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Bryan v. Commissioner of Social Security

United States District Court, S.D. Ohio, Eastern Division

July 8, 2019

Litsa R. Bryan, Plaintiff,
v.
Commissioner of Social Security, Defendant.

          ORDER

          JAMES L. GRAHAM UNITED STATES DISTRICT JUDGE.

         Plaintiff Litsa R. Bryan brings this action under 42 U.S.C. §405(g) for review of the final decision of the Commissioner of Social Security (“Commissioner”) denying her application for supplemental security income. In a decision dated June 1, 2017, the administrative law judge (“ALJ”) found that plaintiff had severe impairments consisting of disc disease of the lumbar spine, a bipolar disorder, and an obsessive-compulsive disorder. PAGEID 439. The ALJ found that plaintiff's residual functional capacity (“RFC”) would physically permit her to perform light work. The ALJ also concluded that plaintiff could perform simple and moderately complex tasks, could occasionally interact with others in person, and could have unlimited interaction with others on the telephone. PAGEID 442-43. The ALJ decided that plaintiff was capable of performing her past relevant work as a customer service representative, and that there were also other jobs in the national economy which plaintiff could perform. PAGEID 448-49. The ALJ found that plaintiff was not disabled. PAGEID 450.

         On May 22, 2019, plaintiff filed objections to the May 8, 25, 2019, report and recommendation of the magistrate judge recommending that the decision of the Commissioner be affirmed.

         I. Standard of Review

         If a party objects within the allotted time to a report and recommendation, the court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b). Upon review, the court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).

         The court's review “is limited to determining whether the Commissioner's decision ‘is supported by substantial evidence and was made pursuant to proper legal standards.'” Ealy v. Comm'r of Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010) (quoting Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also, 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive.”). Put another way, a decision supported by substantial evidence is not subject to reversal, even if the reviewing court might arrive at a different conclusion. Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986). Even if supported by substantial evidence, however, “‘a decision of the Commissioner will not be upheld where the [Commissioner] 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 v. Comm'r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009) (quoting Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007)).

         II. Objections

         Plaintiff's objections address the ALJ's finding that other mental conditions mentioned in the records, including panic disorder with agoraphobia, mood disorder, psychotic disorder, anxiety, and post-traumatic stress disorder (“PTSD”), did not constitute medically determinable impairments. See PAGEID 440. Plaintiff argues that this error resulted in these mental conditions not being considered by the ALJ in formulating plaintiff's RFC. The magistrate judge found that the ALJ reasonably concluded that these alleged mental conditions were not medically determinable impairments. Doc. 14, pp 8-11. The court agrees with the analysis of the magistrate judge.

         At step two of the evaluation process, the ALJ must determine whether a claimant's alleged impairments constitute “medically determinable” impairments. 20 C.F.R. §404.1508. A medically determinable impairment must result from anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques, and must be established by medical evidence consisting of signs, symptoms, and laboratory findings, and not by symptoms alone. Kornecky v. Comm'r of Soc. Sec., 167 Fed.Appx. 496, 698 (6th Cir. 2006); 20 C.F.R. §404.1508. A mere diagnosis is insufficient to establish a medically determinable impairment. See 20 C.F.R. §404.1508; Hill v. Comm'r of Soc. Sec., 560 Fed.Appx. 547, 551 (6th Cir. 2014)(disability is determined by the functional limitations imposed by a condition, not the mere diagnosis of it).

         A “symptom” consists of a claimant's description of the alleged impairment. 20 C.F.R. §404.1528(a). However, the ALJ need not find credible a claimant's subjective complaints or medical assessments which are not supported by the medical evidence or the record as a whole. Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997). The impairment must have lasted or must be expected to last for a continuous period of at least twelve months. 20 C.F.R. §404.1509; Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003)(plaintiff bears the burden of proving the existence of a medically determinable impairment that meets the twelve-month durational requirement). Only evidence from acceptable medical sources can establish a medically determinable impairment. 20 C.F.R. §404.1513(a).

         Plaintiff notes that the record includes several references to diagnoses of panic disorder with agoraphobia, mood disorder, psychotic disorder, anxiety, and PTSD. However, as the magistrate judge observed, Doc. 14, p. 9, the mere listing of diagnoses in the past history section of a treatment record does not prove that these diagnoses were “established by medical evidence consisting of signs, symptoms and laboratory findings, not only by [plaintiff's] statement of symptoms.” See 20 C.F.R. §404.1058. The magistrate judge noted that many of these records document office visits for the treatment of other ailments and only refer to PTSD and depression as past medical history. Doc. 14, p. 10.

         In reporting her findings, the ALJ thoroughly discussed plaintiff's mental health records. She noted that plaintiff was hospitalized in May of 2014, due to reported suicidal ideation and auditory hallucinations, and was diagnosed with bipolar disorder. PAGEID 441, 445. However, plaintiff explained at the hearing that her hallucinations were medication-induced, and that these symptoms resolved with medication changes. PAGEID 441, 445. The ALJ also discussed records from September, 2013 through November, 2014, which noted plaintiff's complaints of irritability, anxiety, lack of motivation, and feeling overwhelmed and tired. PAGEID 441. For example, during a May, 2014, evaluation, plaintiff reported symptoms of depression, anxiety, mood swings, aggressiveness and agitation. However, during an appointment in June of 2014, plaintiff had a normal mood, affect, speech, behavior, judgment, thought content, cognition and memory, was described as pleasant and cooperative, and denied suicidal and homicidal ideation. PAGEID 441, 445. The ALJ noted that in November, 2014, plaintiff reported that she had no manic symptoms, her anxiety was controlled, and her energy was fair; her examination at this appointment was normal. PAGEID 441-442. The diagnosis given was bipolar disorder and obsessive-compulsive disorder (“OCD”), which the ALJ found to be severe impairments in this case. PAGEID 445.

         From January, 2015, through April, 2015, plaintiff complained of irritability, anxiety, sleep disturbance, and OCD tendencies, but she denied hallucinations, delusions, and manic symptoms. Her mental status exams were normal except for plaintiff's reports of irritable and depressed mood and restricted affect. PAGEID 442, 445. The ALJ noted that in April, 2015, plaintiff reported that her medications were not working and complained that she suffered from extreme anxiety and agoraphobia; however, that the progress notes did not contain any significant mental status exam findings. PAGEID 445. The records fail to establish that panic disorder with agoraphobia, mood disorder, psychotic disorder, anxiety, and PTSD are medically determinable impairments in this case.

         Plaintiff relies on the records of Timothy Ickes, a physician's assistant who counseled plaintiff at Family Behavioral Health Services from July, 2016, through January, 2017. However, a physician's assistant is not an “acceptable medical source.” 20 C.F.R. §404.1513(a); LaRiccia v. Comm'r of Soc. Sec., 549 Fed.Appx. 377, 386 (6th Cir. 2013). The ALJ correctly concluded, PAGEID 440, that mental diagnoses offered by persons who were not acceptable ...


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