Hubbard v. Commissioner of Social Security
Memorandum Opinion and Order affirming Commissioner's decision. Magistrate Judge James R. Knepp, II on 3/16/16. (A,P)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
Case 1:14 CV 2770
Magistrate Judge James R. Knepp, II
COMMISSIONER OF SOCIAL SECURITY,
MEMORANDUM OPINION AND ORDER
Plaintiff Roger Hubbard (“Plaintiff”) filed a Complaint against the Commissioner of
Social Security seeking judicial review of the Commissioner’s decision to deny supplemental
security income (“SSI”). (Doc. 1). The district court has jurisdiction under 42 U.S.C. §§ 405(g)
and 1383(c). The parties consented to the exercise of jurisdiction by the undersigned in
accordance with 28 U.S.C. § 636(c) and Local Rule 72.2(b)(1). (Doc. 14). For the reasons stated
below, the Commissioner’s decision is affirmed.
Plaintiff filed for SSI on January 6, 2005, alleging a disability onset date of January 1,
2000. (Tr. 166). Plaintiff applied for benefits due to a heart condition, back problems, high blood
pressure, and breathing difficulties. (Tr. 174). His claim was denied initially (Tr. 144) and upon
reconsideration (Tr. 140). Plaintiff had a hearing before an ALJ on June 16, 2008 (Tr. 132); the
ALJ issued a notice of unfavorable decision on September 12, 2008 (Tr. 66-74). The Appeals
Council remanded the ALJ decision for rehearing on August 18, 2010. (Tr. 58-62). Plaintiff had
a second hearing on August 23, 2011, this time before a different ALJ. (Tr. 114). This ALJ
issued a notice of unfavorable decision on February 24, 2012. (Tr. 46-56). Again, Plaintiff
appealed to the Appeals Council, who again remanded the case for rehearing on March 15, 2013.
(Tr. 40-42). The Appeals Council instructed the next ALJ to obtain additional evidence
concerning Plaintiff’s impairments, re-evaluate the opinions of the medical sources, further
consider the Plaintiff’s RFC, and if necessary, obtain further vocational expert (“VE”) testimony.
On October 23, 2013, Plaintiff, represented by counsel, and a vocational expert (“VE”)
testified at a hearing before a third ALJ after which he found Plaintiff not disabled. (Tr. 17-37,
1281-1305). For a third time Plaintiff appealed the decision; this time the Appeals Council
denied Plaintiff’s request for review, making the hearing decision the final decision of the
Commissioner. (Tr. 9-11); 20 C.F.R. §§ 416.1455, 416.1481. Plaintiff filed the instant action on
December 17, 2014. (Doc. 1).
Personal Background and Testimony
Born May 6, 1964, Plaintiff was 49 years old at the final hearing before the ALJ. (Tr.
1284). He did not complete high school and had past work as a stocker and maintenance worker.
(Tr. 181, 1285).
At the hearing, he reported using nasal oxygen for just under one year. (Tr. 1284). He
appeared at the hearing with a cane but admitted it was never prescribed by a doctor. (Tr. 128586). Plaintiff reported using a CPAP machine frequently and that his energy level improved with
use, but he claimed it clogged his sinuses, preventing him from using it every night. (Tr. 1288).
Plaintiff’s main complaints were shortness of breath, which was worsened by heat, and back
pain. (Tr. 1289-90). He also complained of chest pain due to atrial fibrillation and leg swelling
which required him to elevate his legs. (Tr. 1293). Plaintiff testified he always took his
medications. (Tr. 1299-1300).
He reported not preparing any meals himself, trouble with sleeping and memory, not
socializing, not being able to read or count, and difficulty lifting, climbing stairs, standing,
kneeling, and walking. (Tr. 190-96). Plaintiff stated his brother and a friend did all the household
chores and took him grocery shopping. (Tr. 1295-96).
Relevant Medical Evidence
The medical record in the Transcript is voluminous and dates back to 2000. For the sake
of brevity the Court will summarize the majority of the records without discussion of each
individual care provider or visit unless necessary. Preliminarily, Plaintiff has admitted to cocaine
use (Tr. 267, 270, 450, 609) and being a smoker for over twenty years (Tr. 218, 296, 367, 477,
450, 544, 609, 761, 772); however, he denied any cocaine use after 2009 and denied smoking
after 2012 (Tr. 1122).
Throughout the earlier portion of the record ranging from 2000-2009, Plaintiff’s doctors
reported uncontrolled or sub-optimally controlled hypertension, despite reports that his
hypertension improved while medicated. (Tr. 218, 229, 278, 262, 312, 316, 317, 407, 435, 501,
505, 532, 538, 570, 575-76). Plaintiff also consistently reported and received treatment for
shortness of breath and chest pain (Tr. 218, 229, 317, 424, 425, 426, 427, 430, 433, 435, 450,
475, 534, 560, 570, 575, 594, 649); however, on examination he had normal heart and chest
sounds (Tr. 317, 318, 427, 429-30, 433, 435, 475, 481, 529, 538, 545, 571, 608, 645-46) and
objective testing – x-rays and echocardiograms – revealed no or minor abnormalities (Tr. 225,
248-50, 256, 307, 431, 432, 434, 436, 463, 476, 496-97, 526, 534, 544, 547-48, 573-74 576, 598,
604, 653-54). During this time period, Plaintiff registered ejection fractions – a measure of heart
function – between 39% and 60%.1 (Tr. 256, 434, 544, 548, 576). Plaintiff was diagnosed with
congestive heart failure in February 2007, yet a cardiac catheterization performed in January
2008 revealed “trivial coronary artery disease”. (Tr. 475, 548). During this period, Plaintiff was
hospitalized over a dozen times for cardiopulmonary complaints.
