Ruff v. Commissioner of Social Security

Filing 15

REPORT AND RECOMMENDATION THAT: (1) THE ALJS NON-DISABILITY FINDING BE FOUND SUPPORTED BY SUBSTANTIAL EVIDENCE, AND AFFIRMED; AND (2) THIS CASE BE CLOSED ON THE COURTS DOCKET. Objections to R&R due by 4/15/2019. Signed by Magistrate Judge Michael J. Newman on 4/1/2019. (srb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JASON F. RUFF,
Plaintiff,

Case No. 3:17-cv-413

vs.
COMMISSIONER OF SOCIAL SECURITY,

District Judge Thomas M. Rose
Magistrate Judge Michael J. Newman

Defendant.
_________________________________________________________________________________
REPORT AND RECOMMENDATION1 THAT: (1) THE ALJ’S NON-DISABILITY
FINDING BE FOUND SUPPORTED BY SUBSTANTIAL EVIDENCE, AND AFFIRMED;
AND (2) THIS CASE BE CLOSED ON THE COURT’S DOCKET
_________________________________________________________________________________
This is a Social Security disability benefits appeal. At issue is whether the Administrative Law
Judge (“ALJ”) erred in finding Plaintiff not “disabled” and therefore unentitled to Disability Insurance
Benefits (“DIB”). This case is before the Court upon Plaintiff’s Statement of Errors (doc. 10), the
Commissioner’s memorandum in opposition (doc. 11), Plaintiff’s reply (doc. 12), the administrative
record (doc. 7), and the record as a whole.2
I.
A.

Procedural History

Plaintiff filed for DIB alleging a disability onset date of January 31, 2010. PageID 277-85.
Plaintiff last met the insured status requirements of the Social Security Act (“SSA”) on March 31,
2015.3 PageID 74. Between the alleged onset date and his date last insured (“DLI”), Plaintiff claims

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Attached hereto is a NOTICE to the parties regarding objections to this Report and
Recommendation.
2
Hereafter, citations to the electronically-filed record will refer only to the PageID number.
3
To qualify for DIB, one must “establish the onset of disability prior to the expiration or his [or
her] insured status[,]”i.e., the claimant’s date last insured (“DLI”). Garner v. Heckler, 745 F.2d 383, 390
(6th Cir. 1984). “Evidence of disability obtained after the expiration of insured status is generally of little
probative value.” Strong v. Soc. Sec. Admin., 88 F. App’x 841, 845 (6th Cir. 2004). To be relevant, “[p]ostexpiration evidence must relate back to the claimant’s condition prior to the expiration of her [or his] date
last insured.” Wirth v. Comm’r of Soc. Sec., 87 F. App’x 478, 480 (6th Cir. 2003).

disability as a result of a number of alleged impairments including, inter alia, residuals of bilateral
rotator cuff surgeries, lumbar degenerative disc disease, and carpal tunnel syndrome. PageID 74-75.
After initial denial of his application, Plaintiff received a hearing before ALJ Elizabeth A.
Motta on July 8, 2016. PageID 127-55. The ALJ issued a written decision on November 16, 2016
finding Plaintiff not disabled. PageID 72-87. Specifically, the ALJ found at Step Five that, based upon
Plaintiff’s residual functional capacity (“RFC”) to perform a reduced range of light work,4 “there are
jobs in that exist in significant numbers in the national economy that [he] could have performed”
through March 31, 2015, the date last insured. PageID 86.
Thereafter, the Appeals Council denied Plaintiff’s request for review, making the ALJ’s nondisability finding the final administrative decision of the Commissioner. PageID 38-43. See Casey v.
Sec’y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993). Plaintiff then filed this timely
appeal. Cook v. Comm’r of Soc. Sec., 480 F.3d 432, 435 (6th Cir. 2007).
B.

Evidence of Record

The evidence of record is adequately summarized in the ALJ’s decision (PageID 72-87),
Plaintiff’s Statement of Errors (doc. 10), the Commissioner’s memorandum in opposition (doc. 11),
and Plaintiff’s reply (doc. 12). The undersigned incorporates all of the foregoing and sets forth the
facts relevant to this appeal herein.
II.
A.

