Ogg v. Commissioner of Social Security

Filing 19

REPORT AND RECOMMENDATION that Plaintiffs statement of errors be overruled and that judgment be entered in favor of the Defendant Commissioner of Social Security. Objections to R&R due within fourteen (14) days. Signed by Magistrate Judge Terence P. Kemp on 7/16/2015. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Steven R. Ogg,

:

Plaintiff,

:

v.

:

Commissioner of Social Security,
:
Defendant.

Case No. 2:14-cv-987
JUDGE GEORGE C. SMITH
Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION
I.

Introduction

Plaintiff, Steven R. Ogg, filed this action seeking review
of a decision of the Commissioner of Social Security denying his
applications for disability insurance benefits and supplemental
security income.

Those applications were filed on December 27,

2011, and alleged that Plaintiff became disabled on December 23,
2011.
After initial administrative denials of his claim,
Plaintiff was given a video hearing before an Administrative Law
Judge on March 20, 2013.
ALJ denied benefits.

In a decision dated April 18, 2013, the

That became the Commissioner’s final

decision on June 30, 2014, when the Appeals Council denied
review.
After Plaintiff filed this case, the Commissioner filed the
administrative record on October 6, 2014.

Plaintiff filed his

statement of specific errors on November 10, 2014, to which the
Commissioner responded on February 13, 2015.

Plaintiff filed a

reply brief on March 4, 2015, and the case is now ready to
decide.
II.

The Lay Testimony at the Administrative Hearing

Plaintiff, who was 52 years old at the time of the
administrative hearing and who has a high school education,

testified as follows.

His testimony appears at pages 72-91 of

the administrative record.
Plaintiff last worked as a forklift operator.

He performed

the job sitting down, but had some responsibility to do manual
lifting as well.

That could involve lifting up to 50 pounds.

was terminated for allegedly sleeping on the job.

He

He had worked

for other companies before 2011, but mostly doing the same type
of warehouse work.

He not only operated a forklift, but did line

production work and also operated other equipment.

At one time,

he also worked as a grocery store manager.
When asked about what kept him from working, Plaintiff said
that he has a sleep disorder that prevents him from getting a
proper amount of rest.

He had done sleep studies but did not

have a CPAP machine due to insurance issues.
asleep two or three times daily.

He would fall

He drove, but never by himself.

Plaintiff also testified about shortness of breath, which he
attributed in part to his weight (352 pounds at his last doctor’s
appointment), and to numbness in his hands and fingers.

His feet

also swelled several times per day, requiring him to sit down and
elevate his feet for an hour or more.

Reaching above shoulder

level also caused pain, and torn rotator cuffs are suspected.
Plaintiff was able to sit for half an hour to 45 minutes at
a time.

He could stand for about the same period.

Standing and

walking caused pain in his legs and back, as well as swelling in
his feet afterwards.

He had applied for and received

unemployment benefits and did go to job interviews but was never
hired due to his health problems.
III.

The Medical Records

The medical records in this case are found beginning on page
291 of the administrative record.

The pertinent records - those

relating to Plaintiff’s three statements of error - can be
summarized as follows.
-2-

In 2011, Plaintiff was diagnosed with severe sleep apnea.
CPAP machine was recommended.

A

The physician notes indicate that

Plaintiff lost his job and, as a result, had no insurance to pay
for the device.

(Tr. 291-302).

Dr. Rudy performed a consultative physical examination and
submitted a report about that examination on March 13, 2012.

He

noted that Plaintiff had lost two jobs due to sleep apnea.
Plaintiff weighed 340.6 pounds but his abdominal exam was normal
except for limitations due to obesity.

He could bend a full 90

degrees at the waist and had full motion of all his joints.
could also lift 25-30 pounds from floor level.

He

Dr. Rudy

diagnosed morbid obesity which caused serious obstructive sleep
apnea and attendant narcolepsy.

He thought those conditions

endangered Plaintiff and others if Plaintiff were to drive or
operate heavy equipment.

Finally, he diagnosed venous

insufficiency with brawny induration manifested in the lower
legs.

Nevertheless, Dr. Rudy thought Plaintiff would be

employable if his sleep apnea were treated successfully.

(Tr.

320-22).
The file contains treatment notes from Fairfield Community
Health Center.

A chart note from June 12, 2012 shows that

Plaintiff was taking medication for diabetes and his blood sugar
was under control.

He was doing yard work for exercise and

trying to walk around outside.
breath.

He did have moderate shortness of

He was trying to start a lawn care business.

