Waters v. Commissioner of Social Security
OPINION AND ORDER: Plaintiff's Statement of Error is OVERRULED, and judgment is entered in favor of Defendant. Signed by Magistrate Judge Kimberly A. Jolson on 8/25/2017. (ew)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WILLIAM A. WATERS,
Civil Action 2:16-cv-742
Magistrate Judge Jolson
COMMISSIONER OF SOCIAL
OPINION AND ORDER
Plaintiff, William A. Waters, filed this action seeking review of a decision of the
Commissioner of Social Security (“Commissioner”) denying his application for Supplemental
Security Income. For the reasons that follow, Plaintiff’s Statement of Errors is OVERRULED,
and judgment shall be entered in favor of Defendant.
A. Prior Proceedings
Plaintiff filed for Supplemental Security Income on December 20, 2012, alleging
disability beginning on July 4, 2012, due to a heart attack, angina, high blood pressure, high
cholesterol, and gastroesophageal reflux disease. (See Doc. 15 at 1). His application was
denied initially on April 20, 2013, and upon reconsideration on July 23, 2013.
Administrative Law Judge Edmund E. Giorgione (the “ALJ”) held a hearing on November 25,
2014 (Tr. 11, PAGEID #: 74), after which he denied benefits in a written decision on January
30, 2015 (Doc. 15 at 1). That decision became final when the Appeals Council denied review
on May 25, 2016. (Id. at 2).
Plaintiff filed this case on July 28, 2016 (Doc. 1), and the Commissioner filed the
administrative record on January 6, 2017 (Doc. 11). Plaintiff filed a Statement of Specific Errors
on February 21, 2017 (Doc. 15), the Commissioner responded on April 7, 2017, (Doc. 16), and
Plaintiff filed a reply on April 24, 2017 (Doc. 17).
B. The Administrative Hearing
In September 2014, Plaintiff requested a telephone interview in lieu of attending the
administrative hearing because he is the caregiver for his elderly mother, who does not travel
much, and they had no transportation. (Tr. 122, PAGEID #: 180; Tr. 127, PAGEID #: 185). The
ALJ denied Plaintiff’s request, stating that there are “transportation alternatives” for travel
between Groveport, Ohio (where Plaintiff lives) and Columbus, Ohio (where the hearing was to
be held). (Tr. 128, PAGEID #: 186). Consequently, the hearing occurred on November 25,
2014, without Plaintiff present. (Tr. 32, PAGEID #: 90).
Plaintiff’s attorney, Justin Zutell, appeared on his behalf. (Id.). Mr. Zutell requested that
Plaintiff be granted a telephone hearing due to his lack of transportation and the need to care for
his elderly mother. (Tr. 35, PAGEID #: 93). The ALJ denied the request, stating that “telephone
hearings are problematic.” (Id. (elaborating that he doesn’t “know who [he’s] really talking to
and it’s always very beneficial to be able to observe the claimant”)).
Mr. Zutell offered a new piece of evidence, a residual functional capacity questionnaire
dated January 11, 2013, from Plaintiff’s primary care doctor, Dr. Rita Konfala. (Tr. 36, PAGEID
#: 94 (referring to Ex. 9F)). Mr. Zutell noted that Dr. Konfala characterized Plaintiff’s prognosis
as guarded but stable and limited Plaintiff to sedentary work due to his hypertension, heart
attack, hyperlipidemia, GERD, tobacco abuse, dyspnea, and fatigue. (Id.). Dr. Konfala also
noted that he was still experiencing shortness of breath and chest pain, despite taking his
medication. (Tr. 37, PAGEID #: 95). Mr. Zutell acknowledged certain evidence reflects that
Plaintiff walks his dog three times per day for 20 minutes, but other evidence reflects that
Plaintiff takes the dog out four times per day, but “he doesn’t really walk him much.” (Tr. 38,
PAGEID #: 96). Finally, Mr. Zutell noted that Plaintiff was fifty years old at the time of filing
on December 20, 2012, has a high school education, and past work that includes working as a
security guard at Radio Shack and a cashier at Kroger. (Tr. 36–37, PAGEID #: 94–95).
