United States District Court, S.D. Ohio, Western Division
GLENN E. OSBORNE, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
MICHAEL J. NEWMAN MAGISTRATE JUDGE.
AND ENTRY ADOPTING REPORT AND RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE (DOC. #12); OBJECTIONS OF PLAINTIFF,
GLENN E. OSBORNE, TO SAID JUDICIAL FILING (DOC. #13) ARE
OVERRULED; 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 ENTRY
H. RICE, JUDGE. UNITED STATES DISTRICT COURT.
Glenn E. Osborne ("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
January 17, 2018, Magistrate Judge Michael J. Newman filed a
Report and Recommendations, Doc. #12, 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 et
seq., be affirmed. Based upon reasoning and citations of
authority set forth in the Magistrate Judge's Report and
Recommendations, Doc. #12, as well as upon a thorough de
novo review of this Court's file, including the
Administrative Transcript, Doc. #7, 9, and a thorough review
of the applicable law, this Court ADOPTS the Report and
Recommendations and OVERRULES Plaintiff's Objections,
Doc. #13, 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.
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'r of
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. . . . [I]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.LR.B. v. Columbian Enameling and
Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 83 L.Ed.
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'r of 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:
his decision, Mark Hockensmith, the Commissioner's
Administrative Law Judge ("ALT), expressly reviewed and
assigned weight to three opinions proffered by Salim O.
Dahdah, M.D., Plaintiff's treating cardiologist. ALJ
Hockensmith assigned "little weight, " rather than
"controlling or deferential weight, " to Dr.
Dahdah's February 4, 2014, opinion, in which he
"reported that the claimant's wife had to be with
him [twenty-four] hours per day because of his seizure
disorder. Further, despite implantation of a pacemaker, Dr.
Dahdah noted that [Plaintiff] continued ... to have
seizures." Doc. #9, PAGEID #1544 (citing Doc. #7-8,
PAGEID #823). In discounting the opinion, ALJ Hockensmith
concluded that it was "not fully supported by the
record. The evidence contains limited documentation of a
seizure disorder....There is no significant evidence[, ] nor
did the claimant report[, ] that he required [twenty-four]
hour supervision." Id. ALJ Hockensmith gave no
weight to Dr. Dahdah's August 14, 2014, opinion that
Plaintiff "was unable to work, indefinitely, due to his
heart condition." Id., PAGEID #1545 (citing
Doc. #7-8, PAGEID #901). ALJ Hockensmith provided two reasons
for assigning no weight: (1) Dr. Dahdah opined on whether
Plaintiff is disabled, a finding reserved exclusively to the
Commissioner; and (2) his "assessment is simply not
consistent with the claimant's treatment records, which
generally show that he did well following the insertion of
his pacemaker, with just occasional palpitations and chest
pain." Id. Finally, as to Dr. Dahdah's
October 13, 2014, functional assessment of Plaintiff, in
which Dr. Dahdah opined that Plaintiff would have more than
five unscheduled absences per month due to her impairments,
ALJ Hockensmith assigned
[M]oderate weight.... to the extent that it supports
limitation to light work with only occasional postural
activities. More weight cannot be given because Dr. Dahdah
again appears to have more restrictive limitations based on
the claimant's reported seizure disorder. As discussed
above, the record does not contain significant evidence of
Id. ALJ Hockensmith also concluded that "[t]he
evidence does not substantiate that... he would be absent
from work five or more days per month." Id.
(citing Doc. #7-8, PAGEID #905-07).
Report and Recommendations, the Magistrate Judge stated that,
"[w]ith regard to Dr. Dahdah's first and second
opinions, the ALJ properly weighed and provided a meaningful
explanation for not relying on them[, ]" Doc. #12,
PAGEID #1583 (citing Doc. #9, PAGEID #1544-45), and that ALJ
Hockensmith's lengthy, detailed opinion-read as a
whole-sets forth good reasons as to: (a) why the third
opinion of Dr. Dahdah was not entitled to controlling or
deferential weight; and (b) why he assigned the opinion
"moderate weight." Id. In so doing, the
Magistrate Judge concluded, ALJ Hockensmith properly applied
the treating physician rule, 20 C.F.R. § 404.1527(c),
and his assessments of Dr. Dahdah's opinions were
supported by substantial evidence. Id., PAGEID
Objections, Plaintiff argues that ALJ Hockensmith erred in
three ways in his assessment of Dr. Dahdah's opinion.
