Gorby v. Commissioner of Social Security

Filing 17

OPINION AND ORDER: The Court OVERRULES Plaintiffs objections, ADOPTS AND AFFIRMS the Report and Recommendation, and DISMISSES Plaintiffs Complaint. Signed by Judge Michael H. Watson on 10/10/2017. (ew)

PILED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Luke W. Gorby,

^

""CHARD W. NACEL
ERK OF C" JiU
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2917 0C7 10 PH U- 12
,i ^ yis• CCliHT
SOUTHERN DiST OHiO

Plaintiff,

Case No. 2:16-cv-656

V.

-AS i OIV. COiJJMHUS

Judge Michael H. Watson
Magistrate Judge Kimberly A. Joison

Commissioner of Social Security,
Defendant.

OPINION AND ORDER

On June 7,2017, Magistrate Judge Joison, to whom this matter was referred,
issued a Report and Recommendation ("R&R"), EOF No. 15, recommending that the

Court overrule Plaintiffs Statement of Specific Errors, in which Plaintiff challenged
the Commissioner of Social Security's ("the Commissioner's") decision to deny
Plaintiffs application for supplemental social security income ("SSI"). Plaintiff has
objected to the R&R. ECF No. 16. For the reasons that follow, the Court
OVERRULES Plaintiffs objections, AFFIRMS and ADOPTS the R&R, and
DISMISSES Plaintiffs Complaint.
I.

BACKGROUND

Plaintiff applied for benefits on February 26, 2013, alleging that he became

disabled on December 15, 2012, at the age of twenty three. After Plaintiffs initial

application was denied, an Administrative Law Judge ("ALJ") held a hearing on
Plaintiffs application. The ALJ subsequently issued a written determination denying
Plaintiff benefits on November 13, 2014. That decision became final when the

Appeals Council denied review on May 9, 2016.

Plaintiffsubsequently filed suit for judicial review of the Commissioner's
determination pursuant to 42 U.S.C. § 405(g). The Magistrate Judge analyzed
PlaintifTs Statement of Specific Errors and recommended that the Court overrule the
same. Plaintiff objects to the Magistrate Judge's recommendation.
II.

ANALYSIS

A. Standard of Review

When a party objects to an R&R within the allotted time, the Court "shall make
a de novo determination of those portions of the report or specified proposed findings

or recommendations to which objection is made." 28 U.S.C. § 636(b)(1); see
also Fed. R. Civ. P. 72(b). Upon review, the Court "may accept, reject, or modify, in

whole or in part, the findings or recommendations made by the magistrate judge." 28
U.S.C. § 636(b)(1).

It is well settled that, when objecting to an R&R, a party must make "specific
written objections" to the magistrate judge's proposed findings and
recommendations. Fed R. Civ. P. 72(b)(3). A general statement that the magistrate

judge erred does not aid judicial efficiency, the purpose "for which the use of
magistrates [was] authorized." Howard v. Sec'y of Health & Human Servs., 932
F.2d 505, 509 (6th Cir. 1991); see also Holl v. Potter, No. C-1-09-618,2011 WL

4337038, at *1 (S.D. Ohio Sept. 15, 2011), affd, 506 F. App'x 438 (2012)
("Objections that merely restate arguments raised in the memoranda considered by
the Magistrate Judge are not proper, and the Court may consider such repetitive
arguments waived.").

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The Court must analyze Plaintiffs objections in light of the standard of review
in social security cases, which was set forth in the R&R:
"[t]he findings of the [Commissioner] as to any fact, if supported by
substantial evidence, shall be conclusive...." "[Sjubstantial evidence is
defined as 'more than a

scintilla of evidence but less than a

preponderance; it is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.'" Rogers v.
Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)(quoting Cutlip
V. Sec'y of HHS, 25 F.3d 284, 286 (6th Cir. 1994)).
The Commissioner's findings of fact must also be based upon the
record as a whole. Harris v. Heckler, 756 F.2d 431, 435 (6th Cir.

1985). To that end, the Court must "take into account whatever in the
record
fairly
detracts
from
[the]
weight"
of
the Commissioner's decision. Rhodes v. Comm'r of Soc. Sec., No.

2:13-cv-1147, 2015 WL 4881574, at *2 (S.D. Ohio Aug. 17, 2015).
R&R, ECF No. 16.