Vocational Expert Lynne Kaufman (the “VE”) also testified at the hearing. (Tr. 38,
PAGEID #: 96). The VE testified that a hypothetical individual with Plaintiff’s age, education,
work experience, and RFC could not perform Plaintiff’s past work. (Tr. 40–41, PAGEID #: 98–
99). However, she testified that there are other jobs the hypothetical individual could do, such as
mail sorter, packer, and “some types of cashier jobs….” (Tr. 41, PAGEID #: 99). Limiting the
same hypothetical individual to sitting 60 minutes at a time for eight hours out of an eight-hour
workday, standing and walking for 10 minutes at a time for one hour out of an eight-hour
workday, lifting and carrying only ten pounds occasionally, and carrying no weight frequently,
the ALJ found that the individual would be limited to less than a full range of sedentary work.
(Tr. 42, PAGEID #: 100).
C. Relevant Medical Background
Plaintiff was hospitalized and treated with medical therapy for a myocardial infarction
from July 4, 2012 to July 6, 2012. (Tr. 203, PAGEID #: 261). Although his discharge summary
anticipated compliance problems, Plaintiff subsequently underwent diagnostic testing (see id.),
cardiological treatment, and physical examinations.
During an examination on August 10, 2012, Dr. Konfala noted that Plaintiff was worried
about not being healthy enough to care for his elderly mother. (Tr. 261, PAGEID #: 319). His
symptoms included chest pain, which Dr. Konfala referred to as “slight twinges.” (Id.) In terms
of exercise, Plaintiff stated that he walked his dog a couple of minutes per day several times per
week. (Id.). Dr. Konfala noted that Plaintiff was “currently able to do activities of daily living
without limitations and able to do housework without limitations.” (Id.). She also stated that
Plaintiff smokes half a pack of cigarettes per day for stress relief. (Id.). Plaintiff had normal
chest, lung, and cardiovascular exams. (Tr. 262, PAGEID #: 320). However, Dr. Konfala noted
that Plaintiff would “likely need cardiology referral once records from hospital are reviewed.”
Dr. Konfala examined Plaintiff again on October 10, 2012. (Tr. 257, PAGEID #: 315).
Plaintiff reported chest pain described as “slight twinges” and some palpitations, but stated that
he was “feeling well.” (Id.). He also noted some dyspnea, which he felt may be caused by his
medication. (Id.). Plaintiff was still smoking a half a pack of cigarettes per day, but he was able
to do activities of daily living and his housework without limitations. (Id.). Plaintiff again had
normal chest, lung, and cardiovascular exams, and Dr. Konfala again noted that Plaintiff would
“likely need cardiology referral once records from hospital are reviewed.” (Tr. 258, PAGEID #:
Dr. Konfala examined Plaintiff a third time on January 11, 2013. (Tr. 255–56, PAGEID
#: 313–14). She described Plaintiff’s symptoms as shortness of breath (with exertion and rest)
and chest pain and noted “good compliance with treatment, good tolerance of treatment and good
symptom control.” (Tr. 225, PAGEID #: 313). However, Dr. Konfala noted that Plaintiff
continued to smoke. (Id.).
The same day, Dr. Konfala completed Plaintiff’s RFC questionnaire.
PAGEID #: 409–410). She noted that Plaintiff’s initial office visit was on August 10, 2012, and
stated that she had seen him every three to four months since then. (Tr. 351, PAGEID #: 409).
Dr. Konfala opined that Plaintiff’s symptoms of dyspnea, chest pain, and fatigue would
occasionally be severe enough to interfere with the attention and concentration required to
perform simple work-related tasks. (Id.).
Dr. Konfala stated that Plaintiff could not walk a city block without rest or significant
pain, can sit for sixty minutes at a time for up to eight hours per day, and can stand for ten
minutes at a time for up to an hour per day. (Id.). Thus, she opined that Plaintiff is physically
capable of working eight hours per day for five days per week only if the job is sedentary. (Tr.
