Barncord v. Commissioner of Social Security

Filing 11

REPORT AND RECOMMENDATION: Magistrate Judge RECOMMENDS that Plaintiff's Statement of Errors be OVERRULED and that judgment be entered in favor of Defendant. Objections to R&R due by 7/14/2017. Signed by Magistrate Judge Kimberly A. Jolson on 6/30/2017. (ew)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
RICHARD BRUCE BARNCORD, JR.,
Plaintiff,
Civil Action 2:16-cv-389
JUDGE JAMES L. GRAHAM
Magistrate Judge Kimberly A. Jolson

vs.

COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
REPORT AND RECOMMENDATION
Plaintiff, Richard Bruce Barncord, brings this action under 42 U.S.C. § 405(g) seeking
review of a final decision of the Commissioner of Social Security (“Commissioner”) denying his
applications for disability insurance benefits (“DIB”) and supplemental security income (“SSI”).
For the reasons that follow, it is RECOMMENDED that the Court OVERRULE Plaintiff’s
Statement of Errors and AFFIRM the Commissioner’s decision.
I.

BACKGROUND
Plaintiff applied for benefits in January 2013, alleging disability since November 1, 2012,

due to congestive heart failure. (Doc. 8, Tr. 299-301, 302-07, 325). Plaintiff’s last-insured date
is December 31, 2017. (Id., Tr. 22).
After initial administrative denials of Plaintiff’s claims, an Administrative Law Judge
(“the ALJ”) heard his case on February 3, 2015. (Id., Tr. 37-80). On March 9, 2015, the ALJ
issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security

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Act. (Id., Tr. 20-31). On March 3, 2016, the Appeals Council denied Plaintiff’s request for
review and adopted the ALJ’s decision as the Commissioner’s final decision. (Id., Tr. 1-6).
Plaintiff filed this case on May 2, 2016, and the Commissioner filed the administrative
record on July 18, 2016. (Doc. 8). Plaintiff filed a Statement of Specific Errors on August 31,
2016 (Doc. 9), and the Commissioner responded on October 17, 2016. (Doc. 10). Plaintiff did
not file a reply.
A. Personal Background
Plaintiff was born in May 1972 (Doc. 8, Tr. 299, 322), and he was 40 years old on the
alleged onset date of disability. (Id., Tr. 37). He has a high school education (Id., Tr. 326), and
work experience as an account manager, a restaurant manager, and an auto parts sales person.
(Id.).
B. Testimony at the Administrative Hearing
Plaintiff testified at the February 3, 2015 administrative hearing that he lives in a house
with six steps to enter which he uses twice a day. (Id., Tr. 45-46). He has a driver’s license and
at the time of the hearing was driving “[a] couple days a week.” (Id., Tr. 46). At the time of the
hearing, Plaintiff testified that he smoked a pack of cigarettes a week. (Id., Tr. 48-49). He “cut
back considerably” after his “last major episode” involving his heart in December 2013. (Id.).
He tried applying for unemployment benefits in 2012 but was denied because he voluntarily left
an employable job. (Id., Tr. 51). During the time he was trying to collect unemployment, he
applied for office-type work. (Id., Tr. 52).
Plaintiff testified that, of all his ailments, his fatigue, restlessness and chest pain most
interfere with his ability to work.

(Id., Tr. 58).

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Plaintiff also testified to suffering from

