Shilo v. Commisionner of Social Security

Filing 14

REPORT AND RECOMMENDATION THAT: (1) THE ALJS NON-DISABILITY FINDING BE FOUND SUPPORTED BY SUBSTANTIAL EVIDENCE, AND AFFIRMED; AND (2) THIS CASE BE CLOSED re 2 Complaint filed by Matthew Shilo - Objections to R&R due by 2/18/2014. Signed by Magistrate Judge Michael J Newman on 01/29/14. (pb1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
MATTHEW SHILO,
Plaintiff,

Case No.: 3:12-CV-301

vs.
COMMISSIONER OF
SOCIAL SECURITY,

District Judge Thomas M. Rose
Magistrate Judge Michael J. Newman

Defendant.
REPORT AND RECOMMENDATION 1 THAT: (1) THE ALJ’S NON-DISABILITY
FINDING BE FOUND SUPPORTED BY SUBSTANTIAL EVIDENCE, AND
AFFIRMED; AND (2) THIS CASE BE CLOSED
This is a Social Security disability benefits appeal.

At issue is whether the

Administrative Law Judge (“ALJ”) erred in finding Plaintiff not disabled and therefore
unentitled to Disability Insurance Benefits (“DIB”) and/or Supplemental Security Income
(“SSI”). 2 This case is before the Court upon Plaintiff’s Statement of Errors (doc. 10), the
Commissioner’s Memorandum in Opposition (doc. 12), Plaintiff’s Reply (doc. 13), the
administrative record (doc. 8), and the record as a whole. 3
I.
A. Procedural History
Plaintiff filed for DIB and SSI on December 11, 2007, alleging a disability onset date of
April 8, 2004.

PageID 213, 223.

Plaintiff claimed he is disabled due to a number of

impairments including, inter alia, obesity. PageID 48. After initial denials of his applications,
1

Attached hereto is a NOTICE to the parties regarding objections to this Report and
Recommendation.
2
The remaining citations will identify the pertinent DIB provisions with full knowledge of the
corresponding SSI statutes and regulations.

Plaintiff received a hearing before ALJ Thomas R. McNichols, II on January 11, 2011. PageID
67-102. ALJ McNichols issued a written decision on February 14, 2011, finding Plaintiff not
disabled. PageID 46-55. Specifically, ALJ McNichols’ findings were as follows:
1.

The claimant met the insured status requirements of the Social Security
Act through June 30, 2004;

2.

The claimant has not engaged in substantial gainful activity since April 8,
2004, the alleged disability onset date (20 C.F.R. § 404.1571 et seq.);

3.

The claimant has the following severe impairments: lumbar spine
degenerative changes; obesity; right foot arthritic changes; mild
degenerative changes in the right knee; obstructive sleep apnea; and
dysthymic disorder (20 C.F.R. § 404.1520(c));

4.

The claimant does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 C.F.R.
§§ 404.1520(d), 404.1525, 404.1526);

5.

After careful consideration of the entire record, the undersigned finds that
the claimant has the residual functional capacity [“RFC”][ 4] to perform
light work as defined in [20 C.F.R. § 404.1567(b)] except an opportunity
to alternate between sitting and standing as needed; use of a cane to
ambulate; no climbing ropes, ladders, or scaffolds; no more than
occasional climbing stairs, kneeling, or crawling; no exposure to hazards;
a clean-air, temperature-controlled environment; no direct dealing with the
public; and no fast-paced work;[ 5]

3

Hereafter, citations to the electronically-filed administrative record will refer only to the PageID
number. Additionally, Plaintiff’s pertinent medical records have been adequately summarized in his
Statement of Errors and the administrative decision, see doc. 10 at PageID 1232-46; PageID 46-55, and
the Court will not repeat them here. Where applicable, the Court will identify the medical evidence
relevant to its decision.
4
A claimant’s RFC is the most physical exertion a claimant can perform in the workplace despite
his or her impairments and any related symptoms, such as pain. 20 C.F.R. § 404.1545(a). The
assessment is based on all relevant evidence in the record and the claimant’s ability to meet the physical,
mental, sensory, and other requirements for work as described in 20 C.F.R. §§ 404.1545(b), (c), and (d).
5
The Social Security Administration classifies jobs as sedentary, light, medium, heavy, and very
heavy depending on the physical exertion requirements. 20 C.F.R. § 404.1567. Light work “involves
lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10
pounds” and “requires a good deal of walking or standing, or . . . sitting most of the time with some
pushing and pulling of arm or leg controls.” Id. § 404.1567(b). An individual who can perform light
work is presumed also able to perform sedentary work. Id.

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6.

The claimant is unable to perform any past relevant work (20 C.F.R.
§ 404.1565);

7.

The claimant was born [in]…1973 and was 37 years old, which is defined
as a “younger individual age 18-49,” on the alleged disability onset date
(20 C.F.R. § 404.1563);

8.

The claimant has at least a high school equivalent (GED) and is able to
communicate in English (20 C.F.R. § 404.1564);

9.

Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules [(“the Grid”)] as a
framework supports a finding that the claimant is “not disabled,” whether
or not he has transferable job skills (See SSR 82-41 and 20 C.F.R. Part
404, Subpart P, Appendix 2);

10.