352, PAGEID #: 410). In terms of lifting and carrying, Dr. Konfala determined that Plaintiff
could occasionally lift and carry ten pounds or less and could never lift or carry twenty or fifty
On April 2, 2013, Margaret G. Smith, Ph.D. conducted a psychological examination of
Plaintiff. (Tr. 267, PAGEID #: 325). Plaintiff again reported smoking a half a pack of cigarettes
per day. (Tr. 268, PAGEID #: 326). In terms of activities of daily living, Plaintiff reported he:
lives with his mother in Section 8 Housing for the elderly. He reports that they
always get up at about 4:00 in the morning. He takes the dog out and his mother
takes her medication. He has to fix her something to eat at that time. They
usually go back to bed for an hour or two and then he walks the dog again. . . . If
he has any money left over after the bills he goes to the grocery otherwise they
watch television. He does do some cleaning, but easily becomes short of breath
and has to sit down…. He does housework two or three times a week and cooks
two or three times a week. He drives several times a week short distances, “When
the car goes … I cross my fingers.” He bathes or showers every couple of days.
It is difficult for him to get in and out of tubs.
(Tr. 269, PAGEID #: 327). Dr. Smith noted that Plaintiff’s gait was slow and “it was somewhat
difficult for him to stand after he sat for the interview.” (Id.) (stating “it took him several steps
to walk normally”).
On April 11, 2013, Dr. Konfala noted that Plaintiff had “no issues or concerns,” and his
appointment was rescheduled. (Tr. 279, PAGEID #: 337).
Dr. Konfala’s report for Plaintiff’s May 29, 2013 examination showed mixed findings.
Dr. Konfala found that no changes were required to manage Plaintiff’s hypertension, which was
controlled; Plaintiff’s symptoms did not include weakness or edema; Plaintiff continued to have
“good compliance with treatment, good tolerance of treatment and good symptom control;” and
Plaintiff was “[s]tarting to get some exercise.” (Tr. 276, PAGEID #: 334). Plaintiff also had
normal posture and gait, and normal chest, lung, and cardiovascular exams.
PAGEID #: 334–35) (observing “normal excursion with symmetric chest walls, quiet, even and
easy respiratory effort with no use of accessory muscles and on auscultation, normal breath
sounds, no adventitious sounds and normal vocal resonance” and “normal heart sounds, regular
rate and rhythm with no murmurs”). However, some of Plaintiff’s symptoms persisted, such as
intermittent dizziness, shortness of breath, and chest pain. (Tr. 276, PAGEID #: 334). Given
Plaintiff’s increasing dyspnea on exertion, Dr. Konfala referred Plaintiff to cardiology and
advised him to quit smoking. (Tr. 277, PAGEID #: 335).
Plaintiff saw cardiologist Dr. U. Krishnan Marar on November 21, 2013. (Tr. 339,
PAGEID #: 397). Dr. Marar noted that Plaintiff had been doing well and had “not had any chest
discomfort except for occasional twinges of sharp stabbing precordial pain usually at rest.” (Id.).
Dr. Marar noted that Plaintiff walks his dog for about 20 minutes three times per day, during
which he has experienced dyspnea but no chest discomfort. (Id.). Dr. Marar observed that
Plaintiff continued to smoke a half pack of cigarettes daily and that the exam room smelled
strongly of tobacco. (Id.). Plaintiff denied having any orthopnea, palpitations, presyncope or
syncope or pedal edema. (Tr. 339, PAGEID #: 397). Dr. Marar found Plaintiff had no edema,
normal gait and muscle strength, and progressive dyspnea on exertion. (Tr. 341, PAGEID #:
399). Dr. Marar opined that Plaintiff’s dyspnea could be an angina equivalent or underlying lung
disease and found no evidence of cardiac decompensation. (Id.). Dr. Marar found Plaintiff’s
blood pressure to be well controlled. (Id.). Finally, Dr. Marar advised that Plaintiff could
discontinue taking Effient because there was no clear indication for it and there was an
associated bleeding risk. (Id.).