depression and anxiety. (Id., Tr. 59). He did not allege any side effects from his current
medications, which include aspirin, Plavix, medication for cholesterol and another “to help
prevent a future heart attack.” (Id., Tr. 60). Plaintiff can take care of his own personal hygiene
and dress himself. (Id., Tr. 60-61). He does not cook, but uses the microwave and makes
sandwiches; his wife grocery shops and he sometimes goes to the local convenience store a
couple of blocks away to get lunch meat or bread; he can empty the top rack of the dishwasher
but not the bottom; he does no laundry and does not make his bed. (Id., Tr. 62). He does not
sweep or vacuum because he “get[s] winded and sweat[s] profusely.” (Id., Tr. 63).
Plaintiff testified he gets pains in his back due to a blockage in his heart. (Id., Tr. 65).
Plaintiff also testified that he experienced shortness of breath walking from his kitchen to the
living room. (Id., Tr. 67). During the hearing, Plaintiff estimated that he could walk for no more
than a block; that he could stand for fifteen to twenty minutes before feeling “drained”; and that
he could lift no more than two pounds without getting tired. (Id., Tr. 67-68). Plaintiff also
testified that he experiences shoulder pain while sitting. (Id., Tr. 68).
The vocational expert (“the VE”) testified that a hypothetical person of similar age and
education as Plaintiff with a limitation of sedentary exertional work could not perform Plaintiff’s
past job, but could perform other jobs available in the national economy such as an addresser,
document preparer, or automatic grinder machine operator.

(Id., Tr. 75-77).

The VE

additionally testified that if the employee would be off task ten percent of the time, there would
be no sustainable substantially gainful employment available. (Id., Tr. 77).

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C. Relevant Medical Evidence
Plaintiff presented to the emergency room at Belmont Community Hospital for chest pain
radiating to his back and neck on December 16, 2012. (Doc. 8, Tr. 402). It was noted he had
significant history of cardiac impairments with previous insertion of an automatic implantable
cardiac defibrillator and he had not been taking any of his medications except aspirin “for a long
time.” (Id., Tr. 402). It was also noted that Plaintiff smoked cigarettes every day and declined
tobacco cessation education. (Id., Tr. 403). Since nitroglycerin did not improve his pain (Id., Tr.
404-07), Plaintiff was transferred to Wheeling Hospital and underwent emergency cardiac
catheterization, as well as the placement of five stents, performed by John Wurtzbacher, M.D.
(Id., Tr. 414-15). He was discharged upon stable condition two days later with the diagnoses of
acute inferior wall myocardial infarction with successful emergency angioplasty and stenting,
residual high grade disease of left anterior descending artery and circumflex obtuse marginal,
history of prior myocardial infarction (“MI”) and ischemic cardiomyopathy, dyslipidemia, and
chronic tobacco use. (Id., Tr. 414).
Plaintiff followed-up with Dr. Wurtzbacher on January 14, 2013. (Id., Tr. 473). Plaintiff
complained of chest pressure in response to low level physical activity—even as little as short
distance walking with associated dyspnea. He also had occasional palpitations. Dr. Wurtzbacher
diagnosed class III angina pectoris. Dr. Wurtzbacher noted a plan to proceed with angioplasty
and stenting. (Id., Tr. 473).
Following this visit, Dr. Wurtzbacher completed a Cardiac Impairment Questionnaire
(Id., Tr. 465-70) in which he listed clinical findings, including chest pain, shortness of breath,
and fatigue. (Id., Tr. 465). Dr. Wurtzbacher also cited the results of a cardiac catheterization

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that supported his assessment. (Id., Tr. 466). Plaintiff’s primary symptoms were chest pressure,
dyspnea on exertion, and palpitations and are precipitated by physical activity, including walking
200 feet. (Id., Tr. 466-67). Dr. Wurtzbacher listed Plaintiff’s prognosis as “guarded.” (Id., Tr.
465). According to Dr. Wurtzbacher, Plaintiff is able to sit 8 hours a day, but stand/walk only 1
hour a day; could occasionally lift and carry 10 pounds, but never more. (Id., Tr. 467-68). Dr.
Wurtzbacher checked boxes noting that Plaintiff has good days and bad days and that he is not a
malingerer. (Id.).
On January 18, 2013, Plaintiff underwent elective percutaneous intervention of
significant stenosis in the left anterior descending artery and obtuse marginal branch of the left
circumflex coronary artery. (Id., Tr. 448-49). On February 4, 2013, Plaintiff had an echodoppler evaluation that revealed moderate to severe reduction in left ventricular systolic function
based on the prior anterior myocardial infarction, moderate to severe impairment of left
ventricular systolic function, and an ejection fraction of 30%. (Id., Tr. 459).
When seen for follow-up on April 1, 2013, Plaintiff complained of substernal burning
radiating up to the back of his throat with walking 1 to 2 blocks. Plaintiff noted that these
symptoms were not progressing—they vanish very quickly after he stops walking. Plaintiff also
reported that he cut down to smoking 4 cigarettes per day. Dr. Wurtzbacher assessed that
clinically, Plaintiff was “getting along reasonably well. He has had continued stable angina at a
class 2-3 level.” Dr. Wurtzbacher increased his medication. (Id., Tr. 472).
When seen on July 25, 2013, seven months status post-acute MI and angioplasty and
stenting, Dr. Wurtzbacher noted Plaintiff has advanced ischemic heart disease with an ejection