Plaintiff’s complaints of shortness of breath, palpitations, and chest pain continued
through 2010, 2011, and 2012. (Tr. 772, 893, 896, 918, 951, 960, 1025, 1027, 1082, 1096, 1125).
But on examination, he was consistently found to have normal heart sounds and clear lungs. (Tr.
762, 775, 830, 952, 961, 1024, 1026, 1028, 1030, 1033, 1126). Plaintiff’s recurrent atrial
fibrillation was found to resolve itself on its own without need for additional medications or
treatment. (Tr. 893, 952). Twice in 2011, his shortness of breath and atrial fibrillation were
attributed to exacerbations of chronic obstructive pulmonary disease (“COPD”) and it was
recommended he be evaluated for home oxygen. (Tr. 893, 901, 918). Objective testing in this
period again proved unremarkable: he had four normal echocardiograms which showed left
ventricular ejection fractions at 55-60% and two chest x-rays which revealed no new disease
process. (Tr. 766-67, 902, 906, 954, 1021, 1153). However, a perfusion imaging study performed
in February 2011 revealed an ejection fraction of 39% but found no evidence of ischemia and
was deemed normal from a coronary standpoint. (Tr. 764-65). It was also noted during this
period that Plaintiff’s blood pressure was better controlled with medication. (Tr. 960, 1018,
1023, 1030). In this period, he was hospitalized over half a dozen times for related complaints.
1. An ejection fraction of above 55% is considered normal. An ejection fraction between 50%
and 55% may be considered borderline normal or borderline reduced. Ejection fractions below
these percentages may indicate weakened or damaged heart muscle or long-standing
uncontrolled high blood pressure. THE MAYO CLINIC, http://www.mayoclinic.org/ejectionfraction/expert-answers/faq-20058286 (last visited February 5, 2016).
In 2013, Plaintiff reported shortness of breath, chest pain, palpitations, and dizziness (Tr.
1034, 1040, 1046, 1240); but heart and lung sounds were largely normal (Tr. 1038, 1043, 1241,
1244). He had two normal echocardiograms with ejection fractions of 60%. (Tr. 1140-41, 1052).
According to the record, Plaintiff was hospitalized for cardiopulmonary issues twice in 2013.
Furthermore, doctors had linked his shortness of breath and atrial fibrillation to
uncontrolled blood pressure, morbid obesity, and cocaine use. (Tr. 548, 570, 575, 607, 645-46,
761, 772). Plaintiff reported an improvement in all symptoms with weight loss except an increase
in knee pain due to exercise. (Tr. 1030). At points in the record, Plaintiff reported utilizing home
oxygen consistently but there is no record of its prescribed frequency or dosage. (Tr. 1010, 1057,
Beginning in the spring of 2005, Plaintiff complained of mild neck and back pain from a
car accident that did not restrict his activities. (Tr. 338-39, 340-52, 358-60). His complaints of
lower back pain persisted and increased in severity. (Tr. 428, 433, 435, 443, 775, 779). Plaintiff
described the pain as sharp, shooting, stabbing, and reported exacerbation with walking, sitting,
or standing. (Tr. 775). Yet, a lumbar MRI in December 2008 revealed no stenosis and was
overall normal. (Tr. 568). On multiple physical examinations, he had normal bilateral straight leg
raise tests and normal strength, sensation, and reflexes bilaterally in his lower extremities. (Tr.
778, 781, 785). Plaintiff reported decreased pain by 60% with prescription pain relievers and
facet injections. (Tr. 783, 789, 790, 844).
Plaintiff continued to complain of lower back pain into 2010 when he was diagnosed with
degenerative joint disease and discogenic pain. (Tr. 884). However, a MRI of his lumbar spine
revealed normal alignment, normal disc heights, and no stenosis. (Tr. 883). Plaintiff again sought
steroid injections for pain relief. (Tr. 885, 887). Also, a right knee x-ray showed no significant
degenerative joint disease. (Tr. 972).
Throughout 2012 and 2013, Plaintiff received treatment for lumbar pain which he
described as aching and constant (Tr. 1170, 1181, 1191, 1255, 1266); but reported the symptoms
could be controlled with medication (Tr. 1266). He also complained of right knee pain in 2012
which was normally relieved by steroid injections. (Tr. 1170, 1181, 1198, 1255, 1266). Physical
examinations from this time show decreased range of motion in the right knee and lumbar spine;
Plaintiff also reported gait problems. (Tr. 1171-72, 1182, 1185, 1192, 1202, 1209, 1260, 127071).
Plaintiff also complained of swelling in the lower extremities but his complaints were not
constant. (See Tr. 427-30, 538, 546, 570, 695, 762, 773, 830, 961, 1024, 1035, 1042, 1070, 1171,
1270). It was noted that Plaintiff’s failure to comply with diuretic medication was most likely
causing his edema. (Tr. 894).
