Ellars v. Commissioner of Social Security

Filing 22

ORDER adopting Report and Recommendations re 20 Report and Recommendations.. Signed by Judge James L Graham on 7/27/2015. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Edward A. Ellars,
Plaintiff,
v.

Case No. 2:14-cv-2050

Carolyn W. Colvin,
Acting Commissioner of
Social Security,
Defendant.
ORDER
Plaintiff Edward A. Ellars brings this action under 42 U.S.C.
§§ 405(g) for review of the final decision of the Commissioner of
Social Security (“Commissioner”) denying his applications for a
period

of

disability,

disability

supplemental security income.

insurance

benefits,

and

In his decision of June 10, 2013,

the administrative law judge (“ALJ”) found that plaintiff had
severe impairments consisting of: (1) coronary artery disease with
stent placements; (2) obstructive sleep apnea; (3) status post
right carpal tunnel release; (4) systemic lupus erythematosus,
asymptomatic;

(5)

ongoing

tobacco

emphysema; and (6) depression.

abuse

PAGEID 43.

with

associated

mild

After consideration of

the record, the ALJ concluded that plaintiff has the residual
functional capacity (“RFC”) to perform sedentary work, with the
qualifications that:
he additionally required 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.
PAGEID 51-52. After considering the testimony of vocational expert
Jerry A. Olsheski, Ph.D., the ALJ found that there were jobs in the
community

which

plaintiff

plaintiff is not disabled.
the

court

for

could

perform,

PAGEID 58-59.

consideration

of

and

concluded

that

This matter is before

plaintiff’s

June

16,

2015,

objections to the June 4, 2015 report and recommendation of the
magistrate

judge,

recommending

that

the

decision

of

the

Commissioner be affirmed.
I. Standard of Review
If a party objects within the allotted time to a report and
recommendation, the court “shall make a de novo determination of
those portions of the report or specified proposed findings or
recommendations

to

which

objection

is

made.”

§ 636(b)(1); see also Fed. R. Civ. P. 72(b).

28

U.S.C.

Upon review, the

court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”

28

U.S.C. § 636(b)(1).
The court’s review “is limited to determining whether the
Commissioner’s decision ‘is supported by substantial evidence and
was made pursuant to proper legal standards.’”

Ealy v. Comm’r of

Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010) (quoting Rogers v.
Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also,
42 U.S.C. § 405(g) (“The findings of the Commissioner of Social
Security as to any fact, if supported by substantial evidence,
shall be conclusive.”). Even if supported by substantial evidence,
however, “‘a decision of the Commissioner will not be upheld where
the [Commissioner] fails to follow its own regulations and where
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that error prejudices a claimant on the merits or deprives the
claimant of a substantial right.’” Rabbers v. Comm’r of Soc. Sec.,
582 F.3d 647, 651 (6th Cir. 2009) (quoting Bowen v. Comm’r of Soc.
Sec., 478 F.3d 742, 746 (6th Cir. 2007)).
II. Plaintiff’s Objections
A. “Controlling Weight” Analysis
Plaintiff objects to the magistrate judge’s review of the
ALJ’s analysis of the April 18, 2013, opinion of Gregory W. Schall,
D.O., who was plaintiff’s treating general physician in 2012 and
2013.

See Ex. 16F.

Plaintiff first argues that the ALJ failed to

properly apply the first step of the “controlling weight” analysis.
The Commissioner has issued a policy statement, Social Security
Ruling 96-2p, 1996 WL 374188 (Soc. Sec. Admin. July 2, 1996), to
guide an ALJ’s assessment of a treating-source opinion.

Treating-

source opinions must be given “controlling weight” if: (1) the
opinion “is well-supported by medically acceptable clinical and
laboratory diagnostic techniques”; and (2) the opinion “is not
inconsistent with the other substantial evidence in [the] case
record.”

See 20 C.F.R. §404.1527(c)(2); Soc. Sec. Rul. No. 96-2p,

1996 WL 374188 at *2-3.
The Commissioner is required to provide “good reasons” for
discounting

the

§404.1527(c)(2).

weight

given

to

a

treating-source

opinion.

These reasons must be “supported by the evidence

in the case record, and must be 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.”
Soc. Sec. Rul. No. 96-2p, 1996 WL 374188 at *5; Rogers, 486 F.3d at
242.

However, a formulaic recitation of factors is not required.

3

See Friend v. Comm’r of Soc. Sec., 375 F.App’x 543, 551 (6th Cir.
2010).

An ALJ may accomplish the goals of the “good reasons”

requirement by indirectly attacking the supportability of the
treating physician’s opinion or its consistency with other evidence
in the record.