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fraction of 30%. Plaintiff reported dyspnea and chest pain with a half block of incline. (Id., Tr.
519).
On October 2, 2013, Plaintiff underwent left heart catheterization, coronary angiography,
left ventricular function studies, and percutaneous drug-eluting stent placement. (Id., Tr. 783).
Upon discharge the following day, Dr. Wurtzbacher noted Plaintiff “received an excellent
angiographic result. He is now symptom-free with a normal heart examination.” (Id.).
By November 6, 2013, Plaintiff reported being “completely pain free.” He was down to
3 cigarettes per day.

Dr. Wurtzbacher reported Plaintiff was clinically doing well.

Dr.

Wurtzbacher recommended cutting out other forms of starch if he cannot correct his addiction to
Mountain Dew. (Id., Tr. 553).
On May 22, 2014, Plaintiff reported increased shortness of breath and more angina than
usual with little physical activity. Dr. Wurtzbacher increased his medication dosage. (Id., Tr.
552).
On January 12, 2015, Dr. Wurtzbacher noted that Plaintiff had a history of multiple
coronary interventions with stent placement, a prior heart attack, an ejection fraction of 25% on
the most recent heart catheterization, and placement of an internal defibrillator. Dr. Wurtzbacher
opined that based on these findings, Plaintiff was unlikely to be able to sustain any job that
required standing and walking for 2 out of 8 hours in a work environment and lifting more than
10 pounds or greater.

He concluded that he believes that Plaintiff meets the criteria for

consideration of disability. (Id., Tr. 576).
Due to continued reported symptoms of throat burning and chest pressure (Id., Tr. 903),
Plaintiff underwent a cardiac catheterization on February 5, 2015, which revealed “severe

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multivessel coronary artery disease” with poor left ventricular function, 90% stenosis of the
major diagonal left anterior descending, 40-60% ostial and 40-50% mid-level stenosis of the left
anterior descending, and 35% stenosis of the first marginal circumflex. (Id., Tr. 904-05).
Dr. Wurtzbacher repeated his opinion on February 9, 2015 and on January 11, 2016. (Id.,
Tr. 907, 920).
Linda Hall, M.D., a state agency physician, reviewed Plaintiff’s records on June 18,
2013, and determined that Plaintiff can perform sedentary exertion, noting she was adopting the
residual functional capacity (“RFC”) findings from the prior ALJ decision of August 27, 2007,
based on Acquiescence Ruling 98-4. (Id., Tr. 162). Michael Lehv, M.D. reviewed the file upon
reconsideration on August 22, 2013 and concluded that the current file does have new and
material evidence since the August 2007 ALJ decision, which changes the ALJ’s RFC. Dr. Lehv
noted that since the prior ALJ hearing, Plaintiff had another MI, angioplasty, and stenting, which
further adds additional non-exertional limitations into his RFC. He further noted that “although
one could argue that clmnt’s diagnoses are unchanged from ALJ’s decision, they have
progressed quantitatively so non-adoption is reasonable. Additional restrictions have been added
to initial (the ALJ’s) RFC.”

(Id., Tr. 193).

Dr. Lehv also noted that according to Dr.