Plaintiff was prescribed a CPAP machine to assist with obstructive sleep apnea but
Plaintiff was not consistently compliant in its use. (Tr. 430, 477, 522-23, 526, 529, 605, 606,
607, 896, 898, 1012, 1014, 1015, 1054). In January 2012, his doctor noted consistent use of the
CPAP was improving his blood pressure control. (Tr. 1023). However by February 2013, it was
again reported Plaintiff was non-compliant with the CPAP and failed to show for numerous
office visits. (Tr. 1066).
On multiple occasions, his doctors suggested his recurrent atrial
fibrillation could be linked to hypoxia caused by his failure to use the CPAP. (Tr. 575-76, 60607, 952, 1018, 1042).
At multiple points in the record, Plaintiff’s lack of psychiatric symptoms was noted. (Tr.
1086, 1173, 1193, 1203, 1261, 1272).
Dr. Lavinia Cozmin2
Plaintiff established care with Dr. Cozmin on February 4, 2008, complaining mainly of
hypertension and back pain; but he denied chest pain, palpitations, and shortness of breath. (Tr.
531). He returned in May 2008 and reported he was using his CPAP, his hypertension was
improving, and he denied shortness of breath and chest pain. (Tr. 532). On June 12, 2008,
Plaintiff reported shortness of breath but denied chest pain. (Tr. 858-59). He also reported
anxiety, depression, difficulty concentrating, and an inability to focus. (Tr. 859). His physical
examination revealed clear lungs, normal heart sounds, bilateral lower extremity edema, and a
depressed affect. (Tr. 859-60). Plaintiff returned in August 2008 and reported improvements in
hypertension and denied shortness of breath, chest pain, palpitations, and psychiatric problems.
At five appointments spanning the entire 2009 year, Plaintiff reported no fatigue,
dyspnea, chest pain, palpitations, gait disturbances, or psychiatric problems. (Tr. 839, 844, 847,
850, 853). Plaintiff’s hypertension was uncontrolled in early 2009 but had stabilized and
improved with medication by June. (Tr. 852, 849, 846). An August 2009 chest x-ray revealed
“no active cardiopulmonary disease”. (Tr. 845).
Dr. Cozmin prescribed a wrist splint to treat carpal tunnel syndrome in his left wrist in
March 2010. (Tr. 836). In the first part of 2010, Plaintiff reported no dyspnea, wheezing, chest
pain, palpitations, gait problems, or psychiatric symptoms. (Tr. 829, 833, 836, 837). On August
5, 2010, Dr. Cozmin reported his hypertension was exacerbated by anxiety and stress but
2. One of Plaintiff’s arguments on appeal is the weight given to Dr. Cozmin’s opinions; as such
the entirety of her treating history with Plaintiff is summarized herein.
Plaintiff denied chest pain, irregular heartbeat, shortness of breath, fatigue, or weakness. (Tr.
823). Dr. Cozmin also reported Plaintiff’s COPD was controlled but aggravated by moderate
activity, and accordingly, Plaintiff complained of dyspnea on exertion. (Tr. 823). On physical
examination, he had decreased breath sounds, normal heart sounds, edema in his feet, and “no
unusual anxiety or evidence of depression.” (Tr. 825). Plaintiff returned in December 2010,
complaining of back pain that was managed with pain medication but not relieved by steroidal
injections. (Tr. 932). At this visit, Dr. Cozmin remarked Plaintiff’s obesity was “incapacitating”
and had associated psychological symptoms of depression, fatigue, and low self-esteem. (Tr.
932). Plaintiff did not report chest pain or palpitations and physical examination revealed normal
chest and lung sounds. (Tr. 932-34).
Following a hospitalization earlier in June 2011, Dr. Cozmin surmised it was related to
Plaintiff’s uncontrolled hypertension which had improved since discharge. (Tr. 1008). On
examination he had no shortness of breath, chest pains, palpitations, and his leg swelling was
diminished. (Tr. 1008). In July, Dr. Cozmin reported Plaintiff’s hypertension was stable and his
COPD was improved with the use of inhalers but exertion brought on shortness of breath. (Tr.
967). On examination, Plaintiff had decreased breath sounds, irregular heart rate and rhythm,
edema, decreased lumbar mobility, and a flat affect. (Tr. 969-70). In December 2011, Plaintiff
reported lower extremity edema and shortness of breath but denied chest pain and palpitations.
On March 27, 2012, Plaintiff reported exertional shortness of breath, leg swelling, and
sleep disturbances; but denied chest pain, palpitations, and gait problems. (Tr. 980-81). Dr.
Cozmin found no respiratory distress, normal heart sounds, diffuse muscular tenderness, and
bilateral lower extremity edema. (Tr. 981). In August, Plaintiff familiarly listed his symptoms as
shortness of breath, fatigue, leg swelling, and back pain. (Tr. 991). On examination, Dr. Cozmin
observed normal heart sounds, scattered wheezes, edema below the knees, and tenderness in the
knees. (Tr. 991). At a follow-up the next month, Plaintiff continued to report shortness of breath,
palpitations, leg swelling, and fatigue. (Tr. 995-96).
On June 12, 2008, Dr. Cozmin completed a RFC questionnaire on behalf of Plaintiff; she
listed his impairments as sleep apnea, extreme obesity, hypertension, COPD, and chronic back
pain. (Tr. 562). She reported fatigue, pain – at the level of six or seven out of ten, shortness of
breath with manual exertion, depression, anxiety, and leg swelling as Plaintiff’s symptoms. (Tr.
