Vanover v. Commissioner of Social Security

Filing 18

ORDER that Plaintiff's Statement of Errors is Overruled and the Court Affirms the Commissioner's decision. Signed by Magistrate Judge Terence P. Kemp on 5/1/17. (sem)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
William Harold Vanover,

:

Plaintiff,

:

v.

:

:
Commissioner of Social Security,
Defendant.

Case No. 2:16-cv-324
Magistrate Judge Kemp

:
OPINION AND ORDER
I.

Introduction

Plaintiff, William Harold Vanover, 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

August 9, 2013, and alleged that Plaintiff became disabled on
June 1, 2009, which date was later amended to November 20, 2013.
After initial administrative denials of his claim,
Plaintiff was given a hearing before an Administrative Law Judge
on September 15, 2015.
ALJ denied benefits.

In a decision dated October 21, 2015, the

That became the Commissioner’s final

decision on February 10, 2016, when the Appeals Council denied
review.
After Plaintiff filed this case, the Commissioner filed the
administrative record on June 20, 2016.

Plaintiff filed a

statement of specific errors on August 3, 2016.
responded on September 22, 2016.

The Commissioner

Plaintiff filed a reply brief

on October 6, 2016, and the case is now ready to decide.
II.

Plaintiff’s Testimony at the Administrative Hearing

Plaintiff, who was 53 years old as of the date of the first
administrative hearing and who obtained a GED, testified as
follows.

His testimony begins at page 48 of the administrative

record.
At the time of the hearing, Plaintiff was living with his
father.

He had no income and no employment.

He had difficulty

walking up stairs in the parking garage on his way to the
hearing.
Plaintiff’s last job was painting vehicles at a body shop,
but he did not work there long because he could not use the mask.
He had worked in other body shops in the past.

After leaving the

body shop, he applied for other jobs, but believed that his past
felony record prevented him from being hired.
In terms of why he could no longer work, Plaintiff said that
his breathing difficulties and problems with standing and walking
were his most significant limitations.
his back pain.

Sitting also aggravated

If he overexerted himself, he could end up

spending days in bed.
Plaintiff’s doctors have told him that he has COPD.

He had

been prescribed nicotine patches to help him stop smoking but he
still smoked two or three cigarettes each day.

He also had

moderate emphysema and used a rescue inhaler daily.
When asked about psychological issues, Plaintiff said that
he had been diagnosed with PTSD and an anxiety disorder.

He

suffered from panic attacks and did not have many friends.
Plaintiff said he could walk well enough to shop for
groceries.

He did not use a cane.

breath and also caused foot pain.

Walking made him short of
On a daily basis, he watched

television and did some household chores like cooking, washing
dishes, and doing laundry.

He had some arthritis in his hands.

He was most comfortable when lying on his side.
III.

The Medical Records

The pertinent medical records are found beginning at page
453 of the record.

They can be summarized as follows.

Because

Plaintiff raises an issue only as to the ALJ’s evaluation of
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opinions from Dr. Harvey, the treating physician, the Court will
focus its summary primarily upon Dr. Harvey’s records.
The first set of records show that Plaintiff was seen by Dr.
Harvey in 2009 and 2010 for treatment of diabetes.

His disease

was poorly controlled but the notes show that he took his
medications inconsistently and also did not watch his diet
closely.

By 2012, he was experiencing foot ulcers and cellulitis

resulting from diabetic neuropathy as well as some visual
problems.

He was still not taking his medication as directed and

was not watching his diet, although there were times when he did
better.

A note dated October 10, 2012 reported that he was doing

“quite well.”

(Tr. 504).

He had had surgery to remove a skin

lesion on his right leg in May, 2012, and that was healing nicely
as of October of that year.
On October 16, 2014, Dr. Harvey completed a functional
capacity assessment form.

On it, he stated that Plaintiff could

lift 20 pounds occasionally and less than ten pounds frequently,
and could not stand, walk, and sit for a total of eight hours in
a workday.

He explained his conclusions by referring to

Plaintiff’s severe diabetic neuropathy affecting his lower
extremities with chronic edema.
limited his sensation.

