Ellars v. Commissioner of Social Security

Filing 20

REPORT AND RECOMMENDATIONS re 3 Complaint filed by Edward A. Ellars. 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 6/4/2015. (pes)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
EDWARD A. ELLARS,
Plaintiff,
vs.

Civil Action 2:14-cv-2050
Judge Graham
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 applications for a period of disability,
disability insurance benefits, and supplemental security income.

This

matter is before the Court for consideration of Plaintiff Edward A.
Ellars’ Statement of Specific Errors (“Statement of Errors”), Doc. No.
13, the Defendant’s Memorandum in Opposition, Doc. No. 18, and
Plaintiff’s Reply, Doc. No. 19.
Plaintiff Edward A. Ellars protectively filed his applications
for benefits on December 23, 2011, alleging that he has been disabled
since September 22, 2008.

PAGEID 41, 226-36.

The claims were denied

initially and upon reconsideration, and plaintiff requested a de novo
hearing before an administrative law judge.
An administrative hearing was held on May 14, 2013, at which
plaintiff, represented by counsel, appeared and testified, as did

Jerry A. Olsheski, Ph.D., who testified as a vocational expert.
PAGEID 41, 65.

Plaintiff, through his counsel, amended his alleged

onset date at the hearing to June 1, 2012.

PAGEID 242.

In a

decision dated June 10, 2013, the administrative law judge concluded
that plaintiff was not disabled from June 1, 2012, through the date of
the administrative decision.

PAGEID 41-60.

That decision became the

final decision of the Commissioner of Social Security when the Appeals
Council declined review on August 29, 2014.

PAGEID 32-34.

Plaintiff was 47 years of age on the date of the administrative
decision.

See PAGEID 60, 226.

Plaintiff has at least a high school

education, is able to communicate in English, and has past relevant
work as a farm worker and pipe fitter.

PAGEID 58.

Plaintiff was last

insured for disability insurance purposes on September 30, 2013.
PAGEID 43.

He has not engaged in substantial gainful activity since

June 1, 2012, the amended alleged date of onset of disability.
II.

Id.

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

impairments consist of “(1) coronary artery disease with stent
placements; (2) obstructive sleep apnea; (3) status post a right
carpal tunnel release; (4) systemic lupus erythematosus, asymptomatic;
(5) tobacco abuse (ongoing), with associated mild emphysema; and (6)
depression.”

PAGEID 43.

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 sedentary work, as that term is defined in 20 CFR
404.1567(a) and 416.967(a), with the exception that he

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additionally requires the option to change his position
from sitting to standing and vice versa, as necessary to
alleviate discomfort.
The claimant additionally retains
the capacity for understanding, remembering, and carrying
out repetitive and some complex tasks and instructions,
which are not fast-paced, do not involve high production
quotas, involve only minor or infrequent changes in the
work setting, and involve only occasional and superficial
contact with others. This residual functional capacity is
consistent with the opinions Dr. [sic] Goldsmith (Exhibits
1A and 2A) and Dr. Umana (Exhibits 5A and 6A). It is also
well-supported by the record as a whole.
PAGEID 48-52.

Although this RFC precludes the performance of

plaintiff’s past relevant work as a farm worker and pipe fitter, the
administrative law judge relied on the testimony of the vocational
expert to find that plaintiff is nevertheless able to perform a
significant number of jobs in the national economy, including such
representative jobs as assembler, inspector, and hand packer.
58-59.

PAGEID

Accordingly, the administrative law judge concluded that

plaintiff was not disabled within the meaning of the Social Security
Act from June 1, 2012, through the date of the administrative
decision.

PAGEID 59-60.

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.

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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.
F.2d at 536.

Kirk, 667

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 his Statement of Errors, plaintiff argues that the
administrative law judge erred in “fail[ing] to accord controlling
weight, or at least deferential weight, to the treating source medical
opinion of Dr. Schall.”

Statement of Errors, p. 5.

Plaintiff argues

that the administrative law judge’s analysis of Dr. Schall’s opinion
is conclusory, fails to provide “good reasons” for discounting Dr.
Schall’s opinion, and fails to explain how Dr. Schall’s opinion is
inconsistent with the medical evidence.

Id. at pp. 5-9.

