Rhinebolt v. Commissioner of Social Security

Filing 16

ORDER adopting Report and Recommendations re 14 Report and Recommendations.. Signed by Judge James L. Graham on 1/22/2018. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Connie L. Rhinebolt,
Plaintiff,
v.

Case No. 2:17-cv-369

Commissioner of
Social Security,
Defendant.
ORDER
Plaintiff Connie L. Rhinebolt brings this action under 42
U.S.C.

§§

405(g)

Commissioner

of

for

Social

review

of

Security

the

final

decision

(“Commissioner”)

of

the

denying

her

application for supplemental security income disability benefits.
In his September 26, 2016, decision, the administrative law judge
(“ALJ”) found that plaintiff had severe impairments consisting of
vertigo and syncope, paroxysmal atrial tachycardia, status post
ablation of the right atrium, degenerative disc disease of the
lumbar spine, and obesity.1

PAGEID 99.

The ALJ concluded that

plaintiff has the residual functional capacity (“RFC”) to lift and
carry twenty pounds occasionally and ten pounds frequently, to sit
for six of eight hours and to stand and walk for two of eight
hours, to engage in the occasional climbing of ramps or stairs, to
occasionally balance, stoop, kneel, crouch, or crawl, and to have

1

“Syncope” is defined as a period of altered consciousness.
Robertson v. Comm’r of Soc. Sec., 513 F. App’x 439, 440-41 (6th
Cir. 2013)(citing 20 C.F.R. pt. 404, subpt. P, app. 1,
§4.00F(3)(b)). “Tachycardia” is classified as a form of cardiac
arrhythmia. Linderman v. Comm’r of Soc. Sec., No. 1:16-cv-944,
2017 WL 2304281 at *9 (N.D. Ohio April 6, 2017); 20 C.F.R. pt. 404,
subpt. P, app. 1, §4.00(F)(1).

frequent exposure to extremes of temperature and humidity. The RFC
precluded the climbing of ladders, ropes, or scaffolds, and any
work around hazards such as unprotected heights and dangerous
machinery.

PAGEID 102.

The ALJ concluded that plaintiff was

capable of performing jobs existing in significant numbers in the
national economy, and that she is not disabled.

PAGEID 109-110.

This matter is before the court for consideration of plaintiff’s
December 12, 2017, objections to the November 28, 2017, report and
recommendation of the magistrate judge, recommending that the
decision of the Commissioner be affirmed.2
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,
2

Plaintiff asserts objections based on her second and third
assignments of error.
She does not object to the magistrate
judge’s recommendation to uphold the ALJ’s finding that she did not
meet the criteria for Listing 4.05, which requires an association
between recurrent uncontrolled arrhythmia and syncope or near
syncope. 20 C.F.R. pt. 404, subpt. P, app. 1, §4.00F(3)(b).
2

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,
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 Analysis of Dr. Lee’s Opinions
Plaintiff argues that the magistrate judge erred in concluding
that

the

ALJ’s

decision

to

give

little

weight

to

the

RFC

questionnaire completed by Dr. Ken W. Lee, plaintiff’s treating
cardiologist, on June 25, 2013, was supported by good reasons which
were stated in his ruling.

On this questionnaire, Dr. Lee noted

that during a working day, plaintiff could sit eight hours and
stand or walk one hour, and that she would require a thirty-minute
break one to two times per day.

Ex. B21F.

He further indicated

that plaintiff could frequently lift less than ten pounds and
occasionally lift ten to twenty pounds, and that she would likely
be absent from work three or four times per month.

Dr. Lee

concluded that plaintiff was not physically capable of working an
eight-hour day.
Under Social Security Ruling 96-2p, 1996 WL 374188 (Soc. Sec.
Admin. July 2, 1996), treating-source opinions must be given
“controlling weight” if: (1) the opinion “is well-supported by
medically

acceptable

clinical

3

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); Soc. Sec. Rul. No. 96-2p, 1996 WL 374188 at *2-3.
If

the

Commissioner

does

not

give

a

treating-source

opinion

controlling weight, then the opinion is weighed based on factors
such as the length, frequency, nature, and extent of the treatment
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). The Commissioner is required to provide “good
reasons” for discounting the weight given to a treating-source
opinion.

§404.1527(c)(2).

factors is not required.

However, a formulaic recitation of

See Friend v. Comm’r of Soc. Sec., 375

F.App’x 543, 551 (6th Cir. 2010).
The court agrees with the magistrate judge that the ALJ did
not err in assigning little weight to Dr. Lee’s opinions, and that
he provided good reasons for doing so.

The ALJ noted that Dr.

