Miller v. Commissioner of Social Security

Filing 18

ORDER ADOPTING REPORT AND RECOMMENDATIONS re 15 Report and Recommendation. The Court FINDS the Defendant's decision supported by substantial evidence, AFFIRMS the decision of the ALJ, and DISMISSES this case from the docket. Signed by Judge S Arthur Spiegel on 3/18/2014. (km1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

WILLIAM MILLER,

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Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,

NO. 1:12-CV-00917

OPINION AND ORDER

Defendant.

This matter is before the Court on the Magistrate Judge’s
Report and Recommendation, (doc. 15), Plaintiff’s Objections (doc.
16), and Defendant’s Response (doc. 17).

In her Report and

Recommendation, the Magistrate Judge recommended that the decision
of

the

Administrative

Law

Judge

(“ALJ”)

denying

Plaintiff

Disability Insurance Benefits (“DBI”) and Supplemental Security
Income (“SSI”) be affirmed and this case be dismissed from the
docket of the Court (Id.).

For the reasons indicated herein, the

Court ADOPTS the Magistrate Judge’s Report and Recommendation in
its entirety.
I.

Background
Plaintiff filed an application for Disability Insurance

Benefits (“DIB”) and Supplemental Security Income (“SSI”) in May
2009, alleging a disability onset date of September 2, 2008, due to
physical impairments, primarily debilitating knee pain (doc. 15).

Defendant denied such claims initially and upon reconsideration
(Id.).

Plaintiff subsequently requested a hearing before an

Administrative Law Judge (“ALJ”), which he obtained, and at which
he was represented by counsel (Id.).

The ALJ denied Plaintiff’s

application, following which Plaintiff requested review by the
Appeals Council (Id.).

The Appeals Council denied Plaintiff’s

request for review, thus making the ALJ’s decision the final
determination of the Commissioner (Id.).
On appeal to this Court, Plaintiff contends the nondisability determination should be reversed for two reasons (Id.).
First,

he

argues

the

ALJ

erred

by

improperly

determining

Plaintiff’s residual functional capacity (“RFC”); and second, that
the ALJ erred in the evaluation of Plaintiff’s credibility (Id.).
II.

The Magistrate Judge’s Report and Recommendation
The

Magistrate

Judge

reviewed

the

record,

rejected

Plaintiff’s assignments of error, found the ALJ’s non-disability
determination supported by substantial evidence, and recommended
the Court affirm such decision (Id.).

The Magistrate Judge first

addressed Plaintiff’s contention that the ALJ’s RFC determination
is

not

substantially

supported

for

having

failed

to

given

controlling weight to the opinion of Dr. Hoke, Plaintiff’s treating
physician (Id.).

The Magistrate Judge found that the objective

record evidence shows Plaintiff can perform the full range of
sedentary work, based on Plaintiff’s reported activities and the

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findings of Drs. Ray and McCloud (Id.).

The Magistrate Judge

further found the ALJ properly rejected Dr. Hoke’s four-hour
sitting limitation based on Plaintiff’s own admission that “one
does not need to use one’s knees when sitting” (Id.).

The

Magistrate Judge found that Dr. Ray’s opinion was entitled to
significant

weight

because

it

was

based

on

a

review

of

the

longitudinal record, interview of the claimant and reflection upon
objective studies (Id.).

The Magistrate Judge noted Plaintiff has

not pointed to any objective evidence that Dr. Ray did not review
Finally, the

that would invalidate Dr. Ray’s findings (Id.).
Magistrate
overhead

Judge

noted

reaching,

so

that

sedentary

Plaintiff’s

work

does

contentions

not

require

regarding

his

limitations in reaching would not preclude such an RFC (Id.).

The

Magistrate Judge concluded that in light of the foregoing, the ALJ
properly weighed the evidence in finding Plaintiff capable of
performing the full range of sedentary work (Id.).
The

Magistrate

Judge

next

addressed

Plaintiff’s

contention that the ALJ erred in his credibility assessment (Id.).
The

Magistrate

Judge

found

the

ALJ’s

finding

correct

that

Plaintiff’s testimony was inconsistent with the record (Id.).
Plaintiff’s testimony that he was unable to perform almost any
activity was belied by the record evidence that he fell on ice
while

loading

boxes,

he

moved

furniture,

relationships outside his home (Id.).

