United States District Court, S.D. Ohio, Eastern Division
A. Sargus, Jr. Chief Judge
REPORT AND RECOMMENDATION
ELIZABETH A. PRESTON DEAVERS CHIEF UNITED STATES MAGISTRATE
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.
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.)
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,  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.)
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.
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.)
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
STANDARD OF REVIEW
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)).
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).
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.
Treatment of Plaintiff's Treating ...