Lee’s opinions were
inconsistent with the medical evidence of record and
based on the claimant’s subjective complaints.
Notes
from this cardiologist do not support a limited standing
and walking ability as she has had normal findings on
physical exam, she has reported considerable activities
of daily living, and she has had infrequent treatment
with large gaps and noncompliance issues. Notably, after
the completion of this residual functional capacity, with
[the] last visit in 2013, the claimant failed to continue
regular cardiology appointments for nearly two years.
When she returned nearly two years later, she reported
findings suggesting she was asymptomatic from her atrial
tachycardia with no syncopal events for those past two
years.
Although she has alleged an increase in her
symptoms, she has not resumed regular treatment, has not
had the recommended one-week monitoring, and is not on
4

any medications other than Lipitor. Dr. Lee did not have
the benefit of the claimant’s apparent improvement in
symptomology with no further cardiology visits for nearly
two years after he last saw the claimant.
PAGEID 107.
Plaintiff argues that the ALJ did not adequately explain what
he meant by “inconsistent with the medical evidence of record.”
Although an ALJ need not discuss every piece of evidence in the
record for his decision to stand, see Kornecky v. Comm’r of Soc.
Sec., 167 F.App’x 496, 508 (6th Cir. 2006), the ALJ’s decision does
include a thorough discussion of plaintiff’s medical records,
including her history of treatment with Dr. Lee through her last
appointment with Dr. Lee on May 6, 2013, a month and a half before
Dr. Lee completed the RFC questionnaire.
For example, the ALJ noted that the records of plaintiff’s
April 26, 2011, appointment with Dr. Lee reported normal findings
on exam. PAGEID 103, citing Exhibit B9F/12. The ALJ observed that
limitations

recorded

by

plaintiff

on

a

September

functional report were never reported to Dr. Lee.

13,

2011,

PAGEID 104.

Thus, these reported limitations could not have supported Dr. Lee’s
assessment on the questionnaire.

The ALJ also noted that after

plaintiff’s May 6, 2013, appointment with Dr. Lee, she stopped her
cardiology follow-up appointments and did not return until April 7,
2015, when she was seen by Tim Nuss, CNP, a nurse practitioner.
The ALJ discussed the April 7, 2015, report of CNP Nuss, which
indicated that plaintiff’s exam findings were normal and that
plaintiff denied any near syncope or syncopal events.

PAGEID 104.

The ALJ further stated that at a follow-up appointment on May 5,
2015, plaintiff’s electrocardiogram was normal and she reported no
further palpitations, although she mentioned episodic vertigo
5

symptoms.

PAGEID 104.

Plaintiff argues that the notes of CNP Nuss are not sufficient
to indicate that her condition had improved. However, the ALJ also
discussed at length the treatment notes of plaintiff’s primary care
physician, Dr. Charles Vonder Embse.

The ALJ noted that on June

12, 2012, Dr. Vonder Embse completed an RFC questionnaire opining
that plaintiff could not stand or walk for any length of time,
whereas on April 19, 2015, Dr. Vonder Embse found plaintiff capable
of standing/walking four hours per day and sitting six hours per
day,

with

absences

once

or

twice

a

month.

PAGEID

105-107.

Although the ALJ gave the 2012 opinion “minimal weight,” he gave
the 2015 opinion “some weight, as it suggests that the claimant
requires less limitation than he previously suggested.”
106-107.

PAGEID

Thus, the ALJ’s reliance on the later evaluation by Dr.

Vonder Embse was not inconsistent with his decision to give the
2012 evaluation little weight.
The ALJ also summarized the notes of Dr. Joshua Silverstein,
a cardiologist who saw plaintiff on September 22, 2015, in regard
to her complaints of daily episodes of palpitations associated with
lightheadedness and near syncope with passing out several times a
day.

Dr.

plaintiff’s

Silverstein
symptoms

noted

were

that

he

attributable

was
to

not
her

convinced

that

supraventrical

tachycardia, and recommended a one-week event recorder, which
plaintiff did not use.
follow

The ALJ observed that plaintiff did not

up with Dr. Silverstein, and that the notes for her

appointments with Dr. Vonder Embse through January 26, 2016, did
not reflect any reported symptoms of tachycardia or syncope.
PAGEID 104-105.
Plaintiff notes that in discussing the weight assigned by the
6

ALJ to Dr. Lee’s opinions, the magistrate judge agreed with the
ALJ’s conclusion that the objective evidence failed to document an
arrhythmia coinciding with syncope or near syncope.
pp. 16-17.
Three

See Doc. 14,

She argues that this was only relevant to the Step

determination

of

whether

her

condition

satisfied

the

requirements of Listing 4.05, not to the ALJ’s decision to give
little weight to Dr. Lee’s RFC questionnaire.

There was nothing

inappropriate about the magistrate judge’s comment. Dr. Lee opined
in

a

separate

report

dated

June

28,

2013,

condition met the requirements of Listing 4.05.

that

plaintiff’s

See Exhibit B22F.

This report was relied upon by plaintiff in her case before the ALJ
and in the now abandoned first assignment of error which she argued
before the magistrate judge.

