Pollock v. Commissioner of Social Security

Filing 17

REPORT AND RECOMMENDATIONS re 3 Complaint filed by Mary E. Pollock. It is RECOMMENDED that the decision of the Commissioner be AFFIRMED and that this action be DISMISSED. Objections to R&R due by 6/22/2015. Signed by Magistrate Judge Norah McCann King on 6/5/2015. (pes)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MARY E. POLLOCK,
Plaintiff,
vs.

Civil Action 2:14-cv-1987
Judge Marbley
Magistrate Judge King

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
REPORT AND RECOMMENDATION
I.

Background
This is an action instituted under the provisions of 42 U.S.C. §

405(g) for review of a final decision of the Commissioner of Social
Security denying plaintiff’s application for a period of disability
and disability insurance benefits.

This matter is before the Court

for consideration of Plaintiff’s Statement of Errors (“Statement of
Errors”), Doc. No. 15, and the Defendant’s Memorandum in Opposition,
Doc. No. 16.
Plaintiff Mary E. Pollock protectively filed her application for
benefits on November 1, 2011, alleging that she has been disabled
since May 10, 2011.

PAGEID 162, 254.

The claim was denied initially

and upon reconsideration, and plaintiff requested a de novo hearing
before an administrative law judge.
An administrative hearing was held on January 10, 2013, at which
plaintiff, represented by counsel, appeared and testified, as did John
R. Finch, Ph.D., who testified as a vocational expert.

PAGEID 127,

162.

In a decision dated March 29, 2013, the administrative law judge

concluded that plaintiff was not disabled from May 10, 2011, through
the date of the administrative decision.

PAGEID 162-71.

That

decision became the final decision of the Commissioner of Social
Security when the Appeals Council declined review on July 23, 2014.
PAGEID 93-96.
Plaintiff was 44 years of age on the date of the administrative
decision.

See PAGEID 171, 254.

Plaintiff met the special earnings

requirements of the Social Security Act on the alleged onset date and
through the date of the administrative decision.

PAGEID 164.

Plaintiff has past relevant work as a mail clerk.

PAGEID 170.

She

has not engaged in substantial gainful activity since May 10, 2011,
the alleged onset date.
II.

PAGEID 164.

Administrative Decision
The administrative law judge found that plaintiff’s severe

impairments consist of status post lumbar spine laminectomy/fusion,
degenerative disc disease lumbar spine with retrolisthesis at L3/4,
obesity, and bilateral carpal tunnel syndrome.

PAGEID 164.

The

administrative law judge also found that plaintiff’s impairments
neither meet nor equal a listed impairment and leave plaintiff with
the residual functional capacity (“RFC”) to
perform a significant range of light work (20 CFR
404.1567(b)).
Specifically, the claimant is able to lift
and/or carry twenty pounds occasionally and ten pounds
frequently, sit about six hours in an eight-hour workday
and stand/walk for about six hours each, in an eight-hour
workday.
She can frequently climb ramps/stairs and
occasionally stoop, kneel, crouch and crawl.
She cannot

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climb ladders/ropes/scaffolds.
She can frequently use her
hands for fingering, feeling and handling.
PAGEID 165-66.

Relying on the testimony of the vocational expert, the

administrative law judge found that this RFC does not preclude the
performance of plaintiff’s past relevant work as a mail clerk.
170-71.

PAGEID

Accordingly, the administrative law judge concluded that

plaintiff was not disabled within the meaning of the Social Security
Act from May 10, 2011, through the date of the administrative
decision.

PAGEID 171.

III. Discussion
Pursuant to 42 U.S.C. § 405(g), judicial review of the
Commissioner’s decision is limited to determining whether the findings
of the administrative law judge are supported by substantial evidence
and employed the proper legal standards.

Richardson v. Perales, 402

U.S. 389 (1971); Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595
(6th Cir. 2005).

Substantial evidence is more than a scintilla of

evidence but less than a preponderance; it is such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.
See Buxton v. Haler, 246 F.3d 762, 772 (6th Cir. 2001); Kirk v. Sec’y
of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1981).

This

Court does not try the case de novo, nor does it resolve conflicts in
the evidence or questions of credibility.

See Brainard v. Sec’y of

Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989); Garner v.
Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
In determining the existence of substantial evidence, this
Court must examine the administrative record as a whole.

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Kirk, 667

F.2d at 536.

If the Commissioner's decision is supported by

substantial evidence, it must be affirmed even if this Court would
decide the matter differently, see Kinsella v. Schweiker, 708 F.2d
1058, 1059 (6th Cir. 1983), and even if substantial evidence also
supports the opposite conclusion.

Longworth, 402 F.3d at 595.

In her Statement of Errors, plaintiff first argues that the
administrative law judge erred “by failing to properly develop the
record.”

Statement of Errors, PAGEID 627.