He was

also trying to get the CPAP machine and was sleeping only 4-5
hours at night.
328-31).

Some edema was present in his extremities.

(Tr.

At a November 1, 2012 visit, he complained of bilateral

shoulder pain.

The treatment note expressed “concern” about

possible rotator cuff impingement, and x-rays were to be taken.
His symptoms included pain when reaching overhead and stiffness
in both shoulders.

(Tr. 342-45).
-3-

At the prior visit, he was

feeling well overall and reported that medication had eliminated
the numbness in his feet.

(Tr. 347).

The xrays were taken on

February 9, 2013, and showed no acute abnormality in either
shoulder.

(Tr. 369).

In addition to these records, there are opinions from state
agency reviewers.

Dr. Eskinazi gave great weight to Dr. Rudy’s

findings, concluding that Plaintiff could lift 25 pounds
occasionally and ten pounds frequently, had some postural
limitations, and should not be around hazards or have
concentrated exposure to environmental irritants.

(Tr. 98-104).

Both she and Dr. Golestany, who affirmed her findings, commented
that Plaintiff was non-compliant with treatment due to finances.
Plaintiff submitted several additional medical records to
the Appeals Council.

It determined that all of these records

spoke to Plaintiff’s condition after the date of the ALJ’s
decision and did not “affect the decision about whether you were
disabled beginning on or before April 18, 2013.”
IV.

(Tr. 2).

The Vocational Testimony

Mary Evers was the vocational expert in this case.

Her

testimony begins at page 92 of the administrative record.
Ms. Evers was asked to categorize Plaintiff’s past work.
She identified the forklift operator job as semiskilled and
performed at the medium exertional level.

The nightshift grocery

store manager position was skilled and light, and the machine
operator job was also skilled.

Plaintiff performed it at the

light exertional level but it is typically a medium job.

She did

not think any of the job skills Plaintiff acquired would transfer
to sedentary work.
Ms. Evers was then asked some questions about a hypothetical
person of Plaintiff’s age, education, and work experience who
could work at the light exertional level but who could never
climb ladders, ropes, or scaffolds, who could occasionally climb
-4-

ramps or stairs, and who could occasionally stoop.

The person

could frequently engage in fingering or fine manipulation of
objects and should avoid exposure to operational controls of
moving machinery and unprotected heights.

Finally, the person

had to avoid concentrated exposure to fumes, odors, dust, gases,
and poorly ventilated areas.

Ms. Evers said that such a person

could not do any of Plaintiff’s past work but could be employed
as a packer, inspector, or stock clerk.

She gave numbers for

those jobs in the regional and national economies.

She also said

that a limitation on overhead reaching to occasional, as opposed
to frequent, would impact the stock clerk job, but not the other
two.
Ms. Evers was next asked about someone who was limited as
described in the first hypothetical, but who also had to elevate
his or her legs for at least two hours in a workday.
said, was work-preclusive.

That, she

The same would be true if the person

was off task for 15 percent of the workday or would miss more
than one day of work per month on an unexcused basis.
V.

The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 4461 of the administrative record.

The important findings in that

decision are as follows.
The Administrative Law Judge found, first, that Plaintiff
met the insured status requirements of the Social Security Act
through December 30, 2015.

Next, he found that Plaintiff had not

engaged in substantial gainful activity since his alleged onset
date of December 23, 2011.

Going to the second step of the

sequential evaluation process, the ALJ determined that Plaintiff
had severe impairments including morbid obesity, obstructive
sleep apnea with a pulmonary artifact and an active tobacco abuse
disorder, diabetes with renal manifestations, venous
insufficiency with brawny edema in the lower extremities,

-5-

radiculopathy, and bilateral shoulder injuries.

The ALJ also

found that these impairments did not, at any time, meet or equal
the requirements of any section of the Listing of Impairments (20
C.F.R. Part 404, Subpart P, Appendix 1).
Moving to step four of the sequential evaluation process,
the ALJ found that Plaintiff had the residual functional capacity
to perform work at the light exertional level except that he
could never climb ladders, ropes, or scaffolds, could
occasionally climb stairs and ramps, could occasionally stoop,
could frequently engage in overhead reaching bilaterally, could
frequently engage in fingering or fine manipulation bilaterally,
had to avoid concentrated exposure to respiratory irritants, and
had to avoid all exposure to operational controls of moving
machinery and unprotected heights.
The ALJ next concluded that, given this residual functional
capacity, Plaintiff could not do his past relevant work, but he
could do certain jobs identified by the vocational expert,
including packer, inspector, and stock clerk.

