MCCORKHILL v. COLVIN

Filing 40

ENTRY ADOPTING REPORT AND RECOMMENDATIONS - the Court finds that there is no error in the Magistrate Judge's Report and Recommendation and therefore OVERRULES Ms. McCorkhill's objections. (Filing No. 38 ). The Court hereby ADOPTS the Magistrate Judge's Report and Recommendation affirming the Commissioner's decision (Filing No. 37 ). Signed by Judge Tanya Walton Pratt on 9/29/2014.(TRG)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
REBECCA S. MCCORKHILL,
Plaintiff,
v.
CAROLYN W. COLVIN Acting
Commissioner of the Social Security
Administration,
Defendant.

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Case No. 1:13-cv-00656-TWP-MJD

ENTRY ADOPTING THE MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION
This matter is before the Court on Plaintiff, Rebecca S. McCorkhill’s (“Ms. McCorkhill”),
appeal of the Administrative Law Judge’s decision denying her application for Disability
Insurance Benefits (“DIB”). Pursuant to 28 U.S.C. § 636, the Court referred the matter to the
Magistrate Judge (Filing No. 28), who submitted his Report and Recommendation on May 22,
2014, recommending that the decision of the Commissioner be affirmed (Filing No. 37). Ms.
McCorkhill timely filed objections to the Magistrate Judge’s Report and Recommendation (Filing
No. 38). For the reasons set forth below, the Court OVERRULES Ms. McCorkhill’s objections,
and ADOPTS the Magistrate Judge’s Report and Recommendation.
I.

BACKGROUND

The relevant facts of this appeal are set forth in detail in the Magistrate Judge’s Report and
Recommendation. Ms. McCorkhill suffers from several severe and non-severe impairments,
including degenerative disc disease of the cervical and lumbar spine, and depression/bereavement.
She filed an application for DIB on August 31, 2009, alleging a disability onset date of July 21,
2009. Her claim was denied initially and upon reconsideration. Administrative Law Judge James

Norris (“the ALJ”) held hearings on June 24, 2011, November 10, 2011, and January 23, 2012.
The ALJ denied Ms. McCorkhill’s claim on January 30, 2012, and the Appeals Council denied her
request for review on February 21, 2013.
II.

LEGAL STANDARD

When a party raises specific objections to elements of a magistrate judge’s report and
recommendation, the district court reviews those elements de novo, determining for itself whether
the magistrate judge’s decision as to those issues is supported by substantial evidence or was the
result of an error of law. Fed. R. Civ. Proc. 72(b). The district court “‘makes the ultimate decision
to adopt, reject, or modify’ the report and recommendation, and it need not accept any portion as
binding;” the court may, however, defer to and adopt those conclusions where a party did not
timely object. Sweet v. Colvin, No. 1:12–cv–00439–SEB–TAB, 2013 WL 5487358, *1 (S.D. Ind.
Sept. 30, 2013) (quoting Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 759–761 (7th Cir.
2009)).
III. DISCUSSION
Ms. McCorkhill raises five objections to the Magistrate Judge’s Report and
Recommendation. She alleges that Magistrate Judge Dinsmore erred: 1) in affirming the ALJ’s
finding that she was not disabled due to chronic neck and low back pain, based upon allegations
that the ALJ ignored testimony by Karl Manders, M.D. (“Dr. Manders”); 2) in his discussion of
Richard Hutson’s, M.D. (“Dr. Hutson”) testimony regarding Ms. McCorkhill’s pain; 3) regarding
the ALJ’s consideration of Schvon Cummings’, M.D. (“Dr. Cummings”) evaluation; 4) regarding
the ALJ’s credibility determination; and 5) regarding the ALJ’s step 4 determination. The Court
finds no reversible error on the basis of each of these objections and will address each in turn.

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A.

Dr. Manders’ Opinion Testimony
Ms. McCorkhill argues the ALJ erred by ignoring Dr. Manders’ testimony in his opinion,

and that the Magistrate Judge’s review of Dr. Manders’ testimony was improper post hoc
rationalization. The Report and Recommendation explains that Dr. Manders stated at the first
hearing that he was not a psychologist and could not testify as to Ms. McCorkhill’s psychological
impairments that may be contributing to her claims of chronic pain. Filing No. 37, at ECF p. 7.
This is consistent with the ALJ’s opinion, stating that the hearing at which Dr. Manders testified—
the June 24, 2011 hearing—was continued because it was “apparent the proper medical experts
had not been convened.” Filing No. 15-2, at ECF p. 18. This is also consistent with Ms.
McCorkhill’s own assessment of the ALJ’s opinion in her brief, which stated “[t]he ALJ’s only
explanation was that he believed that Dr. Manders was not a proper medical expert.” Filing No.
25, at ECF p. 12. Thus, the ALJ’s opinion does provide support for his failure to consider Dr.
Manders’ testimony, specifically that the ALJ considered that Dr. Manders was not a proper
medical expert—and the Magistrate Judge’s Report and Recommendation on this issue is not
erroneous.
B.

