Perry v. Commissioner of Social Security
Filing
25
Memorandum Opinion and Order affirming Commissioner's decision denying benefits. Magistrate Judge James R. Knepp, II on 9/14/17. (A,P)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
LYNDA ANN PERRY,
Case No. 1:16 CV 1848
Plaintiff,
v.
Magistrate Judge James R. Knepp, II
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
MEMORANDUM OPINION AND ORDER
INTRODUCTION
Plaintiff Lynda Ann Perry (“Plaintiff”) filed a Complaint against the Commissioner of
Social Security (“Commissioner”), seeking judicial review of the Commissioner’s decision to deny
disability insurance benefits (“DIB”) pursuant to 42 U.S.C. § 405(g). (Doc. 1). The parties
consented to the jurisdiction of the undersigned in accordance with 28 U.S.C. § 636(c) and Local
Rule 72.2(b)(1). (Doc. 16). For the following reasons, the Court affirms the Commissioner’s
decision.
PROCEDURAL BACKGROUND
Plaintiff filed an application for DIB in September 2012, alleging disability as of
September 24, 2012.1 (Tr. 116). The Social Security Administration denied the claim initially and
upon reconsideration. (Tr. 77, 81). Plaintiff then filed a request for an administrative hearing and,
on November 21, 2014, an administrative law judge (“ALJ”) conducted a hearing. (Tr. 30-54).
1. The Commissioner points out the ALJ, in his written decision, incorrectly states Plaintiff alleged
an onset date of April 1, 2014. (Tr. 15). Plaintiff’s alleged onset date of disability of September
24, 2012, is incorrectly listed as the date the application was filed. Id. Plaintiff does not allege
prejudicial error from this apparently incorrect date and, even so, it is clear from the record the
ALJ considered evidence starting with 2012. See Tr. 19-23, 26-29.
Following the hearing, at which Plaintiff (represented by counsel), and a vocational expert (“VE”)
testified, the ALJ issued an unfavorable decision. (Tr. 15-25). This decision became final when
the Appeals Council denied Plaintiff’s request for review. (Tr. 1); 20 C.F.R. §§ 404.955, 404.981.
Plaintiff now seeks judicial review. (Doc. 1).
FACTUAL BACKGROUND
Personal Background
Plaintiff’s birth date is November 1, 1966, and she was 45 years old on the alleged onset
date of disability. (Tr. 55). She completed ninth grade and has past work experience as a nursing
assistant. (Tr. 61-62); see also Tr. 33 (testimony that Plaintiff did not complete tenth grade).
Administrative Hearing
Plaintiff’s Testimony
Plaintiff was 48 years old on the hearing date. (Tr. 33). She testified that since 1997 she
had worked as a nursing assistant. Id. She stated she had coronary artery spasms, a pacemaker, H.
Pylori, obstructive sleep apnea, and severe arthritis in her left shoulder that prevented her from
holding her hand over her head. (Tr. 33-34). She testified she quit smoking cigarettes in 2011 (Tr.
37), and had lost 40 pounds in the nine months prior to the hearing (Tr. 38).
She testified the CPAP machine for her obstructive sleep apnea “d[id] its job”, but added
“in the last couple of years it just really doesn’t make a difference anymore.” (Tr. 34). With regard
to her shoulder pain, she stated she was not undergoing physical or occupational therapy, but had
received a cortisone shot and the orthopedic surgeon recommended surgery. (Tr. 35). When ask
whether she could “put [her] left arm out and bring something to [her]”, she responded, “[n]ot all
the way.” Id. For her coronary artery spasms, she took “a lot of channel blockers and beta blockers
and everything to kind of help with the pain []”, but it did not help. Id. Plaintiff noted she had an
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“attack”, resulting in debilitating pain, every day, and sometimes twice a day. (Tr. 35, 39). During
these “attacks” she had difficulty breathing and would fall to the floor. (Tr. 41). She added,
“nitro[glycerin] helps, but once I take the nitro[glycerin], the pain goes away, but then I’m
exhausted for about three or four hours . . . and have a real bad . . . nitro[glycerin] headache –”.
(Tr. 36; see also Tr. 39). She stated a pacemaker was implanted to help to increase her heart rate,
which was lowered by her medications. (Tr. 36).
On an average day, Plaintiff would prepare a “light” breakfast for her husband and then go
back to bed. Id. She would then get back up around 10:00 a.m. and “come downstairs, drink coffee,
fiddle around a little bit, watch TV, and get [herself] a bite of lunch and watch more TV.” (Tr. 3637). She estimated she could sit for a couple of hours at a time and would then need to get up and
move around due to swelling her legs and feet. (Tr. 37, 41). She ran the vacuum cleaner “maybe
once a week” and her husband did the laundry because she was unable to use the stairs down to
the basement. (Tr. 37). She also enjoyed watching her grandchildren play, but could not “play with
them too much anymore” because should would get short of breath. (Tr. 38, 41). Plaintiff did not
go out alone for fear she would have an “attack”. (Tr. 40).
Plaintiff testified her cardiologist, Frederick A. Heupler, M.D., advised her to stop working
in 2010, but after her disability claim was denied, she continued working until September 23, 2012.
(Tr. 39-40). She stopped working because she was unable to work four hours without having an
“attack” and would get sent home or to the hospital. (Tr. 40).
VE’s Testimony
The ALJ presented the VE with two hypothetical scenarios. The first had the following
limitations:
The first hypothetical person is female, 48 years of age, less than a high school
education, same work background as [Plaintiff]. This person can lift/carry 20
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pounds occasionally, 10 pounds frequently; can stand/walk six out of eight, can sit
six out of eight, two hours at a time. With regard to push/pull, never with the left,
frequently with the right; foot pedal constant.
This person can occasionally use a ramp or stairs, never a ladder, rope or a scaffold;
can constantly balance; constantly stoop, kneel and crouch, but only occasionally
crawl. With regard to reaching, and this is reaching overhead, none with the left,
frequent with the right; parallel to the floor, occasional with the left, frequent with
the right; handling, fingering, and feeling are all constant.
Visual capabilities and communication skills have no limits, they’re all constant.
This person should avoid high concentrations of heat, cold, smoke, fumes, dust, and
pollutants. As I said, that’s in high concentrations. And should avoid entirely
dangerous machinery and unprotected heights. And that’s it.
(Tr. 43-44).
The VE determined the individual could not perform Plaintiff’s past work, but could
perform the positions of Cashier II, Merchandise Marker, and Information Clerk. (Tr. 44-45).
