IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Gary Allen Duffy, :

 Plaintiff, :

 v. : Case No. 2:12-cv-57

Michael J. Astrue, : JUDGE GEORGE C. SMITH

Commissioner of Social Security, Magistrate Judge Kemp

Defendant. : 

 OPINION AND ORDER

Plaintiff Gary Allen Duffy applied for social security

disability benefits and for supplemental security income. After

an administrative hearing before an administrative law judge, the

Commissioner of Social Security denied his application for

disability benefits but awarded him SSI from August 25, 2008

forward. This action seeks review of that decision under 42

U.S.C. § 405(g). 

On October 1, 2012, a United States Magistrate Judge

recommended that the decision of the Commissioner be affirmed and

that this action be dismissed. Report and Recommendation, Doc.

No. 18. This matter is now before the Court on plaintiff’s

objections to that recommendation. Objection, Doc. No. 19. 

Having considered the matter de novo, see 28 U.S.C. §636(b); Fed.

R. Civ. P. 72(b), the Court overrules the objections, adopts the

Report and Recommendation, and affirms the Commissioner’s

decision. 

I.

Plaintiff was 58 years old when the administrative hearing

was held in 2010. As reflected in the Report and Recommendation,

he had not worked since 2000 due to bipolar disorder. He also

developed migraine headaches, nausea, and vomiting, and testified

to constant depression. 

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Plaintiff was insured for disability purposes only through

December 31, 2005. The ALJ found that he had only a single

severe impairment - obesity - before that date. The ALJ also

concluded, however, that plaintiff subsequently developed

additional severe impairments, including cirrhosis of the liver,

Hepatitis C, migraines, and bipolar disorder, and that these

impairments prevented plaintiff from working a full day on a

constant basis beginning on August 25, 2008. That finding led

the ALJ to award benefits from that date forward. 

In his statement of errors, plaintiff challenged the ALJ’s

decision that neither his Hepatitis C nor his bipolar disorder

were severe at earlier times. The Report and Recommendation

rejected that argument, finding that if any error on that point

had been committed, it was harmless because the ALJ took into

account any limitations which might have been caused by those

conditions prior to August 25, 2008, and reasonably found that

plaintiff could work even with those limitations. In his

objection, plaintiff argues that the Magistrate Judge erred in

reaching that conclusion, and that the evidence supports a

finding that the combination of his bipolar disorder and his

Hepatitis C significantly interfered with the performance of work

activities as early as 2003.

II.

In a social security disability case, the Court's review “is

limited to determining whether the Commissioner's decision ‘is

supported by substantial evidence and was made pursuant to proper

legal standards.’” Ealy v. Comm'r of Soc. Sec., 594 F.3d 504,

512 (6th Cir. 2010)(quoting Rogers v. Comm'r of Soc. Sec., 486

F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. § 405(g) (“The

findings of the Commissioner of Social Security as to any fact,

if supported by substantial evidence, shall be conclusive”). Put

another way, a decision supported by substantial evidence is not

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subject to reversal, even if the reviewing court might arrive at

a different conclusion. Mullen v. Bowen, 800 F.2d 535, 545 (6th

Cir. 1986). “Substantial evidence exists when ‘a reasonable mind

could accept the evidence as adequate to support a conclusion

[and] ... presupposes that there is a zone of choice withing

which the decision-makers can go either way, without interference

by the courts.’” Blakley v. Comm'r of Soc. Sec., 581 F.3d 399,

406 (6th Cir. 2009) (internal citation omitted). Even if

supported by substantial evidence, however, “‘a decision of the

Commissioner will not be upheld where the [Commissioner] 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)).

III.

The ALJ found that plaintiff had bipolar disorder prior to

December 31, 2005, but that he “had no more than mild

psychological limitations and no episodes of decompensation during

this time period.” (Tr. 28). In discussing this issue further,

the ALJ cited to a 2005 examination performed by Dr. Smith, who

concluded both that plaintiff’s history of polysubstance abuse

might have led to an incorrect diagnosis of bipolar disorder and

that his history was more consistent with a depressive disorder. 

The ALJ did not find any depressive disorder to be severe, either,

noting that plaintiff himself reported his mood to have been

relatively stable and that until he developed frequent headaches,

he was not suffering from severe psychological symptoms. (Tr.

31). Dr. Smith’s report (Tr. 521-22) and the report of a nurse

practitioner (Tr. 689) confirm the ALJ’s observations. The ALJ

also found that although plaintiff began treatment for hepatitis C

in 2005, records showed that he tolerated treatment well, and

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there was no indication of significant symptoms. That statement

is also supported by the record. (Tr. 1287). The ALJ also relied

on an opinion from a state agency reviewer to the effect that

plaintiff did not have a severe psychological impairment prior to

December 31, 2005. (Tr. 1266).

Plaintiff argues, however, that there is other evidence in

the record, particularly in the notes of his 2003 hospitalization,

which suggest a more severe impairment that the ALJ found to have

existed. The ALJ did note, however, that plaintiff’s

psychological symptoms persisted in the hospital even after he

underwent detoxification for substance abuse, but observed that by

the time he was discharged, his GAF had improved to 65 (indicative

of only mild symptoms) and that there was not really any evidence

of the exacerbation of those symptoms over the next several years. 

Thus, the fact that for a short period of time, while plaintiff

was in the hospital, he had some significant psychological

symptoms does not undercut the ALJ’s finding. The same is true of

the only other piece of evidence plaintiff cites to on this

subject, a single treatment note from 2004 (Tr. 416) indicating

that plaintiff continued to take medication for a psychological

condition. The note certainly indicates that plaintiff’s

depression or bipolar disorder and the treatment for it continued

beyond his discharge from the hospital, but it says nothing about

the severity of that condition during that time frame.

Plaintiff’s argument with respect to his hepatitis C fares no

better. Again, the evidence he cites supports the propositions

that he had that disease and that he was treated for it, but not

that it caused him to be unable to perform work activity at some

level. The fact that he experienced nausea or some mood

disturbance when receiving treatments is the same as saying that

the condition or the treatment he received interfered with his

ability to work at some particular exertional level on a sustained

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basis. In short, the ALJ did have a reasonable basis for

concluding that the record did not compel a finding that either of

these impairments was severe while plaintiff was in insured

status. And even if there was some interference, the ALJ also

found that plaintiff could do his prior work, which was usually

performed at the sedentary level or light exertional level, before

December 31, 2005. There is no evidence to suggest that plaintiff

was more limited, from a physical standpoint, than this due to

either his hepatitis C or the treatments he took. Thus, any error

which might have resulted from not characterizing this disease as

severe before December 31, 2005 was clearly harmless. 

 IV.

For all of these reasons, plaintiff’s objections (Doc. 19) to

the Report and Recommendation (Doc. 18) are OVERRULED and the

Report and Recommendation is ADOPTED AND AFFIRMED. The Court

OVERRULES plaintiff’s statement of errors and AFFIRMS the decision

of the Commissioner. The Clerk is directed to enter judgment in

favor of the defendant. 

IT IS SO ORDERED.

/S/ George C. Smith 

George C. Smith

United States District Judge 

 

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