Standard of Review

The Court’s inquiry on a Social Security disability appeal is to determine (1) whether the ALJ’s
non-disability finding is supported by substantial evidence, and (2) whether the ALJ employed the
Light work “involves lifting no more than 20 pounds at a time with frequent lifting or carrying of
objects weighing up to 10 pounds” and “requires a good deal of walking or standing, or . . . sitting most of
the time with some pushing and pulling of arm or leg controls.” 20 C.F.R. § 404.1567(b). An individual
who can perform light work is presumed also able to perform sedentary work. Id. Sedentary work “involves
lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files,
ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount
of walking and standing is often necessary in carrying out job duties.” Id. § 404.1567(a).
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correct legal criteria. 42 U.S.C. § 405(g); Bowen v. Comm’r of Soc. Sec., 478 F.3d 742,745-46 (6th
Cir. 2007). In performing this review, the Court must consider the record as a whole. Hephner v.
Mathews, 574 F.2d 359, 362 (6th Cir. 1978).
Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). When substantial evidence
supports the ALJ’s denial of benefits, that finding must be affirmed, even if substantial evidence also
exists in the record upon which the ALJ could have found Plaintiff disabled. Buxton v. Halter, 246
F.3d 762, 772 (6th Cir. 2001). Thus, the ALJ has a “‘zone of choice’ within which he [or she] can act
without the fear of court interference.” Id. at 773.
The second judicial inquiry -- reviewing the correctness of the ALJ’s legal analysis -- may
result in reversal even if the ALJ’s decision is supported by substantial evidence in the record. Rabbers
v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009). “[A] decision of the Commissioner will
not be upheld where the [Social Security Administration] fails to follow its own regulations and where
that error prejudices a claimant on the merits or deprives the claimant of a substantial right.” Bowen,
478 F.3d at 746.
B.

“Disability” Defined

To be eligible for disability benefits, a claimant must be under a “disability” as defined by the
Social Security Act. 42 U.S.C. § 423(d)(1)(A). Narrowed to its statutory meaning, a “disability”
includes physical and/or mental impairments that are both “medically determinable” and severe enough
to prevent a claimant from (1) performing his or her past job and (2) engaging in “substantial gainful
activity” that is available in the regional or national economies. Id.
Administrative regulations require a five-step sequential evaluation for disability
determinations. 20 C.F.R. § 404.1520(a)(4). Although a dispositive finding at any step ends the ALJ’s
review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), the complete sequential review
poses five questions:
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1.

Has the claimant engaged in substantial gainful activity;

2.

Does the claimant suffer from one or more severe impairments;

3.

Do the claimant’s severe impairments, alone or in combination, meet or equal
the criteria of an impairment set forth in the Commissioner’s Listing of
Impairments (the “Listings”), 20 C.F.R. Subpart P, Appendix 1;

4.

Considering the claimant’s RFC, can he or she perform his or her past relevant
work; and

5.

Assuming the claimant can no longer perform his or her past relevant work -and also considering the claimant’s age, education, past work experience, and
RFC -- do significant numbers of other jobs exist in the national economy
which the claimant can perform?

20 C.F.R. § 404.1520(a)(4); see also Miller v. Comm’r of Soc. Sec., 181 F. Supp.2d 816, 818 (S.D.
Ohio 2001). A claimant bears the ultimate burden of establishing disability under the Social Security
Act. Key v. Comm’r of Soc. Sec., 109 F.3d 270, 274 (6th Cir. 1997).
III.
On appeal, Plaintiff argues that the ALJ erred in: (1) weighing the medical source opinion
evidence of record; and (2) failing to fully consider his back impairment when determining his RFC.
Doc. 10 at PageID 1116-24. Having carefully reviewed the administrative record and the parties’
briefs, and also having carefully considered the ALJ’s analysis leading to the non-disability finding
here at issue, the undersigned finds the ALJ carefully and reasonably developed and reviewed the
record; appropriately considered the medical evidence at issue; properly weighed opinion evidence
based upon reasons supported by substantial evidence; reasonably assessed Plaintiff’s credibility;
accurately determined Plaintiff’s RFC; and appropriately concluded that Plaintiff can perform a
significant number of jobs in the national economy.
A.