562-63). She also reported Plaintiff experienced dizziness as a side effect of his medications. (Tr.
563). Dr. Cozmin opined Plaintiff was incapable of even low stress work because his symptoms
would constantly impede his ability to concentrate, he had poor mobility due to obesity, and
dyspnea on minimal exertion. (Tr. 563-64). She further opined Plaintiff could continuously sit
for 30 minutes, continuously stand for fifteen minutes, and sit/stand/walk for less than two hours
in an eight hour workday. (Tr. 564). Dr. Cozmin concluded Plaintiff would also need a break
every 30 minutes and would need to elevate his legs, but she did not specify for how long he
would need to do either of these activities. (Tr. 565). She believed Plaintiff could never lift more
than ten pounds and could only occasionally carry or lift weights of less than ten pounds. (Tr.
565). She also recommended he avoid humidity, dust, fumes, and gases due to his breathing
problems. (Tr. 566). As a result of his impairments, she opined Plaintiff would miss more than
four days of work in a month. (Tr. 566).
On July 21, 2011, Dr. Cozmin completed a medical source statement related to Plaintiff’s
obesity where she noted significant shortness of breath on exertion, peripheral edema, and sleep
apnea. (Tr. 944). She opined Plaintiff could not work at all; could stand for up to fifteen minutes;
sit for up to 60 minutes; occasionally lift twenty pounds, bend, and raise both arms over shoulder
level; frequently lift ten pounds and balance; but never stoop or tolerate heat. (Tr. 944). She
stated these restrictions were derived from Plaintiff’s morbid obesity, chronic atrial fibrillation,
sleep apnea, and COPD. (Tr. 945).
In July 2013, Dr. Cozmin reaffirmed her opinion without making any changes. (Tr. 116768).
Dr. Thomas Zeck, Psychologist
On July 25, 2005, Dr. Zeck observed relevant, coherent speech, no language issues, no
depression, average concentration and remote memory, and average insight and judgment. (Tr.
367-68). Plaintiff reported performing few, if any, household chores, an inability to cook, and no
hobbies, but he did state he occasionally went to the library, church, and played cards with
friends. (Tr. 368). Dr. Zeck reported Plaintiff had a full scale IQ of 70 which placed him in the
borderline intelligence range. (Tr. 368-69). Dr. Zeck opined Plaintiff had mild limitations in
relating to others and had the emotional ability to perform simple tasks but questioned whether
his physical limitations possibly detracted from this ability. (Tr. 370). He further opined Plaintiff
had a mild impairment in his ability to understand, remember, and follow instructions and had no
impairment in his ability to maintain attention, concentration, persistence, and pace – albeit in
only simple, repetitive tasks. (Tr. 370). However, Dr. Zeck concluded his ability to withstand
workplace pressures would be moderately impaired but only because of his physical limitations
and not anything mental. (Tr. 370).
James Spindler, M.S.3
On March 24, 2011, Plaintiff underwent a second psychological consultative examination
with Mr. Spindler. (Tr. 727). On examination, Plaintiff was friendly, relaxed, had coherent and
relevant speech, sound judgment, and reported occasional depression and anxiety but denied
panic attacks. (Tr. 729-30). Mr. Spindler determined Plaintiff had a full scale IQ of 66 (mild
mental retardation) but reported Plaintiff “appeared to be functioning in the borderline range of
intelligence”. (Tr. 731). Mr. Spindler opined that due to his intelligence scores Plaintiff would
have a limitation in understanding, remembering, and carrying out instructions if “strong
practical academic skills are required” but believed him capable of a “variety of unskilled labortype jobs.” (Tr. 732, 736). He further opined Plaintiff had no serious problem in maintaining
attention, concentration, persistence, or pace. (Tr. 732). Mr. Spindler also opined Plaintiff would
have no problem responding appropriately to supervisor, co-workers, or workplace stressors. (Tr.
Sara Losher, M.D.
On May 11, 2013, Plaintiff saw Dr. Losher for a consultative examination and she opined
Plaintiff could sit for 30 minutes, stand for ten minutes, walk for 25 feet, and lift five pounds.
(Tr. 1158). On examination, she noted normal heart and lung sounds, no edema, steady gait,
normal sensation, and symmetrical reflexes. (Tr. 1159). She also found normal strength and
range of motion except in the right hip and right knee. (Tr. 1160). She reported Plaintiff was
capable of completing his activities of daily living, such as feeding, bathing, and dressing
himself, without difficulty. (Tr. 1160). Dr. Losher opined Plaintiff’s COPD and need to be on
3. Mr. Spindler is a licensed psychologist with the Ohio Board of Psychology. His license
number is #2204. (Tr. 727).
oxygen would impact his ability to walk and stand for extended periods of time, but otherwise he
would be capable of working with normal breaks. (Tr. 1160).