Plaintiff specifically

argues that the administrative law judge “erred in failing to obtain a
medical source statement from Plaintiff’s treating surgeon, Dr. Todd.”
Id.

Plaintiff argues that, “[g]iven the magnitude of the disabling

limitations rendered in Dr. Todd’s post-operative notes, including the
persisting spine issues like disc bulges, it was the ALJ’s duty to
develop the record further.”

Id. at PAGEID 628.

Plaintiff also

argues that the administrative law judge “should have obtained a
consultative examination regarding Plaintiff’s physical impairments to
truly ascertain her disabling limitations.”

Id.

Plaintiff’s

arguments are not well taken.
The claimant bears the ultimate burden of proving by sufficient
evidence that she is entitled to disability benefits.
404.1512(a).

20 C.F.R. §

An administrative law judge has a “special, heightened

duty to develop the record” when a claimant is “(1) without counsel,
(2) incapable of presenting an effective case, and (3) unfamiliar with
hearing procedures.”

Wilson v. Comm’r of Soc. Sec., 280 F. App’x 456,

459 (6th Cir. 2008) (citing Lashley v. Sec’y of Health & Human Servs.,

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708 F.2d 1048, 1051-52 (6th Cir. 1983)).

Here, however, plaintiff was

represented by counsel at the administrative hearing, PAGEID 127, and
the administrative law judge therefore did not operate under that
“special, heightened duty to develop the record.” See Trandafir v.
Comm’r of Soc. Sec., 58 F. App’x 113, 115 (6th Cir. 2003).
An administrative law judge also “has discretion to determine
whether further evidence, such as additional testing or expert
testimony, is necessary.”

Foster v. Halter, 279 F.3d 348, 355 (6th

Cir. 2001) (citing 20 C.F.R. §§ 404.1517, 416.917).

An administrative

law judge may order a consultative examination when there is
insufficient medical evidence to determine whether a claimant is
disabled.

20 C.F.R. § 404.1517.

Here, the record reflects sufficient

evidence of plaintiff’s impairments and the effects of those
impairments on plaintiff’s RFC.

In determining plaintiff’s RFC, the

administrative law judge considered the opinion evidence and the
treatment notes of Larry T. Todd, Jr., D.O., PAGEID 168, but gave
“great weight” to the opinions of the reviewing state agency
physicians, Steve E. McKee, M.D., and Rachel Rosenfeld, M.D.
166-67.

PAGEID

It therefore cannot be said that the administrative law judge

erred in failing to order a consultative examination or to secure a
medical opinion from Dr. Todd.
Plaintiff next argues that the administrative law judge erred in
his credibility determination.

Plaintiff specifically argues that the

administrative law judge “erred in discrediting Plaintiff due to lack

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of ‘aggressive treatment,’” and “due to her failure to quit smoking
contrary to medical advice.”

Statement of Errors, PAGEID 629-30.

A claimant's subjective complaints must be supported by objective
medical evidence in order to serve as a basis for a finding of
disability.

Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230,

1234 (6th Cir. 1993).

See also 42 U.S.C. § 423(d)(5)(A).

In

evaluating subjective complaints, it must be determined whether there
is objective medical evidence of an underlying medical condition.
Stanley v. Sec’ of Health & Human Servs., 39 F.3d 115, 117 (6th Cir.
1994).

If so, then the evaluator must determine (1) whether objective

medical evidence confirms the severity of the complaint arising from
the condition; or (2) whether the objectively established medical
condition is of such severity that it can reasonably be expected to
produce the alleged complaint.

Id.; Duncan v. Sec’y of Health & Human

Servs., 801 F.2d 847, 853 (6th Cir. 1986).
In evaluating a claimant’s credibility, an administrative law
judge should consider the objective medical evidence and the following
factors:
1. The individual's daily activities;
2. The location, duration, frequency, and intensity of the
individual's pain or other symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of any
medication the individual takes or has taken to alleviate
pain or other symptoms;
5.
Treatment,
other
than
medication,
the
individual
receives or has received for relief of pain or other
symptoms;

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6. Any measures other than treatment the individual uses or
has used to relieve pain or other symptoms (e.g., lying
flat on his or her back, standing for 15 to 20 minutes
every hour, or sleeping on a board); and
7. Any other factors concerning the individual's functional
limitations and restrictions due to pain or other symptoms.
SSR 96-7P, 1996 WL 374186 (July 2, 1996).

An administrative law

judge’s credibility determination is accorded great weight and
deference because of the administrative law judge’s unique opportunity
to observe a witness's demeanor while testifying.

Buxton v. Halter,

246 F.3d 762, 773 (6th Cir. 2001) (citing Gaffney v. Bowen, 825 F.2d
98, 973 (6th Cir. 1987)).
clearly explained.

However, credibility determinations must be

See Auer v. Sec’y of Health & Human Servs., 830

F.2d 594, 595 (6th Cir. 1987).