The second hypothetical was the same as the first, except that the individual could: lift or
carry ten pounds occasionally and up to ten pounds frequently; stand or walk for two out of eight
hours in an eight-hour workday; and sit for six out of eight hours in an eight-hour workday, two
hours at a time. (Tr. 45). The VE determined the individual could perform the jobs of Document
Preparer, Order Clerk, and Table Worker. (Tr. 45).
ALJ Decision
In a written decision dated January 28, 2015, an ALJ made the following findings of fact
and conclusions of law:
1. The claimant meets the insured status requirements of the Social Security Act
through December 31, 2017.
2. The claimant has not engaged in substantial gainful activity since April 1, 2014,
the alleged onset date.2
2. As noted above, this date appears to be an error. Plaintiff’s alleged onset date of disability is
September 24, 2012. (Tr. 55).
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3. The claimant has the following severe impairments: coronary artery spasms,
angina, bradycardia, status post pacemaker implantation, osteoarthritis of the
left shoulder, H. Pylori, sleep related breathing disorder and obesity.
4. The claimant does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in 20
CFR Part 404, Subpart P, Appendix 1.
5. After careful consideration of the entire record, I find that the claimant has the
residual functional capacity to perform sedentary work as defined in 20 CFR
404.1567(a) except she is limited to lifting and/or carrying 10 pounds
occasionally and up to 10 pounds frequently. She can stand and/or walk 2 hours
in an 8-hour workday and sit for 6 hours in an 8-hour workday, 2 hours at a
time. The claimant can never push/pull with the left upper extremity but can do
so frequently with the right upper extremity. She can constantly operate foot
pedals with the lower extremities. The claimant can never climb ladders, ropes
or scaffolds, but can occasionally climb ramps or stairs. She can constantly
balance, stoop, kneel and crouch but only occasionally crawl. She can never
reach overhead with the left upper extremity but can frequently do so with the
right. The claimant can reach parallel to the floor occasionally with the left
upper extremity but frequently with the right upper extremity. The claimant can
constantly handle, finger and feel with the bilateral upper extremities. She has
no limits with respect to visual capabilities and communication skills. The
claimant must avoid concentrations of heat, cold, smoke, fumes, dust and
pollutants. She must avoid entirely dangerous machines and unprotected
heights.
6. The claimant is unable to perform any past relevant work.
7. The claimant was born on November 1, 1966 and was 47 [sic]3 years old, which
is defined as a younger individual age 45-49, on the alleged disability onset
date.
8. The claimant has a limited education and is able to communicate in English.
9. Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a finding
that the claimant is “not disabled,” whether or not the claimant has transferable
job skills.
10. Considering the claimant’s age, education, work experience and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform.
3. It appears this is also incorrect. Plaintiff was 45 years old on September 24, 2012, her alleged
disability onset date. See Tr. 55.
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11. The claimant has not been under a disability, as defined in the Social Security
Act, from April 1, 2014,4 through the date of this decision.
(Tr. 12-25) (internal citations omitted).
Relevant Physical Medical Evidence5
A December 2009 stress test revealed “[t]he ergonovine test for coronary artery spasm is
positive” and that Plaintiff had one artery with 80% obstruction and one with 99%. (Tr. 175).
Cardiologist Frederick A. Heupler, M.D., began treating Plaintiff with high doses of calciumchannel blockers. Id. The record reveals Plaintiff made numerous complaints of angina, usually
lasting a few minutes, sometimes up to fifteen minutes, usually relieved by nitroglycerin. (Tr. 171,
175, 184, 190, 214, 227, 412, 419, 618, 630).
In April 2011, Plaintiff complained of increasing chest pain (“Over the several days, has
had 2-3 episodes requiring nitroglycerin []”), which was relieved by nitroglycerin with “some
residual chest pressure.” (Tr. 412). She also reported about one episode of stabbing pain every 23 weeks, lasting for “minutes”. Id. Plaintiff was admitted to the hospital, and later discharged after
medication adjustments resulted in her being pain-free for two days. (Tr. 412-13).
Plaintiff had an appointment with Dr. Heupler in October 2011, for cardiac evaluation. (Tr.
183). Her chest pain was “resolved on amlodipine, verapamil, and diltiazem”. Id. She was
“tolerating” increased doses of diltiazem, but reported headaches. Id. An EKG was “not changed”
from a prior EKG in April 2011, and nitroglycerin relived Plaintiff’s pain “completely”. (Tr. 184).
4. Once again, this date is incorrect. Plaintiff alleged disability as of September 24, 2012. (Tr. 55).
5. Exhibits 23F and 24F (Tr. 639-45) were submitted for the first time to the Appeals Council.
Because they were not before the ALJ, the Court does not consider them herein. When the Appeals
Council declines to review an ALJ’s decision, the ALJ’s decision becomes the Commissioner’s
final decision. Cotton v. Sullivan, 2 F.3d 692, 696 (6th Cir. 1993).
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Dr. Heupler assessed Plaintiff with: (1) “ASHD with mild coronary obstructions”; (2)
“[s]ymptomatic coronary artery spasm with no EKG changes, unresponsive to large dose calcium
blocker therapy”; and (3) hyperlipidemia. (Tr. 185).
Later in October 2011, Plaintiff saw Dr. Mina Chung, M.D., complaining of chest pain,
“usually” relieved by nitroglycerin, fatigue, and shortness of breath. (Tr. 618). A physical
examination revealed a regular heart rate and rhythm. (Tr. 620).
Plaintiff saw Dr. Heupler in December 2011, complaining of daily angina, but adding she
was “definitely doing better” after an increase in amlodipine dose. (Tr. 189-91). Plaintiff described
shooting and “clenching” pain, “always relieved by one [nitroglycerin] within 5 minutes.” (Tr.
190).
Plaintiff was hospitalized the following month, in January 2012, due to increased chest
pain after reducing her amlodipine dose because of swelling. (Tr. 195-96). Her pain decreased
after the dose was increased, id., and she was discharged with a diagnosis of chronic stable angina
(Tr. 199).
In March 2012, Plaintiff had a follow-up appointment for her chest pain. (Tr. 211). Her
daily pain was “partially controlled with large dose calcium blockers”. (Tr. 214). Dr. Heupler noted
Plaintiff’s pain was “usually relieved by [nitroglycerin] in [a] few minutes”. Id.
Plaintiff went to the emergency room in April 2012, complaining of increased sharp chest
pain, which was improved with nitroglycerin. (Tr. 227). Prior to that, her condition was noted to
be “fairly well-controlled over the past [two] months”. Id. Her medication was adjusted and she
was observed overnight. (Tr. 228-29).