In December 2013, the ALJ found Plaintiff had the severe impairments of borderline
intellectual functioning, degenerative disc disease of the lumbar spine, degenerative joint disease
of the right knee, obstructive sleep apnea, COPD, obesity, and atrial fibrillation; but these severe
impairments did not meet or medically equal any listed impairment. (Tr. 20-23). The ALJ then
found Plaintiff had the RFC to perform sedentary work with the following limitations:
[H]e can lift and carry up to [ten] pounds occasionally and lesser weights
frequently; he can stand and walk up to two hours in an eight –hour
workday; [Plaintiff] can sit up to six hours in an eight-hour workday, for
one hour at a time and then would have to stand and stretch for one-to-two
minute; he can occasionally use a ramp or stairs, but never use a ladder,
rope, or scaffold; he can occasionally balance, stoop, and crouch, never
kneel or crawl, he can occasionally push, pull, and use foot pedals; he can
frequently reach, handle, finger, and feel; visual capabilities and
communication skills are frequent; he must avoid high concentration of
smoke, fumes, dust, and pollutants and high concentration of extreme heat;
he should avoid dangerous machinery and unprotected heights; he should
do no complex tasks but can do simple routine tasks.
(Tr. 23). Based on the VE testimony, the ALJ found Plaintiff had transferable sales skills and
could perform work as a sorting machine operator, polishing machine operator, or food order
clerk; and thus, was not disabled. (Tr. 36-37).
STANDARD OF REVIEW
In reviewing the denial of Social Security benefits, the Court “must affirm the
Commissioner’s conclusions absent a determination that the Commissioner has failed to apply
the correct legal standards or has made findings of fact unsupported by substantial evidence in
the record.” Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). “Substantial
evidence is more than a scintilla of evidence but less than a preponderance and is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Besaw v. Sec’y
of Health & Human Servs., 966 F.2d 1028, 1030 (6th Cir. 1992). When reviewing the ALJ’s
decision for substantial evidence, this court “may look to any evidence in the record, regardless
of whether it has been cited” by the ALJ. Heston v. Comm'r of Soc. Sec., 245 F.3d 528, 535 (6th
Cir. 2001). The Commissioner’s findings “as to any fact if supported by substantial evidence
shall be conclusive.” McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006)
(citing 42 U.S.C. § 405(g)). Even if substantial evidence or indeed a preponderance of the
evidence supports a claimant’s position, the court cannot overturn “so long as substantial
evidence also supports the conclusion reached by the ALJ.” Jones v. Comm’r of Soc. Sec., 336
F.3d 469, 477 (6th Cir. 2003).
STANDARD FOR DISABILITY
Eligibility for benefits is predicated on the existence of a disability. 42 U.S.C. §§ 423(a),
1382(a). “Disability” is defined as the “inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a continuous period of not less
than 12 months.” 20 C.F.R. § 416.905(a); see also 42 U.S.C. § 1382c(a)(3)(A). The
Commissioner follows a five-step evaluation process – found at 20 C.F.R. § 404.1520 – to
determine if a claimant is disabled:
Was claimant engaged in a substantial gainful activity?
Did claimant have a medically determinable impairment, or a combination
of impairments, that is “severe,” which is defined as one which
substantially limits an individual’s ability to perform basic work
Does the severe impairment meet one of the listed impairments?
What is claimant’s residual functional capacity and can claimant perform
past relevant work?
Can claimant do any other work considering his residual functional
capacity, age, education, and work experience?
Under this five-step sequential analysis, the claimant has the burden of proof in Steps
One through Four. Walters, 127 F.3d at 529. The burden shifts to the Commissioner at Step Five
to establish whether the claimant has the residual functional capacity to perform available work
in the national economy. Id. The court considers the claimant’s residual functional capacity, age,
education, and past work experience to determine if the claimant could perform other work. Id.
Only if a claimant satisfies each element of the analysis, including inability to do other work, and
meets the duration requirements, is he determined to be disabled. 20 C.F.R. §§ 404.1520(b)-(f);
see also Walters, 127 F.3d at 529.
Plaintiff argues the ALJ erred because (1) he failed to properly evaluate the opinion
evidence in the record; (2) he improperly analyzed Plaintiff’s credibility; and (3) the RFC did not
include all of his functional limitations and was not supported by substantial evidence. (Doc. 17,
at 1). Each argument will be addressed in turn.
While Plaintiff presents his first assignment of error as a challenge to the weight of all the
opinion evidence in the record, in his brief he focuses solely on the weight given to Dr. Cozmin’s
opinions. As such, the Plaintiff has waived all other arguments regarding the weight of other
opinions in the record. See Swain v. Comm’r of Soc. Sec., 379 F. App’x 512, 517-18 (6th Cir.
2010) (noting failure to raise a claim in merits brief constitutes waiver).
Generally, the medical opinions of treating physicians are afforded greater deference than
those of non-treating physicians. Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 242 (6th Cir.
2007); see also SSR 96-2p, 1996 WL 374188. A treating physician’s opinion is given
“controlling weight” if it is supported by (1) medically acceptable clinical and laboratory
diagnostic techniques; and (2) is not inconsistent with other substantial evidence in the case
record. Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). The requirement to
give controlling weight to a treating source is presumptive; if the ALJ decides not to do so, he
must provide evidentiary support for such a finding. Id. at 546; Gayheart v. Comm’r of Soc. Sec.,
710 F.3d 365, 376-77 (6th Cir. 2013). When the physician’s medical opinion is not granted
controlling weight, the ALJ must give “good reasons” for the weight given to the opinion.
Rogers, 486 F.3d at 242 (quoting 20 C.F.R. § 416.927(d)(2)).
