Mallardi v. Commissioner of Social Security

Filing 15

Memorandum Opinion and Order Adopting 12 Report and Recommendation and overruling Plaintiff's Objections. The Commissioner's underlying decision is AFFIRMED. Judge David A. Ruiz on 9/24/2024. (G,CA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

RICHARD W. MALLARDI,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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CASE NO. 5:23-CV-1364
JUDGE DAVID A. RUIZ

MEMORANDUM OPINION AND ORDER

I. Introduction
This matter is before the Court on the Report and Recommendation (R&R) of Magistrate
Judge Reuben J. Shepperd. (R. 12). The R&R recommends that the 2023 decision of Defendant
Commissioner denying Plaintiff Richard W. Millardi’s 2019 applications for Supplemental
Security Income (SSI) and Disability Insurance Benefits (DIB) be affirmed. Plaintiff has timely
filed objections (R. 13), to which Defendant has responded. R. 14.
For the following reasons, the Court overrules the Plaintiff’s objections, ADOPTS the
Report and Recommendation and thereby AFFIRMS the underlying decision of the
Commissioner.

II. Standard of Review
The applicable standard of review of a magistrate judge’s report and recommendation
provides that when objections are made to such a report and recommendation, the district court
conducts a de novo review. Federal Rule of Civil Procedure 72(b)(3) states:
Resolving Objections. The district judge must determine de novo any part of the
magistrate judge’s disposition that has been properly objected to. The district
judge may accept, reject, or modify the recommended disposition; receive further
evidence; or return the matter to the magistrate judge with instructions.
III. Objections
Plaintiff raises two objections:
(1) The R&R erred in finding that the ALJ properly evaluated the relevant medical source
opinions; and
(2) The R&R erred in concluding that the ALJ’s failure to find that Plaintiff has any
physical impairments was harmless error. R. 13, Page ID#: 1413, 1415-16.
In the first objection, Plaintiff contends that, contrary to the findings of the R&R, ALJ
principally erred in analyzing the opinion of a nurse practitioner who had opined that Plaintiff
would be absent from work four days per week. Id., Page ID#: 1414. Plaintiff maintains that the
R&R cited just three treatment notes from a treatment period of “many years” to support the
finding that the functional opinion was not supported by and/or inconsistent with the evidence,
while not mentioning more recent evidence that Plaintiff had difficulty working with others and
increased irritability, along with multiple suicide attempts and continuing symptoms of cognitive
impairment. Id.
Plaintiff’s second objection is that while the R&R “acknowledges that the ALJ erred when
she failed to articulate her consideration of Plaintiff’s physical symptoms,” the R&R incorrectly
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assessed this to be harmless. Id., Page ID#: 1415. Plaintiff argues that physical limitations would
definitely alter any final disability determination given both his age (55) and his inability to
perform his past relevant work as a broadcaster and producer, even at sedentary or light levels. Id.
The Commissioner’s single page response (R. 14) contends that the R&R, after thoroughly
discussing the record, correctly applied the law and found the ALJ’s decision to be supported by
substantial evidence. Id., Page ID#: 1418.
IV. Analysis
As to the first objection concerning the analysis of medical source opinions, it must be
noted at the outset that although Plaintiff frames this objection as generally pertaining to all
medical source opinions, the objection as developed addresses only the opinion of a nurse
practitioner. The R&R itself, however, separately analyzes the ALJ’s assessment of three
individual treating medical sources, as well as two reviewing state agency psychologists. R. 12,
Page ID#: 1407-1410. Moreover, the R&R precedes its analysis with a detailed review of the
applicable law and by noting that Plaintiff had argued that the ALJ’s error here had involved all
three individual medical sources and the two reviewing sources. Id. Page ID#: 1405-1407.
Despite Plaintiff’s brief attempt here to suggest that the R&R might have utilized an
incorrect legal standard in its evaluation (R. 13, Page ID#: 1413), an examination of the previously
cited portion of the R&R that concerns this topic shows that the R&R both thoroughly and correctly
set forth the pertinent law. Further, despite wording the current objection to include all medical
opinions as being at issue, whatever concerns Plaintiff might have previously had with how the
ALJ addressed the opinions of Dr. Podrygula and Dr. Dubey, and the two state agency
psychologists, have not been brought into this objection, which, as noted, only details arguments
related to the opinion of nurse practitioner Barnett.
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Thus, the Court finds no merit in the generally stated contention that the R&R utilized an
incorrect legal standard and considers any prior objection to the ALJ’s analysis of the opinions
from Dr. Podrygula and Dr. Dubey, as well as the two state agency psychologists, waived.
Turning now to the opinion of nurse practitioner Barnett, the R&R quoted the complete
analysis of that opinion by the ALJ, highlighting the fact that the ALJ explicitly observed that this
opinion was supported only by the time NP Barnett spent with the Plaintiff, as well as some
descriptions of Plaintiff’s symptoms. R. 12, Page ID#: 1407. The ALJ found that these bases
provide “no evidentiary support for the finding that the claimant will be absent from work four
days per week.” Id. Moreover, the ALJ noted that NP Barnett’s opinion was inconsistent with other
opinion evidence of claimant’s functioning, including out of state travel and many counseling
notes “indicating that the claimant has no serious complications in memory, concentration and
attention span.” Id.
In addition, when considering supportability and consistency with other evidence, NP
Barnett’s opinion is not supported by and is inconsistent with the opinions of the two state agency
psychological consultants who opined that Plaintiff could perform simple routine tasks, could
make simple decisions in a setting without strict production standards and adapt to settings where
day to day duties are predictable. Id. As such, this too provides additional grounds for the ALJ’s
conclusion that NP Barnett’s opinion lacked supportability in and consistency with the record.
In sum, the first of Plaintiff’s objections is overruled for the reasons stated.
Next, a review of the R&R shows that it examined on some detail the objection that it was
harmless error for the ALJ to not find any physical limitations at Step Two and to not include any
physical limitations in the residual functional capacity (RFC) finding.