Plaintiff had a negative ergonovine test for coronary spasm in August 2012. (Tr. 177, 42829). The purpose of the test “was to see if her chest pain is likely to be due to coronary spasm, in
7
spite of the calcium blocker therapy.” (Tr. 177). She had normal coronary arteries, and was
negative for chest pain/discomfort. (Tr. 177, 428-29). Because the test was negative, Plaintiff was
advised to “explore GI source of chest discomfort, especially[] in view of her history of H. Pylori,
gastritis, and esophagitis unresponsive to therapy.” Id. She was started on Nexium. (Tr. 177, 42829). Dr. Heupler noted Plaintiff’s H. Pylori was the likely cause of her recent chest pain. (Tr. 428).
Also in August 2012, Plaintiff had a follow-up visit. (Tr. 171). Dr. Heupler noted
“[nitroglycerin] always relieves [Plaintiff’s] chest pain”, which “last[ed] for a few minutes, up to
10 to 15 minutes.” Id. At an appointment in November 2012, it was again noted Plaintiff’s chest
pain “relieved with nitroglycerin in minutes” but she “occasionally require[d] two nitroglycerin.”
(Tr. 419).
Plaintiff was admitted to the hospital from December 29, 2012, to January 5, 2013, for
chest pain. (Tr. 449-53). During that time, she had a pacemaker implanted. (Tr. 450).
In February 2013, a follow-up appointment, Plaintiff complained of “sharp pokes” in her
chest “possibly related to position [of the pacemaker], not particularly to exertion”, and “tightness”
in her chest near the pacemaker. (Tr. 502). Santosh S. Oommen, M.D., decreased the pacemaker
output and believed the sharp pains in her chest were “related to the tie-down of the suture sleeves
[]” and would continue to improve with time. Id.
Plaintiff was again admitted to the hospital from March 14 to 16, 2013, with “severe chest
pain with known [c]oronary spasm”. (Tr. 536). She stated the pain was 10/10 and “felt like a[n]
elephant was sitting on her chest”. (Tr. 537). An EKG did “not seem to be to[o] different from
some other EKG’s she has had in the past”. (Tr. 538). Her medication doses were increased and
she was discharged with no pain. (Tr. 511, 538). At a follow-up appointment on March 21, 2013,
Dr. Heupler noted that she had remained angina-free following her discharge from the hospital.
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(Tr. 511-12). Dr. Heupler noted: “now, her angina appears well controlled with high-dose calcium
blocker therapy”. (Tr. 514).
Plaintiff underwent a stress echocardiogram test in June 2014. (Tr. 612). The test was nondiagnostic because it was terminated at 6.0 METs due to complaints of shortness of breath. Id. It
revealed normal sinus rhythm during stress, normal ST segment response to stress, normal left and
right ventricular size and function, and an ejection fraction of 68% +/- 5%. (Tr. 614). ST
abnormalities were present at rest. Id. Plaintiff’s functional capacity was 4.3 METs. (Tr. 601).
On November 3, 2014, Plaintiff had a follow-up appointment with Dr. Heupler. (Tr. 630).
He noted that while Plaintiff “continued having her angina on a daily basis, it responds to
[nitroglycerin] []” and “goes away rapidly”. Id. He also noted that an increase in pacemaker rate
had “helped with [Plaintiff’s] physical activity.” Id. Dr. Heupler’s impression was:
1. Resistant coronary artery spasm, on maximal medical therapy now; It may be
that her chronic H. Pylori infection is triggering and aggravating her coronary
spasm; she has daily angina at rest, responds to [nitroglycerin]. I have advised
her not to return to work, which seems to aggravate her chest pain.
2. Drug-resistant H. Pylori; I discussed this with Dr. Brizendine recently[.]
3. Chronotropic Incompetence with exertional dyspnea; symptoms improved
since her pacemaker rate is increased.
(Tr. 633).
State Agency Reviewers
On November 19, 2012, state agency reviewing physician, Maureen Gallagher, D.O.,
M.P.H., determined Plaintiff could occasionally lift/carry twenty pounds; frequently lift/carry ten
pounds; stand/walk for about six hours in an eight-hour workday; sit for about six hours in an
eight-hour workday; was unlimited with regard to pushing/pulling; and was unlimited with regard
to postural limitations, except that she could never climb ladders, ropes, or scaffolds. (Tr. 60). Dr.
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Gallagher considered Listing 4.04, but ultimately determined Plaintiff could perform a limited
range of light work. (Tr. 58, 60-61).
A second state agency physician, James Cacchillo, D.O., reviewed the record on June 6,
2013, and made identical findings, except that he concluded Plaintiff could frequently climb
ramps/stairs and occasionally crawl. (Tr. 70-72).
Dr. Heupler’s Letters6
Dr. Heupler drafted a letter on June 21, 2013, in which he stated:
[Plaintiff] is a patient with intractable coronary artery spasm that I have been
following in our outpatient department at the Cleveland Clinic. In spite of maximal
medical therapy, she has been severely incapacitated and unable to work because
of recurrent chest pain. I recommend that she should be on permanent disability
because of her intractable coronary spasm.
In the past six months, Mrs. Perry had a permanent pacemaker inserted for
bradycardia, but her symptoms persist.
(Tr. 542).
In a second letter, dated November 5, 2014, Dr. Heupler stated:
I evaluated [Plaintiff] here again in our outpatient department on November 3,
2014.
She is a patient with intractable coronary artery spasm that I have been following
in our Department of Cardiovascular Medicine here at the Cleveland Clinic. In spite
of maximal medical therapy, she has been severely incapacitated and unable to
work because of recurrent angina. I recommend that she should be on permanent
disability because of her intractable coronary spasm and unstable angina.
She also has had a permanent pacemaker inserted for bradycardia, but her
symptoms persist.
(Tr. 578).
6. After the administrative hearing, Dr. Heupler offered another opinion in a letter dated March
12, 2015. (Tr. 639-40). However, this opinion was not before the ALJ and, as such, the Court does
not consider it herein.
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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). 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 DIB 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. § 404.1505(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:
1.
Was claimant engaged in a substantial gainful activity?
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2.
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 activities?
3.
Does the severe impairment meet one of the listed impairments?
4.
What is claimant’s RFC and can claimant perform past relevant work?
5.
Can claimant do any other work considering her RFC, 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 RFC to perform available work in the national economy. Id.
The court considers the claimant’s RFC, 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 she determined to be
disabled. 20 C.F.R. §§ 404.1520(b)-(f); see also Walters, 127 F.3d at 529.
