United States District Court, S.D. Ohio, Western Division
JOHN S. PANELLA, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
MICHAEL J. NEWMAN, MAGISTRATE JUDGE
AND ENTRY ADOPTING IN THEIR ENTIRETY REPORT AND
RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE (DOC. #9),
AND OVERRULING OBJECTIONS OF PLAINTIFF JOHN S. PANELLA (DOC.
#10) TO SAID JUDICIAL FILING; JUDGMENT TO BE ENTERED IN FAVOR
OF DEFENDANT NANCY A BERRYHILL ACTING COMMISSIONER OF THE
SOCIAL SECURITY ADMINISTRATION, AND AGAINST PLAINTIFF,
AFFIRMING THE DEFENDANT COMMISSIONER'S DECISION THAT
PLAINTIFF WAS NOT DISABLED AND, THEREFORE, NOT ENTITLED TO
BENEFITS UNDER THE SOCIAL SECURITY ACT; TERMINATION
H. RICE, UNITED STATES DISTRICT JUDGE.
John S. Panella ("Plaintiff') has brought this
action pursuant to 42 U.S.C. § 405(g) to review a
decision of the Defendant Nancy A. Berryhill, Acting
Commissioner of the Social Security Administration
("Commissioner"), denying Plaintiff's
application for Social Security disability benefits. On June
20, 2017, Magistrate Judge Michael J. Newman filed a Report
and Recommendations, Doc. #9, recommending that the
Commissioner's decision that Plaintiff was not disabled
and, therefore, not entitled to benefits under the Social
Security Act ("Act"), 42 U.S.C. § 301
etseq., be affirmed. Based upon reasoning and
citations of authority set forth below, as well as upon a
thorough de novo review of this Court's file,
including the Administrative Transcript, Doc. #4, and a
thorough review of the applicable law, this Court ADOPTS the
Report and Recommendations, Doc. #9, and OVERRULES
Plaintiff's Objections, Doc. #10, to said judicial
filing. The Court, in so doing, orders the entry of judgment
in favor of the Commissioner and against Plaintiff, affirming
the decision of the Commissioner that Plaintiff was not
disabled and, therefore, not entitled to benefits under the
Act, as supported by substantial evidence.
reviewing the Commissioner's decision, the Magistrate
Judge's task is to determine if that decision is
supported by "substantial evidence." 42 U.S.C.
§ 405(g). Under 28 U.S.C. § 636(b)(1)(C), this
Court, upon objections being made to the Magistrate
Judge's Report and Recommendations, is required to make a
de novo review of those recommendations of the
report to which objection is made. This de novo
review, in turn, requires this Court to re-examine all the
relevant evidence, previously reviewed by the Magistrate
Judge, to determine whether the findings "are supported
by substantial evidence." Valley v. Comm'rof
Soc, Sec, 427 F.3d 388, 390 (6th Cir. 2005). This
Court's sole function is to determine whether the record
as a whole contains substantial evidence to support the
Commissioner's decision. The Commissioner's findings
must be affirmed if they are supported by "such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion." Richardson v. Perales,
402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)
(quoting Consol. Edison Co. v. N.L.R.B., 305 U.S.
197, 229, 59 S.Ct. 206, 83 L.Ed.2d 126 (1938)).