Wurtzbacher’s treating source statement, Plaintiff would not meet the 4.02B requirements
despite his ejection fraction of 30%. (Id.).
D. The Administrative Decision
On March 9, 2015, the ALJ issued an unfavorable decision. (Id., Tr. 20-31). The ALJ
determined that Plaintiff had the following severe impairments: coronary artery disease, status
post stent implantation; congestive heart failure; ischemic cardiomyopathy status post

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defibrillator implantation; lumbar spine spondylosis; obesity; anxiety disorder; affective
disorder; and somatoform disorder. (Id., Tr. 23). The ALJ found that he did not, however, meet
the requirements of an impairment listed in 20 CFR Subpart P, Appendix 1. (Id.).
The ALJ ultimately found that Plaintiff had the RFC to perform sedentary work.
Specifically, Plaintiff must be afforded the opportunity to alternate between sitting and standing
positions for up to two minutes at a time at fifteen minute intervals without going off task; may
occasionally climb ramps or stairs but never climb ladders, ropes or scaffolds; may occasionally
balance and stoop but never kneel, crouch, or crawl; should avoid all exposure to extreme cold
and heat, and avoid concentrated exposure to wetness, humidity, irritants such as fumes, odors,
dust, poorly ventilated areas and chemicals; and is limited to simple, routine and repetitive tasks,
requiring only simple decisions, with no fast-paced production requirements and few workplace
changes; and should have no interaction with the general public and only occasional interaction
with co-workers and supervisors. (Id., Tr. 26). The ALJ found that based on the VE testimony,
Plaintiff is unable to perform his past relevant work as an account manager, restaurant manager,
and auto parts sales person. (Id., Tr. 29). The ALJ next found that there are jobs that Plaintiff
can perform such as an addresser, document preparer, or automatic grinder machine operator,
which were not precluded despite his RFC finding. (Id., Tr. 30). He therefore concluded that
Plaintiff was not disabled under the Social Security Act. (Id., Tr. 31).
II.

STANDARD OF REVIEW
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.” Winn v.
Comm’r of Soc. Sec., 615 F. App’x 315, 320 (6th Cir. 2015); see 42 U.S.C. § 405(g).

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“[S]ubstantial evidence is defined as ‘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.’” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)
(quoting Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994)). The
Commissioner’s findings of fact must also be based upon the record as a whole. Harris v.
Heckler, 756 F.2d 431, 435 (6th Cir. 1985). To this end, the Court must “take into account
whatever in the record fairly detracts from [the] weight” of the Commissioner’s decision. Rhodes
v. Comm’r of Soc. Sec., No. 2:13-cv-1147, 2015 WL 4881574, at *2 (S.D. Ohio Aug. 17, 2015).
III.

DISCUSSION
On appeal, Plaintiff alleges that the ALJ erred by failing to give controlling weight to the