DISCUSSION
Plaintiff alleges the ALJ erred: (1) in his credibility determination; (2) by failing to give a
treating physician opinion controlling weight; and (3) by finding Plaintiff did not meet Listing 4.04
for variant angina. (Doc. 17, at 5-10). The Commissioner responds the ALJ’s decision was
supported by substantial evidence and should be affirmed. (Doc. 21, at 6-16). For the reasons
discussed herein, the Court agrees with the Commissioner.
Credibility Assessment
Plaintiff first argues the ALJ erred in his credibility assessment and determination by
failing to “adequately consider the entire record”, specifically by: (1) “miscontru[ing] the cause of
[Plaintiff]’s post-attack exhaustion as being due to the side effects of nitroglycerin”; (2)
considering Plaintiff’s statement that an increase in her pacemaker rate resulted in increased
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physical activity; and (3) improperly considering the effect of Plaintiff’s ability to perform daily
activities. (Doc. 17, at 5). The Commissioner responds: (1) substantial evidence supports the ALJ’s
determination Plaintiff could perform sedentary work because medication controlled her
symptoms; (2) the ALJ reasonably considered the effect of Plaintiff’s pacemaker; and (3) the ALJ
appropriately considered Plaintiff’s daily activities. (Doc. 21, at 6-16)
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.
With regard to a claimant’s subjective symptoms, the regulations require an ALJ to
consider certain factors, including: 1) daily activities; 2) location, duration, frequency, and
intensity of pain or symptoms; 3) precipitating and aggravating factors; 4) the type, dosage,
effectiveness, and side effects of any medication; 5) treatment, other than medication, to relieve
pain; 6) any measures used to relieve pain; and 7) other factors concerning functional limitations
and restrictions due to pain or other symptoms. 20 C.F.R. § 404.1529(c); SSR 16-3p, 2016 WL
1119029, at *7 (“[i]n addition to using all of the evidence to evaluate the intensity, persistence,
and limiting effects of an individual’s symptoms, we will also use the factors set forth in 20 CFR
404.1529(c)(3) . . . .”); SSR 96-7p, 1996 WL 374186, at *3 (“20 CFR 404.1529(c) . . . describe[s]
the kinds of evidence, including the factors below, that the adjudicator must consider in addition
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to the objective medical evidence when assessing the credibility of an individual’s statements”).7
Although the ALJ must “consider” the listed factors, there is no requirement that the ALJ discuss
every factor. White v. Comm’r of Soc. Sec., 572 F.3d 272, 287 (6th Cir. 2009); Roberts v. Astrue,
2010 WL 2342492, at *11 (N.D. Ohio).
Accordingly, “subjective complaints may support a finding of disability only where
objective medical evidence confirms the severity of the alleged symptoms.” Workman v. Comm’r
of Soc. Sec., 105 F. App’x 794, 800-01 (6th Cir. 2004) (citing Blankenship v. Bowen, 874 F.2d
1116, 1123 (6th Cir. 1989)). However, where the objective medical evidence fails to confirm the
severity of a claimant’s subjective allegations, the ALJ “has the power and discretion to weigh all
7. The undersigned notes Plaintiff references SSR 16-3p, 2016 WL 1119029, and the
Commissioner references both SSR 16-3p and SSR 96-7p, 1996 WL 374186. The former
supersedes the latter, however, its effective date in March 2016 post-dates the ALJ’s January 2015
decision. Neither party directly addresses the issue of whether SSR 16-3p should be applied
retroactively. District courts within this Circuit have disagreed regarding the retroactivity of SSR
16-3p and the Sixth Circuit has not decided the issue.
Those courts applying SSR 16-3p retroactively have relied on the fact that SSR 16-3p’s purpose
was clarification, rather than change. See, e.g., Sypolt v. Berryhill, 2017 WL 1169706, at n.4 (N.D.
Ohio) (applying SSR 16-3p retroactively). Those courts declining to apply SSR 16-3p retroactively
have relied upon prior Sixth Circuit statements regarding retroactivity in social security cases. See,
e.g., Murphy v. Comm’r of Soc. Sec., 2016 WL 2901746, at n. 6 (E.D. Tenn. May 18, 2016)
(declining to apply SSR 16-3p retroactively) (citing, inter alia, Cruse v Comm’r of Soc. Sec., 502
F.3d 532, 541-42 (6th Cir. 2007) (“We are not aware of any constitutional or statutory requirement
that the Administration apply its [newly effective] policy interpretation rulings to appeals thenpending in federal courts, absent, of course, ex post factor or due process concerns not present
here.”); Combs v. Comm’r Soc. Sec., 459 F.3d 640, 642 (6th Cir. 2006) (“The [Social Security]
Act does not generally give the SSA the power to promulgate retroactive regulations.”)).
The Sixth Circuit, while declining to reach the retroactivity issue, has characterized SSR 16–3p as
merely eliminating “the use of the word ‘credibility’ . . . to ‘clarify that subjective symptom
evaluation is not an examination of an individual’s character.’” Dooley v. Comm’r of Soc. Sec.,
656 F. App’x 113, 119 n.1 (6th Cir. 2016). The undersigned finds it unnecessary to decide this
issue, as it is “largely academic here” Goddard v. Berryhill, 2017 WL 2190661, at *20 (N.D.
Ohio). Both SSR 16-3p and 96-7p refer to the two-step process described above, and the factors
listed in 20 C.F.R § 404.1529(c). In any event, the Court’s evaluation of Plaintiff’s credibility
argument herein would be the same applying either SSR 16-3p or SSR 96-7p.
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of
the
evidence
and
to
resolve
the
significant
conflicts
in
the
administrative
record.” Id. (citing Walters, 127 F.3d at 531).
In this respect, it is recognized that the ALJ’s credibility assessment “must be accorded
great weight and deference.” Id. (citing Walters, 127 F.3d at 531); see also Heston v. Comm’r of
Soc. Sec., 245 F.3d 528, 536 (6th Cir. 2001) (quoting Myers v. Richardson, 471 F.2d 1265, 1267
(6th Cir. 1972) (“[i]t [i]s for the [Commissioner] and his examiner, as the fact-finders, to pass upon
the credibility of the witnesses and weigh and evaluate their testimony”)). It is not for this Court
to reevaluate such evidence anew, and so long as the ALJ’s determination is supported by
substantial evidence, it must stand. The ALJ found Plaintiff’s subjective allegations to not be fully
supported, a finding that should not be lightly disregarded. See Varley v. Sec’y of Health & Human
Servs., 820 F.2d 777, 780 (6th Cir. 1987). In fact, as the Sixth Circuit has stated, “[w]e have held
that an administrative law judge’s credibility findings are virtually unchallengeable.” Ritchie v.
Comm’r of Soc. Sec., 540 F. App’x 508, 511 (6th Cir. 2013) (citation omitted).
