Ellison v. SSA
OPINION & ORDER: 1. The plaintiff's motion for summary judgment (DE 11 ) is DENIED; 2. The defendant's motion for summary judgment (DE 12 ) is GRANTED; 3. The decision of the Commissioner is AFFIRMED; AND 4. A judgment will be entered contemporaneously. Signed by Judge Karen K. Caldwell on 9/27/17.(SYD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
ROBERT CLYNE ELLISON,
CIVIL ACTION NO. 6:16-113- KKC
OPINION AND ORDER
NANCY A. BERRYHILL,
ACTING COMMISSIONER OF SSA,
*** *** ***
The plaintiff Robert Ellison brought this action pursuant to 42 U.S.C. § 405(g) to obtain
judicial review of an administrative decision denying his claim for disability insurance benefits
and supplemental security income benefits. The Court, having reviewed the record, will affirm
the Commissioner’s decision.
FACTUAL AND PROCEDURAL BACKGROUND
This Court’s review of the decision by the Administrative Law Judge (“ALJ”) is limited
to determining whether it “is supported by substantial evidence and was made pursuant to proper
legal standards.” Rabbers v. Comm'r Soc. Sec., 582 F.3d 647, 651 (6th Cir.2009).
In denying Ellison’s claim, the ALJ engaged in the five-step sequential process set forth
in the regulations under the Social Security Act (the “Act”). 20 C.F.R. § 404.1520(a)-(e). See,
e.g., Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997).
At step one, the ALJ determined that Ellison has not engaged in substantial gainful
activity since August 1, 2005, the alleged onset date. (Administrative Record (“AR”) at 120.)
At step two, the ALJ determined that Ellison did not have a severe impairment prior to
the expiration of his insured status on December 31, 2006, making him ineligible for disability
insurance benefits. With regard to Ellison’s application for Supplemental Social Security Income
payments, however, the ALJ determined that, after the expiration of Ellison’s insured status,
Ellison suffered from the combined severed impairments of a history of bilateral shoulder
dislocations with evidence of ongoing mild right shoulder separation; obesity; traumatic arthritis
of the left ankle, status post ankle fracture; depressive disorder, not otherwise specified; and
alcohol dependency. (AR at 120.)
At step three, the ALJ found that, since the expiration of Ellison’s insured status, he has
not had an impairment or combination of impairments that meets or medically equals the severity
of one of the listed impairments. (AR at 123.)
Before proceeding to step four, the ALJ determined that, since the expiration of Ellison’s
insured status, Ellison has had the residual functional capacity (RFC) to perform “medium” work
as defined in 20 C.F.R. §§ 404.1567(c) and 416.967(c), except that he can:
perform no more than occasional kneeling, crouching, crawling and climbing of
ladders, ropes or scaffolds and no more than frequent operation of foot controls or
pushing/pulling with the left lower extremity. He can understand and remember
simple instructions and procedures; can sustain attention, concentration and pace
for simple task completion; can tolerate occasional, casual contact with
coworkers, supervisors and the general public; and can adapt to occasional
changes in the workplace that are gradually introduced with reasonable support
(AR at 125.)
At step four, the ALJ determined that Ellison has no past relevant work. (AR at 128.)
At step five, the ALJ determined that, given Ellison’s RFC, age, education, and work
experience, since the expiration of his insured status, there have been jobs that exist in significant
numbers in the national economy that Ellison can perform and, thus, he is not disabled. (AR at
Ellison raises really only one objection to the ALJ’s decision. He argues that the ALJ erred in
failing to find that Chronic Obstructive Pulminary Disease (COPD) and chest pains were severe
impairments and in failing to consider these conditions in determining his RFC.
The ALJ did, however, find that Ellison suffered from some severe impairments i.e., a
history of bilateral shoulder dislocations with evidence of ongoing mild right shoulder
separation; obesity; traumatic arthritis of the left ankle, status post ankle fracture; depressive
disorder, not otherwise specified; and alcohol dependency. Having found any severe impairment,
the ALJ was then required to proceed to the remaining steps of the disability determination. In
making the determination, “the ALJ must consider limitations and restrictions imposed by all of
[the] individual's impairments, even those that are not severe.” Kirkland v. Comm'r of Soc. Sec.,
528 F. App'x 425, 427 (6th Cir. 2013) (quoting Fisk v. Astrue, 253 F. App’x 580, 583 (6th
Cir.2007)). “Thus, so long as the ALJ considered all of the individual's impairments when
assessing how much work the claimant can do, the ‘failure to find additional severe impairments
. . . does not constitute reversible error.’” Id. (quoting Fisk, 253 F. App’x at 583).
