Barncord v. Commissioner of Social Security

Filing 13

ORDER ADOPTING and AFFIRMING the REPORT AND RECOMMENDATION 11 in that the decision of the Commissioner is AFFIRMED and this action is DISMISSED. Signed by Judge James L. Graham on 9/19/17. (sem)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Richard Bruce Barncord, Jr.,
Plaintiff,
v.

Case No. 2:16-cv-389

Commissioner of
Social Security,
Defendant.
ORDER
Plaintiff Richard Bruce Barncord, Jr., 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

application for disability insurance benefits and supplemental
security

income.

In

his

March

9,

2015,

decision,

the

administrative law judge (“ALJ”) found that plaintiff had severe
impairments consisting of coronary artery disease, status post
stent

implantation;

congestive

heart

failure;

ischemic

cardiomyopathy status post defibrillator implantation; lumbar spine
spondylosis; obesity; anxiety disorder; affective disorder, and
somatoform disorder.

PAGEID 56.

The ALJ concluded that plaintiff

has the residual functional capacity (“RFC”) to perform sedentary
work, with the additional restrictions that
the claimant 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.
PAGEID 59. Upon consideration of plaintiff’s RFC and the testimony
of a vocational expert, the ALJ concluded that there are jobs which
plaintiff can perform, and that plaintiff is not disabled.

PAGEID

63-64.
This

matter

is

before

the

court

for

consideration

of

plaintiff’s July 14, 2017, objections to the June 30, 2017, 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,

2

however, “‘a decision of the Commissioner will not be upheld where
the [Commissioner] fails to follow its own regulations and where
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. ALJ’s Consideration of Opinion Evidence
Plaintiff objects to the findings of the magistrate judge that
the ALJ did not err in failing to give controlling weight to the
opinions

of

plaintiff’s

treating

cardiologist,

Dr.

John

Wurtzbacher, and in giving significant weight to the findings of
the state agency medical consultants, Linda Hall, M.D. and Matthew
Lehv, M.D.
The court agrees with the conclusion of the magistrate judge
that the ALJ complied with the requirements for consideration of
the opinions of Dr. Wurtzbacher, a treating physician.

Under SSR

96-2p, 1996 WL 374188 (July 2, 1996), treating-source opinions must
be given “controlling weight” if: (1) the opinion “is wellsupported

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); SSR 96-2p, 1996 WL 374188 at *2-3.

The

Commissioner is required to provide “good reasons” for discounting
the weight given to a treating-source opinion.
If

the

Commissioner

does

not

give

a

§404.1527(c)(2).

treating-source

opinion

controlling weight, then the opinion is weighed based on factors
such as the length, frequency, nature, and extent of the treatment

3

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). However, a formulaic recitation of factors is
not required.

See Friend v. Comm’r of Soc. Sec., 375 F.App’x 543,

551 (6th Cir. 2010).
The

ALJ’s

explanation

as

to

why

he

discounted

Dr.

Wurtzbacher’s opinions was sufficient to satisfy the good-reasons
requirement. The ALJ considered a cardiac impairment questionnaire
completed by Dr. Wurtzbacher following plaintiff’s office visit on
January 14, 2013.

See PAGEID 62, citing Exhibit B6F.

In that

evaluation, Dr. Wurtzbacher indicated that plaintiff could sit for
eight hours and stand or walk for one hour in an eight-hour day,
that he could lift or carry up to ten pounds occasionally, and that
he should not push, pull, kneel, bend or stoop.

PAGEID 421-423.

He opined that plaintiff’s symptoms were precipitated by walking
two hundred or more feet. PAGEID 420. Dr. Wurtzbacher stated that
plaintiff would likely be absent from work less than one day per
month, and that although his symptoms would interfere with his
attention and concentration periodically, he was capable of a low
stress job.

PAGEID 422.

In many respects, these limitations were incorporated into the
RFC, which placed plaintiff in the sedentary work level, with
additional physical restrictions.

Sedentary work is defined as

work involving lifting no more than ten pounds at a time and
occasionally lifting or carrying light-weight articles.

20 C.F.R.

§220.132. By its nature, such a position is primarily performed in

4

a seated position and entails no significant stooping.
1983 WL 31251, *5 (1983).

SSR 83-10,

Jobs are sedentary if walking and

standing are required occasionally, that is, no more than two hours
of standing or walking in an eight-hour workday.

Id.

The RFC

provided that plaintiff could occasionally climb ramps or stairs
and balance and stoop, but could never climb ladders, ropes, or
scaffolds, and could never kneel, crouch or crawl. PAGEID 59. The
RFC also limited plaintiff to low-stress jobs involving simple,
routine and repetitive tasks requiring only simple decisions, with
no

fast-paced

interaction

production

with

the

requirements

general

and

public,

few

and

interaction with co-workers and supervisors.

only

changes,

no

occasional

PAGEID 59.

