# Miller v. Commissioner of Social Security Administration

> District Court, S.D. Ohio · February 12, 2020

URL: https://www.frixlaw.com/law-library/cases/10374790

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** February 12, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10374790

## How later opinions describe it (automated extraction)

- holding that Afailure to object to the magistrate judge=s recommendations constituted a waiver of [the defendant=s] ability to appeal the district court=s ruling@
- holding that defendant waived appeal of district court=s denial of pretrial motion by failing to timely object to magistrate judge=s report and recommendation

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

GISELE MILLER,

Plaintiff,

Civil Action 2:19-cv-3969
Judge Sarah D. Morrison
v. Magistrate Judge Chelsey M. Vascura

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

REPORT AND RECOMMENDATION

Plaintiff, Gisele Miller, who is proceeding without the assistance of counsel, brings this
action under 42 U.S.C. § 405(g) for review of a final decision of the Commissioner of Social
Security (“Commissioner”) denying her application for period of disability and disability
insurance benefits. This matter is before the United States Magistrate Judge for a Report and
Recommendation on Plaintiff’s Complaint (ECF No. 3) and Statement of Errors (ECF No. 9), the
Commissioner’s Memorandum in Opposition (ECF No. 10), and the administrative record (ECF
No. 7). For the reasons that follow, it is RECOMMENDED that the Court OVERRULE
Plaintiff’s Statement of Errors and AFFIRM the Commissioner’s decision.
I. BACKGROUND
Plaintiff filed her application for disability insurance on October 10, 2016, alleging an
onset date of August 24, 2014. Plaintiff’s date last insured (“DLI”) was December 31, 2015.
Plaintiff’s application was denied initially on January 10, 2017, and upon reconsideration on April
26, 2017. Plaintiff sought a review before an administrative law judge.
Administrative Law Judge Nathan Brown (the “ALJ”) held a hearing on September 28,
2018, at which Plaintiff appeared and testified. (R. at 56-93.) Patricia McFann, a vocational
expert (the “VE”), also appeared and testified at the hearing. The ALJ issued a decision finding
that Plaintiff was not disabled within the meaning of the Social Security Act on December 18,
2018. (R. at 44-52.) The Appeals Council affirmed the ALJ’s decision on July 31, 2019.
Plaintiff then timely filed this action on September 10, 2019. (ECF No. 1.)
In her Statement of Errors (ECF No. 9), Plaintiff represents that her problems started in
August 2013 after she hurt her back while attempting to lift a heavy object. Plaintiff then details
her history of surgeries, including a surgery in February 2015 to remove a cyst and then three
additional surgeries that occurred after her December 31, 2015 DLI: an August 2016 surgery to

repair a compression fracture, a June 2017 surgery to repair a bulging disc, and a January 2019
surgery to remove a cyst. Plaintiff then sets forth the limitations she attributes to her pain, which
she describes as “constant.” (Id. at PAGEID # 868.) Specifically, Plaintiff states that she can
only function a few hours before needing to lay down, that she can only walk for three minutes at a
time, that she can only sit for one hour at a time, and that the “aching overwhelms and exhast[s]
[her] and [her] brain [such that she] cannot function to do normal activities.” (Id.)
II. THE ADMINISTRATIVE DECISION
The ALJ found that Plaintiff had not been under a disability within the meaning of the
Social Security Act since August 24, 2014, the alleged disability onset date. At step one of the

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sequential evaluation process,1 the ALJ found that Plaintiff met the insured status requirements of
the Social Security Act through December 31, 2015. (R. at 44.) The ALJ therefore noted that his
review of the evidence would “focus primarily” on the period between August 24, 2014, and
December 31, 2015, that is the period between Plaintiff’s alleged onset date and her DLI. (Id.)
The ALJ explained in his decision that Plaintiff must establish disability on or before her DLI in
order to be entitled to a period of disability and disability insurance benefits.
The ALJ determined that Plaintiff had not engaged in substantial gainful activity since
August 24, 2014, her alleged onset date through December 31, 2015, her DLI. (R. at 46.) At
step two of the analysis, the ALJ found that Plaintiff had the following severe impairments:
chronic anterior wedge deformity of the T12 vertebral body and compression fracture and mass at
T2-T3/Schwannaoma. (R. at 47.) The ALJ next found that Plaintiff did not have an impairment

or combination of impairments that met or medically equaled one of the listed impairments

1 Social Security Regulations require ALJs to resolve a disability claim through a five-step
sequential evaluation of the evidence. See 20 C.F.R. § 416.920(a)(4). Although a dispositive
finding at any step terminates the ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th
Cir. 2007), if fully considered, the sequential review considers and answers five questions:

1. Is 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, 20 C.F.R. Subpart P, Appendix 1?
4. Considering the claimant’s residual functional capacity, can the claimant
perform his or her past relevant work?
5. Considering the claimant’s age, education, past work experience, and residual
functional capacity, can the claimant perform other work available in the national
economy?