Accordingly, the real issue is whether the ALJ appropriately considered COPD and chest
pains when determining Ellison’s ability to work. In his motion, Ellison argues that the ALJ
erred because the RFC did not include certain environmental restrictions contained in the opinion
of consultative examiner Dr. Kathleen Monderwicz, who performed a cardiology examination of
Ellison on May 28, 2014. (DE 11-1, Mot. at 14.)
Of the restrictions noted by Ellison in his motion (DE 11-1, Mot. at 14), the ones that appear
most relevant to chest pains or COPD are restrictions that Ellison never work around dust, odors,
fumes, or pulmonary irritants and that he only occasionally work around humidity and wetness,
extreme cold, and extreme heat. (AR at 757.) The ALJ assigned only “negligible weight” to Dr.
Monderwicz’s opinion. However, the ALJ gave adequate reasons for doing so.
The ALJ explained that Dr. Monderwicz’s opinion assigned “substantial consideration to the
claimant’s subjective complaints.” (AR at 128.) As to Ellison’s subjective complaints about
breathing problems, the ALJ noted that Ellison took no medications for any breathing condition
and that “his primary care notes are essentially bereft of any contemporaneous reports of such
symptoms.” (AR at 123.) The ALJ further noted that Ellison did not list any breathing problems
when he filed his disability claim or in two of his consultative examinations. (AR at 123.) The
ALJ concluded that the lack of any treatment notes for breathing problems, the lack of any
diagnostic testing, and Ellison’s admission that he takes no medication for such problems
supported a finding “that he does not have a medically determinable pulmonary
impairment.”(AR at 123.)
Likewise as to Ellison’s subjective complaints of “chest pain,” the ALJ noted that, while
Ellison testified that he has had two heart attacks and reported in a consultative examination that
the attacks occurred in 2011, there were no treatment notes indicating even complaints of chest
pain that year. (AR at 122.) The ALJ found “the longitudinal record fails to bolster the claimant’s
claim of multiple heart attacks, and there is absolutely nothing objective in the medical record to
substantiate the claimant’s contention that he has had multiple heart attacks or his testimony that
he might require open heart surgery in the future.” (AR at 122.) The ALJ noted that Ellison
sought emergency room treatment in 2012 for chest pain, but that the examination revealed only
alcohol intoxication. (AR at 122, 453.) Ellison points to certain medical records indicating that
he complained of chest pains at various medical visits from 2012 to 2014, but, again, these
reflect only Ellison’s subjective complaints and no associated definitive diagnosis.
As to Dr. Monderwicz’s objective findings, she noted that Ellison’s “pulmonary exam
appeared normal.” (AR at 764.) She also noted that the “lungs are clear to auscultation with no
wheezes, rales, rhonchi or rubs” (AR at 763) and that Ellison experienced no “dyspnea on
exertion.” (AR at 765.) Likewise, Dr. Monderwicz found that Ellison did not complain of
exertional chest pain. (AR at 765.) She further noted that “spirometry results were not available
to assess with any degree COPD.” (AR at 764.)
The ALJ reasonably determined that the restrictions contained in Dr. Monderwicz’s opinion
were substantially based on Ellison’s subjective complaints instead of objective medical
evidence. Accordingly, the ALJ did not err in failing to include the environmental restrictions in
Ellison also asserts a general objection that the ALJ’s determination was not supported by
substantial evidence. Such an objection is not “sufficiently specific to focus the district court's
attention on the factual and legal issues that are truly in dispute.” Wyatt v. Barnhart, 190 F.
App'x 730, 732 (10th Cir.2006) (citation omitted). Accordingly, the Court need not address this
general objection. Nevertheless, the Court finds that the evidence cited by the ALJ in support of
his decision is substantial.
For all these reasons, IT IS HEREBY ORDERED that:
1. The plaintiff’s motion for summary judgment (DE 11) is DENIED;
2. The defendant’s motion for summary judgment (DE 12) is GRANTED;
3. The decision of the Commissioner is AFFIRMED pursuant to sentence four of 42 U.S.C.
§ 405(g) as it was supported by substantial evidence and was decided by proper legal
4. A judgment will be entered contemporaneously with this order.
Dated September 27, 2017.
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