1

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

BRANDON S. KILLORAN,

Plaintiff, Case No. 2:18-cv-449

-v. Judge Sarah D. Morrison

Chief Magistrate Judge Elizabeth P. Deavers

COMMISSIONER OF SOCIAL 

SECURITY,

Defendant.

OPINION AND ORDER

Plaintiff Brandon S. Killoran brings this action under 42 U.S.C. § 405(g) for review of a 

final decision by the Commissioner of Social Security (“Commissioner”) to deny his application 

for disability insurance benefits. This matter is before the Court on Mr. Killoran’s Objections

(ECF No. 22) to the Report and Recommendation (R&R) issued by the United States Magistrate 

Judge on July 29, 2019 (ECF No. 21), recommending that the Court overrule Mr. Killoran’s 

Statement of Specific Errors and affirm the Commissioner’s decision. For the reasons set forth 

below, the Court OVERRULES Mr. Killoran’s Objections, ADOPTS the R&R, and AFFIRMS

the Commissioner’s decision.

I. BACKGROUND

A. Procedural History

Mr. Killoran filed his application for disability insurance benefits on December 22, 2015.

(R. at 248–51, ECF No. 7.) His claims were denied initially on February 17, 2016, and upon 

reconsideration on April 20, 2016. (R. at. 152–61.) Mr. Killoran requested a de novo hearing 
2

before an administrative law judge (“ALJ”), which was held by ALJ Paul Yerian on September 

19, 2016. (R. at 32–66.) On November 18, 2016, the ALJ issued his decision finding that Mr. 

Killoran was not disabled within the meaning of the Social Security Act. (R. at 125–42.) On 

February 28, 2017, the Appeals Council vacated the ALJ’s decision, finding that the ALJ had 

incorrectly determined Mr. Killoran’s last insured date. (R. at 146–48.)

On May 10, 2017, ALJ Yerian held a second hearing. (R. at 67–89.) Subsequent to this 

hearing, ALJ Yerian retired, and Mr. Killoran’s case was reassigned to ALJ Jeannine 

Lesperance. (R. at 244.) On November 22, 2017, ALJ Lesperance issued her decision based on 

the hearing previously held by ALJ Yerian. (R. at 6–26.) On March 9, 2018, the Appeals Council 

denied Mr. Killoran’s request for review and affirmed the ALJ’s decision. (R. at 1–5.)

Mr. Killoran filed this case on May 8, 2018 (ECF No. 1), and the Commissioner filed the 

administrative record on August 7, 2018 (ECF No. 7). Mr. Killoran filed a Statement of Specific 

Errors (ECF No. 9), to which the Commissioner responded (ECF No. 16), and Mr. Killoran filed 

a Reply (ECF No. 19). On July 29, 2019, the Magistrate Judge issued her R&R. (ECF No. 21.) 

After a thorough analysis, the Magistrate Judge recommended affirming the Commissioner’s 

non-disability finding. On August 12, 2019, Mr. Killoran filed his Objections to the R&R. (ECF 

No. 22.) The Commissioner has not filed a response and the deadline to do so has since passed.

B. Relevant Record Evidence

Given the Magistrate Judge’s thorough R&R, only a small portion of the background 

evidence need be highlighted here. Mr. Killoran, a veteran, was previously determined by the 

Department of Veterans Affairs (“VA”) to be eligible for VA benefits based on his having 

various “service-connected disabilities.” He was determined to be eligible on May 8, 2009, with 
3

subsequent revisions to his eligibility on February 25, 2012, and March 10, 2016. (R. at 354–65, 

567–577.)

On March 10, 2016, the VA determined that Mr. Killoran was entitled to “individual 

unemployability” because he was “unable to secure or follow a substantially gainful occupation 

as a result of service-connected disabilities.” (R. at 568.) In particular, the VA highlighted Mr. 

Killoran’s post-traumatic stress disorder (“PTSD”) and major depressive disorder. (R. at 568.) In 

making its determination, the VA considered documentation from October 2015 and February 

2016. (R. at 573.)

ALJ Lesperance conducted an extensive analysis of Mr. Killoran’s symptoms, including 

comparing his testimony with his medical records. (R. at 19–22.) Among other things, she 

concluded based on the medical records that during the relevant time period, Mr. Killoran’s 

condition was not as severe as he indicated in his testimony (July 25, 2014, through December 

2015). (R. at 14, 19–20.) She also found the VA’s determinations to be inconsistent with the 

medical records. (R. at 19–20.) The ALJ considered the determinations that the VA had made but 

concluded that they warranted “little weight” because of these inconsistencies and because the 

VA has a different disability determination process. (R. at 23.) 

Among her detailed findings, the ALJ noted that although Mr. Killoran was diagnosed 

with vasovagal syncope in 2005, his medical file did not document any episodes during the 

relevant period. (R. at 15.) As a result, she concluded that his vasovagal syncope was a nonsevere impairment. (R. at 15.) She also noted that Mr. Killoran’s medical records during the 

relevant period contained no complaints of tinnitus and that his ear inspections during the 

relevant period were normal. (R. at 15.) The ALJ also noted that there was no objective evidence 

in the record showing that Mr. Killoran’s traumatic brain injury had affected him in any way 
4

during the relevant period. (R. at 15.) Ultimately, the ALJ found that Mr. Killoran had a number 

of severe impairments but that these impairments did not render him disabled for purposes of 

social security eligibility. (R. at 14, 25–26.)

II. STANDARD OF REVIEW

When reviewing an ALJ’s decision, the Court’s role is limited to determining whether the 

Commissioner’s decision “is supported by substantial evidence and was made pursuant to proper 

legal standards.” 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 . . . .”). “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 & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994)).