The opinion of a treating provider must be given controlling
weight if that opinion is “well-supported by medically acceptable
clinical and laboratory diagnostic techniques” and is “not
inconsistent with the other substantial evidence in [the] case

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record.”

20 C.F.R. §§ 404.1527(c)(2); 416.927(c)(2).

Even if the

opinion of a treating provider is not entitled to controlling weight,
an administrative law judge is nevertheless required to evaluate the
opinion by considering such factors as the length, nature and extent
of the treatment relationship, the frequency of examination, the
medical specialty of the treating physician, the extent to which the
opinion is supported by the evidence, and the consistency of the
opinion with the record as a whole.

20 C.F.R. §§ 404.1527(c)(2)-(6),

416.927(c)(2)-(6); Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406
(6th Cir. 2009); Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th
Cir. 2004).

Moreover, an administrative law judge must provide “good

reasons” for discounting the opinion of a treating provider, i.e.,
reasons that are “‘sufficiently specific to make clear to any
subsequent reviewers the weight the adjudicator gave to the treating
source’s medical opinion and the reasons for that weight.’”

Rogers v.

Comm’r of Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007) (quoting SSR
96-2p, 1996 WL 374188, at *5 (July 2, 1996)).

This special treatment

afforded the opinions of treating providers recognizes that
“these sources are likely to be the medical professionals
most able to provide a detailed, longitudinal picture of
[the claimant’s] medical impairment(s) and may bring a
unique perspective to the medical evidence that cannot be
obtained from the objective medical findings alone or from
reports of individual examinations, such as consultative
examinations or brief hospitalizations.”
Wilson, 378 F.3d at 544 (quoting 20 C.F.R. § 404.1527(d)(2)).
Plaintiff treated with Gregory W. Schall, D.O., in 2012 and 2013.
PAGEID 529-667, 823-1017.

Dr. Schall completed a physical capacity

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evaluation on April 18, 2013.

PAGEID 1130-31.

Dr. Schall opined

that, in an eight-hour workday, plaintiff can stand for one hour, 10
minutes at a time; walk for less than one hour, five to 10 minutes at
a time; and sit for four hours, 30 minutes at a time.

PAGEID 1130.

Dr. Schall opined that plaintiff can lift 11 to 20 pounds
occasionally; bend and squat occasionally; but cannot crawl, climb
steps, climb ladders, or use his feet for repetitive movements as in
operating foot controls.

PAGEID 1130-31.

Dr. Schall included as

“other work related limitations” “severe peripheral vascular disorder,
coronary artery disease, COPD, & depression and anxiety.”

PAGEID 1131

(emphasis omitted).
The administrative law judge evaluated Dr. Schall’s opinion as
follows:
The April 18, 2013 opinion of Dr. Schall, the claimant’s
family practitioner (Exhibit 16F) has been considered, but
cannot be assigned any significant weight.
Dr. Schall
opinion [sic] cannot be assigned more than minimal weight
because his opinion appears to rest at least in part on an
assessment
of
the
claimant’s
cardiac
and
vascular
impairment, which is outside his area of expertise as a
general practitioner.
Moreover, the opinion expressed by
Dr. Schall is quite conclusory, providing very little
explanation of the information he relied upon in forming
the opinion.
Finally, no other treating or examining
physician offered an opinion indicating that the claimant’s
residual functional capacity was restricted to the extent
identified by Dr. Schall, and the totality of the objective
evidence of record fails to corroborate his assigned degree
of functional limitations.
PAGEID 57-58.
Although succinct, the administrative law judge’s analysis of Dr.
Schall’s opinion does not violate the treating physician rule.

The

administrative law judge recognized Dr. Schall as plaintiff’s “primary

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care physician,” PAGEID 44, and “family practitioner,” PAGEID 57, but
discounted his opinion because “the totality of the objective evidence
of record fails to corroborate his assigned degree of functional
limitations.”

PAGEID 58.

Plaintiff argues that the administrative

law judge’s “decision is completely [de]void of any meaningful
explanation,” Statement of Errors, p. 9, and that the administrative
law judge failed to “identify any substantial evidence that he
believed was inconsistent with Dr. Schall’s opinion.”
Reply, p. 8.

