Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Knece v. Commissioner of Social Security

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

July 12, 2019

MARK R. KNECE, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Algenon L. Marbley Judge.

          REPORT AND RECOMMENDATION

          Elizabeth A. Preston Deavers Chief United States Magistrate Judge.

         Plaintiff, Mark R. Knece, brings this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying his applications for Social Security Disability Insurance Benefits and Supplemental Security Income. This matter is before the United States Magistrate Judge for a Report and Recommendation on Plaintiff's Statement of Errors (ECF No. 16), the Commissioner's Memorandum in Opposition (ECF No. 25), and the administrative record (ECF No. 9). Plaintiff did not file a Reply. 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 applications for benefits in March 2011, alleging that he has been disabled since February 15, 2011, due to back pain and depression. (R. at 779.) Plaintiff's applications were denied initially and upon reconsideration. Plaintiff sought a de novo hearing before an administrative law judge. Administrative Law Judge Paul E. Yerian (the “ALJ”) held a hearing on September 13, 2012. On October 26, 2012, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 89- 102.) Plaintiff timely filed an action in this Court for review. On September 3, 2015, this Court remanded the case and ordered a more detailed explanation in weighing the opinions of Plaintiff's treating physician, Donald Fouts, D.O. (R. at 888-914; see also Knece v. Comm'r Soc. Sec., No. 14-cv-353, Report and Recommendation (ECF No. 20); adopted and affirmed, Order (ECF No. 21.))

         On remand, the same ALJ held a hearing in November 2016 at which Plaintiff, who was represented by counsel, testified. A vocational expert, Richard Oestreich, (the “VE”) also testified. On January 24, 2017, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 776-800.) The Appeals Council denied Plaintiff's request for review and adopted the ALJ's decision as the Commissioner's final decision. (R. at 769-75.) Plaintiff then timely commenced this action.

         II. TREATING PHYSICIAN'S OPINIONS

         Plaintiff puts forth one assignment of error. Specifically, Plaintiff maintains that the ALJ, on remand with express instructions to provide a more detailed explanation in weighing the opinions of Plaintiff's treating physician, Dr. Fouts, again erred in assigning only “little weight” to his opinions.

         On April 18, 2011, Dr. Fouts reported that he had been treating Plaintiff since February 2007.[1] Dr. Fouts listed Plaintiff's diagnoses as back pain, lumbar spondylolisthesis, lumbar spondylosis, and depression. (R. at 755.) Dr. Fouts reported that Plaintiff's pain and depression continued despite treatment. (Id.) He further noted that Plaintiff has lower back paraspinal tenderness, increased pain with range of motion and flexion and extension; decreased range of motion; depressed mood; decreased interest; decreased hope; and poor outlook. (R. at 756.) Dr. Fouts noted that Plaintiff has trouble affording medication due to lack of insurance.

         On April 25, 2011, Dr. Fouts opined that due to pain and decreased range of motion, Plaintiff is severely limited in his ability to work and has a limited ability to perform activities such as sitting, driving, lifting, carrying, stooping, kneeling, bending, walking for extended periods, and standing for extended periods. Dr. Fouts further opined that Plaintiff's depression limits his ability to think clearly, concentrate, and interact with others. Dr. Fouts noted that Plaintiff's depression creates a decreased interest in personal hygiene. (R. at 507-508.) He opined that Plaintiff was unable to lift, carry, stoop, kneel, bend, walk for extended periods, or stand for extended period. (R. at 508.)

         The record contains Dr. Fouts' treatment notes from May 19, 2011 until February 6, 2012. Examinations during this time generally revealed intact gait, bilateral lower paraspinal muscle tenderness, reduced lumbar flexion, and reduced lumbar extension. (R. at 673, 677, 679, 682, 686-689, 700, 703, 708, 732.) Dr. Fouts noted that Plaintiff had decreased sensation in the right anterior lateral thigh to touch; deep tendon reflexes of 3マ bilaterally in the patella and 3マ bilaterally in the achilles; negative straight leg raise bilaterally; positive straight leg raise at 30 degrees on the right on two occasions; decreased range of motion; tender lateral left ankle and reduced left knee flexion; and joint line tenderness. Dr. Fouts also frequently noted that Plaintiff appeared depressed.

         On February 6, 2012, Dr. Fouts completed a Physical Capacity Evaluation on behalf of Plaintiff. He opined that Plaintiff could occasionally lift 5 pounds, and that he could not lift any weight frequently. Dr. Fouts found that Plaintiff could stand and walk less than 30 minutes in an 8-hour workday, and could sit less than 30 minutes in an 8-hour workday. Dr. Fouts noted that Plaintiff could sit 10 to 15 minutes before needing to stand, and could stand 10 to 15 minutes before needing to sit. Dr. Fouts also opined that Plaintiff must lie down 2-4 times in an 8-hour workday. Plaintiff could never twist, stoop, bend, crouch, or climb ladders, and could occasionally climb stairs. Plaintiff could never perform pushing or pulling, could occasionally perform reaching, and could frequently perform handling, fingering, and feeling. Dr. Fouts further opined that Plaintiff needed to avoid even moderate exposure to wetness because he is a fall risk. Dr. Fouts opined that Plaintiff must avoid all exposure to hazards. He also noted that Plaintiff's depression creates problems with his ability to respond appropriately to supervisors, co-workers, and to changes in a routine work setting. Dr. Fouts concluded that Plaintiff could work 0-3 days per week and less than 3 consecutive weeks per month. (R. at 711-13.)

         On February 8, 2012, Dr. Fouts prepared a narrative in which he reported that he treated Plaintiff on a regular basis for pain management both prior and following surgery.[2] He opined that Plaintiff is severely limited due to his pain and has been unable to work. He further opined that Plaintiff could not sit for more than 1 to 2 hours at a time. He also noted that Plaintiff has increased pain with activities that require standing for extended periods of time, including doing dishes, laundry, or mowing grass. Dr. Fouts also submitted that Plaintiff suffers from depression, with suicidal ideation. Dr. Fouts opined that Plaintiff likely will not obtain significant pain relief from additional surgical procedures. He concluded that Plaintiff is permanently and totally disabled due to chronic lower back pain and believes Plaintiff is going to require long term pain management in the future. (R. at 715-16.)

         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) (“[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)). 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.'” Rabbers, 582 F.3d at 651 (quoting Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007)).

         IV. ANALYSIS

         Plaintiff asks the Court to reverse the ALJ's nondisability finding because the ALJ again failed to appropriately weigh and analyze Dr. Fouts' opinions. The Undersigned disagrees.

         The ALJ must consider all medical opinions that he or she receives in evaluating a claimant's case. 20 C.F.R. § 416.927(c). The applicable regulations define medical opinions as “statements from physicians . . . that reflect judgments about the nature and severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can still do ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.