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Dillon v. Commissioner of Social Security

United States District Court, W.D. Kentucky, Paducah Division

September 23, 2019

SUSAN KAY DILLON PLAINTIFF
v.
COMMISSIONER OF SOCIAL SECURITY DEFENDANT

          MEMORANDUM OPINION

          Thomas B. Russell, Senior Judge.

         Plaintiff Susan Kay Dillon brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the Commissioner of Social Security’s decision to deny her claim for Social Security disability benefits. [DN 1]. The Court referred the action to the Magistrate Judge for a report and recommendation pursuant to 28 U.S.C. § 636. [DN 7]. The Magistrate Judge recommended that the Court affirm the Commissioner’s final decision and dismiss Dillon’s Complaint. [DN 39]. Subsequently, Dillon filed an Objection to the Magistrate Judge’s Findings of Fact and Conclusions of Law and Recommendation, [DN 40], and the Commissioner responded, [DN 42]. Having reviewed the Administrative Record, the parties’ submissions, and the applicable law, the Court will ADOPT the Magistrate Judge’s Report and Recommendation (“R&R”) [DN 39], and OVERRULE Dillon’s Objection, [DN 40]. The Court will enter a separate Order and Judgment consistent with this Memorandum Opinion.

         BACKGROUND

         On May 14, 2014, Dillon filed a Title II application for disability insurance benefits. [DN 31-1 at 684]. After this claim was denied at the administrative level, Dillon was granted a hearing in front of an Administrative Law Judge (“ALJ”) on February 11, 2016. Id. at 685. The ALJ denied Dillon’s claim in a decision dated March 25, 2016. Id. at 695. Using the traditional five-step evaluation for disability benefits, see 20 C.F.R. § 404.1520(a)(4), the ALJ made the following findings: First, Dillon had not engaged in substantial gainful activity since February 21, 2014. [DN 27-2 at 132]. Second, Dillon has the following severe impairments: fibromyalgia, obesity, depression, and anxiety. Id. Third, Dillon’s impairments do not satisfy the clinical criteria of any impairment listed in Appendix 1 of the regulations. Id. at 133. Fourth, Dillon has the residual functional capacity (“RFC”) to perform light work, but she is not capable of performing past relevant work. Id. at 134, 140. Finally, the ALJ concluded that Dillon was not disabled because she retains the ability to perform a significant No. of unskilled, sedentary jobs. Id. at 141.

         On April 28, 2017, the Appeals Council denied Dillon’s request for review of the ALJ’s decision. [DN 38 at 716]. Dillon then filed a Complaint with this Court for judicial review of the Commissioner’s decision to deny her claim for Social Security disability benefits. [DN 1].

         LEGAL STANDARD

         It is well-settled that the Court reviews the objected-to portions of a report and recommendation de novo. 28 U.S.C. § 636(b)(1); see also Fed.R.Civ.P. 72(b). Its review of the Commissioner’s determination is, of course, more deferential. See 42 U.S.C. § 405(g); Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 405 (6th Cir. 2009). The scope of that inquiry is limited to (1) “whether the findings of the ALJ are supported by substantial evidence” and (2) “whether the ALJ applied the correct legal standards.” Miller v. Comm’r of Soc. Sec., 811 F.3d 825, 833 (6th Cir. 2016) (quoting Blakley, 581 F.3d at 405–06). “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 v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). “When substantial evidence supports an ALJ’s decision, we affirm even if we would have decided differently, see Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983) (per curiam), and even if substantial evidence also supports the opposite conclusion, see Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (en banc).” Francis v. Comm’r Soc. Sec. Admin., 414 F.App'x 802, 805 (6th Cir. 2011). “[H]owever, ‘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.’”Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009) (quoting Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007)).

         DISCUSSION

         As recited above, the scope of this Court’s inquiry is limited to (1) “whether the findings of the ALJ are supported by substantial evidence” and (2) “whether the ALJ applied the correct legal standards.” Miller, 811 F.3d at 833. Thus, the Court will address the arguments of Dillon’s Objection as they apply within this inquiry. First, Dillon contends that the Magistrate Judge’s misidentification of Dr. Monte Rommelman as a psychiatrist affects the weight given to his report regarding Dillon’s physical limitations. [DN 40 at 745]. Second, Dillon asserts that Dr. Rommelman’s RFC is material to the disability determination. Id. at 747. Finally, Dillon argues that her inability to work due to inattentiveness and drowsiness were “grossly underappreciated” by the ALJ. Id. at 749. The Court will address each argument in turn.

         I. Misidentification of Dr. Rommelman

         First, Dillon asserts that the Magistrate Judge’s misidentification of Dr. Rommelman as a psychiatrist, rather than a physiatrist, affected the weight the Court should have given his RFC. Id. at 745. Specifically, Dillon argues that while a psychiatrist specializes in mental health, physiatrists treat a wide variety of medical conditions affecting the brain, spinal cord, nerves, bones, and joints. Id. at 746. Given that Dillon’s conditions are neurological and musculoskeletal, she claims a physiatrist’s opinion should be given more weight than a psychiatrist’s opinion. Id.

         In the R&R, the Magistrate Judge briefly identifies Dr. Rommelman as “Plaintiff’s treating psychiatrist.” [DN 39 at 736]. Whether Dr. Rommelman is a psychiatrist or a physiatrist had no real effect on the Magistrate Judge’s findings. Rather, he rejected Dillon’s contention that the ALJ’s decision was unsupported considering Dr. Rommelman’s RFC on the basis that it was new evidence submitted after the ALJ’s decision. Id. at 738. As will be discussed below, Dillon was required to show that the new evidence was material to the ALJ’s decision and that there was good cause for the failure to incorporate it into the record during the prior proceeding. Since Dillon failed to allege both materiality and good cause, the Magistrate Judge rejected her argument. Id. Accordingly, the Court fails to see how the Magistrate Judge’s misidentification of Dr. Rommelman as a psychiatrist would constitute anything but harmless error. See Brunner v. Berryhill, No. 3:15-CV-00907-TBR, 2017 WL 658843, at *6 (W.D. Ky. Feb. 17, 2017). Thus, Dillon’s objection is overruled.

         II. Materiality of Dr. Rommelman’s RFC

         Dillon’s second objection involves the materiality of Dr. Rommelman’s RFC. [DN 40 at 747]. After the ALJ’s final decision was issued in March 2016, Dr. Rommelman completed an RFC based on Dillon’s primary diagnosis of fibromyalgia. [DN 27-7 at 671–76]. Dillon then filed the current action, arguing in part, that the ALJ’s decision to deny her disability claim was unsupported in light of Dr. Rommelman’s new assessment. [DN 1 at 686]. However, this argument is without merit. “Only evidence in the record below can be considered when determining whether or not the ALJ’s opinion was supported by substantial evidence.” Bass v. McMahon, 499 F.3d 506, 512–13 (6th Cir. 2007). “The only method to have new evidence considered is to ask for a sentence six remand under 42 ...


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