Colvin v. Commissioner of the Social Security Administration

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

BRIAN DUANE COLVIN, ) CASE NO. 4:18CV1249-JRA

)

Plaintiff, ) JUDGE JOHN R. ADAMS

)

-vs- )

) MEMORANDUM OF OPINION

COMMISSIONER OF ) AND ORDER

SOCIAL SECURITY, )

)

Defendant. )

The Social Security Administration denied Plaintiff Brian Duane Colvin’s application for

disability insurance benefits (“DIB”) and supplemental social security income (“SSI”). Plaintiff

sought review of the Commissioner’s decision, and the case was referred to Magistrate Judge

James R. Knepp II for preparation of a Report and Recommendation (“R&R”) pursuant to 42

U.S.C. §1383(c)(3), 42 U.S.C. §405(g), and Local Rule 72.2(b)(1). The Magistrate Judge

submitted an R&R that recommends this Court affirm the final decision of the Commissioner.

Doc. 20. Plaintiff filed objections, and Defendant filed a response. Docs. 21, 22. For the following

reasons, the Court hereby overrules the objections and ADOPTS the R&R of the Magistrate Judge.

The R&R adequately states the factual and procedural background of this case. Plaintiff

has demonstrated no error in that background, so the Court will not reiterate those sections herein.

I. STANDARD OF REVIEW

When a magistrate judge submits an R&R, the Court is required to conduct a de novo

review of the portions of the Report and Recommendation to which an appropriate objection has

been made. 28 U.S.C. §636(b). Objections to the R&R must be specific, not general, in order to

focus the court’s attention upon contentious issues. Howard v. Sec’y of Health & Human Servs.,

932 F.2d 505, 509 (6th Cir. 1991). The Court’s review of the decision is limited to determining

whether substantial evidence, viewing the record as a whole, supports the findings of the ALJ.

Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). Substantial evidence is more than a mere

scintilla of evidence but less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401

(1971). Substantial evidence is “such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Id. (citing Consolidated Edison Co. v. NLRB, 305 U.S. 197,

229 (1938); Besaw v. Sec’y of Health & Human Services, 966 F.2d 1028, 1030 (6th Cir. 1992) (per

curiam)).

If substantial evidence supports the ALJ’s decision, a reviewing court must affirm the

decision even if it would decide the matter differently. Cutlip v. Sec’y of Health & Human Servs.,

25 F.3d 284, 286 (6th Cir. 1994) (citing Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983)

(per curiam)). Moreover the decision must be affirmed even if substantial evidence would also

support the opposite conclusion. Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (en banc).

This “standard allows considerable latitude to administrative decision makers. It presupposes that

there is a zone of choice within which the decision makers can go either way, without interference

by the courts. An administrative decision is not subject to reversal merely because substantial

evidence would have supported an opposite decision.” Id. (quoting Baker v. Heckler, 730 F.2d

1147, 1150 (8th Cir. 1984)). In determining, however, whether substantial evidence supports the

ALJ’s findings in the instant matter, the Court must examine the record as a whole and take into

account what fairly detracts from its weight. Wyatt v. Sec’y of Health & Human Servs., 974 F.2d

680, 683 (6th Cir. 1992). The Court must also consider whether the Commissioner employed the

proper legal standards. Queen City Home Health Care Co. v. Sullivan, 978 F.2d 236, 243 (6th Cir.

1992).

II. LAW AND ANALYSIS

Following a remand by this Court for further consideration of Listing 1.04, and a hearing

at which Plaintiff (who was represented by counsel) and a vocational expert (“VE”) testified, the

ALJ found Plaintiff not disabled in a final written decision on April 28, 2017. Thus, social security

benefits were denied.

Plaintiff timely filed the instant action. Magistrate Judge Knepp issued an R&R,

recommending to this Court that the decision of the Commissioner be affirmed.

Plaintiff filed objections, arguing that the ALJ’s decision was not supported by substantial

evidence. Doc. 22. Specifically, Plaintiff argues that the Magistrate Judge improperly concluded

that any arguments or discussion of Plaintiff’s mental impairments were waived because they were

not addressed in Plaintiff’s opening brief. Plaintiff further argues that the ALJ did not clearly

articulate his findings as to whether Plaintiff met or equaled the requirements of Listing 1.04.

Additionally, Plaintiff contends that the ALJ failed to give proper weight and consideration to Dr.