Dr. Hanna’s Treating Source Opinion

Plaintiff specifically challenges the ALJ’s assessment of his treating physician’s opinion -namely, the opinion of Melissa E. Hanna, D.O. PageID 704-06. Until March 27, 2017, “the
Commissioner’s regulations [that apply to this appeal] establish[ed] a hierarchy of acceptable medical
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source opinions[.]” Snell v. Comm’r of Soc. Sec., No. 3:12-cv-119, 2013 WL 372032, at *9 (S.D. Ohio
Jan. 30, 2013). In descending order, these medical source opinions are: (1) treaters; (2) examiners; and
(3) record reviewers. Id.
Under the regulations in effect prior to March 27, 2017, the opinions of treaters are entitled to
the greatest deference because they “are likely to be . . . most able to provide a detailed, longitudinal
picture of [a claimant’s] medical impairment(s) and may bring a unique perspective to the medical
evidence that cannot be obtained from the objective medical findings alone or from reports of
individual examinations[.]” 20 C.F.R. § 416.927(c)(2).
A treater’s opinions must be given “controlling weight” if “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and . . . not inconsistent with the other
substantial evidence in [the] case record.” LaRiccia v. Comm’r of Soc. Sec., 549 F. App’x 377, 384
(6th Cir. 2013). Even if a treater’s opinions is not entitled to controlling weight, “the ALJ must still
determine how much weight is appropriate by considering a number of factors, including the length of
the treatment relationship and the frequency of examination, the nature and extent of the treatment
relationship, supportability of the opinions, consistency of the opinions with the record as a whole, and
any specialization of the treating physician.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th
Cir. 2009); see also 20 C.F.R. § 416.927(c).
After treaters, “[n]ext in the hierarchy are examining physicians and psychologists, who often
see and examine claimants only once.” Snell, 2013 WL 372032, at *9.
Record reviewers are afforded the least deference and these “non-examining physicians’
opinions are on the lowest rung of the hierarchy of medical source opinions.” Id. “The regulations
provide progressively more rigorous tests for weighing opinions as the ties between the source of the
opinion and the individual [claimant] become weaker.” Id. (citing SSR 96-6p, 1996 WL 374180, at
*2 (July 2, 1996)).

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In this case, Dr. Hanna concluded on November 3, 2015 that, because of Plaintiff’s recurrent
rotator cuff tears and peripheral neuropathy, he could frequently lift and carry up to 5 pounds;
occasionally lift and carry 6-10 pounds; rarely lift and carry 11-20 pounds; never lift over 21 pounds;
rarely reach or handle with either hand or arm; never reach above shoulder level; stand, walk, and sit
for a total of 4 hours per workday for 20 minutes at a time; never bend, crouch, squat, crawl, climb
steps, or climb ladders; and would miss 5 or more full or partial workdays per month because of pain
or because of the side effects of medication. PageID 704-06. The ALJ concluded that Dr. Hanna’s
opinion was “entitled to little if any weight, and certainly not controlling, deferential, or significant
weight.” PageID 85.
Plaintiff first argues that the ALJ’s controlling weight determination is unsupported by
substantial evidence. See PageID 1117. In so arguing, Plaintiff summarizes the treatment notes of
record, but fails to argue that any portion of the specific reasoning advanced by the ALJ lacks
substantial evidentiary support in the record. See PageID 1117-19. Having reviewed the ALJ’s
specific reasoning -- including, inter alia, 2011 MRI readings and clinical findings noted in Dr.
Hanna’s treatment records -- the undersigned finds that the ALJ’s reasons for declining to afford Dr.
Hanna’s opinion controlling weight are supported by substantial evidence.
Next, Plaintiff argues that, even assuming, arguendo, Dr. Hanna’s opinion is not entitled to
controlling weight, the ALJ erred by not discussing all of the factors under § 404.1527(c) when
determining what weight Dr. Hanna’s opinion should be given -- namely, “the length of the treatment
relationship and the frequency of examination, the nature and extent of the treatment relationship,
supportability of the opinions, consistency of the opinions with the record as a whole, and any
specialization of the treating physician.” Blakley, 581 F.3d at 406; see also 20 C.F.R. § 404.1527(c).
However, in assessing the weight ultimately accorded Dr. Hanna’s opinion, the ALJ specific
noted, inter alia, the “nature of her treatment,” including the lack of “treatment for [his] shoulder
impairments since 2011”; and the inconsistency of Dr. Hanna’s opinion with her particular treatment
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notes, as well as a functional capacity assessment given by Chris McGlaughlin, PT, DPT in March
2012. PageID 85. Thus, the ALJ did specifically address some of the § 404.1527(c) factors. Id. While
the ALJ may not have addressed each factor exhaustively, there is no requirement that she do so.
Francis v. Comm’r of Soc. Sec., 414 F. App’x 802, 804 (6th Cir. 2011) (noting that the Commissioner’s
regulations do not require “an exhaustive factor-by-factor analysis”).
Accordingly, based on the foregoing, the undersigned concludes that the ALJ’s analysis of Dr.
Hanna’s opinion is supported by substantial evidence and should be affirmed.
B.

