Nelson v. Commissioner of Social Security

Filing 16

OPINION AND ORDER ADOPTING 14 Report and Recommendation: The Court OVERRULES Plaintiff's objections and AFFIRMS the Commissioner's decision. Signed by Judge Michael H. Watson on 3/28/2018. (ew)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Margaret J. Nelson,
Plaintiff,

v.

Case No. 2:16-cv-1123

Commissioner of Social Security,

Judge Michael H. Watson
Magistrate Judge Jolson

Defendant.

OPINION AND ORDER
On October 26, 2017, Magistrate Judge Jolson issued a Report and
Recommendation ("R&R") recommending the Court overrule Margaret J.
Nelson's ("Plaintiff'') Statement of Specific Errors and affirm the Commissioner's
decision in this social security case. R&R, ECF No. 14. Plaintiff objects to the
R&R. Obj., ECF No. 15. For the following reasons, Plaintiff's objections are

OVERRULED.
I.

PROCEDURAL HISTORY

Plaintiff filed her application for Period of Disability and Disability Insurance
Benefits on March 4, 2013. Her application was denied initially and on
reconsideration. Plaintiff requested a hearing before an administrative law judge
("ALJ"), who, after a hearing, denied Period of Disability and Disability Insurance
Benefits to Plaintiff. The Appeals Council denied Plaintiff's request to review the
ALJ decision, and Plaintiff thereafter filed suit in this Court.

II.

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 doe.snot 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-1-09618, 2011 WL 4337038, at *1 (S.D. Ohio Sept. 15, 2011 ), aff'd, 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.").
Furthermore, in Social Security cases, the Court's review "is limited to
determining whether the Commissioner's decision 'is supported by substantial
evidence and was made pursuant to the proper legal standards."' Ealy v.

Comm'rof Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010) (quoting Rogers v.
Comm'rof Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)). In this context,
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"[s]ubstantial evidence is defined as 'more than a scintilla of evidence but less
than a preponderance .... " Rogers, 486 F.3d at 421 (quoting Cutlip v. Sec'y of
Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994)). Put another way,
"[s]ubstantial evidence exists when a 'reasonable mind might accept' the relevant
evidence 'as adequate to support a conclusion."' Warner v. Comm'r of Soc.
Sec., 375 F.3d 387, 390 (6th Cir. 2004) (quoting Kirk v. Sec'y of Health & Human
Servs., 667 F.2d 524, 535 (6th Cir. 1997)).

Ill.

ANALYSIS

A. Objection Regarding the ALJ's Treatment of Dr. Balogh's Opinion
Plaintiff objects to the Magistrate Judge's conclusion that the ALJ properly
evaluated the treating source opinion of Dr. Balogh. Plaintiff contends that the
ALJ failed to reasonably account for Dr. Balogh's finding that Plaintiff suffered
from impaired attention span and concentration and that she was easily
distracted. Plaintiff contends that, in discounting Dr. Balogh's opinion, the ALJ
relied heavily on certain portions of Dr. Balogh's treatment notes but gave short
shrift to those portions of his treatment notes that supported his opinion. Plaintiff
argues, ultimately, that this cursory treatment of portions of Dr. Balogh's notes
and his treating source opinion amounted to a failure to weigh the record as a
whole.
The Court declines to consider this objection as it is so vague and cursory
that it does not amount to a "specific written objection to the proposed findings
and recommendations" as required under Federal Rule of Civil Procedure
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72(b)(2). For example, the objection states the ALJ "leaned heavily upon certain
items in Dr. Balogh's treatment notes" but does not cite to the ALJ decision or Dr.
Balogh's treatment notes to identify what those portions were. It then contends
conclusorily that the ALJ gave "short shrift" to "the findings most salient to her
ability to sustain even simple, routine work activities" but again does not point the
Court to any specific portions of Dr. Balogh's treatment notes pertinent to
Plaintiff's ability to sustain simple, routine work activities. Without even a single
citation to the medical evidence (Dr. Balogh's notes), the ALJ's decision, or the
R&R, the Court is unable to thoughtfully consider such an objection.
Moreover, although the legal basis of the objection itself is vague and
difficult to decipher, it appears in any event to be waived. Plaintiff presented
three specific arguments regarding the ALJ's treatment of Dr. Balogh's opinion in
her Statement of Specific Errors. First, Plaintiff argued that the ALJ's failure to
give controlling weight to Dr. Balough's opinion was erroneous because Dr.
Balogh's opinion was supported by the evidence in the record and the opinions of
the non-examining State agency medical consultants and consultative
examiners. Second, Plaintiff argued the ALJ failed to discuss certain required
factors when determining what weight to give Dr. Balogh's opinion. Third,
Plaintiff argued the ALJ failed to give accurate and specific reasons for
discounting Dr. Balogh's opinion.
The R&R concluded that substantial evidence supported the ALJ's
determination that Dr. Balogh's opinion was not supported by the record and
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therefore not entitled to controlling weight, R&R 15, ECF No. 14; that the ALJ
was required to consider certain factors in determining what weight to give Dr.
Balogh's opinion but was not required to provide a factor-by-factor analysis, id. at
16; and that, instead, the ALJ was only required to provide "good reasons" for the
weight assigned to Dr. Balogh's opinion, which he did. id.
Plaintiff's objection that the ALJ failed to address the impaired attention
span/concentration/distractability portion of Dr. Baglogh's opinion and prioritized
certain portions of Dr. Balogh's treatment notes over others was not included in
Plaintiff's statement of specific errors nor addressed in the R&R. The Court will
not consider a new argument that has not been specifically presented to the
Magistrate Judge. Swain v. Comm'r of Soc. Sec., 379 F. App'x 512, (6th Cir.
2010) ("[A] claim raised for the first time in objections to a magistrate judge's
report is deemed waived.") (internal quotation marks and citation omitted).
In the alternative, the Court finds the objection-as best it can be
construed-has no merit. The ALJ acknowledged Dr. Balogh's opinion that
Plaintiff would be unable to meet competitive standards in maintaining a two-hour
attention span and working with others without being unduly distracted. ALJ Dec.
12, ECF No. 10-2, PAGEID # 153. The ALJ reasonably accounted for, and
discounted, this opinion by then stating that while Dr. Balogh's treatment notes
do indicate an impaired attention span, they do not indicate the extent of the
impairment. Id. This was a correct recitation of the medical records. Balogh
Trtmt. Records, ECF No. 10-8, PAGEID ## 688, 696, 704, 712, 720, 728; see
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also id. at PAGEID # 735 (noting attention span within normal limits).
Accordingly, the ALJ reasonably concluded that Dr. Balogh's opined limitation
was not supported by his own treatment notes. Further, the ALJ stated that
Plaintiff reported a difficulty with her attention span at two psychological
consultative examinations but that it was not evident to a severe degree during
those examinations. Id. This statement is also an accurate recitation of the
medical evidence. Dubey Rpt., ECF No. 10-7, at PAGEID ## 581 (noting that
"[t]rouble concentrating was not observed" but was reported by Plaintiff), 584
(concluding Plaintiff could maintain persistence and pace to remember and carry
out simple instructions independently and multi-step instructions with
supervision); Meyer Rpt., ECF No. 10-7, at PAGEID ## 594 (noting no apparent
flight of ideas), 595-97 (noting her concentration and persistence on tasks was
good). The ALJ thus correctly concluded that Dr. Balogh's opinion was
inconsistent with the other evidence of record. In sum, the ALJ did reasonably
account for this portion of Dr. Balogh's opinion.

