Cammuse v. Commissioner of Social Security

Filing 24

MEMORANDUM OPINION &ORDER signed by Senior Judge Charles R. Simpson, III on 8/27/24; adopting Report and Recommendations re 19 Report and Recommendations: The court OVERRULES Claimant's Objections, DN 22 , and ADOPTS Magistrate Judge Edwards' well-reasoned Report, DN 19 , as its opinion and incorporates it here by reference. A separate judgment will be entered contemporaneously. cc: Counsel(DJT)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
CIVIL ACTION NO. 3:23-CV-277-CRS-RSE
CASEY C.

PLAINTIFF

v.
MARTIN O’MALLEY,
Commissioner of the Social Security Administration1

DEFENDANT

MEMORANDUM OPINION & ORDER
The Commissioner of Social Security denied Casey C.’s (“Claimant’s”) claims for
supplemental security income under Title XVI of the Social Security Act. Claimant seeks
judicial review of that decision pursuant to 42 U.S.C. § 405(g). The court referred this matter to
U.S. Magistrate Judge Regina S. Edwards for preparation of a report and recommendation. She
recommends that the Commissioner’s decision be affirmed. Report, DN 19. Claimant objects to
that recommendation. Objections, DN 22. The court will now consider Claimant’s Objections.
I. Background
In her SSI application, Claimant alleged disability because of lower back pain,
schizoaffective disorder, disassociated amnesia, hypertension, anxiety, and mild agoraphobia.
Her claim was denied initially and on reconsideration. After a telephonic hearing, an
administrative law judge (“ALJ”) issued a written decision concluding that Claimant was not
disabled within the meaning of the Social Security Act. Claimant’s request for administrative
review was denied by the Appeals Council. As a result, the ALJ’s decision became final and
subject to judicial review. 42 U.S.C. §§ 405(g) and (h); 20 C.F.R. § 422.210(a).

II. Standard of Review
Martin O’Malley became the Commissioner of the Social Security Administration on December 20, 2023.
Pursuant to FED. R. CIV. P. 25(d), he is substituted for former Acting Commissioner Kilolo Kijakazi.
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The court conducts a de novo review of the portions of the magistrate judge’s Report to
which Claimant has filed timely and specific written objections. FED. R. CIV. P. 72(b);
28 U.S.C. § 636(b)(1). “A general objection to the entirety of the magistrate [judge’s] report has
the same effect as would a failure to object.” Howard v. Sec’y of Health & Human Servs., 932
F.2d 505, 509 (6th Cir. 1991). To be specific, objections must “pinpoint those portions of the”
magistrate judge’s “report that the district court must specifically consider.” Mira v. Marshall,
806 F.2d 636, 637 (6th Cir. 1986). After considering all specific objections, the court may
accept, reject, or modify, in whole or in part, the findings and recommendations made by the
magistrate judge. 28 U.S.C. § 636(b)(1)(C).
In reviewing findings by an ALJ, the court must determine whether those findings are
supported by substantial evidence and made pursuant to proper legal standards and nothing more.
Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007); 42 U.S.C. § 405(h).
Substantial evidence is “more than a scintilla of evidence but less than a preponderance.”
McGlothin v. Comm’r of Soc. Sec., 299 F. App’x 516, 522 (6th Cir. 2008) (internal quotation
marks omitted). An administrative decision is not subject to reversal even if substantial evidence
would have supported the opposite conclusion. Ulman v. Comm’r of Soc. Sec., 693 F.3d 709, 713
(6th Cir. 2012).
III. Analysis
Before Magistrate Judge Edwards, Claimant challenged the legal and evidentiary
sufficiency of the ALJ’s written decision on multiple grounds. Claimant F&L Summ., DN 13.
These included challenges to the ALJ’s physical residual functional capacity (“RFC”)
determination, mental-RFC determination, evaluation of opinion evidence, consideration of
“other evidence,” and resolution of purported contradictory evidence. Id. In the end, Magistrate

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Judge Edwards concluded that all but one of Claimant’s challenges were without merit. Report,
DN 19. Moreover, she concluded that Claimant’s sole meritorious challenge did not warrant
reversal because the ALJ’s error was harmless. Id. at PageID# 1908–10.
Now, Claimant lodges 11 discrete Objections to Magistrate Judge Edwards’ Report.
Objections, DN 22. These include:
➢ One Objection raising a new argument for the first time. Id. at PageID# 1923.
➢ Three Objections concerning the ALJ’s consideration of workplace stressors.
Id. at PageID# 1923, 1924, 1925.
➢ One Objection purporting that the ALJ inadequately explained his
consideration of contradictory evidence. Id. at PageID# 1923–24.
➢ Two Objections concerning the ALJ’s consideration of other evidence of
Claimant’s activities of daily living. Id. at PageID# 1923, 1926.
➢ One Objection contending that insufficient evidence supports the ALJ’s RFCdetermination. Id. at PageID# 1924–25.
➢ One Objection arguing that Magistrate Judge Edwards’ harmless error finding
is erroneous. Id. at PageID# 1926.
➢ One Objection submitting that Magistrate Judge Edwards found that the ALJ
improperly considered certain evidence yet found no error. Id.
➢ One Objection concerning the hypothetical question the ALJ posed to the
vocational expert. Id. at PageID# 1927.
Claimant’s first Objection—that Magistrate Judge Edwards and the ALJ erred because
they did not provide a “rationale as to why there is not a closed period of disability,” id. at
PageID# 1923—will be overruled as waived because she did not raise it in her Fact & Law
Summary. Swain v. Comm’r of Soc. Sec., 379 F. App’x 512, 517–18 (6th Cir. 2010) (claim
forfeited when raised for the first time in an objection to a magistrate judge’s report and
recommendation).