Crawford’s opinion, and that the ALJ impermissibly cherry-picked evidence to support a

conclusion that Plaintiff’s grasp, manipulation, and pinch abilities are largely normal “throughout

the record” and that Plaintiff’s problems with fine coordination are “transient.” Further, Plaintiff

claims that the Magistrate improperly interpreted the duration requirement to mandate that Plaintiff

suffer from symptoms 24 hours a day, seven days a week.

Defendant disagrees, and maintains that the ALJ did not harmfully err in his evaluation of

Listing 1.04 and the opinion evidence, as well as Plaintiff’s mental impairments and manipulative

abilities. Defendant also states that Plaintiff’s objections are largely reiterative of the challenges

he raised in his initial brief. This Court agrees.

Regarding Plaintiff’s objection that the ALJ did not adequately address whether Plaintiff

met or equaled the requirements of Listing 1.04, Plaintiff ignores the ALJ’s detailed explanation

of his conclusion that Plaintiff did not meet or medically equal the listing:

Relevant to Listing 1.04, radiographic and imaging studies of the

lumbar spine (2F/21), (12F/3), (16F/3), (18F/2), (29F/2), and

(32F/2) have given no indication of ankylosis, or compression of

the spinal cord or nerve roots at any vertebral level. In addition,

clinical studies across the record (1F/6, (7F/3), (30F/4), (33F/4),

have reported a normal and unassisted gait, such that the record

does not indicate the claimant is unable to ambulate effectively. I

did give careful consideration to the imaging study of the cervical

spine, date May 15. 2013, which did indicate[] flattening of the

spinal cord at the C5-C6 vertebral level (22F/3). However, I also

note subsequent imagining of the cervical spine, dated January 17,

2017, which indicated ongoing multi-level degenerative disease,

but no definitive compressive pathology at any level (32F/3). This

appears corroborated by the electrodiagnostic studies dated

January 18, 2017, which indicated no evidence of a cervical

radiculopathy (36F/3). Otherwise, radiographic and scanning

studies of the cervical spine (1F/22), (29F/3), have given no

indication of ankylosis. Clinical studies have shown some deficits

of fine coordination (7F/6), however, this appears transient, when

examining later examinations (10F/10), (20F/5), (33F/7), and

throughout the record, the claimant’s grasp, manipulation and

pinch abilities have been reported as normal (7F/6), (10F/10),

(20F/5), (33F/7). The record does not, on the whole,

support the contention that he is unable to engage in find and gross

manipulation effectively.

(Tr. 625-626.) As the Magistrate correctly noted, the ALJ’s analysis is thorough and supported by

substantial evidence. (Doc. 20, p. 17-24.)

Plaintiff’s objection to the ALJ’s purported failure to address medical equivalence is

likewise not well-taken. As the Magistrate noted, the ALJ explicitly states Plaintiff did not “meet[]

or medically equal[] the severity of one of the listed impairments.” (Tr. 625.) The ALJ did not,

as Plaintiff contends, simply state this conclusion without support in the record. In support of his

finding, the ALJ added:

[n]o treating or examining physician has indicated findings that

would satisfy the severity requirements of any listed impairment. In

reaching the conclusion that the claimant does not have an

impairment or combination of impairments that meet or medically

equal a listed impairment, I also considered the opinion of the State

Agency medical consultants who evaluated this issue at the initial

reconsideration levels of the administrative review process and

reached the same conclusion. All of the listings were considered in

reaching this finding, with specific emphasis on listings 1.04, 5.06,

11.14, and 12.04.

(Tr. 625) (internal citations omitted); Doc. 20, p. 18. Under the regulations, medical equivalency

must be based on the medical evidence of record and “the opinion given by one or more medical

or psychological consultants designated by the Commissioner.” 20 C.F.R. §§ 404.1526(c),

416.926(c). Here, the ALJ expressly considered the opinions of the consulting physicians, and as

discussed in detail by the Magistrate, properly considered their opinions and the medical evidence

of record. Doc. 20, p. 18-24.

Moreover, contrary to Plaintiff’s objection, neither the ALJ nor the Magistrate applied a

duration requirement that Plaintiff must “suffer from his symptoms 24 hours a day, seven days a

week to qualify for Social Security Disability Benefits.” (Doc. 21.) To the contrary, the ALJ

noted that Plaintiff’s symptoms have not been consistent, but rather “transient,” thereby failing to

meet the twelve-month requirement.

