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DeFrank v. Commissioner of Social Security

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

March 30, 2018

Troy Michael DeFrank, Plaintiff
v.
Commissioner of Social Security, Defendant.

          E. Preston Deavers, Magistrate Judge

          OPINION AND ORDER

          MICHAEL H. WATSON, UNITED STATES DISTRICT COURT JUDGE

         On August 3, 2017, Magistrate Judge Deavers, to whom this matter was referred, issued a Report and Recommendation ("R&R"), ECF No. 18, recommending that the Court overrule Plaintiffs Statement of Specific Errors, in which Plaintiff challenged the Commissioner of Social Security's ("Defendant's") decision to deny Plaintiffs application for disability insurance benefits and supplemental social security income. Plaintiff objects to that R&R. ECF No. 19. For the reasons that follow, the Court OVERRULES Plaintiffs objections, ECF No. 19, ADOPTS the R&R, ECF No. 18, and DISMISSES Plaintiffs Complaint.

         I. BACKGROUND

         In April 2012, Plaintiff applied for disability benefits and supplemental security income, alleging that he had become disabled on May 9, 2008. After that application was denied, initially and on reconsideration, an Administrative Law Judge ("ALJ") held a hearing on Plaintiffs application in September 2014. ECF No. 8-2, PAGEID ## 71-97. The ALJ subsequently issued a written determination denying Plaintiffs application on September 30, 2014. Id. at PAGEID ## 51-62. In that September 30, 2014, determination, the ALJ noted that Plaintiff had filed multiple prior applications for benefits, most recently in July 2010. Id. The July 2010 application had been denied on February 21, 2012. The ALJ found no reason to reopen Plaintiff's July 2010 application and considered it preclusive through February 21, 2012. Id. With respect to the unadjudicated period beginning February 22, 2012, the ALJ found that Plaintiff was not disabled within the meaning of the Social Security Act. Id. That determination became final when the Appeals Council denied review in March 2016. Id. at PAGEID ## 40-42. Plaintiff then sought judicial review pursuant to 42 U.S.C. § 405(g). The Magistrate Judge analyzed Plaintiffs Statement of Specific Errors and recommended that the Court overrule the same. Plaintiff objects to that recommendation.

         Neither party objects to the Magistrate Judge's summary of the facts as set forth in her R&R. R&R 1-6, ECF No. 18. The Court consequently adopts the fact summary and repeats only those facts relevant to the resolution of Plaintiffs objections.

         II. STANDARD OF REVIEW

         When a party objects to an R&R within the allotted time, 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).

         It is well settled that, when objecting to an R&R, a party must make "specific written objections" to the magistrate judge's proposed findings and recommendations. Fed R. Civ. P. 72(b)(3). A general statement that the magistrate judge erred does not aid judicial efficiency, the purpose "for which the use of magistrates [was] authorized." Howard v. Sec'y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991); see also Holl v. Potter, No. C-1-09-618, 2011 WL 4337038, at*1 (S.D. Ohio Sept. 15, 2011), affd, 506 Fed.Appx. 438 (2012) ("Objections that merely restate arguments raised in the memoranda considered by the Magistrate Judge are not proper, and the Court may consider such repetitive arguments waived.").

         Furthermore, in Social Security cases, the Court's review "is limited to determining whether the Commissioner's decision 'is supported by substantial evidence and was made pursuant to the 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)). In this context, "[substantial evidence is defined as 'more than a scintilla of evidence but less than a preponderance ....'" Rogers, 486 F.3d at 421 (quoting Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994)). Stated differently, "[substantial evidence exists when a 'reasonable mind might accept' the relevant evidence 'as adequate to support a conclusion."" Warner v. Comm'r of Soc. Sec, 375 F.3d 387, 390 (6th Cir. 2004) (quoting Kirk v. Sec'y of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1997)).

         III. ANALYSIS

         Plaintiff asserts that the Magistrate Judge incorrectly concluded that the ALJ sufficiently explained the weight that he assigned to an opinion from a nontreating examiner, Gabriel Sella, M.D. Specifically, Plaintiff asserts that the ALJ erred by failing to explain why he did not include in Plaintiffs RFC certain restrictions that were in Dr. Sella's opinion (i.e., that Plaintiff could walk only five to ten minutes at a time several times a day). The Court finds that this objection lacks merit.

         Pursuant to 20 C.F.R. §§ 404.1527(d) and 416.927(c), an ALJ must "evaluate every medical opinion" received in light of the nature of the examining relationship, the nature of the treatment relationship, supportability, consistency, specialization, and other factors. There is also a presumptive sliding scale of deference to be given to various types of opinions. An opinion from a treating physician is "accorded the most deference" because of the "ongoing treatment relationship" between the patient and the opining physician. Smith v. Comm'r of Soc. Sec, 482 F.3d 873, 875 (6th Cir. 2007) (internal quotation marks omitted). A nontreating examiner, who physically examines a patient "but does not have, or did not have an ongoing treatment relationship with" the patient, falls next along the continuum. Id. A nonexaminer, who provides an opinion based solely on review of the patient's existing medical records, is afforded the least deference. Id. Nevertheless, this hierarchy is not absolute. Any opinion, even that of a treating source, may be rejected by an ALJ if the source's opinion is not well supported by medical diagnostics or if it is inconsistent with the record. See 20 C.F.R. §§ 404.1527, 416.927; Eafy, 594 F.3d at 514. In addition, although an ALJ can reject a treating source's opinion, he must explain or give "good reasons" for doing so given that such an opinion presumptively carries controlling weight. See Smith, 482 F.3d at 876. On the other hand, there is no "good-reason" requirement for opinions from nontreating examiners and nonexaminers. Id.

         As the Magistrate Judge noted, the ALJ indicated that he "fully considered" Dr. Sella's August 2012 assessment, in which Dr. Sella found that Plaintiff was "capable of lifting/carrying moderate weight, sitting without restriction, and standing/walking five to ten minutes at one time several times a day." ECF No. 8-2, at PAGEID # 58. The ALJ also found that to the extent the opinions from Dr. Sella, another nontreating examiner, and two nonexaminers showed that Plaintiffs ability to work was not grossly restricted, and to the extent that each of these opinions was consistent ...


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