Patterson v. Commissioner of Social Security

Filing 23

Memorandum of Opinion and Order For the reasons set forth herein, Plaintiff's Objections (ECF No. 21 ) are overruled and the Report and Recommendation (ECF No. 20 ) is adopted. The decision of the Commissioner of Social Security is affirmed. Judgment will be entered in favor of Defendant. Judge Benita Y. Pearson on 6/28/2017. (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

STACY B. PATTERSON,
Plaintiff,
v.
NANCY A. BERRYHILL,1
ACTING COMMISSIONER OF
SOCIAL SECURITY
Defendant.

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CASE NO. 1:16CV0420
JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION
AND ORDER [Resolving ECF No. 21]

An Administrative Law Judge (“ALJ”) denied Plaintiff Stacy B. Patterson’s claim for
disability insurance benefits (“DIB”) and supplemental security income (“SSI”) after hearings
held on February 18, 2015 and June 24, 2015 in the above-captioned case. That decision became
the final determination of the Commissioner of Social Security when the Appeals Council denied
the request to review the ALJ’s decision. The claimant sought judicial review of the
Commissioner’s decision, and the Court referred the case to Magistrate Judge Kathleen B. Burke
for preparation of a report and recommendation pursuant to 28 U.S.C. § 636 and Local Rule
72.2(b)(1). After both parties filed briefs, the magistrate judge submitted a Report and

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Carolyn W. Colvin was the original Defendant. She was sued in an official capacity as
a public officer. On January 23, 2017, Nancy A. Berryhill became the Acting Commissioner of
Social Security. Pursuant to Fed. R. Civ. P. 25(d), Berryhill’s name has been automatically
substituted as a party.

(1:16CV0420)
Recommendation (ECF No. 20) reasoning that the Commissioner’s decision that Plaintiff is not
disabled is supported by substantial evidence, and recommending the Commissioner’s decision
denying benefits be affirmed.
I.
When the magistrate judge submits a Report and Recommendation, the Court is required
to conduct a de novo review of those portions of the Report and Recommendation to which an
objection has been made. 28 U.S.C. § 636(b)(1); Local Rule 72.3(b). Objections to the Report
and Recommendation must be specific, not general, in order to focus the court’s attention upon
contentious issues. Howard v. Sec’y of Health and Human Servs., 932 F.2d 505, 509 (6th Cir.
1991). The primary issue then becomes whether substantial evidence supports the
Commissioner’s decision. The Court’s review of the Commissioner’s decision in the case at bar
is limited to determining whether substantial evidence, viewing the record as a whole, supports
the findings of the ALJ. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978); Brown v.
Astrue, 649 F.3d 193, 195-96 (3d Cir. 2011) (discussing the standard of review a district court
should apply when reviewing a magistrate judge’s findings in an SSI claim). Substantial
evidence is more than a mere scintilla of evidence, but less than a preponderance. Richardson v.
Perales, 402 U.S. 389, 401 (1971). Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Id. (quoting Consolidated
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Besaw v. Sec’y of Health and Human Servs.,
966 F.2d 1028, 1030 (6th Cir. 1992) (per curiam).
If substantial evidence supports the Commissioner’s decision, a reviewing court must

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(1:16CV0420)
affirm the decision even if it would decide the matter differently. Cutlip v. Secretary of Health
and Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (citing Kinsella v. Schweiker, 708 F.2d
1058, 1059 (6th Cir. 1983)). Moreover, the decision must be affirmed even if substantial
evidence would also support the opposite conclusion. Mullen v. Bowen, 800 F.2d 535, 545 (6th
Cir. 1986) (en banc). This “standard allows considerable latitude to administrative decision
makers. It presupposes that there is a zone of choice within which the decisionmakers can go
either way, without interference by the courts. An administrative decision is not subject to
reversal merely because substantial evidence would have supported an opposite decision.” Id.
(quoting Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984)). However, in determining
whether substantial evidence supports the ALJ’s findings in the instant matter, the court must
examine the record as a whole and take into account what fairly detracts from its weight. Wyatt
v. Sec’y of Health and Human Servs., 974 F.2d 680, 683 (6th Cir. 1992). The court must also
consider whether the Commissioner employed the proper legal standards. Queen City Home
Health Care Co. v. Sullivan, 978 F.2d 236, 243 (6th Cir. 1992).
In order for the Commissioner to find that a plaintiff suffers from a disability for which
he should receive benefits, the plaintiff must be unable to engage in any substantial gainful
activity due to the existence of a “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); Colvin v. Barnhart, 475 F.3d 727,
730 (6th Cir. 2007); Hines v. Comm’r of Soc. Sec., No. 13-12568, 2014 WL 3819329, at * 2-3
(E.D. Mich. Aug. 4, 2014). Under 42 U.S.C. § 1381, disabled individuals who meet certain