medical opinions of treating cardiologist, John Wurtzbacher, M.D., and by giving significant
weight to the medical opinions of state agency reviewing physicians, Linda Hall, M.D., and
Matthew Lehv, M.D. Plaintiff also contends that the ALJ failed to evaluate properly Plaintiff’s
subjective statements about the limiting effects of his impairments. (Doc. 9).
A. Substantial Evidence Supports the ALJ’s Decision Not to Defer to Plaintiff’s
Treating Source Opinions
Plaintiff argues the ALJ erred in failing to give controlling weight to the opinion of his
treating cardiologist, Dr. Wurtzbacher. (Doc. 9 at 8-12). Plaintiff maintains that the opinions of
Dr. Wurtzbacher are based on appropriate medical findings that are confirmed by longitudinal
treatment records and based on appropriate clinical and diagnostic techniques and are not
inconsistent with the other substantial evidence in the record. (Id.).
Social security regulations recognize several different types of medical sources: treating
physicians and psychologists, nontreating yet examining physicians and psychologists, and
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nontreating/record-reviewing physicians and psychologists. Gayheart v. Comm’r Social Sec.,
710 F.3d 365, 375 (6th Cir. 2013).
As a general matter, an opinion from a medical source who has examined a
claimant is given more weight than that from a source who has not performed an
examination (a “nonexamining source”), and an opinion from a medical source
who regularly treats the claimant (a “treating source”) is afforded more weight
than that from a source who has examined the claimant but does not have an
ongoing treatment relationship (a “nontreating source”). In other words, “[t]he
regulations provide progressively more rigorous tests for weighing opinions as the
ties between the source of the opinion and the individual become weaker.” Soc.
Sec. Rul. No. 96–6p, 1996 WL 374180, at *2 (Soc. Sec. Admin. July 2, 1996).
Gayheart, 710 F.3d at 375 (citations omitted). To effect this hierarchy, the Regulations adopt the
treating physician rule. The rule is straightforward. Treating-source opinions must be given
“controlling weight” if two conditions are met: (1) the opinion is “well supported by medically
acceptable clinical and laboratory diagnostic techniques” and (2) the opinion “is not inconsistent
with other substantial evidence in [a claimant’s] case record.” Gayheart, 710 F.3d at 376
(citation omitted); see Gentry, 741 F.3d at 723. If both conditions do not exist and the ALJ does
not give a treating source opinion controlling weight, the ALJ’s review must continue:
When the treating physician’s opinion is not controlling, the ALJ, in determining
how much weight is appropriate, must consider a host of factors, including the
length, frequency, nature, and extent of the treatment relationship; the
supportability and consistency of the physician’s conclusions; the specialization
of the physician; and any other relevant factors.
Rogers, 486 F.3d at 242 (citing Wilson, 378 F.3d at 544).
The ALJ assigned “little weight” to Dr. Wurtzbacher’s opinions, finding that Dr.
Wurtzbacher’s own treatment records and the other evidence of record show little objective
limitations when Plaintiff is compliant with medication. (Doc. 8, Tr. 29). The ALJ also gave
consideration to Dr. Wurtzbacher’s opinion that Plaintiff “meets the criteria for consideration of

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social security disability and supplemental income,” noting that while this is an issue reserved to
the commissioner, he gave it consideration as the opinion of a treating source. (Id.).
Plaintiff argues that Dr. Wurtzbacher’s opinions are well-supported by medically
accepted clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in the record. (Doc. 9 at 12). The Commissioner contends that “the ALJ
reasonably weighed the medical opinions at issue and evaluated Plaintiff’s statements about the
severity of his limitations, and cited substantial evidence supporting his findings.” (Doc. 10 at
4). The undersigned agrees. For example, a review of Dr. Wurtzbacher’s treatment notes show
Plaintiff’s heart problems were successfully treated with an angioplasty and implantation of a
defibrillator (Id., Tr. 414, 435, 578-87, 783), and that Plaintiff had mostly normal cardiovascular
and respiratory functioning thereafter. (Id., Tr. 414, 418, 435, 578-83, 754-55). In addition, Dr.
Wurtzbacher continually recommended that Plaintiff stop smoking. (Id., Tr. 414, 472, 654). On
a consistent basis, the record shows that Dr. Wurtzbacher reported that “everything was okay” or
Plaintiff was “doing well,” (Id., Tr. 553). Then, however, Plaintiff would stop taking his
medication and end up in an emergency room.

(See id., Tr. 754).

The ALJ reasonably

concluded that Dr. Wurtzbacher’s assessed limitations were more restrictive than supported by
his own treatment notes. (Id., Tr. 28-29).
Social Security regulations promise applicants, “We will always give good
reasons . . . for the weight we give your treating source’s opinions.” 20 C.F.R. §404.1527(c)(2);
see Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). The good-reasons
mandate is satisfied when the ALJ has provided “sufficient reasons for the weight given to the
treating source’s medical opinions, supported by the evidence in the case record, and must be