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and

he

maintained

Finally, the Magistrate

Judge reiterated that even according to Dr. Hoke, the treating
physician, Plaintiff could sit for two hours at a time, which is
inconsistent with Plaintiff’s testimony that he can only sit for
one hour at a time (Id.). In conclusion the Magistrate Judge found
the ALJ’s credibility assessment within the “zone of choice” and
therefore recommended that it be affirmed (Id.).
III.

Analysis
Under 42 U.S.C. § 405(g), the findings of the ALJ are

conclusive

if

they

are

supported

by

substantial

evidence.

Accordingly, this Court’s “review is limited to determining whether
there

is

substantial

findings.”

evidence

in

the

record

to

support

the

Duncan v. Secretary of Health and Human Services, 801

F.2d 847, 851 (6th Cir. 1986).
than a scintilla.

“‘Substantial evidence’ means ‘more

It means such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.’” Kirk v.
Secretary of Health and Human Services, 667 F.2d 524, 535 (6th Cir.
1981)(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)),
cert. denied, 461 U.S. 957 (1983).

It is for the Secretary to

resolve conflicts in the evidence and to decide questions of
credibility.

Gaffney v. Bowen, 825 F.2d 98, 100 (6th Cir. 1987).

The Secretary’s findings are not subject to reversal merely because
substantial evidence exists in the record to support a different
conclusion.

Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986).

The substantial evidence standard presupposes that there is a “zone

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of

choice”

within

which

the

interference from the courts.

Secretary

Id.

may

proceed

without

If the Secretary’s decision is

supported by substantial evidence, a reviewing court must affirm.
Kirk, 667 F.2d at 535.
In their briefing the parties accuse one another of
repeating arguments already made, and the Court agrees with such
assessment,

with

minor

exceptions.

Plaintiff,

for

instance,

challenges the Magistrate Judge’s assertion that he fails to point
to any objective evidence which Dr. Ray did not review that would
invalidate Dr. Ray’s findings (doc. 16).

Plaintiff indicates Dr.

Ray did not view his 2011 knee MRI’s which showed his problem had
progressed (Id.).

The government argues the 2011 MRI’s are

substantially similar to those from 2008 (doc. 17).

The Court

agrees with the government’s position that Plaintiff has failed to
show

the

ALJ’s

conclusion

substantial evidence.

is

erroneous

or

unsupported

by

Dr. Ray’s findings are supported by

objective medical evidence and constitute substantial evidence in
support of the conclusion that Plaintiff can engage in sedentary
work activity.
he

cannot

do

Plaintiff’s own statements belie the notion that
so,

and

the

Court

finds

the

ALJ’s

credibility

assessment correct.
IV.

Conclusion
The Court, having reviewed this matter de novo pursuant

to 28 U.S.C. §636(b) finds the Magistrate Judge’s Report and

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Recommendation well-reasoned, thorough, and correct.

The Court

finds the ALJ’s decision supported by substantial evidence.

The

Court agrees with Defendant that Plaintiff’s proffered claims of
error are unpersuasive.
The

Parties

were

served

with

the

Report

and

Recommendation and were therefore afforded proper notice of the
Magistrate Judge’s Report and Recommendation required by 28 U.S.C.
§ 636(b)(1)(C), including that failure to file timely objections to
the Report and Recommendation would result in a waiver of further
appeal.

See United States v. Walters, 638 F.2d 947, 949-50 (6th

Cir. 1981).
Accordingly, having reviewed this matter de novo pursuant
to 28 U.S.C. §636(b), the Court ADOPTS the Magistrate Judge’s
Report and Recommendation in its entirety (doc. 15), FINDS the
Defendant’s decision supported by substantial evidence, AFFIRMS the
decision of the ALJ, and DISMISSES this case from the docket.

SO ORDERED.

Dated: March 18, 2014

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

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