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Knece v. Commissioner of Social Security

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

August 30, 2019

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

          Deavers Chief Magistrate Judge

          ORDER

          ALGENON L. MARBLEY UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on the Magistrate Judge's July 12, 2019, Report and Recommendation (ECF No. 28), which recommended that Plaintiff's Statement of Errors (ECF No. 25) be OVERRULED and that the Commissioner's decision be AFFIRMED. Plaintiff, Mark Knece III, filed his objection on July 6, 2018. (ECF No. 16). This Court hereby ADOPTS the Report and Recommendation in its entirety based on an independent consideration of the analysis therein.

         I. BACKGROUND

         Plaintiff, Mark R. Knece, II, filed an application for disability insurance benefits on March 11, 2011, alleging that he has been disabled since February 15, 2011. (R. at 779). Plaintiff's application was denied initially and upon reconsideration. Id. Plaintiff then requested a de novo hearing before an administrative law judge (“ALJ”). Id. Plaintiff, represented by counsel, appeared and testified before ALJ Paul E. Yerian at a hearing on June 18, 2012. (R. at 157, 169). ALJ Yerian found Plaintiff was not “disabled” within the meaning of the Social Security Act. (R. at 157-69). Plaintiff filed an action for review in federal court. Knece v. Comm'r Soc. Sec., No. 14-cv-353. On September 3, 2015, Magistrate Judge Deavers issued a report and recommendation recommending that this case be remanded to the ALJ to provide a more detailed explanation in weighing the opinion of Plaintiff's treating physician, Dr. Donald Fouts, D.O. (R. at 888-914; see also Knece v. Comm'r Soc. Sec., No. 14-cv-353, (ECF No. 20); (ECF No. 21) (adopting report and recommendation)).

         On remand, the ALJ held a hearing in November 2016, during which Plaintiff testified while represented by counsel. The ALJ issued a decision on January 24, 2017 finding that Plaintiff was not disabled within the meaning of the Social Security Act (R. at 776-800). In his revised decision denying Plaintiff benefits, the ALJ followed the required five-step sequential analysis for disability-benefits claims. Id. at 8; see C.F.R. § 416.920(a).[1] The Appeals Council denied Plaintiff's request for review and adopted ALJ Yerian's final decision. (R. at 769-75).

         Plaintiff then filed his Statement of Errors with this Court, alleging that the ALJ failed to properly consider and give adequate weight to the expert testimony of Dr. Fouts, because the ALJ focused on Dr. Fouts's normal exam findings, and not the abnormal findings. (ECF No. 25). On review, the Magistrate Judge issued a Report and Recommendation addressing Plaintiff's alleged errors and recommending that this Court overrule the Statement of Errors and affirm the ALJ's decision. (ECF No. 28).

         Plaintiff timely filed his Objection to the Report and Recommendation on July 26, 2019 and raised two objections. (ECF No. 29). First, Plaintiff argues that the Magistrate Judge did not address his argument that given the volume of records (documenting over 60 appointments with several providers over eight years), there would be some variance in what medical providers observed and that expecting “every provider, on every occasion, to note the same abnormal findings on exam seems an extremely high standard.” Id. at p. 3. Second, Plaintiff argues that there was more evidence of exam abnormalities than normal findings in the testimony of Dr. Fouts and that the ALJ should have been required to provide some explanation for why he ultimately found the normal findings more persuasive. Id.

         II. STANDARD OF REVIEW

         Upon objection to a magistrate judge's report and recommendation, this Court must “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see Fed. R. Civ. P. 72(b). This de novo review, in turn, requires the Court to “determine whether the record as a whole contains substantial evidence to support the ALJ's decision” and to “determine whether the ALJ applied the correct legal criteria.” Inman v. Astrue, 920 F.Supp.2d 861, 863 (S.D. Ohio 2013). Substantial evidence means relevant evidence that “a reasonable mind might accept as adequate to support a conclusion.” Ealy v. Comm'r of Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010) (quotation omitted). Substantial evidence constitutes “more than a mere scintilla, but only so much as would be required to prevent judgment as a matter of law against the Commissioner if this case were being tried to a jury.” Inman, 920 F.Supp.2d at 863 (citing Foster v. Bowen, 853 F.2d 483, 486 (6th Cir. 1988)).

         III. LAW AND ANALYSIS

         Plaintiff objects to the Magistrate Judge's finding that the ALJ properly evaluated the opinions of treating source Dr. Fouts. (ECF No. 29). A treating physician's opinion must be “well-supported by medically acceptable clinical and laboratory diagnostic techniques and…not inconsistent with the other substantial evidence in [the claimant's] case record” for the ALJ to give it controlling weight. See 20 C.F.R. § 4196.927(c)(2); Blakely v. Comm'r of Soc. Sec., 581 F.3d 399, 408 (6th Cir. 2009). If the ALJ does not give the treating physician's opinion controlling weight, then the ALJ determines the opinion's weight by evaluating “the length of the treatment relationship and the frequency of examination, the nature and extent of the treatment relationship, supportability of the opinion, consistency of the opinion with the record as a whole, and the specialization of the treating source.” Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). Also, the ALJ must provide good, specific reasoning for the weight that they give the treating doctor's opinion. See 20 C.F.R. § 416.927(c)(2); Friend v. Comm'r of Soc. Sec. 375 Fed.Appx. 543, 550 (6th Cir. 2010). An ALJ is required to give a good reason for according less than controlling weight to a plaintiff's treating physician but is not required to explicitly address each of the six factors outlined above. See Tilley v. Comm'r of Soc. Sec., 394 Fed.Appx. 216, 222 (6th Cir. 2010) (finding that ALJ had given a good reason for giving little weight to a treating physician's opinion, despite not addressing all six factors for weighing medical opinions and noting that addressing all six factors is not a requirement in the Sixth Circuit).

         Plaintiff's first objection to the Magistrate Judge's order states that the Magistrate Judge did not address his argument that the ALJ failed to consider the fact that were would be some variance between medical testimony given the volume of records, which documented over 60 appointments with several providers over eight years. (ECF No. 29 at p. 3). Second, Plaintiff argues the ALJ should have been required to provide some explanation for why he ultimately found the normal medical findings more persuasive than the abnormal medical findings. Id.

         Plaintiff's two objections are without merit because the Magistrate Judge specifically addressed both arguments in her opinion by noting that the ALJ “assessed the entire record as a whole and reasonably concluded that Dr. Fouts' opinion was inconsistent with it. He was entitled to do so.” (ECF No. 28 at p. 16). Magistrate Judge Deavers added that the ALJ “noted several instances of the medical record ...


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