Plaintiff’s neuropathy also

Dr. Harvey thought that Plaintiff should

avoid exposure to extremes of temperature and also to workplace
hazards.

(Tr. 882-89).

Treatment notes from 2014 showed that Plaintiff’s symptoms
included increased swelling and shortness of breath and that he
was also treated for some burns on his shin.

Some of his

swelling was attributed to running out of Lasix.

(Tr. 906).

A

note from 2013 indicated that Plaintiff was having a hard time
standing on hard surfaces and that “Patient apparently is being
required to work 40 hours a week for his outlet assistance and
does not feel he is able to perform at this level due to diabetic
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issues.”

(Tr. 918).

regularly....”

A prior note said that he was “back to work

(Tr. 926).

On February 2, 2015, Dr. Harvey completed a second
functional capacity report.

This time, he concluded that

Plaintiff could lift fifty pounds occasionally and 25 pounds
frequently but could still not sit, stand, and walk for a total
of eight hours.

He did not limit Plaintiff’s exposure to

hazards, and he did not explain any of his findings.
89).

(Tr. 982-

Notes from 2015 showed that Plaintiff continued to have

ulceration and other problems with his legs and feet.

He also

burned himself while welding, and a note following his
hospitalization for that problem said that he was, as of April
17, 2015, “back to work” and that he “wears tennis shoes to work
as a welder.”

(Tr. 1235).

Two state agency physicians reviewed the records as well.
Both Dr. Green and Dr. Torello concluded that Plaintiff could do
a full range of light work.

(Tr. 232, 243-44).

The later of

these two opinions is dated April 29, 2013.
IV.

The Vocational Testimony

Dr. Jerry Olsheski was called to testify as a vocational
expert at the administrative hearing.

His testimony begins at

page 69 of the administrative record.
Dr. Olsheski first testified about Plaintiff’s past work.
He said the job of automobile painter was medium and skilled, and
the job of automotive painter helper was medium and semi-skilled.
There were no transferable job skills.
Dr. Olsheski was next asked questions about a hypothetical
person with Plaintiff’s age, education, and experience who could
work at the medium exertional level, and who could climb ramps
and stairs frequently but climb ladders, ropes, and scaffolds
only occasionally, who could stoop, kneel, crouch, and crawl
occasionally, and who had to avoid various environmental factors
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like heat, humidity, fumes, odors, dust, gases, and poor
ventilation.

He testified that such a person could not do

Plaintiff’s past work.

However, that person could be employed as

a hand packer, packing and filling machine operator, or assembler
at the medium exertional level, and, at the light exertional
level, could work as an assembler, inspector, or mail clerk.
Next, Dr. Olsheski was asked to assume that the hypothetical
person also had some mental limitations, including the ability to
perform only simple, routine, repetitive tasks and to interact
only occasionally with the public.

He responded that such a

person could still do the assembler, inspector, and mail clerk
jobs.

In response to questions from Plaintiff’s counsel, Dr.

Olsheski agreed that someone who had to lie down for several
hours during the workday could not be employed, nor could someone
who would be off task for 20% of the time.

The same would be

true for someone who missed two days or more of work per month.
V.

The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 2234 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 31, 2013.

Second, she found that Plaintiff had

not engaged in substantial gainful activity since June 1, 2009.
Going to the next step of the sequential evaluation process, the
ALJ concluded that Plaintiff had severe physical impairments
including chronic obstructive pulmonary disease, tobacco use,
degenerative disc disease, a depressive disorder, and posttraumatic stress disorder.

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).

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Moving to the next step of the sequential evaluation
process, the ALJ found that Plaintiff could perform a reduced
range of light work and that he could climb ramps and stairs
frequently but climb ladders, ropes, and scaffolds only
occasionally, could stoop, kneel, crouch, and crawl occasionally,
and had to avoid various environmental factors like heat,
humidity, fumes, odors, dust, gases, and poor ventilation.

He

also had the ability to perform only simple, routine, repetitive
tasks and to interact only occasionally with the public.

That

being so, the ALJ concluded that Plaintiff could not perform his
past relevant work.

However, relying on the vocational

testimony, the ALJ found that Plaintiff could do certain light
unskilled jobs including assembler, inspector, and mail clerk,
and that such jobs existed in significant numbers in the State
economy.