The ALJ further

found that such jobs existed in significant numbers in the State
and national economies.

Consequently, the ALJ concluded that

Plaintiff was not entitled to benefits.
VI.

Plaintiff’s Statement of Specific Errors

In his statement of specific errors, Plaintiff raises these
issues: (1) the ALJ’s residual functional capacity determination
is not supported by substantial evidence; (2) the ALJ erred by
not appointing a medical expert to testify as to Plaintiff’s
limitations; and (3) the ALJ’s credibility determination was
improper.

These issues are evaluated under the following legal

standard.
Standard of Review.

Under the provisions of 42 U.S.C.

Section 405(g), "[t]he findings of the Secretary [now the
Commissioner] as to any fact, if supported by substantial

-6-

evidence, shall be conclusive. . . ."

Substantial evidence is

"'such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion'"

Richardson v. Perales, 402

U.S. 389, 401 (1971) (quoting Consolidated Edison Company v.
NLRB, 305 U.S. 197, 229 (1938)).
scintilla.'" Id.
Cir. 1976).

It is "'more than a mere

LeMaster v. Weinberger, 533 F.2d 337, 339 (6th

The Commissioner's findings of fact must be based

upon the record as a whole.

Harris v. Heckler, 756 F.2d 431, 435

(6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366 (6th
Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir.
1984).

In determining whether the Commissioner's decision is

supported by substantial evidence, the Court must "'take into
account whatever in the record fairly detracts from its weight.'"
Beavers v. Secretary of Health, Education and Welfare, 577 F.2d
383, 387 (6th Cir. 1978) (quoting Universal Camera Corp. v. NLRB,
340 U.S. 474, 488 (1951)); Wages v. Secretary of Health and Human
Services, 755 F.2d 495, 497 (6th Cir. 1985).

Even if this Court

would reach contrary conclusions of fact, the Commissioner's
decision must be affirmed so long as that determination is
supported by substantial evidence.

Kinsella v. Schweiker, 708

F.2d 1058, 1059 (6th Cir. 1983).
A.

The RFC Determination

Plaintiff argues first that the ALJ’s decision about
residual functional capacity was not supported by substantial
evidence.

In particular, he claims that the ALJ did not take his

chronic venous insufficiency into account and that the ALJ
ignored his testimony about having to elevate his legs
periodically throughout the day.

That need, he asserts, is

inconsistent with the type of standing and walking which light
work entails.

He points out that this condition was confirmed by

the consultative examiner and that other records document either
swelling or blistering in his legs.

-7-

Lastly, he argues that the

combination of his impairments limits him to a reduced range of
sedentary work, and if that is so, he must be found to be
disabled under the Medical-Vocational Guidelines.

The

Commissioner responds that the ALJ expressly discounted
Plaintiff’s testimony about having to elevate his legs and that
there is support in the record for the ALJ’s decision.
The ALJ made several findings about Plaintiff’s venous
insufficiency.

He noted that the consultative examiner found no

significant swelling in Plaintiff’s legs and reported that
Plaintiff did not wear support hose.

(Tr. 48).

Further, notes

of examinations performed in September and October of 2012 showed
no edema, nor did notes of examinations in 2013.

(Tr. 48-49).

The ALJ also commented on evidence that Plaintiff could shower,
dress, mow, clean, shop, do light repairs, do light yard work,
and walk outside.

(Tr. 50).

Additionally, the ALJ pointed out

that any leg problems had not prevented Plaintiff from working
until December, 2011, and he was fired for sleeping on the job
and not due to a need to elevate his legs.

Finally, Plaintiff

had advertised himself as available to mow yards and also
collected unemployment benefits.

Id.

It is important to note that no treating, examining, or
reviewing source concluded that Plaintiff could not perform the
walking and standing requirements of light work despite his
venous insufficiency.

Dr. Rudy, the consultative examiner who

diagnosed that condition, said that Plaintiff could work if his
sleep apnea was brought under control.

The notes from Fairfield

Community do, as the ALJ indicated, show the absence of edema
more often than not.

Neither of the state agency physicians

believed that this condition precluded the performance of light
work.

One might disagree with the ALJ’s conclusion on this

issue, but that is not the same as a finding that the conclusion
was not supported by substantial evidence.