The magistrate judge’s analysis was

appropriate, as she was then addressing the weight assigned by the
ALJ to both of Dr. Lee’s opinions.

As discussed above, the ALJ

clearly provided good reasons as to why he was assigning little
weight to Dr. Lee’s RFC determination of June 25, 2013.

The ALJ

also separately provided good reasons for giving no weight to Dr.
Lee’s June 28, 2013, opinion, noting the lack of any explanation on
the form, the lack of objective evidence to support the criteria of
the listing, and the hearing testimony of Keith R. Holan, M.D., a
medical expert who reviewed plaintiff’s medical records.
PAGEID 107.
weight.”

See

The ALJ gave Dr. Holan’s testimony “significant

PAGEID 103.

The court concludes that the ALJ adequately stated good
reasons for the weight he assigned to Dr. Lee’s opinions, and that
those reasons are supported by substantial evidence.
B. ALJ’s Assessment of Plaintiff’s Credibility/Consistency

7

Plaintiff also objects to the ALJ’s decision to discount her
credibility due to the gap in cardiac treatment and the failure to
seek additional treatment.

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 symptoms are consistent with
the objective medical evidence and other evidence of record.
2016 WL 1119029 at *7.

Id.,

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

8

individual’s

symptoms

are

inconsistent with the overall evidence of record.” SSR 16-3p, 2016
WL 1119029 at *8.
The ALJ noted that plaintiff “has had significant gaps in
treatment

and

compliance

tolerable symptomology.”

issues”

which

were

PAGEID 105, 108.

“suggestive

of

He observed that

plaintiff’s last visit with Dr. Lee was on May 6, 2013, and that
she did not return to the cardiologist’s office until April 7,
2015. PAGEID 104. The ALJ also commented that after plaintiff had
a Holter monitor (loop recorder) implanted on March 18, 2011, which
recorded incidents of supraventricular tachycardia and permitted
plaintiff to use an activator when she experienced episodes of near
syncope or syncope, she failed to use and ultimately lost the
activator.

PAGEID 103-104.

Plaintiff also failed to follow up on

Dr. Silverstein’s recommendation for the use of a one-week event
recorder and did not return for additional treatment with Dr.
Silverstein.

PAGEID 104-105.

Plaintiff argues that the magistrate judge and the ALJ failed
to address her arguments that, in plaintiff’s opinion, many of the
treatment options were not effective.

However, the magistrate

judge acknowledged that plaintiff had undergone an ablation which
was not successful in terminating her arrhythmia; the ALJ also
referred to the ablation procedure.

Doc. 14, p. 5; PAGEID 104.

The ALJ noted as well that plaintiff was prescribed Propafenone,
which

was

discontinued

palpitations.

PAGEID 104.

after

plaintiff

reported

worsening

Plaintiff’s use of the loop recorder

was destined to be unsuccessful due to her failure to use the
activator.

The

one-week

event

recorder

recommended

by

Dr.

Silverstein may have established that her episodes of syncope
coincided with incidents of supraventricular tachycardia.
9

Because

plaintiff did not use this course of treatment, there is no way of
knowing if the test results would have been helpful.
The ALJ also concluded that plaintiff’s “alleged frequency of
her syncopal events and her tachycardia are contradicted by her own
reports to her treating doctors revealing far less frequency.”
PAGEID 105.

Support for this is found in the ALJ’s discussion of

plaintiff’s medical records.

For example, the ALJ noted that on

May

reported

29,

2012,

plaintiff

just

two

episodes

of

lightheadedness and syncope and that she denied any syncope on
March 29, 2013.

PAGEID 104.

The ALJ observed that plaintiff

denied any syncopal events at her visit with CNP Nuss on April 7,
2015,

yet

claimed

at

her

September

22,

2015,

visit

Silverstein that she was passing out several times a day.
104.

to

Dr.

PAGEID

The ALJ gave significant weight to the hearing testimony of

Dr. Holan, who stated that it was “somewhat confusing” that
plaintiff reported no problems with syncope on April 7, 2015, but
then reported daily syncopal episodes on September 22, 2015.
PAGEID 103, 148.
The ALJ also found that plaintiff’s allegations of disability
were not consistent with her reports of her daily activities, which
included doing some shopping, using modern technology to access
social

media,

reading

novels,

watching

television,

attending

parent-teacher meetings, dining out, helping with laundry, caring
for her eight-year-old son, socializing with family members, and
doing some cooking.

PAGEID 100, 102, 105.

The court concludes that the

ALJ did not err in considering

the gap in plaintiff’s treatment, her failure to comply with her
doctors’ treatment recommendations, and the other inconsistencies
he noted in the record.
10

III. Conclusion
For the reasons stated above, the court concludes that the
Commissioner’s non-disability finding is supported by substantial
evidence.

The court overrules the plaintiff’s objections (Doc.

15), and adopts and affirms the magistrate judge’s report and
recommendation (Doc. 14).

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: January 22, 2018

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

11