Britcher v. Social Security Administration

Filing 21

ORDER denying 12 Motion for Judgment on the Record; adopting Report and Recommendations re 18 Report and Recommendation. Accordingly, Plaintiff's Motion for Judgment Upon the Administrative Record (Doc. No. 12) is DENIED and the Commissio ner's decision is AFFIRMED. The Clerk shall enter judgment in accordance with Federal Rule of Civil Procedure 58. Signed by Chief Judge Waverly D. Crenshaw, Jr on 9/29/17. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
RONALD BRITCHER, JR.,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

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NO. 3:14-cv-02376
CHIEF JUDGE CRENSHAW

ORDER
Pending before the Court is a Report and Recommendation of the Magistrate Judge (Doc.
No. 18), recommending that the Court deny Plaintiff’s Motion for Judgment Upon the
Administrative Record (Doc. No. 12). Plaintiff filed timely objections (Doc. No. 19), and the
Commissioner filed a response (Doc. No. 20). The Court has reviewed the Report and
Recommendation, Plaintiff’s objections, and conducted a de novo review of the record. For the
following reasons, Plaintiff’s objections are OVERRULED and the Report and Recommendation
is ADOPTED.
Plaintiff’s first objection is that the Magistrate Judge erred by finding that the
Administrative Law Judge (“ALJ”) improperly weighed the opinion of Plaintiff’s treating
physician, Dr. Joanna Shaw. (Doc. No. 19 at 1-5.) Where, as here, an ALJ does not give controlling
weight to a treating physician’s opinion, the ALJ must give “good reasons” that are “supported by
the evidence in the case record, and . . . sufficiently specific to make clear to any subsequent
reviewers the weight the adjudicator gave to the treating source’s medical opinion and the reasons
for that weight.” Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013) (citations
omitted). Nonetheless, “an insufficient discussion may be harmless error []

(1) [if] a treating source’s opinion is so patently deficient that the Commissioner
could not possibly credit it;
(2) if the Commissioner adopts the opinion of the treating source or makes findings
consistent with the opinion; or
(3) where the Commissioner has met the goal of § 1527(d)(2)—the provision of the
procedural safeguard of reasons—even though she has not complied with the terms
of the regulation.
Hernandez v. Comm’r of Soc. Sec., 644 F. App’x 468, 474 (6th Cir. 2016) (quoting Wilson v.
Comm’r of Soc. Sec., 378 F.3d 541, 547 (6th Cir. 2004)). Here, the Magistrate Judge noted that
the ALJ provided “scant analysis” in weighing Dr. Shaw’s opinion, but found any error in
disregarding the treating physician rule to be harmless based on the first and third circumstances.
(Doc. No. 18 at 9-13.)
Plaintiff contends that the Magistrate Judge misapplied the standard for “patent deficiency”
by using “post hoc reasoning” to support the ALJ’s discussion. (Doc. No. 19 at 2-5.) First, it is not
inappropriate for the Court to consider the record as a whole in determining that a treating
physician’s opinion was “so patently deficient that the Commissioner could not possibly credit it.”
See Watters v. Comm’r of Soc. Sec. Admin., 530 F. App’x 419, 423 (6th Cir. 2013) (finding a
treating physician’s opinion patently deficient because it included statements that were
unsupported by the record). Next, Plaintiff’s argument does not address the Magistrate Judge’s
ruling regarding the third “harmless error” circumstance. The Sixth Circuit has explained that this
circumstance “may be met when the ‘supportability’ of a doctor’s opinion, or its consistency with
other evidence in the record, is indirectly attacked via an ALJ’s analysis of a physician’s other
opinions or his analysis of the claimant’s ailments.” Friend v. Comm’r of Soc. Secn, 375 F. App’x
543, 551 (6th Cir. 2010) (citations omitted). The Magistrate Judge specifically found that “the ALJ
indirectly attacked Dr. Shaw’s opinion by referencing the lack of objective findings in the record

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that would support her opinion.” (Doc. No. 18 at 12-13.) This finding of the Magistrate Judge was
not error, and the Court therefore concludes that Plaintiff’s first objection is without merit.
Second, Plaintiff objects to the Magistrate Judge’s finding that the ALJ did not commit
reversible error by failing to discuss Plaintiff’s medical equivalence to Listing 1.04. (Doc. No. 19
at 5-6.) Aside from disagreeing with the Magistrate Judge’s conclusion, however, Plaintiff does
not identify a specific portion of the Magistrate Judge’s analysis that was in error. For the reasons
stated in the Report and Recommendation (Doc. No. 18 at 13-16), Plaintiff’s second objection is
overruled.
Third, Plaintiff objects to the Magistrate Judge’s finding that it was not reversible error for
the ALJ to omit psychological restrictions from Plaintiff’s residual functional capacity (“RFC”).
(Doc. No. 19 at 6-7.) The Department of Veterans Affairs (“VA”) rated Plaintiff as 100% disabled
due to post-traumatic stress disorder (“PTSD”). (Doc. No. 10 at 687.) Plaintiff specifically argues
that the ALJ should have discussed this VA determination more thoroughly. (Doc. No. 19 at 6-7.)
However, the Magistrate Judge correctly noted that the ALJ discussed Plaintiff’s effective PTSD
treatment, normal mental status examination, and that Plaintiff attributed his limitations to physical
rather than mental impairments in a function report and at the hearing before the ALJ. (Doc. No.
18 at 17.) This objection is without merit.
Accordingly, Plaintiff’s Motion for Judgment Upon the Administrative Record (Doc. No.
12) is DENIED and the Commissioner’s decision is AFFIRMED. The Clerk shall enter judgment
in accordance with Federal Rule of Civil Procedure 58.
IT IS SO ORDERED.

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WAVERLY D. CRENSHAW, JR.
CHIEF UNITED STATES DISTRICT JUDGE
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