That finding is inconsistent with a determination of

disability.

Consequently, the ALJ decided that Plaintiff was not

entitled to benefits.
VI.

Plaintiff’s Statement of Specific Errors

In his statement of errors, Plaintiff raises these issues:
(1) the ALJ erred in substituting her own opinion for that of the
consultive physical examiner, Dr. Ayesu-Offei; and (2) the ALJ’s
credibility determination is not supported by substantial
evidence.

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
evidence, shall be conclusive. . . ."

Substantial evidence is

"'such relevant evidence as a reasonable mind might accept as
Richardson v. Perales, 402

adequate to support a conclusion'"

U.S. 389, 401 (1971) (quoting Consolidated Edison Company v.
NLRB, 305 U.S. 197, 229 (1938)).

It is "'more than a mere

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scintilla.'" Id.
Cir. 1976).

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 Consultative Opinion

Plaintiff first argues that the opinion from Dr. Ayesu-Offei
suggested that Plaintiff would be limited to sedentary work,
which is contrary to the ALJ’s finding that he could do a limited
range of light work.

That finding, Plaintiff asserts, is not

based on the opinion of any physician, and therefore must be the
product of the ALJ’s own lay opinion on a medical issue.
Plaintiff also takes issue with the ALJ’s interpretation of Dr.
Ayesu-Offei’s opinion and with the ALJ’s determination that the
opinion is not supported by the examination findings.

The

Commissioner responds that the ALJ had a substantial basis for
the decision to give little weight to Dr. Ayesu-Offei’s opinion
and also acted within her discretion in determining that
Plaintiff had the residual functional capacity to do light work.
In determining Plaintiff’s residual functional capacity, the
ALJ first noted that she considered the opinion evidence in

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accordance with the applicable regulations and Social Security
Rulings.

(Tr. 27).

The ALJ then determined that Plaintiff had

not undergone any treatment for his back disorder and that there
were no diagnostic tests showing any more than mild disc
narrowing.

(Tr. 28).

Additionally, pulmonary function testing

did not confirm severe shortness of breath and testing in 2015
was normal.

(Tr. 28-29).

Plaintiff also continued to smoke.

After reviewing that evidence, the ALJ turned to her
consideration of Dr. Ayesu-Offei’s opinion.
As to that opinion, the ALJ noted, correctly, that the
physical examination was essentially normal.

Plaintiff’s gait

was also normal and he was not in respiratory distress.

She gave

the opinion only little weight because “a residual functional
capacity of only sedentary work is inconsistent with the
examiner’s essentially normal exam findings” and because “the
examiner did not rule out the ability to perform work at other
occupational levels.”

(Tr. 29).

For the most part, these characterizations of Dr. AyesuOffei’s report are accurate.

There were no significant findings

apart from a “little bit” of back discomfort on deep palpation
and a complaint of pain with full flexion during straight legraising.

Plaintiff could stand, squat a third of the way down,

and tip-toe.
deficits.

Dr. Ayesu-Offei did not detect any atrophy or motor

It is difficult to view these findings as supportive

of an ability to do only sedentary work, and it is at least
reasonable to conclude that they did not fully support the
conclusions reached by Dr. Ayesu-Offei.
Contrary to Plaintiff’s argument, an ALJ is permitted to
discount the opinion of any examiner, including a consultative
examiner, on the basis that the examiner’s conclusions are not
fully supported by the objective medical evidence.

“Discounting

credibility to a certain degree is appropriate where an ALJ finds

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contradictions among the medical reports, claimant's testimony,
and other evidence.”

Walters v. Comm'r of Social Security, 127

F.3d 525, 531 (6th Cir. 1997).

“The ALJ, when evaluating the

entirety of the evidence, is entitled to weigh the objective
medical evidence against Plaintiff's subjective claims of pain
and reach a credibility determination.”

Gilmore v. Astrue, 2011

WL 2682990, *12 (M.D. Tenn. July 11, 2011), adopted and affirmed
2011 WL 3205394 (M.D. Tenn. July 28, 2011).