If the administrative law judge's

credibility determinations are explained and enjoy substantial support
in the record, a court is without authority to revisit those
determinations.

See Felisky v. Bowen, 35 F.3d 1027, 1036 (6th Cir.

1994); Beavers v. Sec’y of Health, Educ. & Welfare, 577 F.2d 383, 386–
87 (6th Cir. 1978).
In the case presently before the Court, the administrative law
judge summarized plaintiff’s testimony at the administrative hearing
but found her testimony “not fully credible.”

PAGEID 167-69.

The

administrative law judge evaluated the medical evidence, including the
evidence related to plaintiff’s back surgery and follow-up treatment,
and found that,
[r]egarding overall credibility, the evidence fails to
document that the claimant has demonstrated most of the
signs typically associated with chronic, severe pain, such

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as muscle atrophy, spasm, rigidity, or tremor. There is no
evidence of persistent neurological deficits.
Clinical
examinations have not identified signs of inflammatory
disease, nor is there evidence of other signs that might be
expected
in
the
presence
of
a
truly
debilitating
impairment, such as bowel or bladder dysfunction.
In
addition, an electromyogram in August 2012 of the right leg
(Exhibit 16F/3-4) was normal.
PAGEID 168.

The administrative law judge also noted the following:

The claimant’s allegations of disability are inconsistent
with her overall medical regimen.
I note that has [sic]
undergone back surgery and participated in pain management;
however, she has not aggressive [sic] treatment for her
other complaints.
I note that she has not required
emergency room or in-patient treatment since her surgery in
January 2012 (Exhibit 9F).
She has not participated in
post-surgical physical therapy, although she has had
chiropractic treatment.
She has denied the presence of
debilitating side-effects from her use of medication. She
does not have a treating mental health source.
In addition to the general lack of objective evidence to
support
her
subject
complaints,
there
are
other
considerations that weigh against the claimant’s overall
credibility.
For example, in conjunction with the
claimant’s application for benefits, the claimant stated
that she used to take care of her grandchildren, but that
her husband does it now (Exhibit 4E/2). She also testified
to the same. However, Dr. Todd reported that the claimant
“has a lot of small children that she cares for in her home
and so that can be stressful and physically demanding”
(Exhibit 12F/2-3 and 13F). Giving the claimant the benefit
of the doubt, it is possible that she is no longer taking
care of her grandchildren.
Although the claimant has described daily activities that
are fairly limited, two factors weigh against considering
these allegations to be strong evidence in favor of finding
the claimant disabled.
First, allegedly limited daily
activities
cannot
be
objectively
verified
with
any
reasonable degree of certainty.
Secondly, even if the
claimant’s daily activities are truly as limited as
alleged, it is difficult to attribute that degree of
limitation to the claimant’s medical condition, as opposed
to other reasons, in view of the relatively weak medical
evidence and other factors discussed in this decision.
Overall, the claimant’s reported limited daily activities
are considered to be outweighed by the other factors

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discussed in this decision.
There are also notes from Dr. Todd releasing the claimant
to return to work (Exhibits 12F/5, 14F/3 and 16F/2) as well
as admonishments to stop smoking with regard to her back
healing (Exhibits 12F/2-3 and 14F).
PAGEID 169.
Plaintiff argues that the administrative law judge “erred in
discrediting Plaintiff due to lack of ‘aggressive treatment,’” and
“due to her failure to quit smoking contrary to medical advice.”
Statement of Errors, PAGEID 629-30.

This Court disagrees.

As noted

supra, an administrative law judge is permitted to consider the type
of treatment a claimant has undergone when assessing a claimant’s
credibility.

See 20 C.F.R. § 404.1529(c)(3)(v); Blaim v. Comm'r of

Soc. Sec., 595 F. App'x 496, 499 (6th Cir. 2014) (“Even the mildness
of [the claimant’s] treatment - mostly pain medication, weight loss,
and exercise - suggested that his ailments were comparatively mild.”)
(citing Villarreal v. Sec'y of Health & Human Servs., 818 F.2d 461,
463 (6th Cir. 1987)); SSR 96-7P, 1996 WL 374186 (July 2, 1996).

It

therefore was not error for the administrative law judge to note that
plaintiff had not undergone “aggressive treatment for her other
complaints” unrelated to her back surgery.

The administrative law

judge is also permitted to consider whether a claimant has complied
with medical advice, including whether she was advised to stop smoking
and failed to do so.

