Wolfe v. Commissioner of Social Security

Filing 17

REPORT AND RECOMMENDATIONS: Magistrate Judge Recommends that the Court Overrule Plaintiff's Statement of Errors and Affirm the Commissioner's decision Objections to R&R due by 1/5/2018. Signed by Magistrate Judge Chelsey M. Vascura on 12/22/2017. (daf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

TERRY EDWARD WOLFE,
Plaintiff,
Case No. 2:16-cv-1140
Judge George C. Smith
Magistrate Judge Chelsey M. Vascura

v.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

REPORT AND RECOMMENDATION
Plaintiff, Terry Edward Wolfe, brings this action under 42 U.S.C. '' 405(g) and
1383(c)(3) for review of a final decision of the Commissioner of Social Security
(ACommissioner@) denying his applications for social security disability insurance benefits and
supplemental security income. This matter is before the United States Magistrate Judge for a
Report and Recommendation on Plaintiff=s Statement of Errors (ECF No. 10), the
Commissioner=s Memorandum in Opposition (ECF No. 15), and the administrative record (ECF
No. 5). 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 filed applications for a period of disability and disability insurance benefits
under Title II of the Social Security Act on June 25, 2012 and December 6, 2012. In both
applications, he alleged disability beginning on October 2, 2012. Both applications were denied
initially on April 25, 2013, and upon reconsideration on February 8, 2014. (PAGEID# 295.)
Upon Plaintiff’s request, a hearing was held on January 6, 2016, at which Administrative Law

Judge Thomas L. Wang (“ALJ”) presided. Plaintiff and Vocational Expert, Lynne Kaufman,
testified at the hearing. (PAGEID# 316.)
On January 29, 2016, the ALJ issued his decision, concluding that Plaintiff was not under
a disability at any time from October 2, 2012, through the date of the decision. (PAGEID# 295309.) At step one of the sequential evaluation process,1 the ALJ found that Plaintiff had not
engaged in substantially gainful activity since his alleged onset date of October 2, 2012.
(PAGEID# 308.) Next, the ALJ concluded that Plaintiff has the following medically
determinable severe impairments: coronary artery disease with history of coronary artery triple
bypass surgery; hypertension; diabetes; obesity; left hemi-diaphragm paralyzation due to phrenic
nerve damage; history of cervical radiculopathy/carpal tunnel syndrome; and history of fusion
surgery to the lumbosacral spine (as well as a number of non-severe impairments). He then

1

Social Security Regulations require ALJs to resolve a disability claim through a fivestep sequential evaluation of the evidence. See 20 C.F.R. ' 416.920(a)(4). Although a
dispositive finding at any step terminates the ALJ=s review, see Colvin v. Barnhart, 475 F.3d
727, 730 (6th Cir. 2007), if fully considered, the sequential review considers and answers five
questions:
1.
Is the claimant engaged in substantial gainful activity?
2.
Does the claimant suffer from one or more severe impairments?
3.
Do the claimant=s severe impairments, alone or in combination, meet or
equal the criteria of an impairment set forth in the Commissioner=s Listing of
Impairments, 20 C.F.R. Subpart P, Appendix 1?
4.
Considering the claimant=s residual functional capacity, can the claimant
perform his or her past relevant work?
5.
Considering the claimant’s age, education, past work experience, and
residual functional capacity, can the claimant perform other work available in the
national economy?
See 20 C.F.R. ' 416.920(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009).
2

concluded that Plaintiff does not have an impairment or combination of impairments that meet or
medically equals one of the listed impairments.
The ALJ then set forth Plaintiff’s RFC as follows:
[Plaintiff] has the residual functional capacity to perform light work as defined in
20 CRF 404.1567(b) and 416.967(b), except he can frequently kneel and
occasionally stoop, crouch, crawl, and climb ramps and stair[s], but never climb
ladders, ropes, or scaffolds. He can no more than frequently handle, finger, and
feel. He can no more than occasionally be exposed to temperature extremes,
wetness, humidity, and respiratory irritants. He must avoid unprotected heights.
(PAGEID# 300.)
The ALJ relied upon the vocational expert’s testimony to conclude that Plaintiff could
perform his past relevant work as a security sergeant and to alternatively conclude that he could
perform a significant number of other jobs in the state and national economies. The ALJ
therefore concluded Plaintiff was not disabled under the Social Security Act from October 2,
2012, through the date of the decision. On October 3, 2016, the Appeals Council denied
Plaintiff’s request for review and adopted the ALJ’s decision as the Commissioner’s final
decision. (PAGEID# 29.) Plaintiff then timely filed the instant action.
In his Statement of Errors, Plaintiff states that he “agrees generally” with the ALJ’s
summary of the medical record, but that he disagrees with “the ALJ’s interpretation of those
facts and his opinions based upon them . . . .” (Pl.’s Statement of Errors 2, ECF No. 10.)
Plaintiff contends that the ALJ’s RFC assessment lacks substantial evidence because it fails to
include all of his limitations. More specifically, Plaintiff maintains that the RFC should have
included limitations in his ability to stay on task and be present in the work place, which Plaintiff
asserts are necessary to accommodate his shortness of breath and fatigue. In support of his
3

