Fossit v. Commissioner of Social Security

Filing 18

ORDER ADOPTING REPORT AND RECOMMENDATIONS re 15 Report and Recommendation in its entirety. The decision of the Commissioner to deny Plaintiff's application for Disability Insurance Benefits (DIB), which the Court finds to be supported by substantial evidence, is AFFIRMED and the Court ORDERS that this case be closed. Signed by Judge S Arthur Spiegel on 9/10/2013. (km1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

HAROLD G. FOSSITT,

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Plaintiff,

v.

COMMISSIONER OF SOCIAL
SECURITY,

NO. 1:12-CV-00276

ORDER

Defendant.
This
Judge’s

matter

Report

and

is

before

the

Court

Recommendation

(doc.

on

the

15),

Magistrate
Plaintiff’s

objections thereto (doc. 16) and Defendant’s response (doc. 17).
In

her

Report

and

Recommendation,

Magistrate

Judge

Bowman

recommends that the decision of the Administrative Law Judge
denying

Plaintiff’s

application

for

Disability

Insurance

Benefits be affirmed and this case be closed.
In

brief,

Plaintiff

filed

an

application

for

Disability

Insurance Benefits (DIB), alleging a disability onset of August
1, 2004 because of gout.
determined

that

Plaintiff

The Administrative Law Judge (“ALJ”)
had

severe

impairments

of

morbid

obesity, hypertension and shortness of breath through his date
last insured.

However, the ALJ also determined that Plaintiff

was not disabled under the Social Security Act as none of these
impairments, alone or in combination, met or medically equaled
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one of the listed impairments in 20 C.F.R. § 404, Subpart P,
Appendix

1,

and

that

Plaintiff

had

the

residual

functional

capacity to perform medium work.
Plaintiff argued that the ALJ erred when he failed to
find that Plaintiff’s gout was a severe impairment, when he
found Plaintiff capable of medium work despite his gout and the
opinion

of

the

consultative

evaluator,

Dr.

Jennifer

Wischer

Bailey, and when he found Plaintiff only partially credible.
The

Magistrate

Judge

agreed

that

the

ALJ

made

a

factually

incorrect statement about whether there was any substantiated
evidence of clinical signs of gout, but did not find this error
reversible
ALJ’s

inasmuch

conclusion

impairment.

as

substantial

evidence

that

Plaintiff’s

gout

underpinned

was

not

a

the

severe

Further, the Magistrate Judge found no reversible

error in the conclusion that Plaintiff was capable of medium
work.

She noted that no treating doctor ever had opined that

Plaintiff

had

any

work-related

limitations.

And

while

the

consultative evaluator did use the adjective “mild” with regard
to the amount of work-related postural activities that Plaintiff
could perform, it was prefaced by the modifier “at least.” The
ALJ’s failure to elaborate on how the phrase “at least a mild
amount”
capable

might
of

problematic

reconcile
performing

because

he

with

a

“medium”
is

not
2

finding
work,

under

the

that

Plaintiff

moreover,
same

was

obligation

was
not
to

detail

why

he

is

rejecting

the

opinion

of

a

non-examining

consultant as opposed to that of a treating physician.
C.F.R. § 404.1527(c)(2).

See 20

Finally, the Magistrate Judge found

that substantial evidence supported the ALJ’s finding of partial
credibility.

Despite a prior work record of 35 years, it was

proper for the ALJ to consider the fact that Plaintiff did not
look for work other than as an electrician or make an effort to
retrain

himself.

Likewise,

even

though

the

ultimate

determination rests with the Commissioner, the ALJ did not err
in discounting Plaintiff’s claim of disability because he failed
to

submit

Finally,

any
it

limiting

was

inconsistencies

opinions

perfectly

in

by

any

appropriate

Plaintiff’s

treating

for

testimony

the

with

physicians.

ALJ

respect

to
to

note
how

often he took his medication or how far he could walk or whether
he felt capable of working.
Plaintiff filed two objections to the Magistrate Judge’s
Report and Recommendation, believing she erred in finding there
was

substantial

evidence

to

support

the

ALJ’s

determinations

that Plaintiff’s gout was non-severe and that Plaintiff could
perform medium work.

He took particular issue with her premise

that “the definition of medium work allows for sitting most of
the time” (doc. 15 at 8 n.1), citing Social Security Ruling 8310 and the Program Operations Manual System DI 25.001.001(B)(47)
(doc. 16 at 3-4).

Defendant acknowledges that the Magistrate
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Judge erred in so defining medium work (doc. 17 at 1), but
maintains that it does not vitiate the substantial evidence she
highlighted that supports the ALJ’s assessment of Plaintiff’s
work-related limitations.
As required by 29 U.S.C. § 636(b) and Federal Rule of Civil
Procedure

72(b),

the

Court

has

reviewed

the

comprehensive

findings of the Magistrate Judge and considered de novo the
filings

in

this

matter.

Upon

careful

consideration

of

the

foregoing, the Court finds Plaintiff’s objections unpersuasive
and

determines

Recommendation

that
is

the

Magistrate

thorough,

Judge’s

well-reasoned

Report
and

and

correct.

Consequently, the Court ADOPTS and AFFIRMS it in its entirety.
Accordingly,

the

decision

of

the

Commissioner

to

deny

Plaintiff’s application for Disability Insurance Benefits (DIB),
which

we

find

to

be

supported

by

substantial

evidence,

AFFIRMED and the Court ORDERS that this case be closed.
SO ORDERED.

Date:

September 10, 2013

s/S. Arthur Spiegel
S. Arthur Spiegel
United States Senior District
Judge

4

is