Here, the ALJ appropriately explained the two-step process for evaluating symptoms. (Tr.
19) (citing 20 C.F.R. § 404.1529). He determined Plaintiff’s impairments could reasonably be
expected to cause her symptoms, but that her statements concerning the “intensity, persistence and
limiting effects of these symptoms are not entirely credible”. (Tr. 19).
First, the Court finds the ALJ appropriately considered the extent Plaintiff’s symptoms
were side effects of her prescription medication. The ALJ noted:
The claimant testified that she has coronary artery spasms for which she takes
Nitroglycerin. She testified that the medication makes the pain go away but that she
is exhausted for 3-4 hours. However, when she saw Dr. Heupler in November 2014,
she did not endorse fatigue or exhaustion secondary to the nitroglycerin. She
reported that the angina responds to the nitroglycerin and rapidly goes away but
mentioned no side effects.
(Tr. 23) (citing Tr. 630).
15
Indeed, at the hearing Plaintiff testified nitroglycerin relieved her pain, but caused
exhaustion. (Tr. 36) (“And the nitro[glycerin] helps, but once I take the nitro[glycerin] the pain
goes away, but then I’m exhausted for about three or four hours, and have a real bad, you know,
nitro[glycerin] headache and - -”.). However, at a follow-up appointment with Dr. Heupler in
November 2014, she did not mention any side effects caused by her medication. He noted that
since Plaintiff’s last appointment in July 2014, “she has continued having her angina on a daily
basis, it responds to [nitroglycerin]. Her angina goes away rapidly with the [nitroglycerin].” (Tr.
630). Pursuant to 20 C.F.R. § 404.1529(c)(iv), an ALJ should consider “[t]he type, dosage,
effectiveness, and side effects of any medication [a claimant] take[s] or have taken to alleviate [the
claimant’s] pain or other symptoms”. Thus, the ALJ did not err in discussing and considering the
side effects of Plaintiff’s medication in his subjective complaint analysis.
Plaintiff, however, asserts her exhaustion and pain were related to the angina, rather than
the medication used to treat, citing a November 2011 treatment note in which she stated a headache
caused by the nitroglycerin was more bearable than the chest pain itself. (Tr. 183). Regardless of
the source of the pain, Plaintiff’s cite to one instance of a subjective report of chest pain in the
record from 2011, does not show error in the credibility determination. Moreover, Plaintiff fails to
show how the record supports her subjective complaints of disabling chest pain.
In fact, substantial evidence in the record supports the ALJ’s determination that Plaintiff
could perform sedentary work. See Tr. 184 (November 2011 treatment note showing a resolution
of Plaintiff’s chest pain with nitroglycerin); Tr. 412 (April 2011 emergency room record showing
Plaintiff’s chest pain was relieved by nitroglycerin, with “some residual chest pressure”); Tr. 175
(August 2012 treatment note stating Plaintiff’s “angina subsided after intracoronary [nitroglycerin]
and she had “no further angina pain with increase in Norvasc”); Tr. 171 (August 2012 treatment
16
note stating Plaintiff’s pain lasted “for a few minutes, up to 10 to 15 minutes” and that nitroglycerin
“always relieves her chest pain”); Tr. 190-91 (December 2011 treatment note in which Plaintiff
stated nitroglycerin “always relived” chest pain “within [five] minutes” and reported she was doing
better after a medication increase); Tr. 195-96 (January 2012 emergency room note showing
decreased chest pain with medication increase); Tr. 227 (April 2012 record noting Plaintiff’s
condition had been “fairly well-controlled over the past two months”); Tr. 511-14 (March 2013
treatment note stating Plaintiff’s chest pain was resolved with a medication adjustment and her
chest pain was now “well controlled with high-dose calcium blocker therapy”); Tr. 618 (October
2014 record stating nitroglycerin “usually relieves the pain well”); Tr. 630 (November 2014 record
showing Plaintiff’s pain was “rapidly” resolved with nitroglycerin”). There are also instances in
the record of more significant chest pain, but it was usually resolved with two doses of
nitroglycerin (Tr. 214, 419). But, even so, 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, 336 F.3d at 477.
Second, the ALJ did not err in considering the effect of Plaintiff’s pacemaker on her
physical activity and, thus, her RFC. Indeed, the record reveals Plaintiff’s physical activity
improved following an increase in the pacemaker rate. (Tr. 630). A treatment note dated November
3, 2014, from Dr. Heupler states: “Dr. Chung increased the pacemaker rate past week [sic], and
this helped with her physical activity.” Id. A physical examination revealed trace edema, but a full
range of motion. (Tr. 632).
Plaintiff is correct that “improvement in functioning does not necessarily indicate normal
function” (Doc. 17 at 6), but, as the Commissioner points out, the ALJ did not find Plaintiff had
normal function, but rather that she was limited to a less than full range of sedentary work (Doc.
17
21, at 12). See SSR 96-9p (“An RFC for less than a full range of sedentary work reflects very
serious limitations resulting from an individual’s medical impairment(s) and is expected to be
relatively rare.”). Thus, the Court finds the ALJ appropriately considered the effect of Plaintiff’s
pacemaker and appropriately considered the effect of her limitations in the RFC determination.
Third, the ALJ appropriately considered Plaintiff’s daily activities in his evaluation of her
subjective systems. The ALJ noted:
[T]he claimant’s activities of daily living do not support a finding of disability. The
claimant cares for her own grooming. She makes breakfast for her husband before
he goes to work. She makes a light lunch for herself. The claimant watches
television and runs the vacuum weekly. She makes a light dinner. Furthermore, she
goes out when accompanied.
(Tr. 23).
Assessment of a claimant’s daily activities is a factor an ALJ should consider when
evaluating the claimant’s subjective complaints. 20 C.F.R. § 404.1529(c)(3). Here, the ALJ
appropriately considered Plaintiff’s daily activities and concluded they were not consistent with a
finding of disability. These activities are consistent with an ability to perform sedentary work
which requires “the ability to lift no more than 10 pounds at a time and occasionally to lift or carry
articles like docket files, ledgers, and small tools.” SSR 96-9p, 1996 WL 374185, at *3. Thus, the
ALJ’s assessment is not in error.
Therefore, the undersigned finds the ALJ’s credibility determination reasonable and
supported by substantial evidence in the record. It is, therefore, “accorded great weight and
deference.” Workman, 105 F. App’x at 800-01 (citing Walters, 127 F.3d at 531).