Dr. Wurtzbacher also submitted letters dated January 12, 2015,
see Exhibit B13F, and February 9, 2015, see Exhibit B18F, in which
he

described

plaintiff’s

history

of

coronary

procedures

and

expressed the opinion that plaintiff would qualify for disability.
Although noting that the decision of whether plaintiff met the
criteria for consideration for social security disability is an
issue reserved to the Commissioner, the ALJ gave Dr. Wurtzbacher’s
opinion “consideration as the opinion of a treating source.”
PAGEID 62.

The ALJ gave Dr. Wurtzbacher’s assessments “little

weight as the evidence, including Dr. Wurtzbacher’s own treatment
records, shows little objective limitation when the claimant is
compliant with medication.”
The

ALJ’s

reasoning

PAGEID 62.
for

giving

little

weight

to

Dr.

Wurtzbacher’s opinions can also be gleaned from his discussion of
plaintiff’s medical records.

The ALJ noted that: plaintiff, who

was born in 1972, had a heart attack at a young age and again in
2012,

and

continues

to

experience
5

angina;

plaintiff

was

successfully treated with angioplasty and stents in 2012; plaintiff
had additional elective angioplasty in 2013, after which he was
noted as having no chest pain or shortness of breath; in October,
2013, plaintiff went to the emergency room with complaints of chest
pain, where he reported that, after being told by Dr. Wurtzbacher
two months before that everything was okay, he stopped taking his
medication because he felt good; and plaintiff was implanted with
a defibrillator, with no problems being noted with this device at
checkups in February and August of 2014.
In

concluding

that

the

ALJ

PAGEID 61.

reasonably

found

that

the

limitations assessed by Dr. Wurtzbacher were not supported by his
own treatment notes, the magistrate judge cited treatment notes
from

Dr.

problems

Wurtzbacher
were

which

successfully

indicated
treated

that

with

plaintiff’s

angioplasty

heart

and

the

defibrillator, and that Dr. Wurtzbacher consistently reported that
plaintiff was doing well.

See Doc. 11, p. 11.

The magistrate

judge further observed that Dr. Lehv, a state agency consultant,
also found that Dr. Wurtzbacher’s opinions should be given little
weight because they were not fully consistent with the objective
medical evidence.

See Doc. 11, p. 13; Exhibit B8A, PAGEID 230.

The magistrate judge also correctly determined that the ALJ
did not err in assigning significant weight to the findings of the
state agency consultants, Drs. Hall and Lehv.

Although the

opinions of a treating source are generally entitled to more weight
than the opinion of a non-examining source such as state agency
consultants, Gayheart, 710 F.3d at 375, this is not a per se rule.
See Norris v. Comm’r of Soc. Sec., 461 F.App’x 433, 438-40 (6th
Cir. 2012); SSR 96-6p, 1996 WL 374180 at *3 (July 2, 1996).

6

Further, an ALJ can rely on a non-examining source who did not have
the opportunity to review later medical records, as long as there
is some indication in the decision that the ALJ considered the new
evidence before giving weight to an opinion that is not based on a
review of a complete case record.

Blakley v. Comm’r of Soc. Sec.,

581 F.3d 399, 409 (6th Cir. 2009).
Here,

the

ALJ

concluded

that

although

the

state

agency

physicians did not examine plaintiff, “their familiarity with the
record evidence and expertise in this agency’s disability program
lends their consistent conclusions credibility.”

PAGEID 62.

The

ALJ also stated, “Although I have received additional evidence
since the consultants offered their opinions, objectively there is
little evidence of any reduction in functioning.”

PAGEID 62.

The

ALJ provided sufficient reasons for the weight assigned to the
opinions of the state agency consultants.
B. ALJ’s Credibility Determinations
Plaintiff also objects to the ALJ’s decision to discount
plaintiff’s credibility due to plaintiff’s noncompliance with the
treatment recommendations of his physicians, including plaintiff’s
failure to take his medications and to quit smoking.

At the time

of the ALJ’s decision, SSR 96-7p, 1996 WL 374186 (July 2, 1996),
governed the ALJ’s analysis of the credibility of the claimant’s
statements concerning his or her symptoms.

That ruling was later

superseded by SSR 16-3p, 2016 WL 1119029 (Mar. 16, 2016), which
eliminated the use of the term “credibility” in order to “clarify
that subjective symptom evaluation is not an examination of an
individual’s character.”

SSR 16-3p, 2016 WL 1119029 at *1.

The

new ruling directs the ALJ to look at whether the claimant’s
statements about the intensity, persistence and limiting effects of
7

symptoms are consistent with the objective medical evidence and
other evidence of record.

Id., 2016 WL 1119029 at *7.

The Sixth

Circuit has not decided whether the new ruling can be applied
retroactively.

