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Gamble v. Berryhill

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

February 28, 2018

CHAD A. GAMBLE, PLAINTIFF,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, DEFENDANT.

          MEMORANDUM OPINION

          HONORABLE SARA LIOI, UNITED STATES DISTRICT JUDGE

         Before the Court is the Report and Recommendation of Magistrate Judge Jonathan D. Greenberg (Doc. No. 19 [“R&R”]) with respect to the request of plaintiff Chad A. Gamble (“Gamble”) for judicial review of the Commissioner's denial of his applications for Period of Disability (“POD”) and Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 416(i) & 423, et seq. The R&R recommends that the Commissioner's final decision be affirmed. Plaintiff filed a single objection to the R&R (Doc. No. 20 [“Obj.”]) and the Commissioner filed a response (Doc. No. 21 [“Resp.”]). Upon de novo review and for the reasons set forth below, the Court hereby overrules Gamble's objection and accepts the R&R. The Commissioner's final decision is affirmed, and this case is dismissed and closed.

         I. PROCEDURAL BACKGROUND

         Gamble applied for POD and DIB in March 2013, claiming disability due to depression, diabetes, and cellulitis.[1] (Doc. No. 12, Transcript [“Tr.”] 269, 276.)[2] The applications were denied initially (id. 161-69) and upon reconsideration (id. 171-77), and Gamble requested a hearing before an administrative law judge (“ALJ”) (id. 178).

         On February 11, 2015, the ALJ conducted a hearing, where Gamble appeared and testified, represented by counsel. An impartial vocational expert (“VE”) also testified. (Id. 828-72.) A supplemental hearing was conducted on June 12, 2015, during which Gamble (represented by different counsel), an impartial VE, and a medical expert (“ME”) testified. (Id. 102-28.) On September 4, 2015, the ALJ issued a written decision, determining that Gamble was not disabled. (Id. 80-101.) On September 28, 2016, the Appeals Council declined further review, rendering the ALJ's decision final. (Id. 70-75.)

         On November 25, 2016, Gamble filed this lawsuit. In his brief on the merits, Gamble assigned two errors:

(1) The ALJ's decision should be reversed because the ALJ failed to consider all of the opinion evidence.
(2) The ALJ's decision should be reversed because he improperly characterized Mr. Gamble's anxiety as not a medically determinable impairment.

(R&R at 945, citing Doc. No. 14.)

         Although the R&R concluded that there was no error in either respect, Gamble now challenges only the conclusion as to the first issue. He has not challenged the outcome with respect to the second assignment of error and, therefore, has waived review of that issue.

         II. STANDARD OF REVIEW

         This Court's review of the Magistrate Judge's R&R is governed by 28 U.S.C. § 636(b), which requires a de novo decision as to those portions of the R&R to which objection is made. Judicial review is limited to a determination of whether the ALJ applied the correct legal standards and whether there is “substantial evidence” in the record as a whole to support the decision. 42 U.S.C. § 405(g); Longworth v. Comm'r of Soc. Sec. Admin., 402 F.3d 591, 595 (6th Cir. 2005). Substantial evidence is more than a scintilla but less than a preponderance. Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (citation omitted). It is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 475 (6th Cir. 2003) (quotation marks and citation omitted). If there is substantial evidence to support the defendant's decision, it must be affirmed even if the reviewing court might have resolved any issues of fact differently and even if the record could also support a decision in plaintiff's favor. Crisp v. Sec'y of Health & Human Servs., 790 F.2d 450, 453 n.4 (6th Cir. 1986).

         III. DISCUSSION

         Gamble's original brief on the merits argued for remand because “the ALJ failed to mention, consider, or even acknowledge” one of the three medical opinions of his treating psychiatrist, Dr. Roy Vellanki, regarding Gamble's mental functioning. ...


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