Plaintiff visited Ohio State University cardiology on November 21, 2013. (Tr. 322,
PAGEID #: 380). An EKG showed lateral ischemia, which had been noted on prior EKGs. (Tr.
324, PAGEID #: 382). Plaintiff was reported to have been “doing well” since his last visit and
had “not had any chest discomfort except for occasional twinges of sharp, stabbing precordial
pain usually at rest and lasting for a few seconds.” (Tr. 322, PAGEID #: 380). He reported
“walk[ing] his dog for about 20 minutes three times a day,” during which he experienced
dyspnea but no chest discomfort. (Id.). Plaintiff continued to smoke about a half pack of
cigarettes per day. (Id.). Plaintiff “denied any orthopnea, palpitations, presyncope or syncope or
pedal edema.” (Id.).
Plaintiff was examined on December 11, 2013 at Heart of Ohio Family Health Centers,
where he reported symptoms of occasional dizziness, occasional chest pain, and shortness of
breath with exertion. (Tr. 319, PAGEID #: 377). Plaintiff’s current treatment of exercise was
observed to be “very limited,” consisting of taking the dog outside four times per day without
much walking. (Id.). It was noted that Plaintiff “[g]ets winded easily.” (Id.). Again, there was
“good compliance with treatment, good tolerance of the treatment and good symptom control.”
(Id.). Plaintiff continued to smoke. (Id.). Plaintiff had normal posture and gait, normal muscle
strength and tone, no edema, and normal chest, lung, and cardiovascular exams. (Tr. 320,
PAGEID #: 378).
On January 22, 2014, Plaintiff’s echocardiogram showed normal systolic function, with
an ejection fraction of 55%, and multiple regional wall abnormalities. (Tr. 293, PAGEID #:
351). During a February 6, 2014 examination, Dr. Marar made many of the same observations
he had made on November 11, 2013: he noted that Plaintiff had been doing well and had not had
any chest discomfort except for occasional twinges of sharp stabbing precordial pain usually at
rest; that Plaintiff walks his dog for about 20 minutes three times per day, during which he has
experienced dyspnea but no chest discomfort; and that Plaintiff continued to smoke. (Tr. 346,
PAGEID #: 404). He also stated that Plaintiff resumed taking Effient because he felt “unwell”
after stopping it, but Dr. Marar warned him of the increased bleeding risk and explained to him
that there was not a strong indication for taking it. (Id.).
Plaintiff visited Heart of Ohio Family Health Centers again on May 29, 2015. (Tr. 317,
PAGEID #: 375). The record states that Plaintiff required no changes in management during his
appointment five months prior, but he continued to have occasional dizziness and shortness of
breath with exertion. (Id.). Plaintiff reported occasional chest pain but had no edema. (Id.).
Although the report notes that Plaintiff’s treatment included exercise, it was characterized as
“very limited. Takes dog out about 4x per day. Does not walk much with the dog. Gets winded
easily.” (Id.). Once again it was noted that Plaintiff had “good compliance with treatment, good
tolerance of treatment and good symptom control.” (Id.). Plaintiff continued to smoke a half a
pack of cigarettes per day and stated that he had “shown up 3 times” for a stress test but had been
“turned away.” (Id.). The report does not indicate why Plaintiff was unable to take the stress
test. (See id.). A review of Plaintiff’s systems showed chest pain, but no dyspnea on exertion,
and a chest and lung exam revealed “wheezes throughout.” (Tr. 317–18, PAGEID #: 375–76).
D. The ALJ’s Decision
In his decision, the ALJ stated the following concerning Plaintiff’s attendance at the hearing:
[T]he claimant was well aware of the time, date and location of the hearing.