Back Impairment

In his second assignment of error, Plaintiff contends that the ALJ failed to find his back
impairment to be a “severe” impairment at Step Two and failed to adequately account for such
impairment when determining his RFC. At Step Two of the evaluation process, the ALJ must consider
whether a claimant’s impairment constitutes a “medically determinable impairment,” i.e., an
impairment that results from anatomical, physiological, or psychological abnormalities, which can be
shown by medically acceptable clinical and laboratory diagnostic techniques. See 20 C.F.R. §§
404.1505, 404.1508, 404.1520(a)(4)(ii) and 404.1527(a)(1).
If an impairment is medically determinable, an ALJ must decide whether that impairment is
severe or non-severe. See 20 C.F.R. § 404.1520(a)(4)(ii). If all medially determinable impairments
are non-severe, the ALJ’s analysis ends and Plaintiff is not disabled. See 20 C.F.R. § 404.1520(c). If,
however, the ALJ determines that Plaintiff has one or more severe impairments at Step Two, the ALJ
must then consider the limiting effects of all impairments, severe and non-severe, when determining
Plaintiff’s RFC at Step Four. See 20 C.F.R. § 1523; White v. Comm’r of Soc. Sec., 312 F. App’x 779,
787 (6th Cir. 2009) (holding that, “[o]nce one severe impairment is found, the combined effect of all
impairments must be considered, even if other impairments would not be severe”); see also Johnson
v. Colvin, No. 3:13cv301, 2014 WL 6603376, at *7-8 (S.D. Ohio Nov. 19, 2014). If an ALJ considers

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the limiting effects of both severe and non-severe impairments in determining the RFC, any error in
failing to find a particular impairment severe is harmless. White, 312 F. App’x at 787.
In this case, the ALJ found Plaintiff’s back impairment was not severe at Step Two. PageID
75. In doing so, the ALJ acknowledged Plaintiff’s MRI findings on January 14, 2016, but noted that
such findings were made almost a year after his date last insured (“DLI”). Id. The ALJ further noted
the lack of objective or clinical findings documented in the record through the date last insured. Id.
As a result, the ALJ concluded that Plaintiff’s back impairment “was not severe . . . at any time through
the date last insured.” Id. Nevertheless, in determining Plaintiff’s RFC, the ALJ accounted for
Plaintiff’s allegations of back pain, finding Plaintiff could not perform work around hazards, be
exposed to vibration, and should be given an opportunity to alternate position for 10 minutes each hour
to relieve discomfort. PageID 81.
Thus, the ALJ did specifically consider Plaintiff’s back impairment in determining Plaintiff’s
RFC despite having found it to be a non-severe impairment at Step Two. Plaintiff points to no medical
opinion evidence suggesting that further limitation was required as a result of his back impairment
prior to the DLI and, therefore, the undersigned finds that any alleged error by the ALJ at Step Two
was harmless.
IV.
For the foregoing reasons, the Court finds Plaintiff’s assignments of error unmeritorious. IT
IS THEREFORE RECOMMENDED THAT: (1) the Commissioner’s non-disability finding be
found supported by substantial evidence, and AFFIRMED; and (2) this case be CLOSED.

Date:

April 1, 2019

s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to
the proposed findings and recommendations within FOURTEEN days after being served with this
Report and Recommendation. This period is not extended by virtue of Fed. R. Civ. P. 6(d) if served
on you by electronic means, such as via the Court’s CM/ECF filing system. If, however, this Report
and Recommendation was served upon you by mail, this deadline is extended to SEVENTEEN DAYS
per Fed. R. Civ. P. 6(d). Parties may seek an extension of the deadline to file objections by filing a
motion for extension, which the Court may grant upon a showing of good cause.
Any objections filed shall specify the portions of the Report and Recommendation objected to
and shall be accompanied by a memorandum of law in support. If the Report and Recommendation is
based, in whole or in part, upon matters occurring of record at an oral hearing, the objecting party shall
promptly arrange for the transcription of the record, or such portions of it as all parties may agree upon
or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise directs.
A party may respond to another party’s objections within FOURTEEN days after being served
with a copy thereof. As noted above, this period is not extended by virtue of Fed. R. Civ. P. 6(d) if
served on you by electronic means, such as via the Court’s CM/ECF filing system. If, however, this
Report and Recommendation was served upon you by mail, this deadline is extended to SEVENTEEN
DAYS per Fed. R. Civ. P. 6(d).
Failure to make objections in accordance with this procedure may forfeit rights on appeal. See
Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir.
1981).

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