See Russell v. Sec'y of Health & Human Servs.,

921 F.2d 277 (6th Cir. 1990) (citing Sias v. Sec'y of Health & Human
Servs., 861 F.2d 475, 480 (6th Cir. 1988)).

To the extent that a

claimant’s failure to stop smoking against medical advice may “not

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support a finding that [the claimant] is not credible,” see Johnston
v. Comm'r of Soc. Sec., No. 1:10-CV-444, 2012 WL 1030462, at *8 (S.D.
Ohio Mar. 27, 2012), that error, if any, is not sufficient to entirely
vitiate the remainder the administrative law judge’s credibility
evaluation or the ultimate credibility determination, which is
supported by substantial evidence.

See Ulman v. Comm'r of Soc. Sec.,

693 F.3d 709, 714 (6th Cir. 2012).
The administrative law judge noted and followed the appropriate
standards, performed an appropriate evaluation of the evidence, and
clearly articulated the bases of his credibility determination.

The

analysis and credibility determination of the administrative law judge
enjoy substantial support in the record.

This Court will not – and

indeed may not - revisit that credibility determination.

See Jones v.

Comm’r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003).
In a related argument, plaintiff argues that the administrative
law judge erred in relying on the testimony of the vocational expert.
Statement of Errors, PAGEID 631-32.

Plaintiff specifically argues

that the hypothetical posed to the vocational expert was deficient
because the administrative law judge erred in developing the record
and in assessing plaintiff’s credibility.

Id.

Plaintiff also argues

that the administrative law judge failed to consider the mental
demands of plaintiff’s past relevant work and erred in finding that
plaintiff “can perform the past relevant work as ‘actually
performed.’”

Id.

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“In order for a vocational expert's testimony in response to a
hypothetical question to serve as substantial evidence in support of
the conclusion that a claimant can perform other work [or her past
relevant work], the question must accurately portray a claimant’s
physical and mental impairments.”
F.3d 504, 516 (6th Cir. 2010).

Ealy v. Comm’r of Soc. Sec., 594

“Hypothetical questions, however, need

only incorporate those limitations which the [administrative law
judge] has accepted as credible.”

Parks v. Soc. Sec. Admin., 413 F.

App’x 856, 865 (6th Cir. 2011) (citing Casey, 987 F.2d at 1230).
The administrative law judge posed to the vocational expert a
complete hypothetical question that incorporated all of plaintiff’s
impairments as found by the administrative law judge.
166 with PAGEID 152.

Compare PAGEID

The vocational expert responded that such a

claimant could perform plaintiff’s past relevant work “as defined by
the DOT, but not as performed by her.”

PAGEID 152-53.

The vocational

expert identified the physical and mental demands of plaintiff’s past
relevant work by stating that a mail clerk is classified “as a light
strength position, SVP: 2, unskilled” and noting that it appeared from
the record and plaintiff’s testimony that plaintiff performed the
position “somewhere between medium and heavy strength.”

PAGEID 152.

The administrative law judge relied on testimony of the vocational
expert and found that plaintiff “is able to perform [her past relevant
work] as generally performed.”

PAGEID 171.

Plaintiff’s arguments to

the contrary notwithstanding, the administrative law judge did not
find that plaintiff was capable of performing her past relevant work

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as actually performed by her, i.e., “somewhere between medium and
heavy strength.”

See PAGEID 152.

The administrative law judge

therefore did not err in relying on the vocational expert’s testimony.
See Parks, 413 F. App’x at 865 (“In order for a vocational expert's
testimony in response to a hypothetical question to serve as
substantial evidence in support of the conclusion that a claimant can
perform other work, the question must accurately portray a claimant's
physical and mental impairments. . . .

Hypothetical questions,

however, need only incorporate those limitations which the ALJ has
accepted as credible.”) (internal citations and quotations omitted);
Felisky, 35 F.3d at 1036 (where a hypothetical accurately described
the plaintiff in all relevant respects, the vocational expert’s
response to the hypothetical question constitutes substantial
evidence).
Having carefully considered the entire record in this action,
the Court concludes that the decision of the Commissioner is supported
by substantial evidence.

It is therefore RECOMMENDED that the

decision of the Commissioner be AFFIRMED and that this action be
DISMISSED.
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

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Response to objections

28

must be filed within fourteen (14) days after being served with a copy
thereof.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object
to the Report and Recommendation will result in a waiver of the right
to de novo review by the District Judge and waiver of the right to
appeal the judgment of the District Court.

See, e.g., Pfahler v.

Nat’l Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that
“failure to object to the magistrate judge’s recommendations
constituted a waiver of [the defendant’s] ability to appeal the
district court’s ruling”); United States v. Sullivan, 431 F.3d 976,
984 (6th Cir. 2005) (holding that defendant waived appeal of district
court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation).

Even when timely

objections are filed, appellate review of issues not raised in those
objections is waived.

Robert v. Tesson, 507 F.3d 981, 994 (6th Cir.

2007) (“[A] general objection to a magistrate judge’s report, which
fails to specify the issues of contention, does not suffice to
preserve an issue for appeal . . . .”) (citation omitted)).

June 5, 2015

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

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