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Mendolera v. Commissioner of Social Security

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

January 6, 2020

CHARLES ANTHONY MENDOLERA, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.

          MEMORANDUM OPINION AND ORDER

          HONORABLE SARA LIOI UNITED STATES DISTRICT JUDGE.

         Plaintiff Charles Anthony Mendolera (“Mendolera”) appeals from the decision of the Commissioner of Social Security (“Commissioner”), denying his application for a Period of Disability (“POD”), Disability Insurance Benefits (“DIB”), and Supplemental Security Income (“SSI”). The matter was referred to Magistrate Judge Jonathan D. Greenberg for the preparation of a Report and Recommendation (“R&R”). The Magistrate Judge's R&R recommends that the Court affirm the Commissioner's decision. (Doc. No. 19.) Mendolera has filed objections to the R&R (Doc. No. 20 [“Obj.”]). Defendant Commissioner of Social Security (“Commissioner”) filed a response, indicating that he was resting on his merits brief. (Doc. No. 21 [“Opp'n”].) Upon de novo review and for the reasons set forth below, the Court overrules the objections, accepts the R&R, and dismisses the case.

         I. Standard of Review

         This Court's review of the R&R is governed by 28 U.S.C. § 636(b), which requires de novo review as to those portions of the document to which objection is made. “An ‘objection' that does nothing more than state a disagreement with a magistrate's suggested resolution, or simply summarizes what has been presented before, is not an ‘objection' as that term is used in this context.” Aldrich v. Bock, 327 F.Supp.2d 743, 747 (E.D. Mich. 2004).

         Judicial review of an administrative decision under the Social Security Act is limited to a determination of whether the administrative law judge (“ALJ”) applied the correct legal standards and whether there is “substantial evidence” in the record as a whole to support the decision. 42 U.S.C. § 405(g); Kyle v. Comm'r of Soc. Sec., 609 F.3d 847, 854 (6th Cir. 2010). “Substantial evidence is less than a preponderance but more than a scintilla; it refers to relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” Gentry v. Comm'r of Soc. Sec., 741 F.3d 708, 722 (6th Cir. 2014).

         A reviewing court is not permitted to resolve conflicts in evidence or to decide questions of credibility. DeLong v. Comm'r of Soc. Sec. Admin., 748 F.3d 723, 726 (6th Cir. 2014); Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007). Nor need the reviewing court necessarily agree with the Commissioner's determination in order to affirm it. “Even if [the] Court might have reached a contrary conclusion of fact, the Commissioner's decision must be affirmed so long as it is supported by substantial evidence.” Kyle, 609 F.3d at 854-55. This is true even if substantial evidence also supports the claimant's position. See McClanahan v. Comm'r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006) (quotation marks and citation omitted).

         Even when there is substantial evidence, however, “‘a decision of the Commissioner will not be upheld where the [Social Security Administration] 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 v. Comm'r Soc. Sec. Admin., 582 F.3d 647, 651 (6th Cir. 2009) (quoting Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007)). Likewise, a court “cannot uphold an ALJ's decision, even if there ‘is enough evidence in the record to support the decision, [where] the reasons given by the trier of fact do not build an accurate and logical bridge between the evidence and the result.'” Fleischer v. Astrue, 774 F.Supp.2d 875, 877 (N.D. Ohio 2011) (quoting Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996); and citing Wilson v. Comm'r of Soc. Sec., 378 F.3d 544-46 (6th Cir. 2004) (finding it was not harmless error for the ALJ to fail to make sufficiently clear why he rejected the treating physician's opinion, even if substantial evidence not mentioned by the ALJ may have existed to support the ultimate decision to reject the treating physician's opinion)).

         II. The ALJ's Decision and the R&R

         The R&R recommends that the April 11, 2018 decision of the ALJ, which became the final decision of the Commissioner following administrative review, be affirmed. In advancing the recommendation, the Magistrate Judge rejected Mendolera's arguments that: (1) the ALJ erred in failing to find that Mendolera's affective disorder and anxiety disorder were severe impairments; and (2) the residual functional capacity (“RFC”) does not appropriately accommodate all of Mendolera's limitations and is not supported by substantial evidence. With respect to the former argument, the Magistrate Judge observed that the ALJ followed the appropriate regulatory framework in evaluating Mendolera's mental impairments, and determined that, in any event, any error in finding the mental impairments to be non-severe was harmless because the ALJ “considered Mendolera's severe and non-severe impairments in her RFC analysis.” (R&R at 1341-42[1].)