assertions, Plaintiff points to his hearing testimony that his breathing is one of the reasons he
cannot work and also his testimony that he sleeps 2-3 hours during the day due to breathing
issues. (Id. (citing PAGEID# 320, 323, 327).) Plaintiff also points out that treating cardiologist
Dr. Davis opined that he “cannot work due to his ‘marked shortness of breath, either from his
breathing mechanics and/or concomitant heart failure.’” (Id. (citing PAGEID# 757).)
In her Memorandum in Opposition (ECF No. 15), the Commissioner counters that
substantial evidence supports that ALJ’s RFC assessment. The Commissioner posits that the
ALJ properly considered all of the evidence and reasonably concluded that the RFC he assessed
accommodated Plaintiff’s shortness of breath and fatigue symptoms.
II.

STANDARD OF REVIEW

When reviewing a case under the Social Security Act, the Court Amust affirm the
Commissioner=s decision if it >is supported by substantial evidence and was made pursuant to
proper legal standards.=@ Rabbers v. Comm=r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009)
(quoting Rogers v. Comm=r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. '
405(g) (A[t]he findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive . . . .@). Under this standard, Asubstantial 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, 486
F.3d at 241 (quoting Cutlip v. Sec=y of Health & Hum. Servs., 25 F.3d 284, 286 (6th Cir. 1994)).
Although the substantial evidence standard is deferential, it is not trivial. The Court must
A>take into account whatever in the record fairly detracts from [the] weight=@ of the
4

Commissioner=s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting
Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, Aif 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 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)).
Finally, even if the ALJ=s decision meets the substantial evidence standard, A>a decision of the
Commissioner will not be upheld where the SSA 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, 582 F.3d at 651 (quoting Bowen v. Comm=r of Soc. Sec., 478 F.3d 742, 746 (6th Cir.
2007)).
III.

ANALYSIS

As set forth above, for his sole contention of error, Plaintiff asserts that the ALJ erred in
failing to incorporate RFC limitations relating to his ability to stay on task and be present in the
work place. The undersigned disagrees.
A plaintiff’s RFC “is defined as the most a [plaintiff] can still do despite the physical and
mental limitations resulting from her impairments.” Poe v. Comm’r of Soc. Sec., 342 F. App’x
149, 155 (6th Cir. 2009); see also 20 C.F.R. §§ 404.1545(a), 416.945(a). The determination of
RFC is an issue reserved to the Commissioner. 20 C.F.R. §§ 404.1527(e), 416.927(e).
Nevertheless, substantial evidence must support the Commissioner’s RFC finding. Berry v.
Astrue, No. 1:09CV000411, 2010 WL 3730983, at *8 (S.D. Ohio June 18, 2010).
Here, the ALJ’s decision amply supplies substantial evidence supporting his decision. In
5

connection with his RFC determination, the ALJ discussed the record evidence, including
opinion evidence, Plaintiff’s symptoms, and Plaintiff’s testimony. The ALJ offered a thorough
discussion of the medical evidence and ultimately concluded that “a careful review of the record
does not substantiate the severity of the pain and degree of functional limitations alleged by
[Plaintiff].” (PAGEID# 301; see also PAGEID# 306 (“[P]laintiff’s subjective complaints are
disproportionate with and no supported by the objective and substantial evidence in the
record.”).) Although the ALJ found that Plaintiff’s was not as limited as he alleged, the ALJ
acknowledged, discussed, and accommodated Plaintiff’s shortness of breath and fatigue
symptoms as follows:
[T]he evidence documents the claimant’s reports of shortness of breath and
fatigue that are in part consistent with his coronary artery condition, hypertension,
and left hemi-diaphragm paralyzation due to phrenic nerve damage. These
symptoms, in combination with his mild to moderate obesity and history of
periodic musculoskeletal complaints, reasonably preclude greater than light
exertion with no more than frequent kneeling, more than occasional stooping,
crouching, crawling or climbing of ramps or stairs, or any climbing of ladders,
ropes, or scaffolds.
*