B. Objection Regarding ALJ's Treatment of Ms. Mohan's Assessment
Second, Plaintiff contends that the ALJ improperly minimized a physician's
assistant's assessment of Plaintiff's physical capacities and limitations by
incorrectly concluding that the assessment was based on Plaintiff's subjective
complaints of pain. Plaintiff argues that the R&R incorrectly endorsed the ALJ's
minimization of the assessment as based on subjective complaints and further
incorrectly found that the assessment lacked any additional insight as to the
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bases for its conclusions. Plaintiff argues that the entire medical record,
including the treatment notes of Dr. Kocoloski, supported the assessment.
Plaintiff also contends that the physician's assistant should not be expected to
attach to the assessment those extraneous medical records that support the
conclusions reached in the assessment.
The Court is not persuaded. The ALJ did not "dismiss" the assessment
merely because it was the product of Plaintiffs subjective complaints or because
the assessment itself did not address any bases other than Plaintiffs subjective
complaints for the conclusions reached therein. Rather, the ALJ declined to give
the assessment controlling weight and instead gave the assessment little weight
for three reasons: ( 1) it was inconsistent with other evidence in the record such
as Plaintiffs x-rays; (2) it was at least partially based on Plaintiffs subjective
complaints, which the ALJ determined were not credible; and (3) neither the
physical therapist nor the physician's assistant are medical sources whose
opinions may be entitled to controlling weight. As Plaintiffs objection is a
mischaracterization of both the ALJ decision and the R&R, and it is
OVERRULED.
Moreover, to the extent Plaintiff attempts to object to the R&R's finding that
the ALJ properly concluded that the physician assistant's assessment was
inconsistent with the other record evidence, that objection is also OVERRULED.
Again, as above, Plaintiff utterly fails to cite to any pertinent portions of the record
to argue that the ALJ's conclusion-that the assessment was unsupported by the
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medical evidence-was not itself supported by substantial evidence. Plaintiff
simply boldly argues that there was no shortage of "insight" in the record,
including, apparently, somewhere in Dr. Kocoloski's notes. Obj. 4, ECF No. 15.
Nonetheless, the Court has reviewed pertinent portions of the medical evidence
and concludes that the R&R correctly determined that the ALJ's finding is based
on substantial evidence in the record, including x-rays of Plaintiff's spine and
joints, ECF No. 10-2 PAGEID # 559, ECF No. 10-8, PAGEID ## 740-41, 749,
855, a recent MRI of her lumbar spine, ECF No. 10-8, PAGE ID # 764, and other
clinical examinations, ECF No. 10-7, PAGEID ## 570, 589, 622, 628, 631; ECF
No. 10-8, PAGE ID# 825, not to mention Plaintiff's activities of daily living. ECF
No. 10-6, PAGEID ## 285-301; ECF No. 10-7, PAGEID ## 577, 581. That the
record may have also contained evidence to support the assessment does not
change the fact that substantial evidence supports the ALJ's determination. See
Ealy, 594 F.3d at 512.

C. CONCLUSION
For the reasons addressed above, the Court OVERRULES Plaintiff's
objections and ADOPTS the R&R. The Commissioner's decision is AFFIRMED.
The Clerk shall enter judgment in favor of Defendant and terminate the case.
IT IS SO ORDERED.

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