See 20 C.F.R. § 416.920(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009);
Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001).

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described in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 48.)
At step four of the sequential process, the ALJ set forth Plaintiff’s RFC as follows:
After careful consideration of the entire record, the undersigned finds that, through
the date last insured, the claimant had the residual functional capacity to perform
light work as defined in 20 CFR 404.1567(b) except she could only frequently
reach overhead bilaterally. She could climb ramps and stairs frequently; never
climb ladders, ropes, or scaffolds. She could occasionally balance. She could
frequently stoop, kneel, and crouch; but never crawl. She would work at
unprotected heights occasionally with moving mechanical parts occasionally and in
vibration occasionally. She could operate motor vehicle occasionally.

(R. at 48.) In assessing Plaintiff’s RFC, the ALJ discussed the record evidence and Plaintiff’s
testimony and ultimately concluded that Plaintiff’s allegations were not credible. (R. at 49-51.)
Relying on VE’s testimony, the ALJ determined that Plaintiff was able to return to her past
relevant work as an accounts payable clerk and business manager. (R. at 51-52.) The ALJ
therefore concluded that Plaintiff was not disabled under the Social Security Act.
III. THE STANDARD OF REVIEW
When reviewing a case under the Social Security Act, the Court “must affirm the
Commissioner’s decision if it ‘is supported by substantial evidence and was made pursuant to
proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009)
(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C.
§ 405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial 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, 486
F.3d at 241 (quoting Cutlip v. Sec’y of Health & Hum. Servs., 25 F.3d 284, 286 (6th Cir. 1994)).
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Although the substantial evidence standard is deferential, it is not trivial. The Court must
“‘take into account whatever in the record fairly detracts from [the] weight’” of the
Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting
Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)) cert. denied sub nom. Paper,
Allied-Indus., Chem.& Energy Workers Int’l Union v. TNS, Inc., 537 U.S. 1106 (2003).
Nevertheless, “if substantial evidence supports the ALJ’s decision, this Court defers to that finding
‘even if there is substantial evidence in the record that would have supported an opposite
conclusion.’” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (quoting Key v.
Callahan, 109 F.3d 270, 273 (6th Cir. 1997)).
IV. ANALYSIS
In view of Plaintiff’s arguments that she is extremely limited due to the “constant pain” she

experiences, (Pl.’s Statement of Errors, ECF No. 9 at PAGEID # 868), the undersigned concludes
that Plaintiff’s Statement of Errors is best characterized as challenging the ALJ’s assessment of the
credibility of her testimony concerning the limitations she attributes to pain. The undersigned
finds that the ALJ did not err in his evaluation of Plaintiff’s testimony.
For decisions rendered on or after March 28, 2016, the ALJ will evaluate a claimant’s
statements concerning the intensity, persistence, and limiting effects of symptoms of an alleged
disability under SSR 16-3p. SSR 16-3p, 2017 WL 5180304 (Oct. 25, 2017). SSR 16-3p
superseded SSR 96-7p, 1996 WL 374186 (July 2, 1996), which required the ALJ to evaluate the
overall credibility of a plaintiff’s statements. In contrast, SSR 16-3p requires the ALJ to

evaluate the consistency of a plaintiff’s statements, without reaching the question of overall
credibility, or character for truthfulness. See id. at *11 (“In evaluating an individual’s
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symptoms, our adjudicators will not assess an individual’s overall character or truthfulness in the
manner typically used during an adversarial court litigation. The focus of the evaluation of an
individual’s symptoms should not be to determine whether he or she is a truthful person.”).
Although SSR 16-3p supersedes SSR 96-7p, “according to the very language of SSR 16-3p, its
purpose is to ‘clarify’ the rules concerning subjective symptom evaluation and not to
substantially change them.” Brothers v. Berryhill, No. 5:16-cv-01942, 2017 WL 2912535, at
*10 (N.D. Ohio June 22, 2017). The rules were clarified primarily to account for the difference
between a credibility determination, which necessarily impacts the entirety of a claimant’s
subjective testimony, and a consistency determination, which applies only to specific statements
regarding symptoms. See SSR 16-3p at *2. It follows, therefore, that the procedures for
reviewing an ALJ’s credibility assessment under SSR 16-3p are substantially the same as the