The Court does not review the ALJ’s decision de novo. Bass v. McMahon, 499 F.3d 506, 

509 (6th Cir. 2007). To the contrary, “[t]he substantial evidence standard presupposes that there 

is a ‘zone of choice’ within which the Secretary may proceed without interference from the 

courts.” Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994) (quoting Mullen v. Bowen, 800 

F.2d 535, 545 (6th Cir. 1986)). Even if “substantial evidence exists in the record to support a 

different conclusion,” that is not an adequate basis for reversal. Id.

III. ANALYSIS

In his Statement of Specific Errors, Mr. Killoran makes two arguments in support of his 

efforts to reverse the ALJ’s decision—1) that the ALJ failed to evaluate properly the findings 

from the VA and 2) that the ALJ’s failure to hold a supplemental hearing substantially 

prejudiced Mr. Killoran. (ECF No. 9, at 5, 8.) However, Mr. Killoran only raises the first as an 
5

objection to the R&R. (ECF No. 22, at 2–3.) As a result, the Court finds it unnecessary to 

address Mr. Killoran’s second argument and adopts the R&R’s conclusions on the second 

argument.

With regard to his first argument, Mr. Killoran faults the ALJ for relying too much on the 

differences in the disability determinations between the VA and the Social Security 

Administration (“SSA”). (ECF No. 22, at 2.) He also claims that “the ALJ does nothing more 

than simply declare that the VA decision was inconsistent with the record.” (Id. at 3.) This is not 

a fair reading of the ALJ’s decision.

The ALJ explained two reasons why she did not credit the VA’s disability determination. 

One was based on the different analyses conducted by the different agencies. This is an 

important point because disability determinations by other governmental agencies are not 

binding on the SSA. 20 C.F.R. § 404.1504. That is true even when the disability requirements of 

the agency at issue are identical. Turcus v. Soc. Sec. Admin., 110 F. App’x 630, 632 (6th Cir. 

2004). It is thus significant where, as here, the analytical framework is entirely different.

Regardless, this was the beginning of the ALJ’s analysis, not the end.

The other reason that the ALJ did not credit the VA’s disability determination was that 

she determined that the VA’s decision was not consistent with the medical records that she 

examined. Mr. Killoran claims that the ALJ did not explain this determination, but that is not 

correct. The ALJ’s decision contains several pages of analysis during which she explains how 

some of the VA’s findings were not borne out by the records that the ALJ reviewed. (R. at 19–

20.)

To begin with, the VA’s first two determinations (in 2009 and 2012) pre-date the relevant

period and were thus irrelevant to the ALJ’s decision. As a result, only the VA’s October 2016 
6

analysis is at issue. Although, how much of this analysis was based on documentation from the 

relevant time period remains unclear, since the VA says that it relied on a document from 

October 2015 (near the very end of the relevant period) and two letters from February 2016 (after 

the relevant period). The specific time period analyzed is particularly important because of Mr. 

Killoran’s changing condition. For example, it appears that his chronic lumbar strain improved 

over time, since the VA decreased the amount that it took this into consideration between the 

2012 and 2016 letters. (R. at 569–70.) His migraines improved as well. (R. at 572.)

The most acute difference is with regard to Mr. Killoran’s PTSD. In its October 2016

analysis, the VA determined that Mr. Killoran’s PTSD with traumatic brain injury to include 

syncope was the primary basis for their disability determination. (R. at 570.) In contrast, the ALJ 

found that Mr. Killoran’s medical records during the relevant time period showed no instances of 

syncope or any indications that his traumatic brain injury had “ongoing residuals.” (R. 15.) The 

ALJ thus found these to be non-severe impairments. Similarly, although the VA found that 

tinnitus contributed to Mr. Killoran’s disability, the ALJ found no complaints in Mr. Killoran’s 

medical records during the relevant time period, or any abnormal ear inspections.

Mr. Killoran criticizes the ALJ for not giving sufficient consideration to the VA’s 

determination, but he does not identify any place where she went wrong. He does not identify 

anything in the record that contradicts her analysis or her conclusions. He does not identify any 

way in which the VA’s analysis was superior. And he does not identify anything that the ALJ 

overlooked. In other words, he claims that the ALJ did not do enough to “consider” the VA’s 

findings, but he does not specifically identify anything that she did not consider.

In sum: The ALJ gave full consideration to the VA’s determination and only disregarded 

it after finding that it was inconsistent with the medical records she examined. The ALJ’s and the 
7

VA’s analyses encompassed different time periods, so it is not surprising that their conclusions 

differ. And regardless of whether the ALJ’s analysis is superior to the VA’s, there is substantial 

evidence to support it. For purposes of this Court’s review, that is all that legally matters.

The Court concludes that substantial evidence supports the ALJ’s decision denying 

benefits and OVERRULES Mr. Killoran’s objection.

IV. CONCLUSION

Based upon the foregoing, and pursuant to Rule 72(b) of the Federal Rules of Civil 

Procedure, after a de novo determination of the record, this Court concludes that Mr. Killoran’s

objection to the R&R is without merit. The Court, therefore, OVERRULES Mr. Killoran’s 

objection (ECF No. 22), ADOPTS the Magistrate Judge’s Report and Recommendation (ECF 

No. 21), and AFFIRMS the Commissioner’s decision. The Clerk is DIRECTED to ENTER 

JUDGMENT in accordance with this Order and terminate this case from the docket records of 

the United States District Court for the Southern District of Ohio, Eastern Division.

IT IS SO ORDERED.

/s/ Sarah D. Morrison 

SARAH D. MORRISON

UNITED STATES DISTRICT JUDGE