Plaintiff’s argument that the ALJ erred at “Step Five” in not considering the evaluation of

consulting physician Robert Crawford in finding that Plaintiff could use his hands on a frequent

basis is also ineffectual. In his opening brief, Plaintiff stated:

In addition, the ALJ found that Colvin’s “grasp, manipulation and

pinch abilities have been reported as normal” (Tr. 625-626). The

ALJ proceeded to cite to records including the questionable

examination by Dr. Natali (Tr. 1096), but ignored the thorough

examination by Dr. Robert Crawford. Dr. Crawford completed an

examination and found abnormal range of motion, positive straight

leg testing, decreased strength with varying degrees of weakness,

and mild paresthesia in Colvin’s lateral shoulder and radial wrist

(Tr. 1119). The medical evidence, therefore, provided evidence

which refuted the ALJ’s conclusion that the record did not

“support the contention that he is unable to engage in fine and

gross manipulation effectively.” (Tr. 626).

(Doc. 13, p. 19.)

A claimant’s RFC is an is an assessment of “the most [the claimant] can do despite [the

claimant’s] limitations.” As Plaintiff acknowledges, an ALJ must consider all symptoms and the

extent to which those symptoms are consistent with the objective medical evidence. 20 C.F.R.

§§ 404.1529, 416.929. While an ALJ must consider and weigh medical opinions, the RFC

determination is expressly reserved to the Commissioner. Ford v. Comm’r of Soc. Sec., 114 F.

App’x 194, 198 (6th Cir. 2004); 20 C.F.R. §§ 404.1527(e)(2), 404.1546, 416.946. The Court

must affirm “so long as substantial evidence also supports the conclusion reached by the ALJ

“even if substantial evidence or indeed a preponderance of the evidence also supports a

claimant’s position.” Jones v. Comm’r of Social Sec., 336 F.3d 469, 477 (6th Cir. 2003).

Plaintiff argues remand is warranted because the RFC did not match Plaintiff’s

limitations – specifically that he was unable to unable to use his hands on a frequent basis –

because the ALJ did not specifically discuss the examination findings of Dr. Crawford, and the

2017 MRI. An ALJ is not required to discuss every piece of evidence in the record. See

Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 496, 507–08 (6th Cir. 2010). And the ALJ’s

reasons here for assigning little weight to Dr. Crawford’s evaluation and/or the MRI are

supported by the record. As the Magistrate Judge discussed, the ALJ thoroughly addressed

Plaintiff’s handling and fingering abilities and cited numerous points in the record for support.

Among other things, the ALJ pointed to several examinations where Plaintiff’s fine coordination

was normal. (Tr. 625, 576-77, 1095-98). Further, the ALJ noted that Plaintiff’s grasp,

manipulation, and pinch abilities have been reported as normal “throughout the record.” (Tr.

625-26, 453, 478, 576, 1095). These records, cited by the ALJ, provide ample support for his

position. Even if Dr. Crawford’s evaluation arguably constitutes substantial evidence in support

of Plaintiff’s position, this Court must affirm ALJ.

Finally, the Magistrate Judge correctly determined that Plaintiff’s arguments surrounding

treating physicians is waived, because any such arguments were not raised in his opening brief.

Indeed, Plaintiff does not identify the treating physician opinion to which he refers, identify what

was problematic about that opinion, or apply regulations and case law concerning treating

physicians to the record. Doc. 13, 21-21. Because Petitioner’s treating physician argument is

skeletal at best, it is waived. See McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997) (“It

is not sufficient for a party to mention a possible argument in a most skeletal way, leaving the

court to put flesh on its bones.”) Plaintiff’s attempts to more fully develop a treating physician

argument in his reply brief comes too late, as it is well-established that new substantive issues

cannot be raised in a reply brief. See United States v. Crozier, 259 F.3d 503, 517 (6th Cir. 2001)

(citing United States v. Jerkins, 871 F.2d 598, 602 (6th Cir. 1989)).

For the reasons discussed, the Court finds that substantial evidence supports the ALJ’s

conclusions in this case. The decision of the ALJ denying SSI and DIB is therefore AFFIRMED.

III. CONCLUSION

Following review of the arguments presented, the record, and applicable law, and for the

reasons stated herein, the Court hereby ORDERS that Plaintiff’s objections are OVERRULED,

the Magistrate Judge’s Report and Recommendation is ADOPTED, and the decision of Defendant

is AFFIRMED. This matter is therefore DISMISSED.

IT IS SO ORDERED.

DATE: 9/30/19 s/John R. Adams

Judge John R. Adams

UNITED STATES DISTRICT COURT