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First, the way this objection was initially presented to the Magistrate Judge was as both a
failure at Step Two and also as a failure when fashioning the RFC. See, id., Page ID#: 1401. As
was the case with the prior objection considered above, the objection as presented here makes no
reference to a Step Two error, which is therefore considered waived.
As to the second objection itself, the R&R found that the ALJ erred in failing to articulate
why Plaintiff’s physical impairments, if any, did not result in any physical limitation in the RFC,
but the R&R then clearly explained why this was harmless error. The R&R noted first that Plaintiff
has the burden of demonstrating that he has any physical impairments, either individually or in
combination with mental health impairments, that are severe enough to interfere with his ability to
work. Id., Page ID#: 1403.
The R&R reasonably concluded that Plaintiff’s own self-submitted functional report dated
September 30, 2019 fails to disclose any physical impairment, and in response to a question as to
what conditions limit his ability to work, Plaintiff names only mental limitations. Id., Page ID#:
1404. Similarly, when asked to check any box describing a work-related limitation, Plaintiff only
checked boxes for mental health limitations, leaving all boxes empty for physical limitations. Id.
Likewise, as the R&R also observes, none of Plaintiff’s mental health providers noted any physical
limitations in their notation of symptoms, and there is otherwise no other record evidence for
diagnoses or treatment of any physical condition, except for a diagnosis of moderate kidney
disease, for which the recommendation was to avoid alcohol, and a pre-clearance for rotator cuff
repair, which apparently was never done. Id.
On this record, the Court finds no merit to the objection that the R&R erred by finding that
the ALJ’s failure to consider physical limitations in the RFC was harmless error.

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V. Conclusion
The Court has carefully reviewed the Report and Recommendation in light of the
Plaintiff’s Objections and hereby overrules those Objections, so adopting the Magistrate Judge’s
Report and Recommendation (R. 12). The Commissioner’s underlying decision is hereby
AFFIRMED.
IT IS SO ORDERED.
s/ David A. Ruiz
David A. Ruiz
United States District Judge
Date: September 24, 2024

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