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DeMarco v. Commissioner of Social Security

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

July 30, 2018





         Plaintiff Thomas E. DeMarco (“DeMarco”) appeals the Acting Commissioner of Social Security's (“Commissioner”) final decision denying his application for disability insurance benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 416(I), 423, et seq. (“Act”). (Compl., ECF No. 1.) On June 21, 2018, Magistrate Judge David A. Ruiz (“Magistrate Judge”) submitted a report and recommendation (“R & R”), pursuant to Local Rule 72.2(b), recommending that the Commissioner's final decision be remanded to correct error committed by the Administrative Law Judge (“ALJ”) at step four of the Act's five-step sequential analysis outlined in 20 C.F.R. § 404.1520. (See R & R 11-15, 24, ECF No. 19.) For the reasons stated herein, the court overrules the R & R to the extent that it recommends remand on that issue alone. Accordingly, the Commissioner's final decision is affirmed.

         II. BACKGROUND[1]

         In his Brief on the Merits, DeMarco asserted the following errors in the ALJ's findings:

(1) the ALJ erred at step two by not finding that his psychological impairments of Bi-Polar I and/or Mood Disorder are severe impairments;
(2) the ALJ erred at step four by not finding his past relevant work to be a “composite job”; and
(3) the ALJ's failed to consider that, given DeMarco is in the age 60 category, in order to find that he is not disabled at step five, there must be a transferability of skills to the same or similar industry with little or no work adjustment.

(See DeMarco's Merit Br. 1, ECF No. 13; see also R & R 10; Tr. Proceedings 32, 34, 39, ECF No. 11.)

         In response, the Commissioner argued that substantial evidence supported the ALJ's findings because: (1) DeMarco's psychological impairments are not severe given his “generally normal findings on mental status examinations, his wide range of activities, and the opinion of three state agency medical consultants”; (2) the vocational expert's (“VE”) testimony at the hearing prior to the ALJ's decision supported the finding that DeMarco could return to his past work as a Vice President of Regional Sales; and (3) the ALJ's found in the alternative that DeMarco had transferable skills from his past work which, with little vocational adjustment, he could use to perform other jobs that exist in significant numbers in the national economy. (See Comm'r's Merit Br. 2, ECF No. 15.)

         On June 21, 2018, the Magistrate Judge submitted the R & R, recommending that the Commissioner's final decision be remanded for further consideration solely on the issue raised in DeMarco's assignment of error at step four because the ALJ's “decision fails to articulate why DeMarco's past work was not a composite job, as the VE's testimony indicates.” (See R & R 24.) Thus, the Magistrate Judge concludes that, although the ALJ made an alternative finding at step five based on transferability of skills, “it would be reversible error for the ALJ to find that DeMarco could perform his past relevant work upon concluding he could perform only one part of the composite job.” (See Id. at 15.)

         The Magistrate Judge went on to find that DeMarco's remaining two assignments of error are without merit because the ALJ's findings are supported by substantial evidence. (R & R 18, 23.) First, with respect to transferability of skills at step five, the Magistrate Judge explained that the ALJ properly relied on the VE's hearing testimony indicating that DeMarco's possesses “‘highly marketable skills' that could be used in the food industry with little vocational adjustment.” (Id. at 17.) The Magistrate Judge also noted that DeMarco's reliance on contrary opinions provided by a vocational expert in post-hearing evidence is not properly considered by this court regarding whether the ALJ's decision prior to the availability of that evidence was supported by substantial evidence. (Id.)

         Second, the Magistrate Judge determined that the ALJ's decision to afford “no controlling weight, but rather little weight” to the opinions of DeMarco's treating psychiatrist Dr. Roerich at step two was appropriate where his opinions “were inconsistent with other evidence in the record, which indicated claimant has ‘perfect cognition.'” (See Id. at 22.) Moreover, the Magistrate Judge determined that the ALJ properly relied on the opinions of the state agency reviewing psychologists because, although additional medical evidence from Dr. Roerich became available after their opinions, “it is clear that the ALJ reviewed [that evidence]…before giving weight to the opinions of the non-examining sources.” (See Id. at 22-23.) On this basis, the Magistrate Judge concluded that the ALJ's findings that DeMarco's psychological impairments of bipolar disorder and mood disorder were not severe is supported by substantial evidence, even if other evidence in the record could support the opposite conclusion. (See Id. at 23.)

         On July 3, 3018, the Commissioner filed an Objection (“Commissioner's Objection”) to the R & R. (Comm'r's Obj., ECF No. 20.) In it, the Commissioner argues that this court should uphold the ALJ's finding at step five regarding transferability of work alone, because, given the ALJ's alternative finding, ...

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