Treating Physician Rule
Plaintiff next argues the ALJ erred in his evaluation of the Dr. Heupler’s opinion by failing
to provide “good reasons” for giving it less than controlling weight. (Doc. 17, at 7- 9). Defendant
18
responds that Dr. Heupler’s statements do not qualify as “medical opinions” under the regulations.
(Doc. 21, at 11-12).
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. “Because treating physicians are ‘the medical professionals
most able to provide a detailed, longitudinal picture of [a plaintiff’s] medical impairment(s) and
may bring a unique perspective to the medical evidence that cannot be obtained from the objective
medical findings alone,’ their opinions are generally accorded more weight than those of nontreating physicians.” Rogers, 486 F.3d at 242 (quoting 20 C.F.R. § 416.927(d)(2)).
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 given to
the treating physician’s opinion and the reasons for that weight.” Wilson, 378 F.3d at 544.
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
19
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 in-depth or “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); Allen v. Comm’r
of Soc. Sec., 561 F.3d 646, 651 (6th Cir. 2009); 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).
Here, Dr. Heupler offered opinions regarding Plaintiff’s impairments in two letters dated
June 21, 2013 (Tr. 542), and November 5, 2014 (Tr. 578) (following a November 3, 2014
appointment, see Tr. 630-38).
In the June 21, 2013, letter, Dr. Heupler stated:
Lynda Perry is a patient with intractable coronary artery spasm that I have been
following in our outpatient department at the Cleveland Clinic. In spite of maximal
medical therapy, she has been severely incapacitated and unable to work because
of recurrent chest pain. I recommend that she should be on permanent disability
because of her intractable coronary spasm.
In the past six months, Mrs. Perry had a permanent pacemaker inserted for
bradycardia, but her symptoms persist.
(Tr. 542).
In the November 5, 2014, letter, Dr. Heupler stated:
I evaluated Mrs. Lynda Perry here again in our outpatient department on November
3, 2014.
She is a patient with intractable coronary artery spasm that I have been following
in our Department of Cardiovascular Medicine here at the Cleveland Clinic. In spite
of maximal medical therapy, she has been severely incapacitated and unable to
work because of recurrent angina. I recommend that she should be on permanent
disability because of her intractable coronary spasm and unstable angina.
She also has had a permanent pacemaker inserted for bradycardia, but her
symptoms persist.
20
(Tr. 578).
The ALJ considered these opinions of Dr. Heupler, but gave them little weight:
I have also considered the opinions of Dr. Heupler rendered on June 21, 2013,
November 3, 2014 and November 5, 2014, but gives [sic] them little weight [citing
Tr. 543, 578, 633]. He opined that the claimant should be on permanent disability
because of her intractable coronary spasms and unstable angina. The first issue to
be addressed is that a finding that an individual is or is not disabled is a finding
reserved to the Commissioner pursuant to the regulations. Next, the doctor opined
that the claimant should be found disabled, in part, due to the unstable angina.
However, he noted in March 2013, that the angina was well controlled with highdose calcium blocker therapy (Exhibit 1 1 F :26). Moreover, his clinical notes
from November 3, 2014, indicate the angina responds to nitroglycerin and rapidly
goes away (Exhibit 22F:2). Dr. Heupler wrote that the claimant has a permanent
pacemaker inserted for her bradycardia, but her symptoms persist (Exhibit 12F:2,
14F:2). However, he does not specify what symptoms continue to persist. When
the claimant saw the doctor, after the pacemaker had been adjusted, she had
dyspnea on exertion with walking one flight of stairs. I have accounted for this in
the residual functional capacity by limiting her to climbing ramps or stairs only
occasionally. She does not have angina when climbing stairs (Exhibit 22F:2).
Furthermore, physical examination revealed only trace edema in the lower
extremities (Exhibit 22F:4). Moreover, the claimant reported that increasing the
pacemaker rate helped with physical activity (Exhibit 22F:2). As such, I give little
weight to the doctor’s opinions.
(Tr. 22-23).
First, the ALJ appropriately discounted Dr. Heupler’s comments regarding Plaintiff’s
disability status. Medical opinions are statements from physicians regarding the severity of an
individual’s impairments and the most that individual can still do despite the impairments,
including any potential restrictions. 20 C.F.R. § 404.1527(a). “A statement by a medical source
that you are ‘disabled’ or ‘unable to work’ does not mean that [the Commissioner] will determine
you are disabled.” § 404.1527(d). Rather, these opinions are issues reserved to the Commissioner
and an ALJ is not required to give these opinions controlling weight or special significance. Id.;
see also Nejat v. Comm’r of Soc. Sec., 359 F. App’x 574, 578 (“Although physicians opine on a
claimant’s residual functional capacity to work, ultimate responsibility for capacity-to-work
21
determinations belongs to the Commissioner.”). Because the disability determination is
specifically reserved for the Commissioner, Dr. Heupler’s statements regarding Plaintiff’s ability
to work do not qualify as “medical opinions” and the ALJ was not required to give them controlling
weight. Furthermore, it is arguable that the letters do not even qualify as medical opinions because
they do not discuss functional limitations, see 20 C.F.R. § 404.1527(a)(2), and are therefore not
entitled to deference by the ALJ, see Allen, 561 F.3d at 651 n.3 (noting that
statements that do not address the specific extent of limitations “appear to be outside the scope of
‘medical opinions’ as defined in 20 C.F.R. § 404.1527(a)(2)”).
Second, the ALJ appropriately discounted Dr. Heupler’s opinions because medical
evidence shows Plaintiff’s angina was well-controlled with medication and treatment. Indeed,
treatment notes reveal Plaintiff’s angina was well-controlled with a high-dose calcium blocker
therapy, (Tr. 514) (March 2013 treatment note), and rapidly resolved with nitroglycerin, see, e.g.,
(Tr. 630) (November 2014 treatment note). Although Plaintiff points to contradictory evidence in
the record, as noted above, 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, 336 F.3d at 477.
Third, the ALJ noted that to the extent Plaintiff’s persisting symptoms interfere with her
ability to perform work functions, he accounted for the limitations in his RFC determination. He
mentioned that even after Plaintiff’s pacemaker was adjusted, she experienced dyspnea, but not
angina, when climbing a flight of stairs (Tr. 22) (citing Tr. 630); had only trace edema in her lower
extremities (Tr. 22) (citing Tr. 632); and had increased physical activity after the pacemaker rate
was increased (Tr. 22-23) (Tr. 630). The ALJ stated he accounted for these identified limitations
by limiting her to only occasional climbing of ramps and stairs. (Tr. 22); see also Tr. 18 (RFC
22
determination noting Plaintiff can occasionally climb ramps or stairs). Furthermore, the ALJ noted
that while Dr. Heupler stated Plaintiff’s symptoms persisted after she received a permanent
pacemaker, he failed to specifically explain which symptoms persisted and any functional
limitations they caused. Importantly, ALJs are only required to give deference to medical opinions,
which discuss a claimant’s functional limitations. 20 C.F.R. § 404.1527(a)(2); Allen, 561 F.3d at
651 n.3.