See also SSR 06-03p

(rescinded effective March 27, 2017), providing that in
evaluating medical source opinion, an ALJ may consider “[t]he
degree to which the [source] presents an explanation and relevant
evidence to support an opinion, particularly medical signs and
laboratory findings.”
The ALJ also commented that the opinion did not necessarily
rule out work above the sedentary level.

That is not the most

reasonable interpretation of what Dr. Ayesu-Offei said, but, on
the other hand, Dr. Ayesu-Offei clearly based his views not only
on Plaintiff’s physical exam but also on his “history” and his
“presentation....”

(Tr. 290).

Plaintiff’s credibility will be

discussed in the next section, but given that the ALJ did not
find him to be fully credible, that was an additional acceptable
reason for giving less than full weight to Dr. Ayesu-Offei’s
opinion.

Overall, the Court finds no error in the way in which

the ALJ dealt with this particular opinion.
That does not completely address Plaintiff’s first claim of
error, because Plaintiff also asserts that the residual
functional capacity contained in the ALJ’s decision is not
directly supported by any specific medical opinion.
that is true, it is not grounds for reversal.

Again, while

An ALJ does not

need to adopt the precise restrictions contained in any
particular medical opinion when formulating a residual functional
capacity finding.

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“Although the ALJ may not substitute his opinion for that of
a physician, he is not required to recite the medical opinion of
a physician verbatim in his residual functional capacity
finding.”

Poe v. Comm'r of Social Security, 342 Fed.Appx. 149,

157 (6th Cir. Aug. 18, 2009).

“The residual functional capacity

determination is expressly reserved for the Commissioner.”

Ford

v. Comm'r of Social Security, 114 Fed.Appx. 194, 198 (6th Cir.
Nov. 10, 2004).

As this Court has said, an “ALJ is free to

resolve issues of credibility as to lay testimony, or to choose
between properly submitted medical opinions,” in arriving at a
residual functional capacity finding.

Davis v. Comm'r of Social

Security, 2013 WL 6008697, *9 (S.D. Ohio Nov. 13, 2013), adopted
and affirmed 2013 WL 6632657 (S.D. Ohio Dec. 17, 2013).

Where

there is enough evidence in the record to support the ALJ's
conclusions as to various aspects of the residual functional
capacity finding, those conclusions are not reversible simply
because they are not drawn word for word from specific medical
opinions in the record.

Feigenbaum v. Comm'r of Social Security,

2014 WL 201483 (N.D. Ohio Jan. 17, 2014).
The Court concludes that, in this case, the ALJ’s
determination is supported by substantial evidence.

As

discussed, the findings from Dr. Ayesu-Offei’s report can
reasonably be interpreted as not supporting a restriction to
sedentary work.

The state agency physicians concluded that

Plaintiff could do a wide range of light work, but the ALJ
reasonably determined that those opinions were too optimistic
because those physicians had not taken Plaintiff’s subjective
reports into account and did not adequately consider the combined
effects of his impairments.

(Tr. 30).

Determining a residual

functional capacity in between those two is not unreasonable.
Consequently, there is nothing in Plaintiff’s first claim of
error which would justify a reversal of the ALJ’s decision.
B.

The Credibility Finding
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In his second statement of error, Plaintiff argues that the
reasons cited by the ALJ in deciding to give less than full
credibility to Plaintiff’s subjective report of disabling
symptoms is not supported by substantial evidence.

He argues

that the fact that he continued to smoke after being diagnosed
with COPD does not adversely reflect on his credibility,
especially given his significant effort to reduce his smoking and
the fact that smoking is an addiction.

He then asserts that the

other reasons cited by the ALJ are simply “minor inconsistencies”
representing an attempt by the ALJ to “find any reason to make
the facts fit her findings.”

Doc. 13, at 13.

Lastly, he faults

the ALJ for failing to explain how the objective medical evidence
conflicted with his testimony.

In response, the Commissioner

argues that the medical evidence did not support Plaintiff’s
complaints and that the inconsistencies noted in the ALJ’s
decision were properly used to judge Plaintiff’s credibility.
Evaluation of a claimant's subjective reports of disabling
pain is subject to a two-part analysis.

First, the Commissioner

should determine if there is objective medical evidence which
confirms the presence of disabling pain.