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Claimant’s Objections to the ALJ’s consideration of workplace stressors will likewise be
overruled. They boil down to this: The “ALJ gave no consideration to the stress of the
workplace” and did not consider evidence of Claimant being fired twice in considering her
ability to adapt and manage in the workplace. Objections, DN 22 at PageID# 1923, 1924, 1925.
These Objections are unmeritorious because the ALJ limited Claimant to “routine and low stress
work” with “limited social contact.” ALJ Op., DN 11 at PageID# 56. It goes without saying that,
before imposing these functional limitations, the ALJ considered whether Claimant could sustain
employment under the ordinary stressors of the workplace. If he believed that she could sustain
such work, additional limitations on the nature of work would not have been imposed—but they
were. Moreover, the ALJ directly addressed at least one of Claimant’s firings: Claimant “had to
stop working due to hallucinations that resulted in her getting into an altercation with a
customer,” id. at PageID# 53, contextualizing the ALJ’s finding that Claimant can only perform
work with “limited social contact.” Id. at PageID# 56.
The court will also overrule Claimant’s Objection that the ALJ improperly considered the
record as a whole when rendering his decision by, in her view, inadequately resolving
contradictory evidence. Objections, DN 22 at PageID# 1923–24. Specifically, Claimant contends
that the ALJ inadequately resolved inconsistencies between the RFC-determination and
Claimant’s 2021 MRI results, the effects of her obesity, and her treatment with “narcotic
medicine therapy.” Id. But the results of Claimant’s MRI and the effects of her obesity prompted
the ALJ to limit her to sedentary work and the same functional (but not total) limitation of work
is supported by multiple provider notes concerning Claimant’s Norco treatment, which indicate
that Claimant enjoyed pain relief despite her increased dosage. ALJ Op., DN 11 at PageID# 54.
Thus, the court agrees with Magistrate Judge Edwards that the ALJ properly considered such

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evidence when determining Claimant’s RFC and that such evidence supports, rather than
undermines, the RFC-determination. Report, DN 19 at PageID# 1896–97.
Claimant’s next two Objections fail to convince. In them, Claimant submits that the ALJ
didn’t consider certain “other evidence”—namely, evidence of her activities of daily living—
when making an RFC-determination because such evidence is not discussed in the ALJ’s written
decision. Objections, DN 22 at PageID# 1923, 1926. However, an ALJ need not address every
piece of evidence in the record, Thacker v. Comm’r of Soc. Sec., 99 F. App’x 661, 665 (6th Cir.
2004), and it is improper to presume that an ALJ didn’t consider certain evidence simply because
discussion of it is not to be found in the ALJ’s decision, Simons v. Barnhart, 114 F. App’x 727,
733 (6th Cir. 2004). This case demonstrates why. Here, it is obvious that the ALJ considered
Claimant’s activities of daily living because his decision includes a detailed summary of
Claimant’s testimony from the telephonic hearing—testimony which included discussion of her
activities of daily living. ALJ Op., DN 11 at PageID# 53. What’s more, this summary
immediately follows the ALJ’s recitation of 20 C.F.R. § 416.929(c)(3)’s demands, among which
include the ALJ’s duty to consider the “claimant’s daily activities” when assessing the severity
of a claimant’s symptoms. Id. The ALJ did not err by declining to expressly discuss all of
Claimant’s activities of daily living in writing because it is clear that he considered them in
rendering his decision.
Relatedly, Claimant argues that insufficient evidence supports the ALJ’s RFCdetermination. Objections, DN 22 at PageID# 1924–25. However, Claimant advanced this same
argument before Magistrate Judge Edwards—who rejected it—and Claimant has not
meaningfully engaged with her thoughtful analysis. Report, DN 19 at PageID# 1900–02. Thus,
this Objection will be overruled because it is general, rather than specific. Howard, 932 F.2d 505