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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.” Wilson, 378 F.3d at 544
(quoting Soc. Sec. Ruling 96-2, 1996 WL 374188 at *5 (1996)).
The requirement of reason-giving exists, in part, to let claimants understand the
disposition of their cases, particularly in situations where a claimant knows that
his physician has deemed him disabled and therefore “might be especially
bewildered when told by an administrative bureaucracy that she is not, unless
some reason for the agency’s decision is supplied. The requirement also ensures
that the ALJ applies the treating physician rule and permits meaningful review of
the ALJ’s application of the rule.
Wilson, 378 F.3d at 544 (internal citation and quotation marks omitted).
In the present case, the ALJ’s explanation for discounting Dr. Wurtzbacher’s opinions
constituted sufficient detail to satisfy the good-reasons requirement. Considered in context, it is
sufficiently clear that the ALJ assigned little weight to Dr. Wurtzbacher’s opinions because they
were unsupported by his treatment notes and lacked the support of the objective evidence as a
whole.

(Id., Tr. 28-29).

Despite his treating relationship, the opinions Dr. Wurtzbacher

expressed did not have sufficient evidence to support their severity, and it was not error for the
ALJ to refuse to give them controlling weight.
Turning to the weight assigned to the state agency physicians, Plaintiff argues that the
ALJ erred by not applying the correct legal criteria to the opinions of Drs. Hall and Lehv, noting
that “[t]here is no authority that permits an ALJ to give greater weight to the opinions from nontreating, non-examining physicians who review a markedly undeveloped record and are not
specialists in a relevant area of medicine.” (Doc. 9 at 11-12). This argument lacks merit. The
ALJ assigned “significant” weight to both Drs. Hall’s and Lehv’s opinions finding, “[w]hile
these doctors did not have the opportunity to examine the claimant, their familiarity with the

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record evidence and expertise in this agency’s disability program lends their consistent
conclusions credibility. Although I have received additional evidence since the consultants
offered their opinions, objectively there is little evidence of any reduction in functioning.” (Doc.
8, Tr. 29). Given the shortcomings of Dr. Wurtzbacher’s opinions, discussed above, and the
weight the ALJ reasonably placed on Drs. Hall’s and Lehv’s opinions, it was not error for the
ALJ to rely on the consistency between their opinions. In addition, Dr. Lehv also weighed Dr.
Wurtzbacher’s opinions and also found that they should be given “little weight” because they
were “not fully consistent with the objective [medical evidence] on file.” (Id., Tr. 191). The
Sixth Circuit “generally defers to an ALJ’s decision to give more weight to the opinion of one
physician than another where . . . the ALJ’s decision is supported by evidence that the rejected
opinion is inconsistent with other medical evidence in the record.” Cox v. Comm’r of Soc. Sec.,
295 F. App’x 27, 35 (6th Cir. 2008).
B. Credibility and Consistency
Plaintiff contends that the ALJ erred by finding him not credible based upon his
purported non-compliance with treatment. (Doc. 9 at 13-16). An ALJ “is not required to accept
a claimant’s subjective complaints and may consider the credibility of a claimant when making a
determination of disability.” Jones v. Comm’r of Soc. Sec., 336 F.3d at 469, 476 (6th Cir. 2003)
(citing Walters, 127 F.3d at 531). An ALJ’s credibility determinations about a claimant are to be
given great weight. However, they must also be supported by substantial evidence. Cruse v.
Comm’r of Soc. Sec., 502 F.3d 532, 542 (6th Cir. 2007). “Discounting credibility to a certain
degree is appropriate where an ALJ finds contradictions among medical reports, claimant’s