Overall, the ALJ’s reasoning for discounting Dr. Heupler’s opinions speaks to factors of
supportability of the opinion and the consistency of the opinion with the record as a whole. See 20
C.F.R. § 404.1527(d)(2). The ALJ’s opinion makes clear to subsequent reviewers the reasoning
for assigning less than controlling weight to Dr. Heupler’s opinions and, thus, satisfies the “good
reasons” requirement. Wilson, 378 F.3d at 544. The ALJ did not erred in his treating physician
analysis.
Listing 4.04
Plaintiff argues she meets the requirements for Listing 4.04 because she tested positive for
coronary artery spasm and reported daily angina. (Doc. 17, at 9-10). The Commissioner responds
the Listings regarding variant angina do not require a finding of disability, but rather provide
guidance on evaluation of the condition. (Doc. 21, at 12-15).
A claimant’s impairment must meet every element of a Listing before the Commissioner
may conclude that she is disabled at Step Three of the sequential evaluation process. See 20 C.F.R.
§ 404.1520; Duncan v. Sec’y of Health & Human Servs., 801 F.2d 847, 855 (6th Cir. 1986). The
claimant has the burden to prove all the elements are satisfied. King v. Sec’y of Health & Human
Servs., 742 F.2d 968, 974 (6th Cir. 1984). Moreover, “[t]he burden of providing a . . . record . . .
complete and detailed enough to enable the Secretary to make a disability determination rests with
23
the claimant.” Landsaw v. Sec’y of Health & Human Servs., 803 F.2d 211, 214 (6th Cir. 1986). It
is not sufficient to come close to meeting the conditions of a Listing. See, e.g., Dorton v. Heckler,
789 F.2d 363, 367 (6th Cir.1989) (Commissioner’s decision affirmed where medical evidence
“almost establishes a disability” under Listing).
The Listings provide guidance to ALJs on how to evaluate certain medical conditions.
Section 4.00, Cardiovascular System, discusses variant angina. It states:
6. What is variant angina?
a. Variant angina (Prinzmetal’s angina, vasospastic angina) refers to the occurrence
of anginal episodes at rest, especially at night, accompanied by transitory ST
segment elevation (or, at times, ST depression) on an ECG. It is due to severe spasm
of a coronary artery, causing ischemia of the heart wall, and is often accompanied
by major ventricular arrhythmias, such as ventricular tachycardia. We will consider
variant angina under 4.04 only if you have spasm of a coronary artery in relation to
an obstructive lesion of the vessel. If you have an arrhythmia as a result of variant
angina, we may consider your impairment under 4.05.
b. Variant angina may also occur in the absence of obstructive coronary disease. In
this situation, an ETT will not demonstrate ischemia. The diagnosis will be
established by showing the typical transitory ST segment changes during attacks of
pain, and the absence of obstructive lesions shown by catheterization. Treatment in
cases where there is no obstructive coronary disease is limited to medications that
reduce coronary vasospasm, such as calcium channel blockers and nitrates. In such
situations, we will consider the frequency of anginal episodes despite prescribed
treatment when evaluating your residual functional capacity.
c. Vasospasm that is catheter-induced during coronary angiography is not variant
angina.
20 C.F.R. Pt. 404, Subpt. P, App’x 1, § 4.00(E)(6).
If further analysis of variant angina is necessary based on the above, Listing 4.04 provides
that a claimant’s impairments must meet the following requirements.
4.04 Ischemic heart disease, with chest discomfort associated with myocardial
ischemia, as described in 4.00E3, while on a regimen of prescribed treatment (see
4.00A if there is no regimen of prescribed treatment). With one of the following:
24
A. Sign- or symptom-limited exercise test demonstrating at least one of the
following manifestations at a workload equivalent to 5 METs or less:
1. Horizontal or downsloping depression, in the absence of digitalis
glycoside therapy and/or hypokalemia, of the ST segment of at least -0.10
millivolts (-1.0 mm) in at least 3 consecutive complexes that are on a level
baseline in any lead (other than aVR) and that have a typical ischemic time
course of development and resolution (progression of horizontal or
downsloping ST depression with exercise, and persistence of depression of
at least -0.10 millivolts for at least 1 minute of recovery); or
2. An upsloping ST junction depression, in the absence of digitalis
glycoside therapy and/or hypokalemia, in any lead (except aVR) of at least
-0.2 millivolts or more for at least 0.08 seconds after the J junction and
persisting for at least 1 minute of recovery; or
3. At least 0.1 millivolt (1 mm) ST elevation above resting baseline during
both exercise and 3 or more minutes of recovery in ECG leads with low R
and T waves in the leads demonstrating the ST segment displacement; or
4. Failure to increase systolic pressure by 10 mmHg, or decrease in systolic
pressure below usual clinical resting level (see 4.00C2b); or
5. Documented reversible radionuclide “perfusion” (thallium201 ) defect at
an exercise level equivalent to 5 METs or less;
OR
B. Impaired myocardial function, documented by evidence (as outlined under
4.00C3 or 4.00C4b) of hypokinetic, akinetic, or dyskinetic myocardial free wall or
septal wall motion with left ventricular ejection fraction of 30 percent or less, and
an evaluating program physician, preferably one experienced in the care of patients
with cardiovascular disease, has concluded that performance of exercise testing
would present a significant risk to the individual, and resulting in marked limitation
of physical activity, as demonstrated by fatigue, palpitation, dyspnea, or anginal
discomfort on ordinary physical activity, even though the individual is comfortable
at rest;
OR
C. Coronary artery disease, demonstrated by angiography (obtained independent of
Social Security disability evaluation), and an evaluating program physician,
preferably one experienced in the care of patients with cardiovascular disease, has
concluded that performance of exercise testing would present a significant risk to
the individual, with both 1 and 2:
25
1. Angiographic evidence revealing:
a. 50 percent or more narrowing of a nonbypassed left main
coronary artery; or
b. 70 percent or more narrowing of another nonbypassed coronary
artery; or
c. 50 percent or more narrowing involving a long (greater than 1
cm) segment of a nonbypassed coronary artery; or
d. 50 percent or more narrowing of at least 2 nonbypassed coronary
arteries; or
e. Total obstruction of a bypass graft vessel; and
2. Resulting in marked limitation of physical activity, as demonstrated by
fatigue, palpitation, dyspnea, or anginal discomfort on ordinary physical
activity, even though the individual is comfortable at rest.