“Good reasons” are reasons “sufficiently specific to make clear to any subsequent
reviewers the weight the adjudicator gave to the treating source’s medical opinion and the
reasons for that weight.” Rogers, 486 F.3d at 242 (quoting SSR 96-2p, 1996 WL 374188, at *4).
When determining weight and articulating good reasons, the ALJ “must apply certain factors” to
the opinion. Rabbers v. Comm’r Soc. Sec. Admin., 582 F.3d 647, 660 (6th Cir. 2009) (citing 20
C.F.R. § 404.1527(d)(2)). These factors include the length of treatment relationship, the
frequency of examination, the nature and extent of the treatment relationship, the supportability
of the opinion, the consistency of the opinion with the record as a whole, and the specialization
of the treating source. Id. While an ALJ is required to delineate good reasons, he is not required
to enter into an “exhaustive factor-by-factor analysis” to satisfy the requirement. See Francis v.
Comm’r of Soc. Sec. Admin., 414 F. App’x 802, 804-05 (6th Cir. 2011).
The ALJ accorded little weight to Dr. Cozmin’s specific standing, sitting, walking, and
stooping limitations included in the June 12, 2008 opinion because they were inconsistent with
her treatment notes, had no objective basis, and she had only seen Plaintiff three times before
rendering her opinion. (Tr. 31). The latter reason is especially important because it undermines
the alleged treating physician relationship; a physician who has only seen Plaintiff three times in
the course of five months does not have the “longitudinal picture of [a plaintiff’s] medical
impairment(s)” which would lead to granting the opinion controlling weight. Rogers, 486 F.3d at
242 (quoting 20 C.F.R. § 416.927(d)(2)). See e.g., Black & Decker Disabilty Plan v. Nord, 538
U.S. 822, 832 (2003) (“[T]he assumption that the opinion of a treating physician warrants greater
credit than the opinions of [others] may make scant sense when, for example, the relationship
between the claimant and the treating physician has been of short duration.”); Helm v Comm’r of
Soc. Sec., 405 F. App’x 997, 1000 n.3 (6th Cir. 2011); Yamin v. Comm’r of Soc. Sec., 67 F.
App’x 883, 885 (6th Cir. 2003). The treating physician rule is intended to grant deference to
those medical sources who have a detailed and complete picture of the Plaintiff’s medical
history; that rationale does not apply to Dr. Cozmin’s first opinion.
Although Dr. Cozmin was not a treating source at the time she wrote the 2008 opinion,
the ALJ is still required to determine the weight of her opinion. §§ 416.902, 416.927. The factors
for determining the weight of a non-treating source opinion are the same as those listed above for
a treating source; as well any fact “which tend[s] to support or contradict the opinion”. §
In finding little weight, the ALJ relied heavily on Dr. Cozmin’s own treatment notes and
their inconsistency with her alleged restrictions. (Tr. 31). For example, he mentioned that at two
out of the three visits with Dr. Cozmin Plaintiff denied chest pain and shortness of breath, and
reported no psychiatric symptoms. (Tr. 31, 531-32). Despite his obesity being evident, the ALJ
noted that Dr. Cozmin had made no remarks about Plaintiff’s obesity or its risk factors in any of
her records of those three visits. (Tr. 31, 531-32, 858). Further, he stated the records of Plaintiff’s
first two visits contain no objective findings – there is no evidence of physical examination or
testing of any kind – but only of Plaintiff’s subjective reports. (Tr. 31, 531-32). Apparently, the
first time Dr. Cozmin performed any actual examination of Plaintiff was on June 12, 2008 (the
date she rendered her opinion); where she noted clear breath sounds, normal heart rate and
sounds, and bilateral lower extremity edema. (Tr. 859-60). It is difficult to reconcile these
findings with the extreme limitations she opined because, with the exception of the edema, the
normal objective findings would indicate the restrictions were based on Plaintiff’s self-reported
symptoms. Overall, the ALJ attacked the length of the relationship, the consistency, and the
supportability of Dr. Cozmin’s opinion; as such, his decision to afford the opinion little weight is
supported by substantial evidence.
There can be no question that at the time Dr. Cozmin rendered her second opinion in
2011 (and affirmed it in 2013), she was Plaintiff’s treating physician. Thus, her opinion is
entitled to “controlling weight” if it is supported by (1) medically acceptable clinical and
laboratory diagnostic techniques; and (2) is not inconsistent with other substantial evidence in
the case record. Wilson, 378 F.3d at 544.
Again, the ALJ afforded little weight to Dr. Cozmin’s opinion because it was inconsistent
with her treatment records. The ALJ cited to ample evidence in support of his conclusion that Dr.
Cozmin’s opinion on functional limitations was not supported by the medical evidence either in
her treatment records or in the record as a whole. In reviewing Dr. Cozmin’s treatment notes
there are numerous occasions where Plaintiff reported no symptoms of cardiopulmonary disease;
physical examination revealed normal heart and lung sounds, and no gait disturbances; and he
reported improvement in pain with medication. (See Tr. 829, 833, 839, 844, 847, 850, 853, 967,
980-81, 991, 1008). Also, despite opining a severe restriction on Plaintiff’s ability to stand and
walk, Dr. Cozmin never prescribed a cane or other ambulatory aid. Dr. Cozmin’s records
certainly reveal that Plaintiff suffered from COPD, obesity, and uncontrolled hypertension which
reduced his ability to work; however, the ALJ’s conclusion regarding the opined functional
limitations was reasonable when compared with the evidence. See Besaw, 966 F.2d at 1030.