"Substantial evidence means more than a mere scintilla,
but only so much as would be required to prevent a directed
verdict." Foster v. Bowen, 853 F.2d 483,
486 (6th Cir. 1988). To be substantial, the evidence
"must do more than create a suspicion of the existence
of the fact to be established[l]t must be enough to justify,
if the trial were to a jury, a refusal to direct a verdict
when the conclusion sought to be drawn from it is one of fact
for the jury." LeMaster v. Sec'y of Health &
Human Servs., 802 F.2d 839, 840 (6th Cir. 1986) (quoting
N.L.R.B. v. Columbian Enameling and Stamping Co.,
306 U.S. 292, 300, 59 S.Ct. 501, 83 L.Ed. 660 (1939)).
determining "whether there is substantial evidence in
the record ... we review the evidence in the record taken as
a whole." Wilcox v. Sullivan, 917 F.2d 272,
276-77 (6th Cir. 1980) (citing Allen, v. Califano,
613 F.2d 139, 145 (6th Cir. 1980)). However, the Court
"may not try the case de novo[;] nor resolve
conflicts in evidence[;] nor decide questions of
credibility." Jordan v. Comm'rof Soc. Sec,
548 F.3d 417, 422 (6th Cir. 2008) (quoting Garner v.
Heckler, 745 F.2d 383, 387 (6th Cir. 1984)). "The
findings of the Commissioner are not subject to reversal
merely because there exists in the record substantial
evidence to support a different conclusion." Buxton
v. Halter, 246 F.3d 762, 772 (6th Cir. 2001). Rather, if
the Commissioner's decision "is supported by
substantial evidence, then we must affirm the
[Commissioner's] decision[, ] even though as triers of
fact we might have arrived at a different result."
Elkins v. Sec'y of Health and Human Servs., 658
F.2d 437, 439 (6th Cir. 1981) (citing Moore v.
Califano, 633 F.3d 727, 729 (6th Cir. 1980)).
addition to the foregoing, in ruling as aforesaid, this Court
makes the following, non-exclusive, observations:
1. Contrary to Plaintiff's argument, Doc. #10, PAGEID
#328, the Administrative Law Judge's ("ALJ")
application of the treating physician rule with respect to
the opinions of David Kirkwood, M.D., was proper. The ALJ
concluded that Plaintiff's peripheral neuropathy, which
Dr. Kirkwood claimed would prevent Plaintiff from working up
to eight hours per day, was not supported by diagnostic
findings; Dr. Kirkwood's diagnosis of paresthesia in
Plaintiff's hands was similarly unsupported. Doc. #4,
PAGEID #38. Further, the ALJ noted that "Dr.
Kirkwood's assessment is also inconsistent with the
findings by Dr. [Dmitri] Danopulos [the Commissioner's
examining physician], especially with respect to his findings
of normal sensory perception in the [Plaintiff's]
extremities." Id. Lack of objective support and
inconsistency with other medical opinions of record are valid
reasons for the ALJ to decline to give controlling weight to
a treating source opinion, 20 C.F.R. § 404.1527(c)(2),
and any failure by the ALJ to use the phrase
"controlling weight"-or even to mention the
two-step treating physician rule analysis at all-is not
reversible error. Wilson v. Comm'r of Soc. Sec,
378 F.3d 541, 547 (6th Cir. 2004) (citing Heston v.
Comm'r of Soc. Sec, 245 F.3d 528, 535-36 (6th Cir.
treating source opinion's inconsistency with the record
as a whole is an acceptable reason for the ALJ to discount
that opinion, 20 C.F.R. § 404.1527(c)(4), as is a lack
of medical and laboratory support for the opinion. 20 C.F.R.
§ 404.1527(c)(3). Thus, the same reasoning that
justifies the ALJ declining to give controlling weight to Dr.
Kirkwood's opinion also justifies the ALJ deciding only
to assign "little weight" to that opinion.
Plaintiff argues that Dr. Danopulos's conclusion that
Plaintiffs "ability to do any work-related activities is
affected" by his severe impairments supports, rather
than undermines, Dr. Kirkwood's opinion. Doc. #10, PAGEID
#331 (quoting Doc. #4, PAGEID #236). However, Dr. Danopulos
never opined that Plaintiff's impairments would prevented
Plaintiff from working at all; rather, he noted that
Plaintiffs diabetes was well-controlled, Doc. #4, PAGEID
#235-36, and that "[t]here was no evidence of nerve root
compression or peripheral neuropathy." Id.,
PAGEID #235. Thus, the ALJ's reasoning in deciding to
assign little weight to Dr. Kirkwood's opinion (and great
weight to Dr. Danopulos's opinion) complied with the
Commissioner's regulations and was supported by
substantial evidence of record, and the Court may not disturb
Plaintiff objects to the ALJ's decision to assign great
weight to the opinion of Gary Hinzman, M.D., the
Commissioner's physician who, upon reconsideration,
reviewed the medical evidence of record, while assigning
little weight to the opinion of the Commissioner's
initial record-reviewing physician, Gerald Klyop, M.D. Doc.
