McBride v. Commissioner of Social Security
DECISION AND ENTRY Adopting 22 the Report and Recommendations of the United States Magistrate Judge; Overruling 23 Plaintiff's Objections; and Terminating This Case From the Docket. Signed by Judge Timothy S. Black on 9/22/17. (gs)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
RICKY J. MCBRIDE,
COMISSIONER OF SOCIAL
Case No. 1:16-cv-708
Judge Timothy S. Black
Magistrate Judge Karen L. Litkovitz
DECISION AND ENTRY:
(1) ADOPTING THE REPORT AND RECOMMENDATIONS
OF THE UNITED STATES MAGISTRATE JUDGE (Doc. 22);
(2) OVERRULING PLAINTIFF’S OBJECTIONS (Doc. 23); and
(3) TERMINATING THIS CASE FROM THE DOCKET.
This case is before the Court pursuant to the Order of General Reference in the
United States District Court for the Southern District of Ohio Western Division to United
States Magistrate Judge Karen L. Litkovitz. Pursuant to such reference, the Magistrate
Judge reviewed the pleadings filed with this Court, and on August 7, 2017, submitted a
Report and Recommendations. (Doc. 22). On August 21, 2017, Plaintiff timely filed
objections (“Objections”). (Doc. 23). On September 2, 2017, the Commissioner filed a
response. (Doc. 24).
As required by 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b), the Court has
reviewed the comprehensive findings of the Magistrate Judge and considered de novo all
of the filings in this matter. Upon consideration of the foregoing, the Court does
determine that the Report and Recommendations (Doc. 22) should be and is hereby
adopted in its entirety and Plaintiff’s Objections (Doc. 23) should be and are overruled.
Plaintiff’s first objection argues that the Commissioner erred in determining that
claimant’s testimony was not credible. (Objections at 7-10). This argument fails. As
explained by the Magistrate Judge, the Administrative Law Judge (“ALJ”) set forth
sufficient reasons for why she deemed Plaintiff’s testimony not credible; specifically,
Plaintiff’s perceived subjective intensity and persistence of pain were not supported by
the evidence in the record, and Plaintiff gave inconsistent statements about his daily
activities and substance abuse. (R&R at 6-13) & (Tr. at 29-30); see also 20 C.F.R.
§ 404.1529 (“[i]n evaluating the intensity and persistence of your symptoms, including
pain, we will consider all of the available evidence . . . then determine the extent to which
your alleged functional limitations and restrictions due to pain or other symptoms can
reasonably be accepted as consistent with medical signs and laboratory findings . . .”)
(emphasis added); see also Floyd v. Finch, 441 F.2d 73, 76 (6th Cir. 1971) (“[i]t is not
our function to resolve conflicts in the evidence or determine issues of credibility of
witnesses. This is solely the function of the Secretary.”).
Plaintiff’s second objection argues that the ALJ failed to comply with the required
techniques for analyzing mental impairments set forth in 20 C.F.R. § 404.1520(a).
(Objections at 10-12). This argument fails. As explained by the Magistrate Judge, the
ALJ was not required to create a new psychiatric review technique form, but could
“incorporate the pertinent findings and conclusions in her written decision based on the
technique.” (R&R at 14). The ALJ took Plaintiff’s mental impairments into account,
which is supported by the record, and limited the recommendation of employment
accordingly to accommodate Plaintiff’s impairments. (Id.). Furthermore, failure to
attach the specific findings to the ALJ’s decision is harmless error. (R&R at 13-15) &
(Tr. at 28, 32); see also Rabbers v. Comm’r Soc. Sec. Admin., 582 F.3d 647, 655 (6th Cir.
2009) (“this court [has] held that an ALJ’s failure to attach a PRTF to the written opinion,
as required by the prior regulations, amounted to harmless error.”) (emphasis added).
Plaintiff’s third objection argues that the ALJ failed to give supporting weight to
the testimony of Dr. Rao, a treating source. (Objections at 12-14). Similarly, Plaintiff’s
fifth objection argues that the ALJ failed to properly consider Dr. Rao’s testimony when
evaluating claimant’s residual functional capacity (“RFC”). (Id. at 15-16). These
arguments fail. First, Plaintiff conceded that “the ALJ justifiably discounted Dr. Rao’s
opinion.” (Id. at 12). Second, as explained by the Magistrate Judge, the ALJ’s decision
not to give supporting weight to Dr. Rao’s opinion was justified because his opinion was
not supported by clinical and laboratory evidence. (R&R at 15-25) & (Tr. at 30-31); see
also 20 C.F.R. § 404.1527(c).
Plaintiff’s fourth objection argues that the ALJ failed to consider obesity when
considering the impact on his ability to work. (Objections at 14-15). This argument fails.
As explained by the Magistrate Judge, the ALJ makes individualized assessments to
determine the severity of the obesity, but makes no assumptions in regards to the effect it
has on the claimant’s functional capacity. Obesity was not included by the treating
source nor evidenced by clinical or laboratory tests as an impairment that would affect
the claimants ability to work. Additionally, the ALJ determined there was no medical
evidence introduced that showed obesity exacerbated Plaintiff’s other impairments.
(R&R at 25-28).
Plaintiff’s sixth objection argues that the ALJ failed to consider sleep apnea when
considering the impact on his ability to work. (Objections at 16-17). This argument fails.
As explained by the Magistrate Judge, the ALJ specifically considered Plaintiff’s sleep
apnea in assessing his functional capacity, and stated that the limitations set forth in the
RFC accommodate the impact of Plaintiff’s sleep apnea on his ability to function. (R&R
For the foregoing reasons:
The Report and Recommendations (Doc. 22) is ADOPTED in its entirety;
Plaintiff’s Objections (Doc. 23) are OVERRULED;
The Commissioner’s decision is AFFIRMED; and
The Clerk shall enter judgement accordingly, whereupon this case is
TERMINATED on the docket of this Court.
IT IS SO ORDERED.
Timothy S. Black
United States District Judge
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