-8-

As the Court of

Appeals stated in Kalmbach v. Comm'r of Social Security, 409 Fed.
Appx. 852, 859 (6th Cir. Jan.7, 2011), “[i]f substantial evidence
supports the ALJ's conclusion and the ALJ applied the correct
legal standards, we are not at liberty to reverse the ALJ's
decision even if substantial evidence exists in the record that
would have supported an opposite conclusion.”

Consequently,

there is no merit to Plaintiff’s first assignment of error.
B.

The Need for a Medical Expert

Plaintiff’s second claim of error is that the ALJ erred by
not calling a medical expert to testify at the administrative
hearing.

Plaintiff contends that since no treating source

expressed an opinion as to Plaintiff’s capabilities, it was error
for the ALJ to rely on the “outdated” consultative examination
(which Plaintiff attributes to Dr. Vasiloff, but which was
actually performed by Dr. Rudy) and that the later treatment
notes required an interpretation by a testifying expert.

Without

that testimony, Plaintiff argues that the ALJ simply expressed
his own opinion about the medical issues in this case, and that
an ALJ is not permitted to do so.
As the court observed in Griffin v. Astrue, 2009 WL 633043
*10 (S.D. Ohio March 6, 2009), “[t]he primary function of a
medical expert is to explain, in terms that the ALJ, who is not a
medical professional, may understand, the medical terms and
findings contained in medical reports in complex cases.”

Whether

to call such an expert to testify is generally left to the
discretion of the ALJ, see id., quoting Haywood v. Sullivan, 888
F.2d 1463, 1467–68 (5th Cir. 1989), and the Court may overturn
the exercise of that discretion only if it appears that the use
of a medical consultant was necessary — rather than simply
helpful — in order to allow the ALJ to make a proper decision.
See Landsaw v. Secretary of Health and Human Services, 803 F.2d
211, 214 (6th Cir. 1986), quoting Turner v. Califano, 563 F.2d
669, 671 (5th Cir.1977).

This Court has rejected a similar claim
-9-

of abuse of discretion where, for example, “[t]he records were
sufficiently understandable on that issue to permit the ALJ to
interpret them without much assistance,” and where the state
agency reviewers’ opinions adequately addressed the medical
issues in the case.

Rawls v. Comm’r of Social Security, 2014 WL

1091042, *6 (S.D. Ohio March 18, 2014), adopted and affirmed 2014
WL 4437290 (S.D. Ohio Sept. 9, 2014).
Here, it is difficult to classify the consultative
examination as outdated, given that it took place less than a
year prior to the administrative hearing.

Further, the

additional treatment records do little to amplify the findings in
that examination, and suggest only one additional limiting
condition, that of bilateral shoulder restrictions.

But the ALJ

took Plaintiff’s shoulder condition into account in his residual
functional capacity finding by restricting Plaintiff to some
degree in overhead reaching.

Even if Plaintiff’s reaching

restriction is more severe than the ALJ found it to be, the
vocational expert identified jobs which Plaintiff could perform
if he could reach overhead only occasionally.

There is nothing

in the record which makes this an unusually complex case or
suggests that without the use of a medical expert, the ALJ had no
basis for interpreting the records or making findings based on
the information they contained.

The Court finds no error,

therefore, in the ALJ’s choice not to call a testifying medical
expert.
C.

The Credibility Finding

Plaintiff’s final argument focuses on the way in which the
ALJ made his credibility finding.

He identifies several problems

in the process, including the fact that the state agency
reviewers stated that Plaintiff’s report of symptoms was fully
credible (and the ALJ adopted their findings); that the ALJ
improperly found that Plaintiff was intentionally noncompliant
with treatment recommendations (specifically, the CPAP machine);
-10-

and that the ALJ improperly equated Plaintiff’s ability to do
some activities of daily living with the ability to work on a
full-time basis.
A social security ALJ is not permitted to reject allegations
of disabling symptoms, including pain, solely because objective
medical evidence is lacking.

Rather, the ALJ must consider other

evidence, including the claimant's daily activities, the
duration, frequency, and intensity of the symptoms, precipitating
and aggravating factors, medication (including side effects),
treatment or therapy, and any other pertinent factors.
§404.1529(c)(3).

20 C.F.R.

Although the ALJ is given wide latitude to make

determinations about a claimant’s credibility, the ALJ is still
required to provide an explanation of the reasons why a claimant
is not considered to be entirely credible, and the Court may
overturn the ALJ’s credibility determination if the reasons given
do not have substantial support in the record.

See, e.g. Felisky

v. Bowen, 35 F.3d 1027 (6th Cir. 1994).
Here, the ALJ first concluded that Plaintiff “ultimately
admitted to activity consistent with the ability to engage in
light work....”

