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Pheneger v. Commissioner of Social Security

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

June 17, 2019

TODD PHENEGER, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION AND ORDER

          CHELSEY M. VASCURA UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, Todd Pheneger (“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 and Supplemental Security Income. This matter is before the Court on Plaintiff's Statement of Errors (ECF No. 17), the Commissioner's Response in Opposition (ECF No. 23), and the administrative record (ECF No. 10). For the reasons that follow, Plaintiff's Statement of Errors is OVERRULED, and the Commissioner's decision is AFFIRMED.

         I. BACKGROUND

         Plaintiff protectively filed his application for Disability Insurance Benefits and for Supplemental Security Income on February 23, 2015. In his application for Disability Insurance Benefits, Plaintiff alleged a disability onset of June 1, 2011. After his application was denied initially and upon reconsideration, Plaintiff timely requested a hearing before an administrative law judge. Administrative Law Judge Matthew Winfrey (“ALJ”) held a hearing on September 26, 2017, at which Plaintiff, represented by counsel, appeared and testified. Vocational Expert John Finch (the “VE”) and Medical Expert Dr. Jonathan Nusbaum, M.D. (the “ME”) also appeared and testified at the hearing. On February 26, 2018, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act prior to June 21, 2017, but that he became disabled as of June 21, 2017, through the date of the decision. (R. at 19-33.) The Appeals Council denied Plaintiff's request for review and adopted the ALJ's decision as the Commissioner's final decision. Plaintiff then timely commenced the instant action.

         In his Statement of Errors (ECF No. 17), Plaintiff challenges the ALJ's evaluation the opinions of the ME, Dr. Nusbaum, and examining physician Dr. Mark Weaver, M.D. With regards to the ALJ's consideration of Dr. Nusbaum, Plaintiff points out that the ALJ's discussion of Dr. Nusbaum's opinion erroneously concludes that Dr. Nusbaum found that the evidence did not support any manipulative limitations when, in fact, Dr. Nusbaum opined that Plaintiff could only occasionally reach above shoulder level with his left extremity. Plaintiff maintains that the ALJ compounded this error because although he accorded Dr. Nusbaum's opinions “significant weight, ” the ALJ neither included the limitation Dr. Nusbaum opined relating to the use of Plaintiff's upper extremity in the residual functional capacity (“RFC”) nor provided any explanation for his failure to do so. Plaintiff further argues that the ALJ failed to offer good reasons for his rejection of Dr. Nusbaum's opinion that Plaintiff could only stand or walk for one hour at a time. With regards to the ALJ's consideration of Dr. Weaver's opinions, Plaintiff asserts that “[i]t was error for the ALJ to reject Dr. Weaver's findings and opinions simply because they were not as specific as the ALJ would have preferred.” (Pl.'s Statement of Errors 21, ECF No. 17.) Plaintiff adds, “If Dr. Weaver's opinions were too vague either the State Agency . . . or the ALJ could have requested [Dr. Weaver] to clarify the extent of the limitations.” (Id.) According to Plaintiff, the ALJ should have included some manipulative limitations in Plaintiff's RFC to account for Dr. Weaver's opinion that Plaintiff would “probably be limited in . . . handling objects.” (Id. at 20 (quoting R. at 606).)

         In her Memorandum in Opposition, the Commissioner asserts that any error the ALJ committed in his consideration of Dr. Nusbaum's opinions is harmless because the VE testified that the addition of at-issue limitations would not erode the available jobs identified. She further asserts that the ALJ reasonably discounted Dr. Weaver's opinion and that substantial evidence supports the ALJ's RFC determination.

         II. THE ADMINISTRATIVE DECISION

         On February 21, 2018, the ALJ issued his decision. (R. at 19-33.) The ALJ first found that Plaintiff meets the insured status requirements through June 30, 2016. At step one of the sequential evaluation process, [1] the ALJ found that Plaintiff had not engaged in substantial gainful activity since June 1, 2011, the alleged onset date. The ALJ found that Plaintiff had the severe impairments of status post lumbar fusion, degenerative joint disease and posterior labrum tear of the left shoulder, status post skull fracture with subdural hematoma, seizures, encephalomalacia, status post right wrist surgery, bipolar disorder, intermittent explosive disorder, and neurocognitive disorder due to traumatic brain injury. (R. at 23.) He further found 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. (R. at 24-25.) At step four of the sequential process, the ALJ set forth Plaintiff's RFC as follows:

         After careful consideration of the entire record, the undersigned finds that since

June 1, 2011, the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except the claimant can stand and walk for up to four hours during a normal work day. He can occasionally balance, but can never climb ladders, ropes, or scaffolds, be exposed to workplaces hazards, such as unprotected heights or danger moving mechanical parts, and he can never operate a motor vehicle. The claimant can perform simple, routine, and repetitive tasks, but not at a production rate pace, such as no assembly line work, and with only occasional changes in the workplace. Additionally he can never interact with the public but he can occasionally interact with co-workers and supervisors, which would include being limited to jobs where the claimant's job responsibilities were performed without close teamwork, tandem work, or over-the-shoulder supervision.

(R. at 25.) In calculating Plaintiff's physical RFC, the ALJ relied upon the opinions of ME Dr. Nusbaum, according his opinion “significant weight” and concluding that his opinions were consistent with the overall records with the exception of Dr. Nusbaum's opinion that Plaintiff could only stand or walk for one hour at a time. (R. at 29-30.)

         The ALJ concluded that Plaintiff has been unable to perform any of his past relevant work. The ALJ explained that prior to the June 1, 2011 onset date, Plaintiff was a “younger individual, ” but that on June 21, 2017, his age category changed to “an individual close approaching advanced age.” (R. at 31.) Relying on the VE's testimony, the ALJ concluded that prior to June 21, 2017, Plaintiff could perform other jobs that exist in significant numbers in the economy. (R. at 31-32.) He therefore concluded that Plaintiff was not disabled under the Social Security Act for this time period. The ALJ further concluded that beginning on June 21, 2017, the day Plaintiff's age category changed, Plaintiff became disabled in accordance with Medical-Vocational Rule 201.14. (R. at 32.)

         III. 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) (“The 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 & Human 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)). 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 (6th Cir. 2009) (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.'” Rabbers, 582 ...


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