See Dooley v. Comm’r of Soc. Sec., 656 F. App’x

113, 119, n. 1 (6th Cir. 2016).

The magistrate judge did not reach

this issue, as she concluded that the ALJ did not err under either
ruling.

This court agrees.

Both rulings permit the ALJ to consider evidence showing that
the claimant is not following the prescribed treatment in weighing
the claimant’s claims of allegedly disabling symptoms.

SSR 96-7p

states that “the individual’s statements may be less credible ...
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.”

SSR 96-7p, 1996 WL 374186 at *7.

The new

ruling states that “if the individual fails to follow prescribed
treatment that might improve symptoms, we may find the alleged
intensity

and

persistence

of

an

individual’s

symptoms

are

inconsistent with the overall evidence of record.” SSR 16-3p, 2016
WL 1119029 at *8.

The ALJ found that “[t]he objective medical

evidence and the claimant’s subjective reports throughout the
medical records are not consistent with his extreme allegations
made in this case.”

PAGEID 61.

The ALJ further stated that

plaintiff “has demonstrated little concern for his health condition
as demonstrated by his continued smoking and lack of compliance.”
PAGEID 62.
In support of his conclusion that plaintiff was not compliant
in taking his medications, the ALJ noted that when plaintiff was
admitted to the hospital in December, 2012, he admitted that he had
not been taking his medications.
8

PAGEID 61, citing Exhibit B3F.

He also observed that when plaintiff went to the emergency room
complaining of chest pain in October, 2013, he admitted he had not
taken his medication for weeks beforehand and stated that he “felt
good.”

PAGEID 61, citing Exhibit B15F.

Plaintiff contends that the ALJ’s reliance on these reports
was erroneous because plaintiff was unable to afford his medication
due to lack of insurance.

The records of the December, 2012,

hospitalization include a statement by

plaintiff that stopped

taking his medications when he lost his insurance .
B3F, p. 3, PAGEID 368.

See Exhibit

However, there is no evidence as to the

cost of his medications, and plaintiff did not state that he
otherwise lacked the funds to purchase his medications.

Dr.

Wurtzbacher’s treatment note of January 14, 2013, explained that
plaintiff had lost his insurance, but that they were going forward
with angioplasty and stenting, and would try to get some extension
of the insurance.

Exhibit B4F, PAGEID 508.

The ALJ referred to

these exhibits in his decision, see PAGEID 61, and presumably was
aware of this evidence.
Even assuming that the ALJ erred in considering plaintiff’s
failure to take his medications in December of 2012, this was not
prejudicial, as the ALJ also relied on plaintiff’s failure to take
his medication in October, 2013.

There is no evidence that

plaintiff’s cessation of his medication in 2013 was due to a lack
of funds or insurance; rather, plaintiff stated that he “felt
good.”

See Exhibit B16F at 42, cited by the ALJ at PAGEID 61.

hospital

questionnaire

plaintiff

expressed

hospitalization.

dated
no

PAGEID 719.

October
financial

2,

2013,

concerns

indicated
about

The
that
this

At the hearing on February 3, 2015,

9

plaintiff testified that he had a medical card for doctors’ visits
and prescriptions.

See PAGEID 83.

He did not testify that he was

unable to afford prescription medication during the period of
alleged disability.

Because plaintiff was represented by counsel

at the hearing, the ALJ had no special duty to inquire further into
this matter.

See Culp v. Comm’r of Soc. Sec., 529 F.App’x 750, 751

(6th Cir. 2013).
The ALJ was also entitled to consider plaintiff’s failure to
heed the advice of his doctors to quit smoking.
of

Health

and

Human

Servs.,

861

F.2d

See Sias v. Sec’y

475,

480

(6th

Cir.

1988)(claimant’s failure to stop smoking was inconsistent with his
allegations

of

disabling

pain

and

limitation).

As

the

ALJ

indicated, plaintiff’s December, 2012, hospital records state that
“[t]his patient has been strongly urged to stop smoking.
not think that he needs smoking cessation aids.”

He does

PAGEID 61, 368.

The ALJ stated that as of October, 2013, plaintiff continued to
smoke, and “[m]ultiple healthcare providers have advised that if
the claimant continues to smoke and refuse[s] to comply with
treatment, he quite likely will die relative young.”

PAGEID 61,

citing Exhibit B15F. Plaintiff acknowledged at the hearing that he
had been told by his doctors to stop smoking because of his health
conditions.

PAGEID 82.

The ALJ did not err in considering plaintiff’s failure to
comply with his doctors’ treatment recommendations, and his reasons
for doing so are adequately outlined in his decision.
III. Conclusion
For the reasons stated above, the court concludes that the
Commissioner’s non-disability finding is supported by substantial

10

evidence.

The court overrules the plaintiff’s objections (Doc.

12), and adopts and affirms the magistrate judge’s report and
recommendation (Doc. 11).

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: September 19, 2017

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

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