Coldiron v. Comm’r of Soc. Sec., 391 F.App’x 435,

439-41 (6th Cir. 2010); Nelson v. Comm’r of Soc. Sec., 195 F.App’x
462, 470-72 (6th Cir. 2006).
Plaintiff contends that the ALJ did not adequately address the
“controlling weight” factors in considering Dr. Schall’s opinion.
In deciding that Dr. Schall’s opinion “cannot be assigned any
significant weight[,]” the ALJ noted that “the opinion expressed by
Dr. Schall is quite conclusory, providing very little explanation
of the information he relied upon in forming the opinion.”
57.

PAGEID

The ALJ further stated that “the totality of the objective

evidence of record fails to corroborate his assigned degree of
functional limitations.”

PAGEID 58.

These statements go to the

first prong of the treating source analysis, that being whether the
opinion “is well-supported by medically acceptable clinical and
laboratory diagnostic techniques.”

§404.1527(c)(2).

The ALJ’s observations were valid.

Dr. Schall’s evaluation

consisted of a two-page form on which he entered check marks in the
blanks regarding plaintiff’s physical limitations.

See Ex. 16F.

The ALJ may properly ignore statements of treating physicians that
are conclusory and unsupported by the objective medical record.
Carreon v. Massanari, 51 F.App’x 571, 574 (6th Cir. 2002); see also
Price v. Comm’r Soc. Sec. Admin., 342 F.App’x 172, 176 (6th Cir.
2009)(ALJ properly discounted treating physician’s opinion where
physician failed to provide any explanation for his responses to

4

interrogatories

regarding

plaintiff’s

impairments).

Although

plaintiff takes issue with the magistrate judge’s observation that
Dr. Schall’s opinion consisted of a series of checked boxes, many
courts have cast doubt on the usefulness of these forms.

See Smith

v. Comm’r of Soc. Sec., No. 13-12759, 2015 WL 899207 at **14-15
(E.D.Mich. March 3, 2015)(citing cases).

The court in Smith held

that the ALJ properly gave a check-box form little weight where the
physician provided no explanation for the restrictions entered on
the form and cited no supporting objective medical evidence.

Id.

In the “REMARKS” section, Dr. Schall simply noted plaintiff’s
impairments consisting of severe peripheral vascular disease,
coronary artery disease, COPD, depression and anxiety.

These

remarks were not sufficient to explain Dr. Schall’s findings.

See

Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 530 (6th Cir.
1997)(treating physician’s mere documentation of impairments was
not sufficient to support his opinion that claimant could not
perform past job).

Even assuming, as plaintiff argues, that Dr.

Schall must have relied on the roughly three hundred pages of
medical records in his possession in assessing plaintiff’s physical
capacities, Dr. Schall still failed to adequately explain the
grounds

for

his

opinion

regarding

plaintiff’s

physical

restrictions.
The ALJ also addressed the second prong of the “controlling
weight” test by demonstrating, through his detailed discussion of
plaintiff’s treatment records, that Dr. Schall’s opinion was not
consistent with other substantial evidence in the case record. See
PAGEID 44-48.

For example, the ALJ observed that in regard to

plaintiff’s “alleged weakness, throbbing, and numbness of his legs,

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the objective evidence of record establishes that repeated physical
examinations of the claimant have failed to identify any findings
that would corroborate the claimant’s lower extremity complaints
and symptoms.”

PAGEID 53.

The ALJ discussed a February 10, 2012,

consultative evaluation by Phillip Swedberg, M.D.

During that

examination, plaintiff’s pulmonary function testing was completely
normal, and Dr. Swedberg determined that plaintiff was capable of
engaging in mild to moderate physical activities.

PAGEID 44-45.

The ALJ further noted that: the outcomes of the plaintiff’s
repeated stent placement procedures were successful; that his
coronary artery disease was classified as only moderate in severity
and

non-obstructive;

that

his

neurological

examinations

were

entirely within normal limits; that the objective medical evidence
concerning

plaintiff’s

chronic

obstructive

pulmonary

disease

established that this condition was mild or minimal; that plaintiff
had not been treated for lupus symptoms since June of 2012; that
plaintiff’s obstructive sleep apnea was adequately treated with a
CPAP mask; and that plaintiff had not been treated for carpal
tunnel syndrome since June of 2012.

PAGEID 53-56.

The court

agrees with the finding of the magistrate judge that the ALJ
adequately addressed the factors for determining whether to afford
Dr. Schall’s opinion controlling weight.
B. Weight Given Dr. Schall’s Opinion
Plaintiff also argues that the ALJ failed to provide good
reasons

for

concluding

that

Dr.

assigned any significant weight.”

