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Carpenter v. Commissioner of Social Security

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

July 24, 2019

SHERRI L. CARPENTER, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Edmund A. Sargus, Jr. Chief Judge.

          REPORT AND RECOMMENDATION

          CHELSEY M. VASCURA, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, Sherri L. Carpenter (“Plaintiff”), brings this action under 42 U.S.C. § 405(g) for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying her application for a period of disability and disability insurance benefits. This matter is before the undersigned for a Report and Recommendation on Plaintiff's Statement of Errors (ECF No. 9), the Commissioner's Response in Opposition (ECF No. 15), and the administrative record (ECF No. 7). For the reasons that follow, it is RECOMMENDED that Plaintiff's Statement of Errors be OVERRULED (ECF No. 9) and that the Commissioner's decision be AFFIRMED.

         I. BACKGROUND

         Plaintiff protectively filed her application for a period of disability and disability insurance benefits on October 15, 2015. In her application, she alleged a disability onset of September 30, 2015. Plaintiff's application was denied initially on December 22, 2015, and upon reconsideration on May 18, 2016. Plaintiff sought a hearing before an administrative law judge. Administrative Law Judge Nikki Hall (the “ALJ”) held a hearing on March 8, 2018, at which Plaintiff, represented by counsel, appeared and testified. Vocational expert Larry Ostrowski, Ph.D., (the “VE”) also appeared and testified at the hearing. On April 10, 2018, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act. Plaintiff requested that the Appeals Council review the ALJ's decision. She submitted additional evidence to the Appeals Council, including records from Southeast Healthcare Services dated January 22, 2018, to April 19, 2018. (R. at 2.) The Appeals Council found the evidence did “not show a reasonable probability that it would change the outcome of the decision.” (Id.) On August 20, 2018, the Appeals Council denied Plaintiff's request for review and adopted the ALJ's decision as the Commissioner's final decision. Plaintiff then timely commenced the instant action.

         In her Statement of Specific Errors (ECF No. 9), Plaintiff contends that the ALJ erred in classifying her mental health impairment as non-severe. (Id. at 5.) Within this contention of error, Plaintiff asserts that the ALJ improperly relied on the opinions of the state-agency psychologists and consultative examiner and failed to consider mental health evidence that was submitted after they provided their opinions. (Id.) Plaintiff further contends that the ALJ erred in rejecting the opinion of Certified Nurse Practitioner (“CNP”) Danielle Bartley and the Global Assessment of Functioning (“GAF”) scores assessed by Southeast Healthcare Services. (Id. at 6-9.) According to Plaintiff, the ALJ's errors ultimately led to an incorrect residual functional capacity (“RFC”) assessment.

         II. RELEVANT MEDICAL EVIDENCE[1]

         A. Consultative Examiner, James N. Spindler, M.S.

         James N. Spindler, M.S., evaluated Plaintiff on December 15, 2015. Mr. Spindler noted that Plaintiff spoke clearly and at a normal rate and “had no apparent difficulty staying focused during the evaluation.” (R. at 428.) He further noted that Plaintiff “did not appear to be depressed, ” and that she was “pleasant, seemed relaxed and maintained eye contact as she spoke.” (Id.) Plaintiff reported that medication makes her symptoms generally manageable and that she only occasionally feels depressed when medicated. (Id. at 428, 429, 430.) Mr. Spindler diagnosed Plaintiff with mild, unspecified depressive disorder. (Id. at 430.)

         Mr. Spindler also completed an assessment of Plaintiff's functional abilities. He opined that Plaintiff appears to be functioning in the average range of intelligence and “seems capable of understanding, remembering and carrying out instructions in most job settings.” (Id. at 430.) Regarding her ability to maintain concentration, persistence, and pace, Mr. Spindler found that Plaintiff “appears to have the mental ability to sustain a working pace and to maintain a level of attention and concentration that would be sufficient for most job settings.” (Id. at 431.) He also opined that Plaintiff appears to have the ability to respond appropriately to supervision and to coworkers. (Id.) Finally, he opined that Plaintiff appears to be handling the current stressors in her life reasonably well and to have the ability to respond appropriately to routine work pressures. (Id. at 431.)

         B. State-Agency Reviewing Psychologists, Courtney Zeune, Psy. D., and Carl Tishler, Ph.D.

         On initial review, state-agency psychologist, Courtney Zeune, Psy.D., found that Plaintiff has a non-severe affective disorder. (R. at 156.) She found that Plaintiff has no restriction of activities of daily living; no difficulties in maintaining social functioning; mild difficulties in maintaining concentration, persistence, or pace; and no episodes of decompensation. (Id.) Dr. Zeune concluded as follows:

Recent exam and ADLs [activities of daily living] show psychological impairments stable with medications. She did not report interference from mental health symptoms during past work. Able to get along with coworkers and supervisors. Able to perform ADLs within her physical abilities. Impairments are not severe.