If not (and there

frequently is not, given that pain is difficult to measure or
quantify, and is experienced differently even by persons with the
same underlying condition), the Commissioner should determine if
the claimant suffers from an objectivelyestablished medical condition of sufficient severity to permit a
reasonable inference to be drawn that the disabling pain actually
exists.

See Duncan v. Secretary of H.H.S., 801 F.2d 847, 853

(6th Cir. 1986).

This procedure is reflected in 20 C.F.R.

§404.1529(a).
It is important to note that these inquiries are to be
made separately, and that if there is objective evidence of a
sufficiently severe underlying condition, a claimant can prove
the existence of disabling pain due to that condition through
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other evidence even if the medical evidence is not helpful in
establishing the extent of the claimant's pain.
Bowen, 35 F.3d 1027 (6th Cir. 1994).

Felisky v.

Thus, the Commissioner is

not permitted to reject allegations of disabling symptoms,
including pain, solely because objective medical evidence is
lacking, but 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.

20 C.F.R. §404.1529(c)(3).

The

Commissioner should also give appropriate weight to the opinion
of a long-term treating physician as to whether the claimant is
accurately reporting or exaggerating the extent to which
disabling symptoms exist.

Felisky, 35 F.3d at 1040.

If the

Commissioner summarily rejects the claimant's testimony
concerning pain without considering these matters, reversal or
remand may be warranted.
The ALJ followed the correct analytical path here,
concluding, first, that the objective medical evidence did not
“substantiate the severity of the pain and symptoms and degree of
functional limitations alleged by the claimant.”

(Tr. 27).

Contrary to Plaintiff’s assertion, the ALJ adequately explained
this conclusion, noting that although the record documented that
Plaintiff suffered from COPD, tobacco use, degenerative disc
disease, a depressive disorder, and PTSD, the evidence as to each
of these conditions failed to show that they were as severe as
Plaintiff claimed.

(Tr. 28-30).

The findings cited by the ALJ

provide substantial support for her conclusion that the medical
evidence painted a different picture of the severity of
Plaintiff’s conditions than the way his testimony described them.
The ALJ also considered other factors, as required by the
applicable regulation and ruling (which, in this case, was SSR
96-7p).

That ruling states that an ALJ must consider the “entire
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case record, including the objective medical evidence, the
individual's own statements about symptoms, statements and other
information provided by treating or examining physicians or
psychologists and other persons about the symptoms and how they
affect the individual, and any other relevant evidence in the
case record” and cautions that “[a]n individual's statements
about the intensity and persistence of pain or other symptoms or
about the effect the symptoms have on his or her ability to work
may not be disregarded solely because they are not substantiated
by objective medical evidence.”

The other evidence cited by the

ALJ included statements made by Plaintiff that his inability to
find work might not have been related to his claimed disability
(Tr. 31), his inconsistent statements concerning why he lost one
of his jobs, and the fact that he denied, at one point, having
panic attacks. Id. These types of statements are not properly
characterized as “minor” because they go to the very issue of why
Plaintiff was not working and how severe his symptoms actually
were. The Court finds that these inconsistencies, which are
present in the record, also support the ALJ’s credibility
finding.
It is important to keep in mind that “[i]t is ... for the
ALJ, and not the reviewing court, to evaluate the credibility of
witnesses, including that of the claimant.” Rogers v. Comm'r of
Social Security, 486 F.3d 234, 247 (6th Cir. 2007). A claimant
may “ask[ ] the Court to reweigh the evidence, give her the
benefit of the doubt to the extent that these facts may weigh in
her favor and then advance a different view;” but that would not
be proper because “the Court is charged with determining the
sufficiency of the evidence, not its weight.” Thomas v. Comm'r
of Social Security, 2014 WL 2114567, *16 (N.D. Ohio May 20,
2014). Under these deferential standards, the Court finds no
error in the way in which the ALJ evaluated Plaintiff's
credibility.
VII. Decision

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Based on the above discussion, Plaintiff’s statement of
errors (Doc. 13) is overruled.

The Court affirms the

Commissioner’s decision and directs the Clerk to enter judgment
in favor of the Defendant.
/s/ Terence P. Kemp
United States Magistrate Judge

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