Dr. Hutson’s Testimony
Next, Ms. McCorkhill argues that the Magistrate Judge’s review erroneously concluded

that Dr. Hutson did not testify regarding her pain, and that the ALJ erroneously ignored Dr.
Hutson’s testimony. However, the Court finds that both the Magistrate Judge and the ALJ properly
addressed and characterized Dr. Hutson’s opinion testimony. The Magistrate Judge addressed the
fact that Dr. Hutson did not testify about how Ms. McCorkhill’s psychological impairments had
an impact on her subjective complaints of pain, not that he did not testify regarding her pain from
other causes. Filing No. 37, at ECF p. 8. In addition, the ALJ properly addressed Dr. Hutson’s

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opinion regarding Ms. McCorkhill’s degenerative disc disease, and she ignores that the ALJ
adopted Dr. Hutson’s opinion with regard to her physical limitations in the ALJ’s residual
functioning capacity assessment. Filing No. 15-2, at ECF p. 26. Ms. McCorkhill does not identify
any aspects of Dr. Hutson’s opinion that would support a finding of disability and which the ALJ
failed to consider. The Court finds that neither the Magistrate Judge nor the ALJ committed error
with respect to Dr. Hutson’s opinion testimony.
C.

Dr. Cummings’ Opinion Testimony
Ms. McCorkhill also argues that the Magistrate Judge erroneously determined that the ALJ

properly explained his rejection of Dr. Cummings’ evaluation. However, the ALJ adequately
addressed the reasons why he gave little or no weight to Dr. Cummings’ opinion, stating that the
proposed limitations “are inconsistent with his own findings upon examination” and were “not
supported by the objective or clinical findings documented in the claimant’s medical evidence of
record.” Filing No. 15-2, at ECF p. 27. The ALJ also noted that Dr. Cummings is a pediatric
psychiatrist, and therefore his opinion was outside his area of expertise. Id. The Magistrate Judge
likewise found the ALJ properly articulated that Dr. Cummings’ opinions were inconsistent with
his own medical findings. Filing No. 37, at ECF p. 9. There is no requirement that the ALJ point
to specific findings in the record that are inconsistent with a medical expert’s opinion, as the ALJ
needs only to minimally articulate the basis for his conclusions. Skarbek v. Barnhart, 390 F.3d
500, 503 (7th Cir. 2004) (“An ALJ may discount a treating physician’s medical opinion . . . when
the treating physician’s opinion is internally inconsistent.”). The Court finds that neither the
Magistrate Judge nor the ALJ erred in the assessment of Dr. Cummings’ opinion.

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D.

Credibility Determination
Additionally, Ms. McCorkhill argues that the Magistrate Judge erred when he accepted the

ALJ’s credibility determination because the Magistrate Judge overlooked that the ALJ ignored or
misinterpreted evidence supporting her total disability. Ms. McCorkhill argues that the ALJ
ignored evidence from Dr. Manders, Dr. Kobza, and Dr. Cummings that allegedly support a
finding of disability. As previously discussed, the ALJ properly addressed why the opinions of
Dr. Manders and Dr. Cummings were disregarded, and the ALJ’s opinion does extensively address
the findings of Dr. Kobza, concluding that Dr. Kobza was unable to pin-point the origins of Ms.
McCorkhill’s allegations of pain. Filing No. 15-2, at ECF pp. 26-27. The ALJ found that there
was insufficient objective medical evidence to support Ms. McCorkhill’s subjective complaints of
pain and her alleged limitations. Filing No. 15-2, at ECF p. 24. Ms. McCorkhill is essentially
asking this Court to reweigh the evidence to reach a different conclusion from that of the ALJ,
which is not the proper legal standard on appeal. Overman v. Astrue, 546 F.3d 456, 462 (7th Cir.
2008). The Court finds that there was no error in the Magistrate Judge’s conclusions regarding
the ALJ’s credibility determination.
E.

Step 4 Determination
Finally, Ms. McCorkhill argues that the Magistrate Judge erroneously determined that the

ALJ adequately explained his rejection of Dr. Cummings’ evaluation, and that the ALJ’s step 4
determination is contrary to Social Security Ruling 82-62.

As previously discussed, the

Magistrate Judge properly found that the ALJ adequately articulated his reasons for rejecting Dr.
Cummings’ evaluation.

Further, Ms. McCorkhill does not explain how the ALJ’s step 4

determination is contrary to SSR 82-62 and asserts this in only a conclusory statement; thus, this
argument is waived.

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IV. CONCLUSION
For the reasons set forth above, the Court finds that there is no error in the Magistrate
Judge’s Report and Recommendation and therefore OVERRULES Ms. McCorkhill’s objections.
(Filing No. 38). The Court hereby ADOPTS the Magistrate Judge’s Report and Recommendation
affirming the Commissioner’s decision (Filing No. 37).

SO ORDERED.

Date: 9/29/2014

DISTRIBUTION:
Patrick Harold Mulvany
[e-mail]
Thomas E. Kieper
UNITED STATES ATTORNEY'S OFFICE
[e-mail]

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