However, the claimant requested to appear telephonically due to alleged
transportation difficulty and the need to care for an elderly mother. The
claimant’s request to appear telephonically was denied in writing on September
23, 2014 since there are a plethora of transportation alternatives for travel
between Groveport, a nearby suburb, to the hearing office in Columbus. More
importantly, an in person hearing is essential for me to evaluate the credibility of
the claimant’s allegations. The claimant had more than two months to secure
transportation and someone to care for his mother. Counsel advised again that
claimant received notice, but maintained that the claimant is unable to drive or
leave his mother alone, which is inconsistent with the evidence in the record. In
fact, the record indicates that the claimant is able to drive and grocery shop, which
apparently involve leaving his elderly mother at home. I find that the claimant
constructively waived his right to appear and testify and a decision on the merits
(Tr. 16, PAGEID #: 74) (citations omitted).
Upon examination of the record, the ALJ determined that Plaintiff had not engaged in
substantial gainful activity since December 20, 2012, the application date, and has the following
severe impairments: coronary artery disease status post myocardial infarction, hypertension,
obesity, and depression. (Tr. 18, PAGEID #: 76). The ALJ found that none of Plaintiff’s
impairments alone or in combination met or medically equaled a listed impairment (Tr. 19,
PAGEID #: 77), and determined that Plaintiff has the residual functional capacity to perform
light work as defined in 20 C.F.R. 416.967(b) except:
lift/carry 20 pounds occasionally and 10 pounds frequently; stand/walk for 6
hours in an 8 hour workday; sit for 6 hours in an 8 hour workday; unlimited
pushing and pulling except as defined by the ability to lift/carry; frequent
climbing of ramps and stairs; frequent crawling; occasional climbing of ladders,
ropes or scaffolds; must avoid exposure to concentrated extremes of heat, wetness
and humidity; no exposure to unprotected heights or dangerous machinery; and
will need simple instructions and be able to perform simple, routine and repetitive
tasks with no strict time or production demands in a relatively static work
environment with static work processes and procedures.
(Tr. 21, PAGEID #: 79).
In formulating this RFC, the ALJ noted that Plaintiff’s “high functioning activities of
daily living belie his debilitating physical and mental allegations.” (Tr. 23, PAGEID #: 81). The
ALJ referred to Plaintiff’s caring for his elderly mother, which includes preparing meals,
cleaning, and grocery shopping. (Id.). Further, the ALJ stated that “[w]hile the claimant alleged
shortness of breath, the record indicates that the claimant walks his dog about an hour a day and
The ALJ assigned “little weight” to Dr. Konfala’s opinion that Plaintiff should be limited
to sedentary activity. (Id.). The ALJ stated:
Dr. Konfala’s opinion is inconsistent with her generally normal physical
examination findings, her own recommendations that the claimant exercise,
cardiological treatment notes showing that the claimant is doing well and
diagnostic testing. Dr. Konfala’s opinion is also inconsistent with the claimant’s
high functioning activities of daily living that include care for an elderly parent
and daily walks of up to an hour per day.
(Id.). Given Plaintiff’s RFC, the ALJ found Plaintiff is unable to perform any past relevant
work. (Tr. 24, PAGEID #: 82).
The ALJ noted that Plaintiff was 50 years old (and thus an individual closely approaching
advanced age) at the time he filed his application, has a high school education, and is able to
communicate in English. (Tr. 24, PAGEID #: 82). The ALJ found that the transferability of
Plaintiff’s job skills was not material to the disability determination, and considering Plaintiff’s
age, education, work experience, and RFC, there are jobs that exist in significant numbers in the
national economy that Plaintiff can perform. (Id.). Based upon these findings, the ALJ decided
that Plaintiff has not been under a disability as defined in the Social Security Act since December
20, 2012, the date the application was filed. (Tr. 25, PAGEID #: 83).
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).
“[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 HHS, 25 F.3d 284, 286 (6th Cir. 1994)). “Therefore, if substantial
evidence supports the ALJ’s decision, this Court defers to that finding ‘even if there is
substantial evidence in the record that would have supported an opposite conclusion.’” Blakley
v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (quoting Key v. Callahan, 109 F.3d
270, 273 (6th Cir. 1997)).
Plaintiff asserts two assignments of error.