#10, PAGEID #333. In support, Plaintiff argues that "Dr.
Hinzman modified Dr. Klyop's prior assessment with no
apparent evidentiary basis or explanation!.]"
Id. (citing Doc. #4, PAGEID #70-72, 82-84). Yet,
Plaintiff cites to no rule or regulation requiring a
record-reviewing physician to explain, on reconsideration,
why his opinion as to Plaintiff's residual functional
capacity differed from that of the initial record-reviewing
2physician; indeed, Dr. Hinzman's decision to depart from
the opinion of Dr. Klyop indicates that the
Commissioner's reconsideration process is not merely a
rubber stamp of the initial disability determination.
Plaintiff notes that Dr. Hinzman's review of medical
evidence took place in 2013; thus, he did not have the
opportunity to review "all of Dr. Kirkwood's
treatment notes and the treating physician's April 2014
functional appraisal." Doc. #10, PAGEID #333 (citing
Doc. #4, PAGEID #82-84, 244-63, 265-66). Yet, Dr. Hinzman did
review Dr. Kirkwood's 2012 pension disability assessment,
which, like the April 2014 appraisal, did not "contain
sufficient objective findings to evaluate the severity of any
neuropathy." Doc. #4, PAGEID #38. Moreover, the ALJ
concluded that Dr. Hinzman's opinion was consistent with
that of Dr. Danopulos, who noted that "any element of
neuropathy is minor." Id., PAGEID #37. As Dr.
Hinzman's opinion was consistent with Dr. Danopulos's
well-supported medical opinion, and inconsistent with Dr.
Kirkwood's poorly-supported opinion, the ALJ's
decision to assign great weight to Dr. Hinzman's opinion
was proper and will be affirmed.
Plaintiff objects to the Magistrate Judge's affirmation
of the ALJ's credibility finding, due in part to
"the lack of imaging or other clinical findings nothing
neuropathy in his hands." Doc. #10, PAGEID #334 (quoting
Doc. #9, PAGEID #324). Plaintiff notes that the
Commissioner's rules prohibit a claimant's subjective
statements of pain and the disabling effect of his
impairments from being discounted solely because the
statements are not substantiated by objective medical
evidence. Id. (citing Soc. Sec. R. 96-7p, 1996 WL
371486 (Jul. 2, 1996), superseded by Soc. Sec. R.
16-3p, 2016 WL 1119029 (Mar. 16, 2016)). He argues that the
ALJ failed to account for other required "factors such
as his daily activities, measures taken to relieve his
symptoms, his medications and other treatment, " and,
thus, the ALJ's credibility determination should be
reversed as unsupported by substantial evidence. Id.
(citing Soc. Sec. R. 96-7p, 1996 WL 374186, at *7). Yet, a
review of the ALJ's opinion shows that all of the above
required factors were discussed and considered by the ALJ,
and that the ALJ built a logical bridge between those factors
and his conclusion that Plaintiff's subjective statements
about his impairments were not fully credible. Doc. #4,
PAGEID #34-38. As the ALJ's explanation for why he did
not find Plaintiff credible is "reasonable and supported
by substantial evidence in the record[, ]" Jones v.
Comm'r of Soc. Sec, 336 F.3d 469, 476 (6th Cir.
2003), the Court may not disturb that credibility finding.
based upon the aforesaid, this Court adopts in their entirety
the Report and Recommendations of the United States
Magistrate Judge, Doc. #9, and overrules the Plaintiff's
Objections to said judicial filing. Doc. #10. Judgment shall
enter in favor of the Defendant Commissioner and against
Plaintiff, affirming the decision of the Defendant
Commissioner that Plaintiff was not disabled and, therefore,
not entitled to benefits under the Act as supported by
captioned case is hereby ordered terminated upon the docket
records of the United States District Court for the Southern