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at 509. Moreover, as Magistrate Judge Edwards explained, Claimant’s argument does nothing
more than urge the court to reach a contrary result based on select record evidence. Report, DN
19 at PageID# 1902. Such an argument is unavailing, as an administrative decision is not subject
to reversal even if substantial evidence would have supported the opposite conclusion. Ulman,
693 F.3d at 713.
Claimant’s Objection to Magistrate Judge Edwards’ finding that the ALJ harmlessly
erred by failing to comply with § 404.1520c(b)(2)’s articulation requirement is without merit,
too. Objections, DN 22 at PageID# 1926. Failure to satisfy that articulation requirement does not
mandate remand in every case. Remand is warranted only where the error is harmful. In Wilson
v. Comm’r of Soc. Sec., the Sixth Circuit set out a test for identifying harmless error under
§ 404.1520c(b)(2)’s predecessor, which was § 404.1527(c)(2), a regulation that required “good
reasons” for failing to adopt a medical opinion. 378 F.3d 541 (6th Cir. 2004). Since the adoption
of § 404.1520c(b)(2), several district courts in the Sixth Circuit (including this one) have applied
the Wilson harmless-error factors to § 404.1520c(b)(2).2 Magistrate Judge Edwards applied these
standards. The court finds no reason to depart from this practice or that Magistrate Judge
Edwards erred in applying them.
Under Wilson, harmless error may exist if (1) the underlying medical opinion is so
patently deficient it cannot be credited; (2) the ALJ adopted the medical opinion at issue or made
findings consistent with it; or (3) the ALJ met the goals of the pertinent procedural safeguards,
despite a failure to strictly comply with the regulation. Id. at 547; see also Friend v. Comm’r of
Soc. Sec., 375 F. App’x 543, 551 (6th Cir. 2010). “In the last of these circumstances, the

See, e.g., Jada H. v. O’Malley, 2023 WL 10325777, at *2–4 (W.D. Ky. Feb. 16, 2024); Moulden v. Kijakazi, 2022
WL 178588, at *8 (W.D. Ky. Jan. 18, 2022); Hardy, 554 F. Supp. 3d at 909; Vaughn v. Comm’r of Soc. Sec. , 2021
WL 3056108, at *11 (W.D. Tenn. July 20, 2021); Musolff v. Comm’r of Soc. Sec., 2022 WL 1571864, at *13 (N.D.
Ohio Apr. 27, 2022), report and recommendation adopted, , 2022 WL 1568478 (N.D. Ohio May 17, 2022).
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procedural protections at the heart of the rule may be met when the ‘supportability’ of a doctor’s
opinion, or its consistency with other evidence in the record, is indirectly attacked via an ALJ’s
analysis of a physician’s other opinions or his analysis of the claimant’s ailments.” Friend, 375
F. App’x at 551 (citations omitted) (emphasis in original).
The third ground for finding harmless error is applicable here. The core of Claimant’s
Objection is that “no medical evidence is cited nor explanation made that allows a reviewer to
understand the reasoning for the conclusion.” Objections, DN 22 at PageID# 1926. The record
shows that the opposite is true. Magistrate Judge Edwards explained how the ALJ’s decision
provided for meaningful review and met the pertinent policy goals, thus rendering the ALJ’s
failure to comply with § 404.1520c(b)(2) harmless error. Report, DN 22 at PageID# 1909–10
(explaining how the ALJ’s analysis of Dr. Whitten’s opinion permits meaningful review).
Having independently reviewed the ALJ’s decision, the court agrees with Magistrate Judge
Edwards’ conclusion: The ALJ’s error was harmless.
Claimant also submits that Magistrate Judge Edwards found that the ALJ failed to
“follow the regulations when he considered [Claimant’s] hallucinations and memory issues” but
declined to find any specific error. Objections, DN 22 at PageID# 1926. This Objection is
unavailing because it mischaracterizes the Report. Magistrate Judge Edwards didn’t conclude
that the ALJ improperly considered evidence of Claimant’s hallucinations and memory issues.
Rather, she explained that the ALJ “recounted Claimant’s testimony about these symptoms as a
contrast to the medical evidence and used this contrast in formulating Claimant’s mental RFC.”
Report, DN 19 at PageID# 1905. Claimant’s Objection has no legs to stand on because it is
premised on a misreading of the Report, so it will be overruled.

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Claimant’s final Objection will be overruled, too. In it, Claimant asserts that the
hypothetical question posed by the ALJ to the vocational expert did not reflect Claimant’s
genuine functional limitations, and so the vocational expert’s response to that hypothetical
couldn’t be relied upon in determining whether sufficient work existed in the national economy.
Objections, DN 22 at PageID# 1927. This Objection is unavailing for the same reason Magistrate
Judge Edwards relayed: The ALJ’s RFC-determination was supported by substantial evidence,
and his hypothetical question incorporated the limitations identified in that RFC-determination,
so the ALJ properly relied on the vocational expert’s response to the hypothetical question.
Report, DN 19 at PageID# 1914–15.
IV. Conclusion
For the reasons set forth above, the court OVERRULES Claimant’s Objections, DN 22,
and ADOPTS Magistrate Judge Edwards’ well-reasoned Report, DN 19, as its opinion and
incorporates it here by reference.
A separate judgment will be entered contemporaneously.
IT IS SO ORDERED.
August 27, 2024

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