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Hess v. Commissioner of Social Security

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

August 3, 2018

BILLY HESS, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Edmund A. Sargus, Jr. Chief Judge

          REPORT AND RECOMMENDATION

          ELIZABETH A. PRESTON DEAVERS CHIEF UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Billy Hess (“Plaintiff”), brings this action under 42 U.S.C. § 405(g) for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying his application for social security disability insurance benefits. This matter is before the United States Magistrate Judge for a Report and Recommendation on Plaintiff's Statement of Errors (ECF No. 9), the Commissioner's Memorandum in Opposition (ECF No. 11), Plaintiff's Reply (ECF No. 12), and the administrative record (ECF No. 8). For the reasons that follow, it is RECOMMENDED that the Court OVERRULE Plaintiff's Statement of Errors and AFFIRM the Commissioner's decision.

         I. BACKGROUND

         Plaintiff protectively filed his application for Title II Social Security Benefits on September 5, 2013, alleging that he has been disabled since March 23, 2012. On February 17, 2016, following initial administrative denials of Plaintiff's applications, a hearing was held before Administrative Law Judge Thomas Wang (the “ALJ”). (R. at 58-96.) At the hearing, Plaintiff, represented by counsel, appeared and testified. (Id. at 62-89.) Vocational Expert John R. Finch, Ph.D. (the “VE”), also testified at the administrative hearing. (Id. at 89-94.)

         On February 25, 2016, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act. (Id. at 41-57.) The ALJ noted that Plaintiff met the insured status requirements through December 31, 2012. (Id. at 46.) At step one of the sequential evaluation process, [1] the ALJ found that Plaintiff had not engaged in substantially gainful activity since March 23, 2012, the alleged onset date, though his date last insured of December 31, 2012. (Id.) The ALJ found that Plaintiff has the severe impairments of degenerative disc disease of the lumbar spine, status-post laminectomy and fusion; history of chronic obstructive pulmonary disease (COPD); and obesity. (Id.) The ALJ also noted that Plaintiff has bilateral renal cysts and constipation, which he found to be nonsevere impairments. (Id. at 47.) The ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id.) After step three of the sequential process, the ALJ set forth Plaintiff's residual functional capacity (“RFC”) as follows:

After careful consideration of the entire record, the [ALJ] finds that the [Plaintiff] has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except [Plaintiff's] ability to push and pull is limited as per the exertional weight limits; never climb ladders, ropes, or scaffolds; occasionally climb ramps and stairs, stoop, and crouch; frequently crawl; occasional exposure to extreme cold; and can have occasional exposure to irritants such as fumes, odors, dust, and gases.

(Id. at 47-48.)

         In determining Plaintiff's RFC, the ALJ assigned the opinion of Arsal Ahmad, D.O., Plaintiff's treating physician “little weight” “because it is inconsistent with the medical evidence of record and it was rendered more than two years after [Plaintiff's] date last insured and does not indicate what period it is applicable to.” (R. at 50.)

         Relying on the VE's testimony, the ALJ concluded that Plaintiff was not capable of performing his past relevant work. The ALJ also recognized that Plaintiff was a younger individual at 45 years old at the time of the hearing with a high school education. The ALJ ultimately determined that, considering his age, education, work experience and his RFC, Plaintiff was capable of performing other work that exists in significant numbers in the national economy. (Id. at 51.) He therefore concluded that Plaintiff was not disabled under the Social Security Act. (Id. at 52.)

         The Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. Plaintiff timely filed this action for judicial review.

         II. STANDARD OF REVIEW

         When reviewing a case under the Social Security Act, the Court “must affirm the Commissioner's decision if it ‘is supported by substantial evidence and was made pursuant to proper legal standards.'” Rabbers v. Comm'r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009) (quoting Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. § 405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial evidence is defined as ‘more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Rogers, 486 F.3d at 241 (quoting Cutlip v. Sec'y of Health & Hum. Servs., 25 F.3d 284, 286 (6th Cir. 1994)).

         Although the substantial evidence standard is deferential, it is not trivial. The Court must “‘take into account whatever in the record fairly detracts from [the] weight'” of the Commissioner's decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)), cert. denied sub. nom. Paper, Allied-Indus., Chem.& Energy Workers Int'l Union v. TNS, Inc. 537 U.S. 1106 (2003). Nevertheless, “if substantial evidence supports the ALJ's decision, this Court defers to that finding ‘even if there is substantial evidence in the record that would have supported an opposite conclusion.'” Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)). Finally, even if the ALJ's decision meets the substantial evidence standard, “a decision of the Commissioner will not be upheld where the SSA fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right.” Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007).

         III. ANALYSIS

         In his Statement of Errors, Plaintiff raises three contentions of error. In his first contention of error, Plaintiff contends that the ALJ failed to properly evaluate the opinion of Dr. Ahman, his treating physician. In his second contention of error, he challenges the ALJ's assessment of his credibility. In his final contention of error, Plaintiff maintains that, although the ALJ found that Plaintiff did not engage in substantial gainful employment during the relevant period, the ALJ erroneously alluded to that the activity as an indication that he was capable of performing work on a sustained basis. The Undersigned addresses each of these contentions of error in turn.

         A. Treatment of Plaintiff's Treating ...


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