal quotations omitted). Even if substantial evidence supports the ALJ's decision, the court must overturn when an agency does not observe its own procedures and thereby prejudices or deprives the claimant of substantial rights. Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 546-47 (6th Cir. 2004).
Standard for Disability
Eligibility for benefits is predicated on the existence of a disability. 42 U.S.C. §§ 423(a), 1382(a). “Disability” is defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 20 C.F.R. § 416.905(a); see also 42 U.S.C. § 1382c(a)(3)(A). The Commissioner follows a five-step evaluation process-found at 20 C.F.R. § 416.920-to determine if a claimant is disabled:
1. Was claimant engaged in a substantial gainful activity?
2. Did claimant have a medically determinable impairment, or a combination of impairments, that is “severe,” which is defined as one which substantially limits an individual's ability to perform basic work activities?
3. Does the severe impairment meet one of the listed impairments?
4. What is claimant's residual functional capacity and can claimant perform past relevant work?
5. Can claimant do any other work considering her residual functional capacity, age, education, and work experience?
Under this five-step sequential analysis, the claimant has the burden of proof in Steps One through Four. Walters, 127 F.3d at 529. The burden shifts to the Commissioner at Step Five to establish whether the claimant has the residual functional capacity to perform available work in the national economy. Id. The ALJ considers the claimant's residual functional capacity, age, education, and past work experience to determine if the claimant could perform other work. Id. Only if a claimant satisfies each element of the analysis, including inability to do other work, and meets the duration requirements, is she determined to be disabled. 20 C.F.R. § 416.920(b)-(f); see also Walters, 127 F.3d at 529.
Discussion
Mr. Fowler presents three issues for review. I find none have merit and recommend the District Court affirm.
I. The ALJ's assessment of Mr. Fowler's mental residual functional capacity was supported by substantial evidence.
Mr. Fowler first argues that his mental residual functional capacity (RFC) was “premised on an inappropriate parsing of Dr. Whitlow's findings and opinion, and as a result, is not supported by substantial evidence.” (Pl.'s Br., ECF #9, PageID 708). In Mr. Fowler's view, this parsing of Dr. Whitlow's opinion was erroneous because the ALJ then “failed to include her most restrictive findings and limitations in his residual functional capacity determination.” (Id. at PageID 708-09). As he argues, the ALJ found Dr. Whitlow's opinion persuasive, and the VE testified that if incorporated into the RFC, the limitations Dr. Whitlow specified would be work-preclusive; thus, remand is necessary. (Id. at PageID 709-11).
The Commissioner counters that the ALJ adequately evaluated Dr. Whitlow&rsq