B. Plaintiffs Objections
1. The Residual Functional Capacity ("RFC") Objection
The ALJ determined that Plaintiff has the RFC to perform "simple, routine,

repetitive, one and two-step tasks." R&R, ECF No. 15. Plaintiff asserts that the
Magistrate Judge erred when finding that this RFC determination was supported by
substantial evidence. Plaintiffs assertion is not well taken.

As the Magistrate Judge explained, two state-agency reviewing psychologists
concluded that Plaintiff had moderate difficulties with concentration, persistence, or

pace. id. Both reviewing psychologists also opined, however, that despite this
difficulty. Plaintiff retained the capacity to "understand, remember, and carry out one
and two-step instructions." Id. (quoting Tr. 348, 365). The ALJ relied upon these

opinions and adopted the "one and two-step instructions" restriction when

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formulating PiaintifFs RFC. The RFC determination was thus supported by
substantial evidence.

Piaintiff further asserts that the determination that Plaintiff is limited to "simple,

routine, repetitive, one and two-step tasks" is inadequate because it only addresses
his inability to perform sophisticated tasks but fails to address how frequently he has
difficulty concentrating. Controlling case law in this Circuit does not, however,
support that contention. Smith-Johnson v. Comm'rofSoc. Sec., 579 F. App'x426,

436-37 (6th Cir. 2014); Ealy v. Comm'rofSoc. Sec, 594 F.3d 504, 516 (6th Cir.
2010); see also, Kepke v. Comm'rofSoc. Sec., 636 F. App'x 625, 635 (6th Cir.
2016) (explaining that "[c]ase law in this Circuit does not support a rule that a
hypothetical providing for simple, unskilled work is per se insufficient to convey
moderate limitations in concentration, persistence and pace").
In Smith-Johnson, a plaintiff claimed that because an ALJ found that she had
moderate limitations in concentration, persistence, or pace, the ALJ was required to
include specific pace limitations in the plaintiffs RFC and hypotheticals posed to a

vocational expert. 579 F. App'x at 436-37. The Sixth Circuit Court of Appeals
disagreed. The Appellate Court reasoned that when medical opinion evidence
establishes that a plaintiff has a specific pace, speed, or concentration limitation, an

ALJ must include those specific restrictions in a plaintiffs RFC and in hypothetical
questions. See id. (citing and contrasting Ealy, 594 F.3d at 516). In SmithJohnson, however, the medical source upon which the ALJ relied "did not place any

concrete functional limitations on [the plaintiffs] abilities to maintain attention,
concentration, or pace when performing simple, repetitive, or routine tasks" Id.
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Indeed, the medical source upon which that ALJ relied had opined that the plaintiff
was abie to perform simple tasks "even considering [the plaintiffs] moderate
iimitations in maintaining concentration and persistence." Id. Therefore, the ALJ
was not required to include pace-based restrictions in the RFC or hypotheticais in
order to accurately portray the plaintiffs impairments.
Analogousiy, and as the Magistrate Judge correctly noted, the ALJ here relied

upon the reviewing psychologists' opinions that Plaintiff could perform one and twostep tasks despite his moderate difficulties with concentration, persistence, or pace.
R&R, EOF No. 15. The Magistrate Judge also correctly concluded that the ALJ

properly considered all the record evidence concerning Plaintiffs difficulties in this
domain. Id. The ALJ did not find that there was credible or compelling evidence
that supported the incorporation of greater restrictions in the RFC or the

hypotheticais. Tr. 264. Substantial evidence supports that conclusion. Accordingly,
the Magistrate Judge correctly concluded that the RFC and the hypotheticais

accurately portrayed Plaintiffs mental impairments. R&R, ECF No. 15. The ALJ
was not required to include additional concentration-related restrictions in order to

achieve that accuracy.

Plaintiff objects to the "absolutist" nature of the language used by the

Magistrate Judge in the R&R, and points out that Plaintiff benefitted from special
education classes. Plaintiff does not, however, point to concrete, functional
limitations in other medical records that should have been incorporated into the
RFC. Nor does a review of the record reveal any such additional restrictions. As
the Magistrate Judge explained, two consultative examiners opined that Plaintiffs

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"ability to maintain concentration to task appeared to be a relative strength" and that
there were "no indications" that Plaintiff had "difficulty with attentional pace or

persistence." Id. (quoting Tr. 784, 909).^ The Court finds that the Magistrate
Judge's "absolutist" phrasing correctly depicts a lack of concrete, functional
limitations in the record. For these reasons, the Court OVERRULES Plaintiffs first
statement of errors.

