Coppage v. Commissioner of Social Security

Filing 28

MEMORANDUM OPINION AND ORDER by Judge Greg N. Stivers on 1/5/2018. Plaintiff's Objection to the Magistrate Judge's Findings of Fact, Conclusions of Law, and Recommendation (DN 26 ) is OVERRULED. Magistrate Judge Brennenstuhl's Findings of Fact, Conclusions of Law, and Recommendation (DN 23 ) are ADOPTED. Plaintiff's Motion for Summary Judgment (DN 17 ) is DENIED AS MOOT. Plaintiff's Complaint (DN 1 ) is DISMISSED WITH PREJUDICE. cc: Counsel (CDR)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:16-CV-00144-GNS-HBB

TODD ANTHONY COPPAGE

PLAINTIFF

v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security

DEFENDANT

MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiff’s Objection to the Magistrate Judge’s Report
and Recommendation (DN 26).

For the reasons stated below, Plaintiff’s Objection is

OVERRULED, the Magistrate Judge’s Findings of Fact, Conclusions of Law, and
Recommendation (“R. & R.”) (DN 23) is ADOPTED, Plaintiff’s Motion for Summary
Judgment (DN 17) is DENIED AS MOOT, and Plaintiff’s Complaint (DN 1) is DISMISSED
WITH PREJUDICE.
I.
A.

BACKGROUND

Disability

In April 2014, Plaintiff Todd Anthony Coppage (“Plaintiff”) applied for disability
insurance benefits and supplemental security income alleging he had become disabled on March
27, 2014, as a result of diabetes, heart disease, and left-eye blindness. (Administrative R. 185,
190, 213, DN 12-1 to DN 12-11 [hereinafter R.]). On May 14, 2014, the Social Security
Administration (“SSA”) notified Plaintiff that his benefits claims had been denied. (R. at 11922). Plaintiff requested reconsideration via case review on July 14, 2014. (R. at 126). On
October 14, 2014, the SSA notified Plaintiff that an independent review by a physician and

disability examiner in the state agency had found the previous denial of benefits to be proper.
(R. at 127-33). Plaintiff requested a hearing before an Administrative Law Judge on November
19, 2014. (R. at 141-42). On January 7, 2016, Plaintiff participated in a video hearing before
Administrative Law Judge Bonnie Kittinger (“ALJ”). (R. at 1-36). The ALJ denied the claim,
reasoning that Plaintiff had not been under a disability from March 27, 2014, through February
11, 2016, the date of the decision. (R. at 46-65).
B.

ALJ’s Decision

In reaching her decision, the ALJ evaluated Plaintiff’s application under the five-step
sequential evaluation process promulgated by the Commissioner. (R. at 46-65). First, the ALJ
found that Plaintiff had not engaged in substantial gainful activity since March 27, 2014, the
alleged onset date. (R. at 51). Second, the ALJ determined that Plaintiff’s “ischemic heart
disease; residuals status post fractures of the right lower extremity, pelvis, and vertebrae; and
obesity” were “severe” impairments within the meaning of the regulations. (R. at 51). The ALJ
also found that Plaintiff’s “osteoarthritis, diabetes mellitus, blindness in the left eye,
gastroesophageal reflux disease, hypertension, sleep apnea, and status post healed open wound of
the right lower extremity” and depression diagnosis were “non-severe” impairments within the
meaning of the regulations. (R. at 52). Third, the ALJ determined that Plaintiff did not have an
impairment or combination of impairments that met or medically equaled one of the listed
impairments in Appendix 1.1 (R. at 53). Fourth, the ALJ found Plaintiff has the residual
functional capacity to perform a restricted range of light work, subject to limitations.2 (R. at 53-

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20 C.F.R. Part 404, Subpart P, Appendix 1 contains the listing of impairments recognized by
the SSA that may qualify an individual for benefits.
2
The ALJ’s findings regarding Plaintiff’s restrictions read:
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54). Relying on testimony from a vocational expert, the ALJ found Plaintiff unable to perform
any of his past relevant work as a factory extruder operator and maintenance worker. (R. at 58).
Fifth, the ALJ considered Plaintiff’s residual functional capacity, age, education, and past work
experience as well as testimony from the vocational expert. (R. at 58). The ALJ concluded that
Plaintiff was capable of performing a significant number of jobs that exist in the national
economy, and has not been under a “disability,” as defined in the Social Security Act, 3 since the
filing date of his application. (R. at 58-59). Plaintiff filed a request for review, which the
Appeals Council denied. (R. at 44-45, 112-18).
C.