Further, throughout the remainder of the opinion the ALJ minutely discussed the medical
record and while not explicitly labeled as reasons, clearly addressed the necessary factors. The
Sixth Circuit has found an ALJ could meet the “good reasons” requirement with “his analysis of
[a doctor’s] other opinions or his analysis of [Plaintiff’s medical] problems in general.” Hall v.
Comm’r of Soc. Sec., 148 F. App’x 456, 464 (6th Cir. 2005); see also Nelson v. Comm’r of Soc.
Sec., 195 F. App’x 462, 470 (6th Cir. 2006) (holding ALJ adequately addressed opinion by
indirectly attacking both its consistency and supportability with other record evidence); Friend v.
Comm’r of Soc. Sec., 375 F. App’x 543, 551 (6th Cir. 2010) (to satisfy an indirect attack, the
ALJ must “identif[y] ‘objective clinical findings’ at issue [or discuss] their inconsistency with
[the doctor’s] opinion”).
Here, the ALJ adequately identified objective findings which did not comport with Dr.
Cozmin’s opined restrictions. (See Tr. 23-30). For example, Plaintiff’s chest x-rays and
echocardiograms revealed only minor abnormalities (Tr. 225, 248-50, 256, 307, 431, 432, 434,
436, 463, 475-76, 496-97, 526, 534, 544, 547-48, 573-74 576, 598, 604, 653-54, 766-67, 902,
906, 954, 1021, 1140-41, 1052, 1153); and MRIs and x-rays revealed only minor degenerative
changes in Plaintiff’s back and knee (Tr. 568, 883, 972). The ALJ also noted normal findings
upon examination such as lack of chest pain, palpitations, dyspnea, or gait problems; negative
straight leg raise tests; and full range of motion and reflexes. (Tr. 317, 318, 427, 429-30, 433,
435, 475, 481, 529, 538, 545, 571, 608, 645-46, 762, 775, 778, 781, 785, 830, 952, 961, 1024,
1026, 1028, 1030, 1033, 1038, 1043, 1126, 1241, 1244).
These findings refute the alleged severity of Plaintiff’s conditions and do not provide an
objective basis for Dr. Cozmin’s restrictions. Granted, the ALJ did not particularly expound upon
the required factors, but certainly citation to evidence such as this by the ALJ satisfies the
requirement that he discuss inconsistent evidence. See Dunlap v. Comm’r of Soc. Sec., 509 F.
App’x 472, 476 (6th Cir. 2012) (holding the ALJ’s failure to label his explanation as “good
reasons” was not error). “The fact that the ALJ did not analyze the medical evidence for a second
time (or refer to h[is] previous analysis) when rejecting Dr. [Cozmin’s] opinion does not
necessitate remand of Plaintiff’s case.” Dailey v. Colvin, 2014 U.S. Dist. LEXIS 82267, at *23
(N.D. Ohio) (citing Nelson, 195 F. App’x at 472).
While the treating physician rule was not strictly followed, its motivation was. Neither
the Court nor Plaintiff was ever deprived of the ability to understand the disposition of the case
because the ALJ provided a clear, comprehensible, and thorough reasoning as to his RFC. In this
case, remand would be an “idle and useless formality” because the RFC is consistent with the
record and the ALJ provided clear, yet indirect, reasoning for the weight given to Dr. Cozmin.
Hall, 148 F. App’x at 464.
When making a credibility finding, the ALJ must make a finding based on a
consideration of the entire record. SSR 96-7p, 1996 WL 374186, *1. But, an ALJ is not bound to
accept as credible Plaintiff’s testimony regarding symptoms. Cohen v. Sec’y of Dep’t of Health
& Human Servs., 964 F.2d 524, 529 (6th Cir. 1992). Analysis of alleged disabling symptoms
turns on credibility. See Hickey-Haynes v. Barnhart, 116 F. App’x 718, 726-27 (6th Cir. 2004).
“Because of their subjective characteristics and the absence of any reliable techniques for
measurement, symptoms are difficult to prove, disprove, or quantify.” SSR 82-58, 1982 WL
31378, *1. In evaluating credibility an ALJ considers certain factors:
(i) [A claimant’s] daily activities;
(ii) The location, duration, frequency, and intensity of [a claimant’s] pain or other
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of any medication [Plaintiff]
take[s] or ha[s] taken to alleviate your pain or other symptoms;
(v) Treatment, other than medication, [a claimant] receive[s] or ha[s] received for
relief of [Plaintiff’s] pain or other symptoms;
(vi) Any measures [Plaintiff] use or ha[s] used to relieve [a claimant’s] pain or
other symptoms; and
(vii) Other factors concerning [Plaintiff’s] functional limitations and restrictions
due to pain or other symptoms.