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testimony, and other evidence.” Walters, 127 F.3d at 531 (citing Bradley v. Sec’y of Health &
Human Servs., 862 F.2d 1224, 1227 (6th Cir. 1988)).
The Commissioner responds to Plaintiff’s argument by citing SSR 16-3p, 2016 SSR
LEXIS 4 (effective March 28, 2016). That Regulation took effect roughly a year after the ALJ
issued his decision. (See Tr. 31). Although neither side expressly briefed the issue, they seem to
disagree on which law applies. (Compare Doc. 9 at 13 n.25 with Doc. 10 at 15-16).
The text of SSR 16-3p, 2016 SSR LEXIS 4 does not indicate the SSA’s intent to apply it
retroactively, and the Sixth Circuit has noted that “[t]he [Social Security] Act does not generally
give the SSA the power to promulgate retroactive regulations.” Combs v. Comm’r of Soc. Sec.,
459 F.3d 640, 642 (6th Cir. 2006). Further, “[r]etroactivity is not favored in the law. Thus
congressional enactments and administrative rules will not be construed to have retroactive effect
unless their language requires this result.” See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204,
209, 109 S. Ct. 468, 102 L. Ed. 2d 493 (1988). Based on this law, some decisions within the
Sixth Circuit have held that SSR 16-3p does not apply retroactively. See, e.g., Cameron v.
Colvin, No. 1:15-CV-169, 2016 U.S. Dist. LEXIS 100920, 2016 WL 4094884 (E.D. Tenn. Aug.
2, 2016). However, other courts within the Circuit have concluded that because SSR 16-3p
simply “clarified” the process for evaluating symptoms, the change does not raise concerns. See,
e.g., Patterson v. Colvin, 2016 U.S. Dist. LEXIS 181599 * (W.D. Tenn. Dec. 16, 2016) (“The
court finds that SSR 16-3p, 2016 SSR LEXIS 4 simply “clarifies” the SSA’s process for
evaluating symptoms, and thus its application in appeals of final decisions of the Commissioner
rendered before the ruling was issued does not result in the type of retroactivity disfavored by

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cases such as Bowen. Patterson v. Colvin, 2016 U.S. Dist. LEXIS 181599 * (W.D. Tenn. Dec.
16, 2016).
Here, the Court concludes that it need not resolve whether SSR 16-3p applies
retroactively because under either regulation, the ALJ did not err. Social Security Ruling 96-7p
(“SSR 96-7p”)—the law in effect and used by the ALJ—provides:
[T]he individual’s statements may be less credible if the level or frequency of
treatment is inconsistent with the level of complaints, or if the medical reports or
records show that the individual is not following the treatment as prescribed and
there are no good reasons for this failure. However, the adjudicator must not draw
any inferences about an individual’s symptoms and their functional effects from a
failure to seek or pursue regular medical treatment without first considering any
explanations that the individual may provide, or other information in the case
record, that may explain infrequent or irregular medical visits or failure to seek
medical treatment. The adjudicator may need to recontact the individual or
question the individual at the administrative proceeding in order to determine
whether there are good reasons the individual does not seek medical treatment or
does not pursue treatment in a consistent manner
SSR 96-7p.
The new regulation, SSR 16-3p, in relevant part, provides:
If an individual’s statements about the intensity, persistence, and limiting effects
of symptoms are consistent with the objective medical evidence and the other
evidence of record, we will determine that the individual’s symptoms are more
likely to reduce his or her capacities to perform work-related activities . . . . In
contrast, if an individual’s statements about the intensity, persistence, and limiting
effects of symptoms are inconsistent with the objective medical evidence and the
other evidence, we will determine that the individual’s symptoms are less likely to
reduce his or her capacities to perform work-related activities . . . .
SSR 16-3p, 2016 SSR LEXIS 4, 2016 WL 1119029, at *7. Rather than focusing on credibility,
the new ruling focuses on consistency. Viewed under either lens—credibility or consistency—
the Court finds that the ALJ analyzed the record appropriately.

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The ALJ found that Plaintiff had medically determinable impairments.