(Tr. 50).

That activity included the ability to

shower, dress, mow, clean, do laundry, shop, and perform light
repairs, as well as trying to start a lawn care business and walk
around outside.

However, the ALJ also characterized this

evidence as showing that Plaintiff was “at least capable, of
greater functioning than his testimony and allegations of
disabling impairments had suggested.”

(Tr. 51).

This latter

conclusion is one which the ALJ was entitled to draw from the
record.

The ALJ was also entitled to take into account the fact

that Plaintiff did advertise himself as able to perform lawn care
services.

The Court finds that, despite some ambiguity in the

ALJ’s decision, the ALJ did not make a decision that Plaintiff
could do light work based solely on activities of daily living
that may not equate to light work activity on a sustained basis,
-11-

and that the ALJ did not err in the way he considered
discrepancies between Plaintiff’s activities of daily living and
his testimony concerning disabling symptoms.
Next, the ALJ engaged in a very lengthy discussion of
treatment compliance or noncompliance.

It is true, as Plaintiff

points out, that the ALJ considered Plaintiff’s claimed financial
inability to buy a CPAP machine as “suspect” and noted that the
record contained no evidence as to how much such a device would
cost.

Were that the only evidence the ALJ cited on this issue,

Plaintiff’s argument that the ALJ relied on speculation, rather
than on evidence, might have merit.

However, the ALJ also noted

that Plaintiff had not been particularly compliant with other
medical advice or treatment as well, including continuing to
smoke, not wearing support hose, rejecting a sample inhaler,
failing to follow a healthy diet, and not taking his diabetes
medications.

(Tr. 52-53).

The ALJ rejected Plaintiff’s

explanations that all of these instances were caused by financial
inability to afford medication or treatment, and cited reasons
why he found that to be so.

Finally, the ALJ stated that the

issue relating to the CPAP machine was not critical to his
decision, but was “one small consideration in the overall
assessment of the credibility of the claimant’s allegation.”
(Tr. 54).

Given this extensive discussion of the issue, the

Court concludes that even if the ALJ make an incorrect assumption
about Plaintiff’s ability to afford a CPAP machine, that
assumption did not so taint the ALJ’s credibility finding to the
point where the case would need to be remanded on that issue.
The ALJ did not address the third point raised in
Plaintiff’s credibility argument, which is the fact that the
state agency reviewers said that Plaintiff’s “statements
regarding his condition and [symptoms] is (sic) fairly consistent
with the medical evidence.”

(Tr. 102).

However, the same

reviewers who credited his statements found that he could perform
-12-

light work.

It is not clear why the ALJ was not entitled to

reach the same conclusion, nor is it clear that the ALJ was
evaluating the same statements that the state agency physicians
reviewed.

The Court finds no merit in this argument.

Finally, Plaintiff raises, for the first time in his reply
brief, an argument about the ALJ’s consideration of the fact that
Plaintiff received unemployment benefits, which are usually
supported by a statement that the recipient is able and available
to work.

Apart from the fact that the Court does not ordinarily

consider arguments made for the first time in a reply memorandum,
it does not appear that the ALJ gave this factor any substantial
amount of weight.

Again, looking at the overall credibility

assessment, the Court finds no basis on which to deviate from the
usual rule that such assessments are entitled to substantial
deference.

See Smith v. Halter, 307 F.3d 377, 379 (6th Cir.

2001)(an ALJ's credibility finding is something that a reviewing
court “may not disturb absent compelling reason...”).
Consequently, the Court will recommend that the statement of
error be overruled.
VII.

Recommended Decision

Based on the above discussion, it is recommended that the
Plaintiff’s statement of errors be overruled and that judgment be
entered in favor of the Defendant Commissioner of Social
Security.
VIII.

Procedure on Objections

If any party objects to this Report and Recommendation,
that party may, within fourteen (14) days of the date of this
Report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection
is made, together with supporting authority for the objection(s).
A judge of this Court shall make a de novo determination of those
portions

of the report or specified proposed findings or

recommendations to which objection is made.
-13-

Upon proper

objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to
object to the Report and Recommendation will result in a
waiver of the right to have the district judge review the
Report and Recommendation de novo, and also operates as a
waiver of the right to appeal the decision of the District
Court adopting the Report and Recommendation.

See Thomas v.

Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d
947 (6th Cir. 1981).
/s/ Terence P. Kemp
United States Magistrate Judge

-14-