Bender v. Commissioner of Social Security

Filing 18

ORDER ADOPTING and AFFIRMING the REPORT AND RECOMMENDATION 16 . The decision of the Commissioner of Social Security is AFFIRMED. This action is hereby DISMISSED. Signed by Judge Gregory L Frost on 8/29/11. (sem1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

JANET L. BENDER,
Plaintiff,
vs.

Civil Action 2:10-CV-772
Judge Frost
Magistrate Judge King

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
OPINION AND ORDER
Plaintiff seeks review of the denial by the Commissioner of
Social Security of her applications for disability insurance benefits
and supplemental security income.

On August 11, 2011, the United

States Magistrate Judge recommended that the decision of the
Commissioner be affirmed and that this action be dismissed.
and Recommendation, Doc. No. 16.

Report

This matter is now before the Court

on plaintiff’s objections to that Report and Recommendation.
Objection, Doc. No. 17.

The Court will consider the matter de novo.

28 U.S.C. §636(b); Fed. R. Civ. P. 72(b).
The administrative law judge found that plaintiff’s severe
impairments consist of peripheral vascular disease, asthma, obesity
and a history of coronary artery disease with associated
hyperlipidemia. A.R. 23. The administrative law judge went on to find
that plaintiff retains the residual functional capacity to perform a
reduced range of sedentary work. Id. Relying on the vocational
expert’s testimony, the administrative law judge found that plaintiff
is able to perform work that exists in significant numbers in the

national economy and that she is therefore not disabled within the
meaning of the Social Security Act. A.R. 29.
Plaintiff asserted in her Statement of Errors, Doc. No. 11, and
insists in her Objection, that the administrative law judge improperly
evaluated the opinions of disability articulated by her treating
family practitioners and erred in his credibility determination.

The

Magistrate Judge rejected these contentions and, after careful review
of the record, this Court agrees with that determination.
The Magistrate Judge concluded that the administrative law judge
did not err in rejecting the opinions of plaintiff’s treating family
practitioners:
It is true that the administrative law judge
declined to credit the opinions of plaintiff’s
treating family practitioners, Drs. Brandt and
McCorkle.
He did so, however, based on factors
permitted by the regulations. For example, the
administrative law judge noted that plaintiff’s
alleged disabling conditions have been treated by
specialists and not by Drs. Brandt or McCorkle.
The administrative law judge also noted that Dr.
Brandt’s opinion of disability and extreme
limitation in her ability to engage in work-related
activities was at odds with his statement that
plaintiff could perform her activities of daily
living. A.R. 27. The administrative law judge also
commented that “Dr. Brandt appears to have based
his assessment upon the claimant’s ‘self-report’ of
symptoms without any critical evaluation of whether
the claimant's complaints are supported by the
evidentiary record.” Id. It is also significant
that the administrative law judge relied on the
records and the opinions of plaintiff’s treating
thoracic surgeon, Dr. Fallahnejad. A.R. 373-90. Dr.
Fallahnejad’s treatment notes from 2001 to 2003
indicate that plaintiff is capable of at least
sedentary exertion. Id. Moreover, Dr. Danopulos,
who consultatively examined plaintiff in March
2008, concluded that plaintiff is capable of light
exertion, and the state agency physicians concluded
that plaintiff could perform at least sedentary
exertion. See A.R. 403-09, 566-72. Those medical
source opinions constitute substantial support for

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the administrative law judge's residual functional
capacity assessment. 20 C.F.R. §404.1527(d),
(f)(2)(I).
A.R.
23.
Finally,
and
as
the
administrative law judge noted, Dr. Brandt’s
opinions that plaintiff is “disabled” are not
entitled to any special deference. A.R. 27. See 20
C.F.R. §§404.1527(e)(1), 416.927(e)(1).
Report and Recommendation, pp. 15-16.

The record in this action

reflects extensive, and conflicting, medical evidence.

However, it is

for the Commissioner, and not this Court, to resolve those conflicts.
See Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001).
Plaintiff also contends that the administrative law judge
improperly failed to fully credit plaintiff’s subjective complaints
because they “are substantiated by the opinions of her treating
doctors . . . .”

Objections, p. 6.

The fact that, as noted supra,

the administrative law judge properly rejected the opinions of
plaintiff’s treating family practitioners substantially undermines
plaintiff’s argument in this regard.

Moreover, as the Magistrate

Judge noted, the administrative law judge accorded extensive and
detailed attention to plaintiff’s subjective complaints.
28-29.

See A.R.,

He discounted those complaints in light of her activities of

daily living, the conservative nature of plaintiff’s recent medical
treatment, the inconsistency between her testimony and the objective
medical evidence and internal inconsistencies in her own testimony.
The credibility determinations of an administrative law judge are to
be accorded “great weight and deference, particularly since an
administrative law judge is charged with the duty of observing a
witness’s demeanor and credibility.”

Walters v. Commissioner of Soc.

Sec., 127 F.3d 525, 531 (6th Cir. 1997).

Under the circumstances

presented in this case, the Court determines that the administrative

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law judge’s credibility findings enjoy substantial support in the
record.
Where, as here, the administrative law judge reached his decision
by applying the proper legal standards and where that decision is
supported by substantial evidence, this Court is without authority to
overturn that decision.

Longworth v. Comm’r of Soc. Sec., 402 F.3d

591, 595 (6th Cir. 2005).
Plaintiff’s Objection, Doc. No. 17, is DENIED.
Recommendation, Doc. No. 16, is ADOPTED and AFFIRMED.
the Commissioner of Social Security is AFFIRMED.

The Report and
The decision of

This action is

hereby DISMISSED.
The Clerk shall enter FINAL JUDGMENT pursuant to Sentence 4 of 42
U.S.C. § 405(g).

/s/

Gregory L. Frost
Gregory L. Frost
United States District Judge

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