Stepro v. Commissioner Social Security

Filing 19

Opinion and Order For the reasons stated in the Order, the Court overrules the Objection, adopts the Report and Recommendation, and affirms the Commissioner's decision denying Stepro supplemental security income benefits at this time. Related documents 16 , 17 . Signed by Judge Dan Aaron Polster on 1/10/2017. (K,K)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

NANCY STEPRO,
Plaintiff,
vs.
COMMISSIONER OF SOC. SECURITY,
Defendant.

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CASE NO. 1:16 CV 569
JUDGE DAN AARON POLSTER
OPINION AND ORDER

This case is before the Court on the Report and Recommendation of Magistrate Judge
Thomas M. Parker. (Doc #: 16 (“R & R”).) The Magistrate Judge recommends that the Court
affirm the final decision of the Commissioner of Social Security denying Plaintiff Nancy
Stepro’s application for supplemental security income (“SSI”) under Title XVI of the Social
Security Act. (Id.) Stepro has filed Objections to the R & R (Doc #: 17), and the Commissioner
has filed a response (Doc #: 18). The Court has reviewed the briefs and pertinent parts of the
record and, for the following reasons, OVERRULES the Objections, ADOPTS the R & R, and
AFFIRMS the denial of benefits.
I.
Stepro filed an application for SSI on November 8, 2012, alleging a disability onset date
of November 5, 2012. She asserted as the basis for disability asthma and chronic obstructive
pulmonary disease (COPD). She filed the application at the suggestion of a medical professional
during her stay at Marymount Hospital. Specifically, on November 6, 2012, Stepro was seen at
the Emergency Department of Marymount Hospital due to shortness of breath, which was

characterized as a new problem. After steroids and other treatments were administered, Stepro
reported that her breathing was still tight. She was thereafter admitted for exacerbation of
COPD, asthma and bronchitis; and she was discharged on November 10, 2012 with diagnoses of
acute asthma exacerbation, possible COPD, smoking and morbid obesity. It was noted that she
was breathing better, she was down to smoking 4 cigarettes a day (from half a pack), and she
showed marked improvement.
Following this hospital stay, the record shows that Stepro spent the next two years (up to
the date of the Administrative Law Judge’s hearing) visiting her treating physician (Jessica
Griggs, D.O.) or other medical professionals on a monthly basis or undergoing tests – all of
which were related to her pulmonary problems. At times, Stepro presented complaining of
shortness of breath and chest tightness; at other times, her breathing problems appeared to lessen.
She was in a constant struggle with her addiction to cigarettes during this two-year period, and
underwent various treatment modalities but never appeared to kick the habit entirely. Smoking
undoubtedly exacerbated her pulmonary condition. Further exacerbating her pulmonary
problems was her inability to purchase prescribed medications due to a lack of insurance.
However, when she was able to obtain and use the various prescriptions and cut back on
smoking, her pulmonary problems were somewhat alleviated. That said, throughout the twoyear period, her pulmonary function tests all showed that she had moderately severe pulmonary
obstruction and she was continually diagnosed with mild to moderate persistent asthma.
After her application was denied initially and upon reconsideration, a hearing was held
before the Administrative Law Judge (ALJ) on October 2, 2014. In addition to reviewing
Stepro’s medical records and the disability opinions of Dr. Griggs and two state agency

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consultants, the ALJ received Stepro’s testimony as to her condition. On January 27, 2015, the
ALJ issued a decision denying Stepro’s claim for benefits. More than one year later, the Appeals
Council denied review of that decision, rending the ALJ’s decision the final decision of the
Commissioner.
In her merits brief before the Magistrate Judge, Stepro challenged the ALJ’s
determination of Stepro’s credibility and the lack of weight he afforded her treating physician’s
opinion. The Magistrate Judge concluded that the ALJ provided specific reasons for his
credibility finding, supported by case law and substantial evidence. (Doc #: 16 at 13-16.)
Because Stepro does not object to this conclusion, the Court need not review it. Fed.R.Civ.P.
72(b)(3).
Stepro does object, however, to the Magistrate Judge’s conclusion that substantial
evidence in the record supports the ALJ’s determination to afford Dr. Griggs’ opinion little to no
weight. (Id. at 22.) If treating source opinions are well supported by medically acceptable
clinical and laboratory diagnostic techniques, and not inconsistent with the other substantial
evidence in the record, they must be given controlling weight. If not, then the ALJ must apply
several factors in determining the weight to give the opinion including the length, frequency,
nature, and extent of the treatment relationship; supportability, consistency, specialization and
other factors that support or contradict that opinion. Although the regulations instruct an ALJ to
consider various factors, they expressly require only that the ALJ’s decision include good
reasons for the weight given to the treating source’s opinion – not an exhaustive factor-by-factor
analysis.