procedures under SSR 96-7p. Accordingly, the undersigned concludes that existing case law
controls to the extent it is consistent with the clarification of the rules embodied in SSR 16-3p’s
clarification.
The Sixth Circuit has provided the following guidance in considering an ALJ’s credibility
assessment:
Where the symptoms and not the underlying condition form the basis of the
disability claim, a two-part analysis is used in evaluating complaints of disabling
pain. 20 C.F.R. § 416.929(a); Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001);
Felisky v. Bowen, 35 F.3d 1027, 1038-39 (6th Cir. 1994). First, the ALJ will ask
whether the there is an underlying medically determinable physical impairment
that could reasonably be expected to produce the claimant’s symptoms. 20 C.F.R.
§ 416.929(a). Second, if the ALJ finds that such an impairment exists, then he
must evaluate the intensity, persistence, and limiting effects of the symptoms on
the individual’s ability to do basic work activities. Id.
Rogers, 486 F.3d at 247.
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The ALJ’s credibility determination “with respect to [a claimant’s] subjective complaints
of pain” is generally given deference. Allen v. Comm’r of Soc. Sec., 561 F.3d 646, 652 (6th Cir.
2009) (quoting Siterlet v. Sec’y of Health & Hum. Servs., 823 F.2d 918, 920 (6th Cir. 1987)).
Despite this deference, “an ALJ’s assessment of a claimant’s credibility must be supported by
substantial evidence.” Walters, 127 F.3d at 531. Furthermore, the ALJ’s decision on
credibility must be “based on a consideration of the entire record.” Rogers, 486 F.3d at 247
(internal quotation omitted). An ALJ’s explanation of his or her credibility decision “must be
sufficiently specific to make clear to the individual and to any subsequent reviewers the weight
the adjudicator gave to the individual’s statements and the reasons for that weight.” Id. at 248;
see also Mason v. Comm’r of Soc. Sec. Admin., No. 1:06–CV–1566, 2012 WL 669930, at *10
(N.D. Ohio Feb. 29, 2012) (“While the ALJ’s credibility findings ‘must be sufficiently specific’,

Rogers, 486 F.3d at 248, the intent behind this standard is to ensure meaningful appellate
review.”). In addition, the Regulations list a variety of factors an ALJ must consider in
evaluating the severity of symptoms, including a claimant’s daily activities; the effectiveness of
medication; and treatment other than medication. 20 C.F.R. § 404.1529(c)(3); SSR 16–3p; but
see Ewing v. Astrue, No. 1:10–cv–1792, 2011 WL 3843692, at *9 (N.D. Ohio Aug. 12, 2011),
adopted, 2011 WL 3843703 (suggesting that although an ALJ is required to consider such
factors, he or she is not required to discuss every factor within the written decision).
Here, the ALJ considered Plaintiff’s testimony that she experiences back pain and nerve
damage, that she “feels drained,” that she “gets stabbing pain in her chest and back when she bends

and moves,” as well as her testimony that she could walk only for five minutes before feeling pain
and that she holds onto a cart while shopping. (R. at 49.) The ALJ then thoroughly discussed the
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record evidence and concluded that it did not support Plaintiff’s subjective complaints. The
undersigned concludes that the ALJ’s analysis supplies substantial evidence supporting his
credibility finding and properly considers the requisite factors in evaluating Plaintiff’s subjective
statements.
Specifically, the ALJ reasonably discounted Plaintiff’s allegations on the grounds that the
objective evidence did not support her subjective complaints. See 20 C.F.R. § 404.1529(c)(2)
(objective medical findings are useful in assessing the intensity and persistence of a claimant’s
symptoms); SSR 16-3P (“A report of minimal or negative findings or inconsistencies in the
objective medical evidence is one of the many factors we must consider in evaluating the intensity,
persistence, and limiting effects of an individual’s symptoms.”); Moruzzi v. Comm’r of Soc. Sec.,
759 F. App’x 396, 404 (6th Cir. 2018) (affirming ALJ’s decision to discount plaintiff’s subjective

complaints regarding the severity of pain from her physical impairments in part due to lack of
confirming objective evidence); see also Isaacs v. Comm’r of Soc. Sec., No. 1:12-CV-591, 2013
WL 4067812, at *15 (S.D. Ohio Aug. 12, 2013), report and recommendation adopted, 2013 WL
4833670 (S.D. Ohio Sept. 10, 2013) (citing Jones v. Sec’y, Health and Human Servs., 945 F.2d
1365, 1369–1370 (6th Cir.1991)) (reliable objective evidence of pain includes medical evidence of
muscle atrophy, reduced joint motion, muscle spasm and sensory and motor disruption). In
particular, the ALJ pointed out that the neurologist who Plaintiff saw after her injury noted that she
was slowly improving and that by April 2014, Plaintiff reported feeling 90% better from her
compression fracture. (R. at 49-50, 51.) The ALJ further considered that in December 2014 and