(Id.) In reaching her conclusion, Dr. Zeune found consultative examiner Mr. Spindler's opinions to be consistent and afforded them great weight. (Id. at 157.) On reconsideration, Carl Tishler, Ph.D., adopted Dr. Zeune's findings. (Id. at 167-68.)

         C. Certified Nurse Practitioner, Danielle Bartley, Southeast Inc.

         On January 24, 2018, CNP Danielle Bartley submitted a “Medical Opinion Re: Ability to Do Work-Related Activities (Mental).” (R. at 1069.) She opined that Plaintiff is seriously limited[2] in her ability to do the following: understand and remember very short and simple instructions; carry out very short and simple instructions; maintain attention for a two-hour segment; maintain regular attendance and be punctual within customary, usually strict tolerances; sustain an ordinary routine without special supervision; work in coordination with or proximity to others without being unduly distracted; complete a normal workday and workweek without interruptions from psychologically based symptoms; perform at a consistent pace without an unreasonable number and length of rest periods; respond appropriately to changes in a routine work setting; deal with normal work stress; understand and remember detailed instructions; carry out detailed instructions; deal with stress of semiskilled and skilled work; travel in unfamiliar places; and use public transportation. (R. at 1069-70.) CNP Bartley opined that Plaintiff has limited but satisfactory abilities to do the following: remember work-like procedures; make simple work-related decisions; ask simple questions or request assistance; accept instructions and respond appropriately to criticism from supervisors; get along with co-workers or peers without unduly distracting them or exhibiting behavioral extremes; be aware of normal hazards and take appropriate precautions; and set realistic goals or make plans independently of others. (Id.) She opined that Plaintiff is not limited in her ability to interact appropriately with the general public; maintain socially appropriate behavior; and adhere to basic standards of neatness and cleanliness. (Id.)

         CNP Bartley explained that conflict and stress aggravate Plaintiff's depression. (R. at 1070.) She also explained that Plaintiff has difficulty staying asleep and has diminished interest and pleasure. (Id.) She noted that “[j]ob related duties cause [Plaintiff] stress which increases anxiety and depression, ” and that Plaintiff “reports functioning as somewhat difficult[] on a daily basis.” (Id.) CNP Bartley opined that Plaintiff would be absent from work more than four days per month. (Id.)

         III. THE ADMINISTRATIVE DECISION

         On April 10, 2018, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 20-31.) At step one of the sequential evaluation process, [3] the ALJ found that Plaintiff had not engaged in substantial gainful activity since September 30, 2015, the alleged onset date. (Id. at 22.) At step two, the ALJ found that Plaintiff had the severe impairments of “degenerative disc disease of the cervical spine with radiculopathy, degenerative disc disease of the lumbar spine status-post remote laminectomy, degenerative joint disease in right acromioclavicular joint, and fibromyalgia.” (Id.) The ALJ found Plaintiff's unspecified depressive disorder to be non-severe because it “does not cause more than minimal limitation in the claimant's ability to perform basic mental work activities.” (Id. at 23.) In reaching this conclusion, the ALJ considered the requisite criteria and concluded that Plaintiff has mild limitations in her ability to concentrate, persist, or maintain pace, and no limitations in her ability to understand, remember, or apply information; to interact with others; or to adapt and/or manage herself. (Id. at 24.) The ALJ also considered the opinion evidence and assigned “significant” weight to the opinions of state-agency psychologists, Drs. Zeune and Tishler, and consultative examiner, Mr. Spindler, and “little” weight to the opinion of CNP Bartley. (Id. at 24-25.) She also assigned “little” weight to the GAF scores of 55 assessed by Southeast Healthcare Services. (Id.)

         At step three of the sequential process, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id. at 26.) The ALJ set forth Plaintiff's residual functional capacity (“RFC”) as follows:

The claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) EXCEPT: claimant can never climb ladders, ropes, and scaffolds and is limited to occasional other postural movements (i.e. climbing of ramps/stairs, balancing, stooping, kneeling, crouching, and crawling); work should not require exposure to unprotected heights; works should not require greater than frequent handling; work should not require continuous overhead reaching; work should not require continuous talking; and work should not require greater than 5 hours of standing and/or walking in an 8 hour workday.

(Id. at 27.)

         At step four, the ALJ found that Plaintiff is able to perform past relevant work as a General Clerk. (Id. at 29-30.) She therefore concluded that Plaintiff was not disabled under the Social Security Act. (Id. at 31.)

         IV. ...


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