First, he argues that ALJ Hockensmith failed to
account for Dr. Dahdah's status as a specialist in
cardiology, or for Dr. Dahdah's extensive treatment
history with Plaintiff. Doc. #13, PAGEID #1588.
Second, ALJ Hockensmith purportedly relied too much
"upon the presence or absence of a seizure disorder.
This was merely one of [ten] diagnoses listed by Dr.
Dahdah." Id. (citing Doc. #7-8, PAGEID #907).
Third. ALJ Hockensmith's mere statement that
restrictions opined by Dr. Dahdah were incompatible with
evidence of record, without more, is insufficient reasoning
to discount a treating source opinion. Id., PAGEID
#1588-89 (citing Friend v. Comm'rof Soc. Sec,
No. 09-3889, 375 Fed.Appx. 543, 551-552 (6th Cir. 2010)).
Plaintiff's arguments are unavailing. ALJ Hockensmith
referred to Dr. Dahdah as Plaintiff's treating
cardiologist, and his opinion shows that he considered Dr.
Dahdah's treatment of Plaintiff, and evaluated it against
other evidence of record. Doc. #9, PAGEID #1538-46. In so
doing, ALJ Hockensmith properly applied the treating
physician rule-lack of supportability and inconsistency with
other evidence of record are valid reasons to discount a
treating source opinion, regardless of specialty or treating
history. 20 C.F.R. § 404.1527(c)(2-4). Also,
Plaintiff's argument that ALJ Hockensmith
"over-relied" upon whether he has a seizure
disorder is belied by ALJ Hockensmith's decision, which
discussed many of the impairments opined by Dr. Dahdah. Doc.
#7-8, PAGEID #907; Doc. #9, PAGEID #1535-36. Finally, ALJ
Hockensmith went beyond a mere conclusory statement of
incompatibility with medical evidence of record, and stated
that the restrictions opined by Dr. Dahdah were inconsistent
with Plaintiff's own statements about the severity of his
impairments. Doc. #9, PAGEID #1544-45. In sum, ALJ
Hockensmith's evaluation and assignment of weight to Dr.
Dahdah's opinions was legally proper and supported by
Plaintiff argues that ALJ Hockensmith committed reversible
error by failing to build a logical bridge between his
assignment of "moderate weight" to portions of Dr.
Dahdah's October 2014 opinion and the residual functional
capacity ("RFC") he assigned to Plaintiff, in which
ALJ Hockensmith concluded that Plaintiff was capable of light
exertional work with numerous limitations. Doc, #13, PAGEID
#1589 (citing Hensley v. Astrue, 573 F.3d 263 (6th
Cir. 2009)); see also Doc. #7-8, PAGEID #905-07;
Doc. #9, PAGEID #1538 (RFC formulation and Dr. Dahdah's
October 2014 opinion). Yet, even if, as Plaintiff suggests,
Dr. Dahdah's opined limitations are incompatible with the
RFC determination, id., the RFC would still be
supported by substantial evidence. In determining
Plaintiff's RFC, ALJ Hockensmith relied not only upon the
October 2014 opinion of Dr. Dahdah, but also upon the
opinions of Diane Manos, M.D., and Steve McKee, M.D., the
Commissioner's record reviewing physicians, William O.
Smith, M.D., the Commissioner's examining physician, and
George O. Schulz, Ph.D., the Commissioner's examining
psychologist. Doc. #9, PAGEID #1540, 1542, 1544. ALJ
Hockensmith incorporated many of their opined limitations
into the RFC, or explained how certain symptoms opined by
those sources translated into limitations set forth in the
RFC. Id., PAGEID #1538. As Plaintiff's RFC
determination was legally sound and supported by substantial
evidence, it must be affirmed.
Finally, Plaintiff argues that ALJ Hockensmith's
classification of Plaintiff's carpal tunnel syndrome and
seizure disorder as non-severe impairments was not supported
by substantial evidence. Doc. #13, PAGEID #1590. As to his
carpal tunnel syndrome, Plaintiff concedes that ALJ
Hockensmith "included a limitation to frequent handling
and fingering to accommodate this condition!, ]"
id., and Plaintiff does not claim these additional
limitations were erroneous, much less that they prejudiced
him. Moreover, ALJ Hockensmith stated that "[t]he record
does not support a finding that" the seizure disorder
"cause[s] more than minimal work-related limitations
when considered singly or in combination with the
claimant's other impairments." Doc. #9, PAGEID
#1536. As discussed above, that statement was well-supported
by ALJ ...