Plaintiff’s Federal Claim

Plaintiff filed suit in this Court seeking judicial review of the Commissioner’s final
decision. (Compl., DN 1). Following the filing of the administrative record and fact and law
summaries from each party, Magistrate Judge Brennenstuhl recommended that the final decision
of the Commissioner be affirmed. (R. & R. 1, 10).
Plaintiff objected to Magistrate Judge Brennenstuhl’s recommendation, and the
Commissioner responded. (Pl.’s Obj., DN 26; Def.’s Resp. Pl.’s Obj., DN 27). This matter is
ripe for adjudication.
[T]he claimant is able to lift/carry twenty pounds occasionally and ten pounds
frequently and he is able to stand/walk six hours and sit six hours in an eight-hour
day. He is able to occasionally climb ramps and stairs, and stoop, kneel, crouch
and crawl; however, he should not climb ladders, ropes or scaffolds. He should
avoid concentrated exposure to hot and cold temperature extremes, vibration and
hazards, such as dangerous machinery and unprotected heights. He requires the
occasional use of a cane for ambulation.
(R. at 53-54).
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The term “disability” is defined as an “inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a continuous period of not less
than 12 months . . . .” 42 U.S.C. §§ 423(d)(1)(A) (Title II); see also 1382c(a)(3)(A) (utilizing an
identical definition of “disability” under Title XVI).
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II.

JURISDICTION

The Court has jurisdiction to examine the record that was before the Commissioner on
the date of the Commissioner’s final decision and to enter judgment affirming, modifying, or
reversing that decision. See 42 U.S.C. § 405(g).
III.

STANDARD OF REVIEW

District courts review the parts of a magistrate judge’s R. & R. to which objections are
raised de novo, and, in doing so, may accept, reject, or modify, in whole or in part, the R. & R.
28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). This differs from the standard applied to the
Commissioner’s decision. That decision, rendered by an ALJ, is reviewed to determine “whether
it is supported by substantial evidence and was made pursuant to proper legal standards.” Rogers
v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (citations omitted). Substantial
evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation marks omitted)
(quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Where substantial evidence
supports the ALJ’s decision, a court is obliged to affirm. Siterlet v. Sec’y of Health & Human
Servs., 823 F.2d 918, 920 (6th Cir. 1987) (citation omitted). A court should not attempt to
second-guess the factfinder with respect to conflicts of evidence or questions of credibility. Bass
v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007) (citation omitted).
IV.

DISCUSSION

The Magistrate Judge recommended that the final decision of the Commissioner, via the
ALJ’s decision, be affirmed and Plaintiff’s Complaint be dismissed. (R. & R. 10). Plaintiff
objects, arguing that Magistrate Judge Brennenstuhl: (1) incorrectly found no error regarding the
ALJ’s consideration of evidence provided by Dr. Christopher Shields, a neurosurgeon who

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evaluated Plaintiff in March 2015; (2) mischaracterized the ALJ’s analysis of the medical record
as thorough, when there were not “numerous other visits, discussed by the ALJ, with relatively
normal findings”; and (3) incorrectly concluded the medical evidence of Plaintiff’s recovery
immediately after the accident was irrelevant. These objections are addressed in turn.
A.

Neurosurgeon Evidence

Plaintiff objects that the ALJ failed to consider the diagnosis and opinion of Dr. Shields,
and that Magistrate Judge Brennenstuhl therefore mischaracterized the ALJ’s discussion of
Plaintiff’s medical history as “thorough.” (Pl.’s Obj. 1-3). Plaintiff argues that the ALJ’s failure
to mention Dr. Shields’ findings that Plaintiff had “significant neurological deficits following his
motorcycle accident[,]” and diagnosis of lumbar radiculopathy (R. 1300, 1302) undermines any
“confidence” the Court may have as to whether “the ALJ actually considered and weighed Dr.
Shields’ diagnosis and opinion . . . .” (Pl.’s Obj. 2). Plaintiff mounts the same contention
regarding Dr. Shields’ referral of Plaintiff for an EMG, which “showed evidence of a L4
radiculopathy on the left side.” (R. at 1398). Plaintiff objects that this test result was not
mentioned by the ALJ, and insists that Plaintiff’s counsel submitted the EMG report itself into
the record before the ALJ. (Pl.’s Obj. 2-3).
As noted in the R. & R., however, the EMG report, marked as Exhibit 27F, was not listed
in the record before the ALJ, but was included in the record when Plaintiff’s request for review
was denied by the Appeals Council. (R. at 61-65, 112-18). While the results of the EMG were
included in Dr. Shields’ report marked Exhibit 20F, which was before the ALJ, the ALJ’s
reliance on other sections of this evidence reflects a weighing of the evidence rather than
“cherry-picking,” as in the R. & R. (R. at 56 (“[Plaintiff] consulted a neurosurgeon, who advised

