United States District Court, S.D. Ohio, Eastern Division
Litsa R. Bryan, Plaintiff,
Commissioner of Social Security, Defendant.
L. GRAHAM UNITED STATES DISTRICT JUDGE.
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
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
Standard of Review
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).
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)).
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.
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).
“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).
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.
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.
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.
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