Schall’s

opinion

“cannot

be

If the opinion of the treating

doctor does not meet the “controlling weight” criteria, this does
not mean that the opinion must be rejected; rather, it “may still
be entitled to deference and be adopted by the adjudicator.”
6

Soc.

Sec. Rul. No. 96-2p, 1996 WL 374188 at *1.

If the Commissioner

does not give a treating-source opinion controlling weight, then
the opinion is weighed based on factors such as the length,
frequency, nature, and extent of the treatment relationship, the
treating source’s area of specialty, and the degree to which the
opinion is consistent with the record as a whole and is supported
by relevant evidence.

20 C.F.R. §404.1527(c)(2)-(6); Gayheart v.

Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013).
Plaintiff first alleges that the ALJ erred in noting that Dr.
Schall’s assessment “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.”
PAGEID 57. However, the regulations permit the ALJ to consider the
treating source’s area of speciality in weighing the opinion.
20

C.F.R.

§404.1527(c)(5).

Plaintiff

notes

that

Dr.

See

Schall

practices with two other physicians who specialize in pulmonary
problems.

That argument does not address the area of cardiac and

vascular impairment noted by the ALJ.

Further, plaintiff assumes,

but points to no evidence in the record, that Dr. Schall consulted
with

these

other

doctors

in

completing

plaintiff’s physical capacities.

his

evaluation

of

As to plaintiff’s objection to

the ALJ’s comment that Dr. Schall’s evaluation was conclusory, the
regulations permit consideration of such matters.

See 20 C.F.R.

§404.1527(c)(3)(“The better an explanation a source provides for an
opinion, the more weight we will give that opinion.”).
Plaintiff also objects to the ALJ’s comment that “no other
treating or examining physician offered an opinion indicating that
the claimant’s residual functional capacity was restricted to the

7

extent identified by Dr. Schall[.]”

PAGEID 58.

Plaintiff argues

that this comment suggests that the ALJ believed that plaintiff was
required to produce at least one other expert opinion corroborating
Dr. Schall’s opinion before it could be assigned any weight.
However, nothing in the ALJ’s opinion supports this interpretation.
Rather, the ALJ was simply noting that the record contained no
opinions from other treating sources who shared Dr. Schall’s
opinion.

The supportability of Dr. Schall’s opinion is a factor

the ALJ could consider in weighing that opinion.
§404.1527(c)(3).

See 20 C.F.R.

The ALJ was also permitted to consider “any

factors ... which tend to support or contradict the opinion.”

20

C.F.R. §404.1527(c)(6).
As to plaintiff’s argument that the ALJ failed to adequately
relate the medical evidence in the record to Dr. Schall’s opinion,
this court reiterates that a formulaic recitation addressing the
relevant factors is not required, Friend, 375 F.App’x at 551, and
that the ALJ may accomplish the goals of the “good reasons”
requirement by indirectly attacking the supportability of the
treating physician’s opinion or its consistency with other evidence
in the record, see

Coldiron, 391 F.App’x at 439-41.

The ALJ

addressed the objective medical evidence at length in another part
of his opinion.

See Friend, 195 F.App’x at 472 (finding that ALJ’s

analysis of claimant’s mental problems adequately addressed expert
opinions

by

indirectly

supportability).

attacking

their

consistency

and

The court also agrees with the magistrate judge

that this is not a case where the ALJ stepped out of his role as
adjudicator and assumed the role of doctor by interpreting raw
medical

records

without

the

assistance

8

of

medical

opinions

regarding a claimant’s abilities.

See Doc. 20, p. 9.

Rather, the

ALJ permissibly concluded that the functional limitations proposed
by Dr. Schall were not supported by the objective medical evidence
in the record.

See Conger v. Comm’r of Soc. Sec., No. 2:13-cv-811,

2014 WL 4272734 at *9 (S.D.Ohio Aug. 28, 2014).

The court agrees

with the determination of the magistrate judge that the ALJ
properly considered the relevant factors for determining the weight
to be assigned Dr. Schall’s opinion.
III. Conclusion
For the reasons stated above, the court agrees with the
analysis of the magistrate judge, and concludes that the ALJ’s nondisability

finding

is

supported

by

substantial

sufficiently explained in his decision.

evidence

and

The court overrules the

plaintiff’s objections (Doc. 21), and adopts and affirms the
magistrate judge’s report and recommendation (Doc. 20).

The

decision of the Commissioner is affirmed, and this action is
dismissed.

The clerk is directed to enter final judgment in this

case.
It is so ordered.

Date: July 27, 2015

s/James L. Graham
James L. Graham
United States District Judge

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