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he was not a surgical candidate and recommended pain management (Ex. 16F; 20F;
Testimony).”)).
The ALJ made findings throughout her decision that demonstrated reliance on the
complete record before her, including the reports of Dr. Shields. (R. at 56-57). The ALJ
therefore complied with Section 416.926a(e)(1) and (e)(4), and her decision was “supported by
substantial evidence and was made pursuant to proper legal standards.” Rogers, 486 F.3d at 241
(citations omitted). The Court is therefore obliged to affirm, as it is not its function upon review
to second-guess the factfinder with respect to conflicts of evidence. Bass, 499 F.3d at 509
(citation omitted); Siterlet, 823 F.2d at 920 (citation omitted).
B.

ALJ’s Review of the Medical Record as a Whole

Plaintiff next objects to the R. & R.’s characterization of the ALJ’s analysis of the
medical evidence as being “thorough,” as Plaintiff argues there were not, as the R. & R. states,
“numerous other visits, discussed by the ALJ, with relatively normal findings.” (Pl.’s Obj. 3-6).
Plaintiff complains:
[W]hen the ALJ “weighed” the evidence from the months after the accident, she
left out the findings that supported Mr. Coppage was not doing well. The ALJ did
not weigh all the evidence. Obviously, she left out the medical findings that
supported Mr. Coppage’s allegations. Instead, she cited only medical evidence
that allowed her to diminish Mr. Coppage’s allegations. There was no weighing
of the evidence. The ALJ cannot weigh evidence she does not mention.4
(Pl.’s Obj. 6).
The Court finds, however, that the ALJ relied upon the medical record as a whole when
making her decision, including records from Plaintiff’s hospitalization following his motorcycle

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Contrary to Plaintiff’s proposition, the Sixth Circuit has held that “[a]n ALJ can consider all the
evidence without directly addressing in his written decision every piece of evidence submitted by
a party.” Loral Def. Sys.-Akron v. NLRB, 200 F.3d 436, 453 (6th Cir. 1999) (internal quotation
marks omitted) (citation omitted).
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accident, as well as those from follow-up appointments and consultations with other physicians,
and discussions of tests performed in the months following the accident, including six x-rays, a
Doppler study, and a CT. (R. at 55-58 (citing R. at 658-758, 1143-47, 1191-1314, 1319, 1322,
1324, 1328, 1345, 1350-1406, 1427-37, 1459, 1461, 1464, 1489-90)). “The findings of the
Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be
conclusive . . . .” 42 U.S.C. § 405(g) (emphasis added). While Plaintiff is not persuaded that the
ALJ’s determination was correct, the Court agrees with Magistrate Judge Brennenstuhl that the
decision is supported by substantial evidence in the record, and the Court will not second-guess
her position as factfinder. Bass, 499 F.3d at 509 (citation omitted); Siterlet, 823 F.2d at 920
(citation omitted).
C.

Relevance of Post-Accident Medical Records

Finally, Plaintiff argues that Magistrate Judge Brennenstuhl’s finding that there was no
error when the ALJ “deemed the medical evidence of Mr. Coppage’s recovery shortly after the
accident irrelevant.”5 (Pl.’s Obj. 6-7). With regard to the ALJ’s discussion of the record relating
to Plaintiff’s accident, the R. & R. notes that, “[w]hile Plaintiff’s condition was severe, the
period in which he was hospitalized and in recovery lasted well short of a year, and therefore
cannot satisfy the requirement that a person be unable to perform substantial gainful activity for
a duration of twelve months in order to receive benefits.” (R. & R. 8 (citing 20 C.F.R. §§
404.1505(a), 404.1509)). The Court agrees and finds that the ALJ’s weighing of the evidence
appropriate under the relevant regulatory provisions.

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This characterization is flawed, as nowhere in her decision did the ALJ find that the records
immediately following Plaintiff’s accident were “irrelevant.” (R. at 46-65).
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V.

CONCLUSION

For the reasons discussed above, IT IS HEREBY ORDERED as follows:
1.

Plaintiff’s Objection to the Magistrate Judge’s Findings of Fact, Conclusions of

Law, and Recommendation (DN 26) is OVERRULED;
2.

Magistrate Judge Brennenstuhl’s Findings of Fact, Conclusions of Law, and

Recommendation (DN 23) are ADOPTED;
3.

Plaintiff’s Motion for Summary Judgment (DN 17) is DENIED AS MOOT; and

4.

Plaintiff’s Complaint (DN 1) is DISMISSED WITH PREJUDICE.

Greg N. Stivers, Judge
United States District Court
January 5, 2018

cc:

counsel of record

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