2. The 12.05C Listing Objection
The ALJ determined that Plaintiff did not meet or equal Listing 12.05C.
Plaintiff asserts that when making this determination, the ALJ referred to the wrong
standard. The Magistrate Judge agreed but found that the ALJ's reference to the
wrong standard constituted harmless error in this instance. The Court concurs.

Listing 12.05(C), for intellectual disability, has two mandatory components.

See 20 C.F.R. Pt. 404, App. 1, §§ 12.00,12.05(C). The first component, referred to
as the "diagnostic definition," has three prongs: 1) significantly sub-average general
intellectual functioning; 2) deficits in adaptive functioning; and 3) onset before age

twenty-two. 20 C.F.R. Pt. 404, App. 1, § 12.05; see also Smith-Johnson, 579 F.

App'x at 432 (citing Hayes v. Comm'r ofSoc. Sec., 357 F. App'x 672, 675 (6th Cir.
2009)). The second component, referred to as the "severity criteria" for subsection
C, has two prongs: 1) a valid verbal, performance, or full scale IQ of 60 through 70;
and 2) a physical or other mental impairment imposing an additional and significant

work-related limitation or function. 20 C.F.R. Pt. 404, App. 1, § 12.05(C); see also

^Other medical opinion evidence relates to Plaintiffs physical impairments, which are not at
issue here.

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Smith-Johnson, 579 F. App'x at 432 (citing Sheeks v. Comm'rofSoc. Sec., 544 F.

App'x 639, 641 (6th Cir. 2013)).
With regard to the severity criteria for subsection C, the ALJ stated that "the
evidence fails to establish that [Plaintiff] experiences a complete inability to function

independently outside the area of his home as a result of symptoms and limitations
arising from his combined documented impairments." R&R, ECF No. 15 (quoting Tr.
262). Plaintiff contends, and the Magistrate Judge correctly concluded, that Plaintiff
was not required, however, to show that he experienced "a complete inability to
function outside his home" in order to meet Listing 12.05(C).
Nevertheless, and as the Magistrate Judge explained, even though the ALJ
referred to the wrong standard for the severity criteria, substantial evidence
demonstrates that Plaintiff failed to meet the requirements of the first component—

the diagnostic definition. Indeed, as the Magistrate Judge explained, the ALJ
conducted a detailed review of the record evidence and concluded that it

demonstrated that Plaintiff did not have adaptive functioning deficits that could
satisfy the second prong of the diagnostic definition component. R&R, ECF No. 15;
see also Tr. 262 ("In fact, the evidence demonstrates [that Plaintiff] has adequate
adaptive functioning."). Because Plaintiff could not satisfy the diagnostic definition

component, the Magistrate Judge correctly determined that the ALJ's reference to
the wrong standard in the severity criteria component did not constitute reversible
error. Id.

Plaintiff does not object to the Magistrate Judge's determination about the
diagnostic definition component. Instead, Plaintiff objects solely because the ALJ

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referenced the wrong standard in the severity criteria component. This is not an
adequate basis for remand. "No principle of administrative law or common sense
requires us to remand a case in quest of a perfect opinion unless there is reason to

believe that remand might lead to a difference result." Kornecky v. Comm'rofSoc.
Sec., 167 F. App'x 496, 507 (6th Cir. 2006). Under these circumstances, there is no
reason to believe that remand might lead to a different result. The Court
consequently OVERRULES Plaintiffs second statement of errors.
III.

CONCLUSION

For the foregoing reasons, the Court OVERRULES Plaintiffs objections to the
R&R, ECF No. 16, AFFIRMS AND ADOPTS the R&R, ECF No. 15, and

DISMISSES Plaintiffs Complaint. The Clerk is DIRECTED to enter judgment in the
Commissioner's favor and terminate this case.
IT IS SO ORDERED.

MICHAEL H. WATSON, JUDGE
UNITED STATES DISTRICT COURT

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