*

*

Because of the claimant’s shortness of breath, he can no more than occasionally
be exposed to respiratory irritants. Additionally, he should avoid more than
occasional exposure to temperature extremes, wetness, and humidity, which could
aggravate his symptoms. Because of his fatigue, he must avoid unprotected
heights.
(PAGEID# 304.) In reaching his RFC assessment, the ALJ also accorded “great weight” to the
opinions of state-agency reviewing physicians, Drs. Freihofner and Lewis. (Id.) He noted Drs.
Freihofner and Lewis concluded that Plaintiff could perform light exertion with some postural
and environmental limitations. The ALJ concluded that their opinions are “consistent with and
6

well supported by the evidence of the record as a whole and are generally accepted as accurate
representations of [Plaintiff’s] physical status.” (Id.) The ALJ further pointed out that Drs.
Freihofner and Lewis found Plaintiff’s allegations were only partially credible and that they had
noted that although Plaintiff “alleged that walking only a few feet made him extremely tired . . .
a cardiac treatment note indicated that he had no chest pain and only mild dyspnea and that he
was able to walk on the treadmill for 15 to 30 minutes daily.” (Id. at PAGEID# 306.) Notably,
the ALJ’s RFC assessment is more restrictive than the RFC assessment Drs. Freihofner and
Lewis opined. The ALJ also noted that Dr. Daniel “remarked that [Plaintiff’s] symptoms appear
to be out of proportion to what I would expect based upon his findings.” (Id. (internal quotation
marks and citation to the record omitted).)
Plaintiff’s contention that the ALJ erred by not including limitations on his ability to stay
on task and be present in the work place lacks merit. Significantly, no medical source opined
that Plaintiff has either of the foregoing specific functional limitations. Rather, Plaintiff relies
upon his own testimony and Dr. Davis’s opinion. Plaintiff’s reliance upon his own testimony is
misplaced because the ALJ found his allegations relating to the severity of his functional
limitation to lack credibility, a determination Plaintiff does not challenge. (PAGEID# 301, 306.)
Plaintiff’s reliance upon Dr. Davis’s statement that he “cannot work due to his ‘marked shortness
of breath, either from his breathing mechanics and/or concomitant heart failure,’” (PAGEID#
757), likewise fails to persuade. The ALJ offered good reasons for rejecting Dr. Davis’s opinion,
namely, that it was “not well supported by medically-acceptable clinical and laboratory
diagnostic techniques, and it is inconsistent with other substantial evidence in the record.”
7

(PAGEID# 305.) See 20 C.F.R. § 416.927(c) (identifying the examining and treatment
relationship, supportability of the opinion, consistency of the opinion with the record as a whole,
and the specialization of the source as factors to consider when weighing a medical source
opinion). The ALJ specifically pointed out that even Dr. Davis’s own treatment records reflected
that he had urged Plaintiff to walk and exercise and also that those records often documented
normal lungs. The ALJ also correctly stated that “no special significance is given to the source
of an opinion on whether the claimant is ‘disabled’ or ‘unable to work’ . . . .” (PAGEID# 305
(internal citation omitted).); See SSR 96–5p, 1996 WL 374183, at *5 (1996) (“Medical sources
often offer opinions about whether an individual ... is ‘disabled’ or ‘unable to work[.]’ . . .
Because these are administrative findings that may determine whether an individual is disabled,
they are reserved to the Commissioner.”). Regardless, even if Plaintiff’s testimony and Dr.
Davis’s opinion constitute substantial evidence supporting more restrictive limitations, because
substantial evidence supports the ALJ’s RFC assessment, the Court must defer to the ALJ’s
determination. See Blakely, 581 F.3d at 406; Key, 109 F.3d at 273.
IV.

DISPOSITION

In sum, from a review of the record as a whole, the Undersigned concludes that
substantial evidence supports the ALJ=s decision denying benefits. Accordingly, it is
RECOMMENDED that the Court OVERRULE Plaintiff=s Statement of Errors and AFFIRM
the Commissioner of Social Security=s decision.
V.

PROCEDURE ON OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, that
8

party may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. ' 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District Judge and
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat=l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that Afailure to object to the magistrate
judge=s recommendations constituted a waiver of [the defendant=s] ability to appeal the district
court=s ruling@); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court=s denial of pretrial motion by failing to timely object to
magistrate judge=s report and recommendation). Even when timely objections are filed, appellate
review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994
(6th Cir. 2007) (A[A] general objection to a magistrate judge=s report, which fails to specify the
issues of contention, does not suffice to preserve an issue for appeal . . . .@) (citation omitted)).

/s/ Chelsey M. Vascura
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE

9