Ferguson v. Commissioner Social Security Administration
Memorandum of Opinion and Order For the reasons set forth herein, Plaintiff's Objections (ECF No. 20 ) are overruled and the Report and Recommendation (ECF No. 19 ) of the Magistrate Judge is hereby adopted. The decision of the Commissioner of Social Security is affirmed. Judgment will be entered in favor of Defendant. Judge Benita Y. Pearson on 3/17/2017. (JLG)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
VIVIAN LAWON FERGUSON,
NANCY A. BERRYHILL,1
ACTING COMMISSIONER OF
CASE NO. 4:16CV0271
JUDGE BENITA Y. PEARSON
MEMORANDUM OF OPINION
AND ORDER RE: AFFIRMING
[Resolving ECF No. 20]
An Administrative Law Judge (“ALJ”) denied Plaintiff Vivian Lawon Ferguson’s claim
for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) after a
hearing held on June 4, 2014 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 James R. Knepp, II
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
Recommendation (ECF No. 19) reasoning that the Commissioner’s decision that Plaintiff is not
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.
disabled is supported by substantial evidence, and recommending the Commissioner’s decision
denying benefits be affirmed. See ECF No. 19 at PageID #: 759.
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). 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
If substantial evidence supports the Commissioner’s decision, a reviewing court must
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
she 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). Under 42 U.S.C. § 1381, disabled individuals who meet certain income and
resources requirements are entitled to SSI benefits. 20 C.F.R. §§ 416.1100 and 416.1201.
Plaintiff’s disability claim is mainly based on back pain and breathing problems. In order
for the Commissioner to find that a plaintiff suffers from a disability for which she 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).
The Court has reviewed the Report and Recommendation (ECF No. 19) of the magistrate
judge de novo. The Court has also considered Plaintiff’s Objections (ECF No. 20) and
Defendant’s Response (ECF No. 21). Plaintiff objects to the magistrate judge’s finding that the
ALJ’s credibility determination of Plaintiff’s statements regarding her symptoms is supported by
substantial evidence. ECF No. 19 at PageID #: 752. Plaintiff argues “the ALJ did not consider
the totality of the evidence, including notations by Ferguson’s treating physician regarding her
shortness of breath and wheezing.” ECF No. 20 at PageID #: 762. This objection lacks merit.
The magistrate judge explained how the ALJ’s findings constituted substantial evidence in
support of the conclusion that Plaintiff’s respiratory impairment was not as limiting as she
alleged. See ECF No. 19 at PageID #: 754-55. Furthermore, 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) (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.).
Next, Plaintiff objects that the magistrate judge found “no error in the ALJ’s decision to
give great weight to the opinions of [Drs. Pyle and Jimenez-Medina,] the state agency
reviewers.” ECF No. 19 at PageID #: 756. Plaintiff argues the June 4, 2014 hearing occurred at
least eighteen months after the last record considered by the reviewing physicians. During that
time, several additional medical records were added to the record. ECF No. 20 at PageID #: 762.
Plaintiff, however, has not controverted the magistrate judge’s conclusion that she has not
alleged any “significant change or medical evidence in the record after January 2013, when the
second state agency physician reviewed the file and rendered an opinion.” ECF No. 19 at PageID
#: 758. Accordingly, as the magistrate judge explained, it was appropriate for the ALJ to
“assign[ ] great weight to [the state agency physicians’] uncontested opinions, which are a
reliable source upon which to base” a residual functional capacity determination. ECF No. 19 at
PageID #: 757.
Finally, Plaintiff objects in conclusory fashion that “the ALJ failed to consider the
cumulative effects of Ferguson’s severe impairments.” ECF No. 20 at PageID #: 763. A review
of the ALJ’s written decision (ECF No. 12 at PageID #: 71-80), however, reveals that she
reviewed the record in this case, and stated she considered all impairments (ECF No. 12 at
PageID #: 72), the entire record (ECF No. 12 at PageID #: 74), and all symptoms (ECF No. 12 at
PageID #: 75). Given the ALJ’s discussion of Plaintiff’s impairments, Plaintiff’s objection is not
supported by the record.
Accordingly, Plaintiff’s Objections (ECF No. 20) are overruled and the Report and
Recommendation (ECF No. 19) of the magistrate judge is hereby adopted. The decision of the
Commissioner of Social Security is affirmed. Judgment will be entered in favor of Defendant.
IT IS SO ORDERED.
March 17, 2017
/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge
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