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(1:16CV0420)
income and resources requirements are entitled to SSI benefits. 20 C.F.R. §§ 416.1100 and
416.1201.
Plaintiff’s disability claim is based mainly upon back pain and chronic kidney disease. In
order for the Commissioner to find that a plaintiff suffers from a disability for which he should
receive benefits, the plaintiff must be unable to engage in any substantial gainful activity due to
the existence of a “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 twelve months.” 42 U.S.C. § 1382c(a)(3)(A). The Act further provides that:
[a]n individual shall be determined to be under a disability only if his physical or
mental impairment or impairments are of such severity that he is not only unable
to do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in
the national economy. . . .
42 U.S.C. § 423(d)(2)(A).
II.
The Court has reviewed the Report and Recommendation (ECF No. 20) de novo. The
Court has also considered Plaintiff’s Objections (ECF No. 21) and Defendant’s Response (ECF
No. 22). Plaintiff objects to the magistrate judge’s finding that “the ALJ did not err by failing to
discuss Plaintiff’s Chronic Kidney Disease.” ECF No. 21 at PageID #: 1238. Plaintiff argues the
Report and Recommendation’s finding that the ALJ’s overall conclusion is supported by
substantial evidence did not excuse the ALJ’s duty to address the medically determinable
impairments established by the record pursuant to 20 C.F.R. §§ 404.1520 and 416.920 and SSR
85-28 and 96-3P. For the reasons set forth below, this objection lacks merit.

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Initially, the Court notes that Plaintiff mischaracterizes the magistrate judge’s finding.
The magistrate judge found “[t]he ALJ did not err when she found that Patterson’s kidney issues
did not cause [an impairment that limited his ability to perform work-related functions].” ECF
No. 20 at PageID #: 1233.
A review of the ALJ’s written decision (ECF No. 11 at PageID #: 141-61) reveals that
she reviewed the record in this case, and stated she considered all impairments, the entire record
(ECF No. 11 at PageID #: 147, 150), and all symptoms (ECF No. 11 at PageID #: 150). At step 2
of the sequential evaluation process set out in 20 C.F.R. §§ 404.1520 and 416.920, the ALJ
found that Plaintiff’s chronic kidney disease was not “severe” within the meaning of the second
sequential step:
There is no substantial evidence of any other impairment that is “severe.”
Imaging in September 2014 demonstrated a renal lesion ([ECF No. 11 at PageID
#: 813-14] and [ECF No. 11 at PageID #: 855]). Upon follow-up, it was
determined to be renal cell carcinoma ([ECF No. 11 at PageID #: 972]). A left
radical nephrectomy was recommended and performed in May 2015 ([ECF No. 11
at PageID #: 1003]). However, the claimant quickly improved ([ECF No. 11 at
PageID #: 1042-52]). There was no evidence that the cancer spread or any
evidence of recurrence. Therefore, the undersigned finds that this impairment was
not severe for at least 12 months and is not expected to continue to result in more
than minimal limitations in work-related functioning.
ECF No. 11 at PageID #: 148-49. Plaintiff cites to his testimony during the June 24, 2015
hearing that the loss of his kidney caused physical and mental symptomology. Transcript (ECF
No. 14 at PageID #: 1112-13). An ALJ is not “required to discuss each piece of data in its
opinion, so long as [she] consider[s] the evidence as a whole and reach[es] a reasoned
conclusion.” Boseley v. Comm’r of Soc. Sec. Admin., 397 Fed.Appx. 195, 199 (6th Cir. 2010);
Paskewitz v. Astrue, No. 1:11CV2371, 2012 WL 5845357, at *11 (N.D. Ohio Oct. 29, 2012)
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(Burke, M.J.) (finding “the failure of the ALJ to reference certain pieces of evidence, standing
alone, does not constitute reversible error”) report and recommendation approved, No.
1:11CV2371, 2012 WL 5845370 (N.D. Ohio Nov. 19, 2012) (Polster, J.).
In addition, the Sixth Circuit’s standard for evaluating pain is based on the factors set
forth in 20 C.F.R. § 416.929(c)(2). Under the regulations, a claimant’s “subjective allegations of
disabling symptoms, including pain, cannot alone support a finding of disability.” Duncan v.
Sec’y of Health and Human Servs., 801 F.2d 847, 852 (6th Cir. 1986) (citing 20 C.F.R. §
404.1529); see also 42 U.S.C. § 423(d)(5)(A) (Congress mandates that a social security
applicant’s subjective complaints of “pain or other symptoms shall not alone be conclusive
evidence of disability. . . .”). As a result, Plaintiff’s testimony about his pain levels and other
symptoms almost seven weeks after the left radical nephrectomy, while relevant to determining
whether he is under a disability, cannot by itself establish that he is under a disability. See
Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001). There must also be objective medical
evidence of an underlying condition supporting allegations of pain. Duncan, 801 F.2d at 852.
Plaintiff cites to progress notes made by Dr. Amitkumar Patel, M.D. two days after the left
radical nephrectomy was performed (ECF No. 11 at PageID #: 1024-25). As the ALJ found,
Plaintiff quickly improved. See Medical Records (ECF No. 11 at PageID #: 1042-56). Dr. Patel
remarked four days after the operation that Plaintiff’s “[p]ain [is] under good control.” Progress
Notes (ECF No. 11 at PageID #: 1052).
III.
Accordingly, Plaintiff’s Objections (ECF No. 21) are overruled and the Report and

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Recommendation (ECF No. 20) is adopted. The decision of the Commissioner of Social Security
is affirmed. Judgment will be entered in favor of Defendant.

IT IS SO ORDERED.

June 28, 2017
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

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