20 C.F.R. § 416.929(c)(3).
Ultimately, it is for the ALJ, not the reviewing court, to judge the credibility of a
claimant’s statements. Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 542 (6th Cir. 2007) (ALJ’s
credibility determination accorded “great weight”). “Discounting credibility to a certain degree is
appropriate where an ALJ finds contradictions among the medical reports, claimant’s testimony,
and other evidence.” Walters, 127 F.3d at 531. The Court is “limited to evaluating whether or not
the ALJ’s explanations for partially discrediting [claimant’s testimony] are reasonable and
supported by substantial evidence in the record.” Jones, 336 F.3d at 476. The Court may not “try
the case de novo, nor resolve conflicts in evidence . . . ” Gaffney v. Bowen, 825 F.2d 98, 100 (6th
Plaintiff argues the ALJ failed to properly consider the regulatory factors listed above;
however, this argument is not well-taken because the ALJ specifically addressed non-compliance
with treatment, activities of daily living, aggravating factors, and treatment efficacy in
determining Plaintiff’s credibility. (Tr. 35). First, the ALJ cited Plaintiff’s denial of illegal drug
use (which continued until at least 2009), his history of smoking (which continued until 2012),
and his morbid obesity. (See Tr. 35, 218, 267, 270, 296 450, 609, 772, 1122). These habits and
the failure to lose weight are aggravating factors that he was repeatedly advised to address and
were linked to the worsening of his symptoms. (See Tr. 548, 570, 575, 607, 645-46, 761, 772).
Second, the ALJ remarked on Plaintiff’s non-compliance with his treatment recommendations –
such as failing to consistently take his medications and utilize his CPAP machine – despite the
fact these treatments improved his symptoms. (See Tr. 35, 218, 262, 312, 316, 317, 407, 430,
435, 477, 501, 538, 570, 575-76, 605, 606, 607, 952, 1012, 1018, 1023, 1042, 1054, 1066).
Third, the ALJ noted inconsistent activities of daily living such as the ability to travel on two
occasions and his ability to walk to dinner daily. (See Tr. 35, 785, 1034).
In sum, Plaintiff’s failure to cease poor personal habits and follow treatment
recommendations, despite their ability to improve his symptoms; and his ability to engage in
activities of daily living, beyond those to which he testified, undermine his claims regarding the
severity of his symptoms. The ALJ considered proper factors, supported with citations to the
record, in determining Plaintiff’s credibility and thus, his decision is supported by substantial
evidence. See Jones, 336 F.3d at 476.
Plaintiff’s challenge to the RFC is twofold: first, the ALJ failed to include a restriction
related to Plaintiff’s moderate limitations in maintaining concentration, persistence, and pace;
and second, the RFC did not account for Plaintiff’s need for constant oxygen. (Doc. 17, at 21-24;
Doc. 20, at 7-8). A claimant’s RFC is an assessment of “the most [she] can still do despite [her]
limitations.” 20 C.F.R. § 416.945(a)(1). An ALJ must consider all symptoms and the extent to
which those symptoms are consistent with the objective medical evidence. § 416.929. The RFC
determination is one reserved for the ALJ. 20 C.F.R. § 416.946(c); Poe v. Comm’r of Soc. Sec.,
342 F. App’x 149, 157 (6th Cir. 2009) (“The responsibility for determining a claimant’s [RFC]
rests with the ALJ, not a physician.”); SSR 96-5p, 1996 WL 374183, at *5.
First, the ALJ did not err by failing to include a functional limitation related to Plaintiff’s
concentration, persistence, and pace. Plaintiff erroneously concludes that the ALJ’s finding at
Step Three (i.e. Plaintiff had moderate limitations in this domain) necessitates a functional
limitation in the RFC. (Tr. 22). However, this is directly contrary to the law and the ALJ’s
opinion which explicitly states his findings at Step Three are not an RFC. (Tr. 23). See Social
Security Ruling 96-8p, 1996 WL 374184, at *4; Harrod v. Colvin, 2015 WL 106102, at *16
(N.D. Ohio). Further, the two consultative opinions addressing Plaintiff’s mental capacity – to
which the ALJ gave significant weight – assessed no limitations in Plaintiff’s ability to maintain
concentration, persistence, or pace, if limited to simple tasks. (Tr. 30, 33, 370, 732). Considering
the evidence and the ALJ’s decision to limit Plaintiff to only simple tasks in his RFC, he
adequately accounted for Plaintiff’s mental limitations. (Tr. 23).
Second, the ALJ did not err by not including a restriction related to Plaintiff’s oxygen
tank in his RFC. It is important to note there is no evidence in the record, besides Plaintiff’s
statements, as to the necessity of or frequency of use of home oxygen. While Plaintiff argues the
VE testimony undermines Plaintiff’s ability to work with an oxygen tank, that is not the case.
The VE testified work would be available but ultimately concluded he did not know whether
accommodations for an oxygen tank would be possible. (Tr. 1303-04). Lack of knowledge on the
VE’s part no more proves Plaintiff’s point than it does support the Commissioner’s position. As
the VE did not testify to an inability to work and no direct evidence as to the necessity of home
oxygen exists, the ALJ did not err by not including a restriction for oxygen in the RFC.
Considering the evidence available to the ALJ and the discretion he has in constructing
an RFC, the Court finds substantial evidence exists to support the RFC as written. Thus,
Plaintiff’s third assignment of error is overruled.
Following review of the arguments presented, the record, and the applicable law, the
undersigned finds the Commissioner’s decision denying SSI is supported by substantial
evidence, and therefore the Commissioner’s decision is affirmed.
s/James R. Knepp II
United States Magistrate Judge
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