January 2015, Plaintiff had a normal physical examinations with her primary care provider. (R. at
50.)
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In addition, the ALJ reasonably discounted Plaintiff’s allegations based on her failure to
follow recommended treatment. See Richendollar v. Colvin, No. 1:13-cv-495, 2014 WL
4910477, at *5 (S.D. Ohio Aug. 7, 2014) (“A claimant’s failure to follow treatment can indicate
that he is not as disabled as alleged.” (citing Mullen v. Bowen, 800 F.2d 535, 547 (6th Cir. 1986))).
In particular, the ALJ noted that although Plaintiff was referred to physical therapy after reporting
with some discomfort and pain in November 2015, she was discharged in December 2015 because
she failed to return after the initial appointment. (R. at 50.)
The ALJ also reasonably considered Plaintiff’s own testimony that her brain was fine and
that she was able to do office work, as well as the activities she endorsed, which the ALJ concluded
were inconsistent with her alleged disabling symptoms and limitations. See 20 C.F.R.
§ 404.1529(c)(3); (R. at 51.)

Finally, the undersigned notes that much of Plaintiff’s Statement of Errors is dedicated to
discussing surgeries that occurred well after her December 31, 2015 DLI, including one such
surgery occurring more than three years post-DLI. To be eligible for disability insurance
benefits, Plaintiff must become disabled during the period of alleged disability, here between her
August 24, 2014 onset date and her December 31, 2015 DLI. See 42 U.S.C. § 423(a), (c), (d);
Higgs v. Bowen, 880 F.2d 860, 862 (6th Cir. 1988); Renfro v. Barnhart, 30 F. App’x 431, 435 (6th
Cir. 2002) (“If a claimant is no longer insured for disability benefits at the time she files her
application, she is entitled to disability insurance benefits only if she was disabled before the date
she was last insured.”). Thus, “[e]vidence 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), and is relevant only to the extent that it “relate[s] back to the claimant’s condition prior
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to the expiration of her date last insured,” Wirth v. Comm’r of Soc. Sec., 87 F. App’x 478, 480 (6th
Cir. 2003). Here, the ALJ considered post-DLI evidence, including diagnostic testing and
Plaintiff’s 2016 compression fraction surgery, (R. at 50), appropriately acknowledging that his
consideration of this evidence was “limited to placing [Plaintiff’s] symptoms and limitations into
context,” (R. at 44).
In summary, the undersigned finds that the ALJ properly evaluated Plaintiff’s allegations
regarding her symptoms and that substantial evidence supports the ALJ’s credibility assessment.
Although substantial evidence may also support an alternative finding, the ALJ’s findings were
within the ALJ’s permissible “zone of choice,” and the Court will not re-weigh the evidence. See
Blakley, 581 F.3d at 406. Accordingly, it is RECOMMENDED that Plaintiff’s Statement of
Errors be OVERRULED.

V. DISPOSITION
For the reasons set forth above, from a review of the record as a whole, the undersigned
concludes that substantial evidence supports the ALJ=s decision denying benefits. Accordingly, it
is RECOMMENDED that the Court OVERRULE Plaintiff=s Statement of Errors and AFFIRM
the Commissioner of Social Security=s decision.
VI. PROCEDURE ON OBJECTIONS
If any party seeks review by the District Judge of this Report and Recommendation, that
party may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part in

question, as well as the basis for objection. 28 U.S.C. ' 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
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Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District Judge and
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Natl Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that Afailure to object to the magistrate
judge=s recommendations constituted a waiver of [the defendant=s] ability to appeal the district
court=s ruling@); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court=s denial of pretrial motion by failing to timely object to
magistrate judge=s report and recommendation). Even when timely objections are filed, appellate
review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994

(6th Cir. 2007) (A[A] general objection to a magistrate judge=s report, which fails to specify the
issues of contention, does not suffice to preserve an issue for appeal . . . .@) (citation omitted)).

/s/ Chelsey M. Vascura
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10374790. Public record. Not legal advice.