First, Plaintiff argues that “[t]he RFC
determination is not supported by substantial evidence because the ALJ’s rejection of treating
physician Dr. Konfala’s opinion was not consistent with the standards of the treating physician
rule.” (Doc. 15 at 1). Next, Plaintiff contends that the ALJ’s reasons for finding that he waived
his right to a hearing were not based on substantial evidence. (Id.).
Whether The ALJ Erred In Weighing Dr. Konfala’s Opinion
Two related rules govern how an ALJ is required to analyze a treating physician’s
opinion. Dixon v. Comm’r of Soc. Sec., No. 3:14-cv-478, 2016 WL 860695, at *4 (S.D. Ohio
Mar. 7, 2016). The first is the “treating physician rule.” Id. The rule requires an ALJ to “give
controlling weight to a treating source’s opinion on the issue(s) of the nature and severity of the
claimant’s impairment(s) if the opinion is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the
case record.” LaRiccia v. Comm’r of Soc. Sec., 549 F. App’x 377, 384 (6th Cir. 2013) (quoting
20 C.F.R. § 404.1527(c)(2)) (internal quotation marks omitted). Closely associated is “the good
reasons rule,” which requires an ALJ always to give “good reasons . . . for the weight given to
the claimant’s treating source opinion.” Dixon, 2016 WL 860695, at *4 (quoting Blakely, 581
F.3d at 406 (alterations in original)); 20 C.F.R. § 404.1527(c)(2). The treating physician rule and
the good reasons rule together create what has been referred to as the “two-step analysis created
by the Sixth Circuit.” Allums v. Comm’r of Soc. Sec., 975 F. Supp. 2d 823, 832 (N.D. Ohio
In this case, the ALJ provided two primary reasons for assigning “little weight” to Dr.
Konfala’s opinion that Plaintiff should be limited to sedentary work. (Tr. 23, PAGEID #: 81).
First, the ALJ found that the objective medical evidence since Plaintiff’s July 2012 heart attack
demonstrated his ability to do light work. (Tr. 22, PAGEID #: 80). More specifically, the ALJ
relied on Dr. Marar’s examination findings, which noted that Plaintiff had been doing well and
had not had any chest discomfort except for occasional twinges while at rest. (Id.). He also cited
Dr. Marar’s observations that Plaintiff had a normal gait and muscle strength, no edema, no
evidence of cardiac decompensation, well-controlled blood pressure, and experienced dyspnea
but no chest discomfort while walking his dog for twenty minutes three times per day. (Id.).
The ALJ also noted that Plaintiff’s echocardiogram showed normal systolic function with an
ejection fraction of 55%. (Id.). Finally, the ALJ looked to Dr. Konfala’s own examination
findings, which reflect normal gait, posture, and muscle strength, with no edema in the lower
extremities, and reflect in May 2013 that Plaintiff was starting to get some exercise. (Id.).
Second, the ALJ found Dr. Konfala’s opinion inconsistent with Plaintiff’s activities of
daily living. The ALJ cited Dr. Smith’s statements that Plaintiff cares for his elderly mother,
which includes preparing meals, cleaning, and shopping for groceries. (Tr. 23, PAGEID #: 81).
The ALJ likewise observed that Plaintiff takes daily walks of up to an hour per day. (Id.).
Plaintiff argues that the ALJ missed the forest for the trees. (Doc. 15 at 8) (asserting that
the ALJ “should have focused on the larger picture presented by the evidence as a whole”).
Specifically, Plaintiff claims that the ALJ overlooked treatment reports demonstrating that he
suffers from occasional dizziness, shortness of breath, and wheezing, and should have considered
the consultative psychologist’s observation that he had a slow gait and some difficulty standing
and walking. (Id. at 8–9). Plaintiff also argues that the ALJ lacked the expertise to find that the
echocardiogram was inconsistent with Dr. Konfala’s opinion, and the reviewing source, Dr.
Marar, indicated that the result warranted further testing.