20 C.F.R. Pt. 404, Subpt. P, App’x 1, § 4.04.
Here, at Step Three of the analysis, the ALJ specifically considered Listing 4.04. (Tr. 1718). He noted:
With respect to listing 4.04, the listing requires signs or symptoms at a workload
equivalent to five METS or less. However, on June 26, 2014, the claimant
underwent a stress echo and while she complained of shortness of breath, she
exercised at six METS. Moreover, the left and right ventricles were normal in size;
she had a normal ejection fraction of 68 +/- 5%; and she had normal blood pressure
response to stress and normal ST segment response to stress (Exhibit 19F:4, 5). As
such, I do not find that the claimant meets the listing.
(Tr. 18).
Plaintiff first briefly argues her impairments meet the variant angina listing because she
had a positive test for coronary artery spasm and experienced daily angina. (Doc. 17, at 9-10)
(citing Tr. 175, 618). This argument is unavailing. The Code of Federal Regulations specifically
states that if a claimant has “spasm of a coronary artery in relation to an obstructive lesion of the
vessel”, then Listing 4.04 will be considered. The ALJ did just that, and clearly found evaluation
under Listing 4.04 appropriate. See Tr. 18 (evaluating Listing 4.04). In her merits brief, Plaintiff
fails to explain how the ALJ’s analysis was incorrect, and how she meets the specific requirements
26
of the Listing. It is Plaintiff’s burden to show she meets a Listing, Landsaw, 803 F.2d at 214, and
she fails to do so in her merits brief.8
However, in her reply brief, in response to the Commissioner’s argument, Plaintiff presents
evidence purporting to show she does indeed meet the requirements of the Listing. See Doc. 24, at
1-5; see also United States v. Crozier, 259 F.3d 503, 517 (6th Cir. 2001) (arguments made for the
first time in a reply brief will be considered if they are responsive arguments). Plaintiff argues she
met Listing 4.04(B), requiring three separate ischemic episodes, because she was diagnosed with
variant angina through a positive coronary artery spasm test in 2009. (Doc. 24, at 1-2). However,
“a diagnosis alone is not the same as an opinion that an individual has met the degree of severity
required for the condition to be presumed to be disabling under a Listing.” Guthrie v. Astrue, 2011
U.S. Dist. LEXIS 154291, at *14 (S.D. Ohio) (citing Young v. Sec. of Health & Human Servs., 925
F.2d 146, 151 (6th Cir. 1990)); Varley, 820 F.2d at 780. Importantly, while Plaintiff states her
impairments meet 4.04(B) because she has “had a great deal more than the three required separate
ischemic episodes within a 12 month period” which are “not amenable to revascularization”, she
does not cite to record evidence supporting this assertion. (Doc. 24, at 3). She, therefore, has not
met her burden to show three episodes pursuant to 4.04(B).
8. Plaintiff attaches her subsequent award of benefits to her merits brief. See Doc. 17-1. However,
eligibility for DIB must be established during the relevant time period. Moon v. Sullivan, 923 F.2d
1175, 1182 (6th Cir. 1990). Because Plaintiff does not specifically request a sentence six remand,
or effectively demonstrate how this evidence is either “new” or “material”, other than to state the
evidence contained within justifies a more restrictive RFC, the Court finds it unnecessary to
discuss. Plaintiff waives underdeveloped arguments. McPherson v. Kelsey, 125 F.3d 989, 995-96
(6th Cir. 1997) and, even so, a subsequent favorable decision alone does not qualify as new and
material evidence, Allen, 561 F.3d at 653; see also Wyatt v. Sec’y of Health & Human Servs., 974
F.2d 680, 685 (6th Cir. 1992) (“Evidence of a subsequent deterioration or change in condition after
the administrative hearing is deemed immaterial.”).
27
Furthermore, the ALJ found test results in the record revealed Plaintiff’s impairments did
not meet the requirements of 4.04(A). Plaintiff addresses this finding by stating that “when she is
not having an angina attack, her coronary arteries are normal” (Doc. 24, at 3), thus, implying the
ALJ should have considered her medication regime. See 20 C.F.R. Pt. 404, Subpt. P, App’x 1, §
4.00(E)(6)(b) (“Treatment in cases where there is no obstructive coronary disease is limited to
medications that reduce coronary vasospasm, such as calcium channel blockers and nitrates. In
such situations, we will consider the frequency of anginal episodes despite prescribed treatment
when evaluating your residual functional capacity.”). This argument is not persuasive because the
ALJ did consider Plaintiff’s prescribed treatment, included medication, and its effect on her
impairments in formulating his RFC. See Tr. 18-23 (thoroughly analyzing the evidence and
concluding, “the above residual functional capacity assessment is supported by objective medical
evidence of record and takes into consideration the opinion evidence as well as the claimant’s
testimony, reports and allegations.”).
Plaintiff also argues, and attaches academic articles finding, that in cases where exercise
tolerance tests were “not performed with measured peak oxygen uptake”, as was the case here,
“estimated use of the patient’s use of oxygen is often grossly incorrect.” (Doc. 24, at 4). Indeed,
the regulations note that “ETTs without measurement of VO[2] provide only an estimate of aerobic
capacity” but provides for a mathematical equation to calculate exact amounts. See 20 C.F.R. Pt.
404, Subpt. P, Ap’px 1, § 4.00(C)(5). Even so, it is not appropriate for this Court to address the
accuracy, or inaccuracy, of this medical test. Such analysis would constitute improper judicial fact
finding, and this Court’s role is simply to determine whether the ALJ’s decision was supported by
substantial evidence. Moreover, while Plaintiff attacks the veracity of the MET testing procedure,
she fails to address how her impairment met one of the other four requirements of Listing 4.04(A).
28
Finally, it is unnecessary to address Listing 4.04(C) because, as the Commissioner points
out, it is applicable only in cases where the claimant has not undergone an exercise tolerance test,
which is not the case here. See Tr. 612-16 (treatment notes showing Plaintiff underwent an exercise
tolerance test on June 26, 2014). Thus, Plaintiff has not met her burden to show her impairment
met or medically equaled any part Listing 4.04. The ALJ’s Listing determination is supported by
substantial evidence.
CONCLUSION
Following a review of the arguments presented, the record, and the applicable law, the
Court finds the ALJ’s decision supported by substantial evidence. Therefore, the Commissioner’s
decision denying benefits is AFFIRMED.
IT IS SO ORDERED.
s/James R. Knepp II
United States Magistrate Judge
29
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