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Here, Dr. Griggs provided a medical source statement (“MSS”) in 2014 opining that
Stepro could lift no more than 10 pounds occasionally or frequently; stand or walk only 60
minutes in an 8-hour work day, and sit 1 or 2 hours in an 8-hour work day. She opined that
Stepro would need to take breaks every 10 to 15 minutes during the work day and sit quietly for
30 minutes due to her history of asthma. Dr. Griggs further opined that Stepro would be off-task
60% of the work day and absent from work four times per month.
The ALJ’s conclusion affording little to no weight to Dr. Griggs’ opinion appears to rest
on two bases. First, the ALJ found that the restrictions on Stepro’s ability to sit during an 8-hour
work day was inconsistent with the weight of the record and internally inconsistent:
For example, Dr. Griggs opines that the claimant is only able to sit for one to two
hours a day in an eight hour day; however, there is little, if any objective evidence
that the claimant has difficulty sitting. Moreover, the undersigned finds Dr.
Griggs’ MSS to be internally inconsistent. For example, Dr. Griggs opined that
the claimant needs a break every 10-15 minutes, whereby she needs to sit quietly
for 30 minutes. Said breaks and necessitated sitting would appear to indicate a
much more significant sitting ability than the two hours per eight hour workday
opined by Dr. Griggs.
(Doc #: 10 at 71.) The Court agrees with this assessment.
Secondly, however, the ALJ noted a “significant discrepancy” between the handwriting
of the person who filled out the MSS and Dr. Griggs’ handwritten signature which, the ALJ
concluded, indicates that Dr. Griggs did not complete the MSS. (Id.) When asked at the hearing
about this alleged discrepancy, Stepro responded that Dr. Griggs told her to drop off the MSS
form at the records department of the clinic, so she did not know who filled out the form. (Tr.
83.) Although the ALJ professed that this issue was not dispositive, he said that it would explain
the “conspicuous discrepancy between the doctor’s more or less disabling opinion and the
overall normalcy of the claimant’s objective record.” (Doc #: 10 at 71 (emphasis in original).)
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This is strong language for dicta since it suggests that the form may have been fraudulently
executed. The Court has looked at this alleged discrepancy and disagrees entirely with the ALJ,
who is not a handwriting expert and should not have engaged in any speculation about it.
The Magistrate Judge appropriately relegated this issue to nothing more than a footnote
in the R & R. (Doc #: 16 at 23 n.6.) The Magistrate Judge observed that, although the ALJ gave
only one example where the weight of the record was inconsistent with the MSS, there were
other inconsistencies pointed out in the ALJ’s decision:
The ALJ noted that clinical visits and objective findings were routinely benign in
nature. (Tr. 67.) The ALJ cited to numerous medical records demonstrating
normal respiratory effort, normal oxygen saturation levels, and no decreased
breath sounds or rales. (Id.) The ALJ stated that since Stepro’s November 2012
hospitalization she had not needed inpatient care. (ID.) The ALJ also pointed out
that pulmonary function testing revealed no more than moderate obstruction with
“significant improvement” with the use of bronchodilator therapy. One
implication of the ALJ’s citation to “significant improvement” with therapy is
that Stepro’s condition evolved during the period between November 2012 and
November 2014 when the last pulmonary function study was conducted. Nothing
in Dr. Grigg’s opinion appears to address this; instead, she gave “a more or less
disabling opinion” despite the “overall normalcy of the claimant’s objective
record.
(Doc #: 16 at 20-21.)
Stepro now contends that “[t]he Magistrate Judge’s review of Stepro’s argument
acknowledges that the ALJ gave only one example of an inconsistency which had to do with
Stepro’s ability to sit,” and the Magistrate Judge’s citation to the other inconsistencies pointed
out by the ALJ in its decision constitutes “impermissible post hoc rationalization.” In support,
Stepro cites Martinez v. Commissioner of Soc. Sec., 692 F.Supp.2d 822, 826 (N.D. Ohio 2010).
Martinez is distinguishable. There, it was undisputed that the ALJ’s hypothetical to the
vocational expert (VE) failed to include the claimant’s inability to stand or walk more than 50%

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of an 8-hour work day, and the ALJ’s decision denying benefits rested on that testimony. The
Commissioner argued that the error was harmless because the ALJ’s decision could be affirmed
on other grounds, i.e., by relying on the Medical-Vocational Guidelines. The Court rejected that
argument because, among other things, a reviewing court “must judge the propriety of [agency]
action solely by the grounds invoked by the agency; and if those grounds are inadequate or
improper, the court is powerless to affirm the administrative action by substituting what it
considers to be a more adequate or proper basis.” Martinez, 692 F.Supp.2d at 826 (citing
Simpson v. Comm’r of Soc. Sec., 344 Fed. Appx. 181, 192 (6th Cir. 2009), in turn quoting SEC v.
Chenery Corp., 332 U.S. 194, 196 (1947)). Because the ALJ based his conclusion on the
testimony of the VE with a flawed hypothetical and not on the Guidelines, the court reversed and
remanded for the ALJ to conduct a proper review.
Unlike Martinez, Magistrate Judge Parker did not affirm the ALJ’s ruling based on an
alternative theory, and Stepro has failed to cite a single case that prohibits the Magistrate Judge
from reviewing the ALJ’s decision as a whole to support his ruling.
In sum, the parties have engaged in cherry-picking the record to support their positions.
Stepro obviously has significant pulmonary problems, but the Court cannot say that substantial
evidence does not support the ALJ’s decision.
Accordingly, the Court OVERRULES the Objection, ADOPTS the R & R, and
AFFIRMS the Commissioner’s decision denying Stepro SSI benefits at this time.
IT IS SO ORDERED.

/s/ Dan A. Polster January 10, 2017
Dan Aaron Polster
United States District Judge
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