Plaintiff’s

However, the administrative law judge provided an

extensive evaluation of the medical evidence and plaintiff’s
subjective complaints and explained why the objective medical evidence
supported the RFC determination.

PAGEID 53-57.

The administrative

law judge expressly considered limitations in standing, walking,
sitting, and bending, and those associated with plaintiff’s lower
extremities and breathing problems, and explained why the objective
evidence supported the RFC determination.

Id.

It is true that Dr.

Schall based his opinion on plaintiff’s severe peripheral vascular
disorder, coronary artery disease, COPD, and depression and anxiety.
PAGEID 1131.

The administrative law judge expressly considered the

evidence related to these conditions in his RFC determination and, in
evaluating Dr. Schall’s opinion, noted that “the objective evidence of
record fails to corroborate [Dr. Schall’s] assigned degree of
functional limitations.”

PAGEID 58.

No further explanation is

required where, as here, the administrative law judge identified
substantial evidence that is inconsistent with Dr. Schall’s opinion.

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See Kirk, 667 F.2d at 536 (“[A] reviewing court is to look at the
evidence ‘taken as a whole.’”).

Notably, plaintiff did not challenge

the administrative law judge’s evaluation of the evidence and his
Statement of Errors does not cite any evidence to support the
limitations opined by Dr. Schall.
Plaintiff also argues for the first time in his reply brief that
the administrative law judge improperly discounted Dr. Schall’s
opinion on the basis that cardiac and vascular impairments fall
outside Dr. Schall’s area of expertise.

Plaintiff’s Reply, pp. 3-4.

Plaintiff argues that Dr. Schall “worked alongside two other doctors”
in the same facility who specialized in osteopathic medicine and
pulmonary diseases and pulmonary critical care, which “detracts from
the ALJ’s theory that Dr. Schall was not qualified to provide an
opinion concerning Mr. Ellar’s cardiac and vascular impairments.”

Id.

Plaintiff also argues that the administrative law judge erred in
noting that Dr. Schall’s opinion was “conclusory” and that no other
physician offered an opinion as restrictive as Dr. Schall’s.
pp. 3-7.

This Court disagrees.

Id. at

First, the administrative law judge

is expressly permitted to consider the medical specialty of a treating
physician.

20 C.F.R. §§ 404.1527(c)(5), 416.927(c)(5).

It was

therefore not improper for the administrative law judge to consider
that Dr. Schall is a general practitioner who does not specialize in
cardiac and vascular impairments.

PAGEID 57

Second, Dr. Schall’s

opinion consists of a serious of checked boxes and a list of
diagnoses.

PAGEID 1130-31.

Although Dr. Schall was instructed to

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answer the questions in the evaluation based on his “examination
and/or treatment,” it was not reversible error for the administrative
law judge to note that the opinion is “quite conclusory, providing
very little explanation of the information [Dr. Schall] relied upon in
forming the opinion.”

PAGEID 57-58.

Similarly, it was not reversible

error for the administrative law judge to note that no other treating
or examining physician offered an opinion as restrictive as Dr.
Schall’s opinion.

The administrative law judge’s analysis of Dr.

Schall’s opinion is sufficiently specific as to the weight given to
the opinion and the reasons for assigning that weight.

The

administrative law judge found that Dr. Schall’s opinion was
inconsistent with the totality of the medical evidence and he provided
specific reasons, which are supported by substantial evidence, to
support this conclusion.
In a related argument, plaintiff argues that, by discounting the
opinions of Dr. Schall and the state agency reviewing physicians, the
administrative law judge “decided to step outside his role as
adjudicator and instead decided to play doctor in formulating an RFC
finding.”

Statement of Errors, p. 9.

This Court disagrees.

This is

simply not a case in which the administrative law judge interpreted
raw medical records without the assistance of medical opinions
regarding a claimant's abilities.

See Deskin v. Comm’r of Soc. Sec.,

605 F. Supp. 2d 908 (N.D. Ohio 2008).

Rather, the administrative law

judge was called upon to evaluate the various medical opinions and
determine the weight to be assigned to each.

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The administrative law

judge properly engaged in this process and his findings in this regard
enjoy substantial support in the record.
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).

28

Response to objections

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).

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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 4, 2015

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

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