         In her decision, the ALJ followed the familiar five-step sequential evaluation process for determining whether an individual is disabled. At step two, the ALJ determined that Mendolera had the following “severe combination of impairments: degenerative disc disease (lumbar and cervical), cervical post-laminectomy syndrome, diabetes, neuropathy, arthritis, and myoclonus dystonia.” (Doc. No. 12 [“ALJ Decision”] at 83.) The ALJ also found Mendolera had “nonsevere impairments of affective disorder, anxiety disorder, and substance addiction disorder.” (Id. at 84.) The ALJ continued through the sequential steps, reviewing the medical evidence in the record, before finding that Mendolera retained the RFC to perform sedentary work as defined in 20 CFR § 404.1567(a) and § 416.967(a), except that Mendolera could never climb ladders, ropes, and scaffolds, and was further restricted to only occasional crawling and reaching overhead bilaterally. He was further limited by his need to avoid concentrated exposure to extreme cold, vibration, unprotected heights, and operating heavy/moving machinery. (Id. at 85.) Considering these limitations, the ALJ found that Mendolera was capable of performing past relevant work as a mortgage loan originator and was therefore not disabled as defined by the Social Security Act. (Id. at 92.)

         III. Discussion

         Objection 1: The failure of the ALJ to find a severe mental impairment was not harmless error.

         In his first objection, Mendolera argues that, based on the record evidence, the ALJ erred in finding that his affective disorder and anxiety disorder were nonsevere impairments, and that this error could not have been harmless. In advancing this argument, he notes that he was diagnosed by Dr. Vincent Dalessandro as suffering from generalized anxiety disorder and major depressive disorder, and vaguely suggests that the ALJ failed to follow agency rules and regulations. (Obj. at 1350-51.) But a review of the ALJ's decision reflects that the ALJ followed the regulatory framework for evaluating the nature and severity of mental impairments. “When there is evidence of a mental impairment documented by ‘medically acceptable clinical and laboratory diagnostic techniques,' 20 C.F.R. § 404.1508, the regulations require the ALJ to follow a ‘special technique' to assess the severity of the impairment, 20 C.F.R. § 404.1520a.” Brooks v. Comm'r of Soc. Sec, 531 Fed.Appx. 636, 641 (6th Cir. 2013). Here, the ALJ followed the special technique dictated by § 404.1520a by considering the four functional areas-understanding, interacting, concentrating, and adapting or managing-applying the record evidence to each area. (ALJ Decision at 84-85.)

         Of course, even if the ALJ had erred in failing to find Mendolera's mental impairments to be non-severe, the error would have been harmless. “An ALJ's failure to find a severe impairment where one exists may not constitute reversible error where the ALJ determines that a claimant has at least one other severe impairment and continues with the remaining steps of the disability evaluation.” Winn v. Comm'r of Soc. Sec,615 Fed.Appx. 315, 326 (6th Cir. 2015) (citing Maziarz v. Sec 'y of Health & Human Servs.,837 F.2d 240, 244 (6th Cir. 1987)); see Nejat v. Comm'r of Soc Sec,359 Fed.Appx. 574, 577 (6th Cir. 2009) (holding that “when an ALJ considers all of a claimant's impairments in the remaining steps of the disability determination, an ALJ's failure to find additional severe impairments at step two does ‘not constitute reversible error'”) (quoting Maziarz, 837 F.2d at 244). In his objections, Mendolera argues, for the first time, that the ALJ failed to consider his non-severe mental impairments in determining his RFC. (Obj. at 1351.) In fact, the Magistrate Judge noted in his R&R that Mendolera did not dispute this point in his merits brief. (R&R at 1341.) This new argument is not properly advanced for the first time in objections to the R&R. See Murr v. United States,200 F.3d 895, 902 n.1 (6th Cir. 2000) (observing that, “while the Magistrate Judge Act, 28 U.S.C. § 631 et seq., permits de novo review by the district court if timely objections are filed, absent compelling reasons, it does not allow parties to raise at the district court stage new ...


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