The ALJ

determined, however, that after considering the intensity, persistence, and limiting effect of
Plaintiff’s impairments, he was capable of a reduced range of sedentary work. (Id., Tr. 26). The
ALJ thus found that Plaintiff’s “medically determinable impairments could reasonably be
expected to cause the alleged symptoms[, but] the claimant’s statements concerning the intensity,
persistence and limiting effects of these symptoms are not credible.” (Id., Tr. 27). In coming to
this conclusion, the ALJ cited treatment notes that showed Plaintiff had mostly normal
cardiovascular and respiratory functioning after an angioplasty and implantation of a defibrillator.
(Doc. 8, Tr. 28 (citing id., Tr. 414, 418, 435, 578-83, 754-55)). The ALJ also considered how
Plaintiff produced written testimony endorsing adverse side effects from his medication, but
contradicted himself at the hearing in testifying that he had no side effects or problems with any of

his medications. (Id., Tr. 27, (citing id., Tr. 60, 347, 354). Further, the ALJ noted how Plaintiff
exacerbated his symptomology by being noncompliant with his medication regimen, although he
could effectively manage his symptoms with medication (id., Tr. 28, 578-83, 754-55), and
continuing to smoke despite his heart problems. (Id., Tr. 28 (citing id., Tr. 48-49, 414, 654)).
Plaintiff’s argument challenging this conclusion essentially makes two points. First,
Plaintiff claims that the ALJ relied on “unspecified” objective evidence to doubt Plaintiff’s
credibility. And, second, Plaintiff claims that the ALJ improperly considered Plaintiff’s noncompliance with treatment.
As to his first argument, the Court easily rejects it. The ALJ articulated his finding on
Plaintiff’s statements about the severity of his limitations and cited substantial evidence to

16

support his finding throughout his decision, including clinical evidence, medical opinions,
evidence of Plaintiff’s daily activities, and Plaintiff’s testimony.
The Court also rejects Plaintiff’s second argument in which he claims that the ALJ
improperly considered Plaintiff’s noncompliance with treatment. The first part of Plaintiff’s
argument on this point is that the ALJ should have considered Plaintiff’s inability to afford his
medication. The trouble with Plaintiff’s argument is that Plaintiff himself noted that he failed to
take his medication because he “felt good”—not only because he could not afford it. (See, e.g.,
id., Tr. 28). The ALJ thus did not err in considering Plaintiff’s choice not to take his medication
at different times during the alleged period of disability.
Plaintiff next claims that the ALJ improperly considered his smoking history. While this
Court acknowledges the addictiveness of nicotine, the Sixth Circuit has held that it is proper for
an ALJ to consider a smoking habit in the context of credibility and in determining whether such
a lifestyle habit is consistent with the allegations of a disabling condition. Sias v. Sec’y of Health
and Human Servs., 861 F.2d 475, 480 (6th Cir. 1988); see also Anderson v. Astrue, No. 2:07CV-140, 2009 WL 32935, at *9 (E.D. Tenn. 2009); Van Heck v.Comm’r of Soc. Sec., No. 0615233, 2008 WL 1808320, at *13 (E.D. Mich. Apr. 21, 2008). Thus, the Court is reluctant to
rely on the Seventh Circuit case Plaintiff cites. (See Doc. 9 (citing Shramek v. Apfel, 226 F.3d 809
(7th Cir. 2000)). Moreover, here, the ALJ relied on a medical record noting that Plaintiff had

been “strongly urged” to stop smoking but had refused smoking cessation aids. (Id., Tr. 28
(citing id., Tr. 414)). Accordingly, and considering the context, the Court finds that the ALJ did
not improperly consider Plaintiff’s smoking.

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Based upon the foregoing, the Court finds that the ALJ’s assessment of Plaintiff’s
credibility was based on consideration of the entire record and is supported by substantial
evidence.
IV.

RECOMMENDED DISPOSITION
For the reasons stated, it is RECOMMENDED that the Plaintiff’s statement of errors be

OVERRULED and that judgment be entered in favor of Defendant.
V.

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 finding or recommendations to which objection is made, together with
supporting authority for the objection(s). A District Judge of this Court shall make a de novo
determination of those portions of the Report or specific proposed findings or recommendations
to which objection is made. Upon proper objection, a District 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).
IT IS SO ORDERED.

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Date: June 30, 2017

/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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