(Id. at 9) (“[A]fter noting these
findings along with an examination in February 2014, Dr. Marar indicated that Waters needed to
undergo a cardiac stress test.”). Finally, Plaintiff claims that “the treatment notes indicate that
Waters reported he did not exercise other than walking his dog, and his reports to physicians
about walking his dog indicate that even when walking his dog for shorter periods that might add
up to a total of an hour per day, he experienced shortness of breath and became ‘winded easily.’”
(Id. at 11) (emphasis in original).
Plaintiff’s arguments are without merit. Here, the ALJ did not deny that Plaintiff suffered
from symptoms such as shortness of breath, fatigue, and chest pain. (Tr. 22, PAGEID #: 80).
Rather, the ALJ found that, to the extent that the symptoms existed, they were not debilitating
and did not limit Plaintiff to sedentary work. (Id.). Moreover, despite Plaintiff’s argument to the
contrary, the ALJ did not attempt to interpret the echocardiogram on his own. As Defendant
argues, Dr. Marar and the state agency medical consultants reviewed the echocardiogram, and
their opinions were part of the record reviewed by the ALJ. (See, e.g., Tr. 348, PAGEID #: 406;
Doc. 16 at 12–13).
Finally, as Plaintiff’s counsel acknowledged at the hearing, there is
conflicting evidence in the record as to how much Plaintiff exercised. Compare (Tr. 339,
PAGEID #: 397) (noting that Plaintiff walks his dog for about 20 minutes three times per day)
with (Tr. 317, PAGEID #: 375) (stating that Plaintiff’s exercise is “very limited. Takes dog out
about 4x per day. Does not walk much with the dog”). The evidence of limited exercise, or that
Plaintiff may tire when performing activities of daily living, does not alone warrant reversal.
Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001) (“Even if the evidence could also support
another conclusion, the decision of the [ALJ] must stand if the evidence could reasonably
support the conclusion reached.”) (quoting Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389–90
(6th Cir. 1999).
As set forth above, the ALJ noted that Dr. Konfala was a treating physician but assigned
little weight to her opinion because he found it inconsistent with the other substantial evidence in
the record. Because the ALJ gave good reasons for the weight assigned to Dr. Konfala’s
opinion, remand is not warranted on this basis. See Coldiron v. Comm’r of Soc. Sec., No. 094071, 2010 WL 3199693, at *5 (6th Aug. 12, 2010) (finding that the ALJ’s discussion of other
record evidence showed that the treating physician’s opinion lacked the support and consistency
required to compel controlling weight).
Whether The ALJ Erred In Refusing To Allow Plaintiff To Appear
Next, the Court addresses whether the ALJ erred in refusing to allow Plaintiff to appear
telephonically. The ALJ has the discretion to allow appearance at a hearing by telephone. See
Decker v. Comm’r of Soc. Sec., No. 2:12-cv-454, 2013 WL 4830961, at *4 (S.D. Ohio Sept. 10,
2013) (“[T]he final determination regarding how the testimony will be heard ultimately lies with
the ALJ[.]”). The relevant regulation provides that the ALJ will allow a plaintiff to appear
telephonically if the ALJ determines that “extraordinary circumstances” exist which prevent the
plaintiff from appearing in person. 20 C.F.R. § 416.1436(c)(i),(ii). Here, the ALJ found that the
lack of transportation and care for Plaintiff’s mother did not constitute extraordinary
circumstances, and it was within his discretion to do so. Cf. Decker, 2013 WL 4830961, at *4
Defendant admits the ALJ was “misleading” when he stated that Plaintiff “constructively
waived his right to appear….” (Tr. 16, PAGEID #: 74). The Court agrees. Plaintiff did, in fact,
appear through a designated representative (his counsel), which the regulations allow. See 20
C.F.R. § 416.1450(a). Thus, the ALJ allowed Plaintiff an opportunity to be heard, and the Court
will not reverse on this basis.
Based on the foregoing, Plaintiff’s Statement of Errors is OVERRULED (Doc. 15) and
judgment is entered in favor of Defendant.
IT IS SO ORDERED.
Date: August 25, 2017
/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE
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