Considering the claimant’s age, education, work experience, and [RFC],
there are jobs that exist in significant numbers in the national economy
that the claimant can perform (20 C.F.R. §§ 404.1569, 404.1569(a)); [and]

11.

The claimant has not been under a disability, as defined by the Social
Security Act, from April 8, 2004, through the date of this decision (20
C.F.R. § 404.1520(g)).

PageID 46-55 (citations omitted, brackets and footnotes added).
Thereafter, the Appeals Council denied Plaintiff’s request for review, making ALJ
McNichols’ non-disability finding the final administrative decision of the Commissioner.
PageID 38. See Casey v. Sec’y of H.H.S., 987 F.2d 1230, 1233 (6th Cir. 1993). Plaintiff then
filed this timely appeal. Cook v. Comm’r of Soc. Sec., 480 F.3d 432, 435 (6th Cir. 2007).
B. Plaintiff’s Hearing Testimony
At the administrative hearing, Plaintiff testified that he was 43 years old, stood 6’3” tall,
and weighed 433 pounds. PageID 68. He has a driver’s license and drives approximately once
per week. Id. Plaintiff stated that he received his high school GED and is able to read and write.
PageID 70. He experiences pain secondary to degenerative disk disease in his back and knees.
PageID 71. He has not undergone surgery for these impairments. PageID 72. Plaintiff testified
that he stopped working in 2001, and has not attempted to work since. PageID 71.
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Plaintiff reported his family physician advised he should attempt to lose weight if at all
possible and also discussed undergoing gastric bypass surgery. PageID 74. Plaintiff stated he
suffers from sleep apnea and uses an inhaler periodically throughout the day. PageID 75-76. He
uses a cane for balance, but can walk for two blocks without a cane. PageID 84.
Regarding his physical capabilities, Plaintiff stated he is able to stand for ten minutes
continuously; sit for twenty minutes at a time; and lift about twenty pounds. Id. He is able to
climb steps. Id. Plaintiff is able to cook and wash dishes. PageID 85. He can feed, dress, and
groom himself. PageID 88. He goes to the grocery store once per month. PageID 83. On a
typical day, Plaintiff reported that he watches television and sits in a lounge chair. PageID 89.
He does not typically leave home or visit friends or relatives. PageID 90.
C. Vocational Expert Testimony
Brian Womer, a vocational expert (“VE”), also testified at the hearing. PageID 96-101.
The ALJ proposed a series of hypotheticals regarding Plaintiff’s RFC to the VE. PageID 97.
Based on Plaintiff’s age, education, work experience, and RFC, the VE testified that, although
Plaintiff could no longer perform his past relevant work, he could perform, in the regional
economy, 4,000 unskilled, light jobs, such as small parts assembler and mail clerk; and 1,500
sedentary jobs, such as sprayer assembler. 6 PageID 97-99.
II.
A. Standard of Review
The Court’s inquiry on a Social Security appeal is to determine (1) whether the ALJ’s
non-disability finding is supported by substantial evidence, and (2) whether the ALJ employed
6

The Court notes that this total number of jobs -- 5,500 -- constitutes substantial evidence of nondisability, and satisfies the ALJ’s burden at Step 5. Compare Nejat v. Comm’r of Soc. Sec., 359 F. App’x
574, 579 (finding that 4,800 jobs in the national economy is a “significant number”); see also Hall v.
Bowen, 837 F.2d 272, 275 (6th Cir. 1988) (finding that 1,350-1,800 jobs in the regional Dayton, Ohio
economy is a “significant number”).
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the correct legal criteria. 42 U.S.C. § 405(g); Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 74546 (6th Cir. 2007). In performing this review, the Court must consider the record as a whole.
Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978).
Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). When
substantial evidence supports the ALJ’s denial of benefits, that finding must be affirmed, even if
substantial evidence also exists in the record upon which the ALJ could have found Plaintiff
disabled. Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001). Thus, the Commissioner has a
“‘zone of choice’ within which the Commissioner can act without the fear of court interference.”
Id. at 773.
The second judicial inquiry -- reviewing the correctness of the ALJ’s legal analysis -may result in reversal even if the ALJ’s decision is supported by substantial evidence in the
record. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009). “[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.”
Bowen, 478 F.3d at 746.
B. “Disability” Defined
To be eligible for disability benefits, a claimant must be under a “disability” as defined
by the Social Security Act. 42 U.S.C. § 423(d)(1)(A). Narrowed to its statutory meaning, a
“disability” includes physical and/or mental impairments that are both “medically determinable”
and severe enough to prevent a claimant from (1) performing his or her past job and (2) engaging
in “substantial gainful activity” that is available in the regional or national economies. Id.
Administrative regulations require a five-step sequential evaluation for disability
determinations. 20 C.F.R. § 404.1520(a)(4). Although a dispositive finding at any step ends the
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ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), the complete sequential
review poses five questions:
1.

Has 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 (the “Listings”), 20 C.F.R. Subpart P, Appendix 1?

4.

Considering the claimant’s RFC, can he or she perform his or her past
relevant work?

5.

Assuming the claimant can no longer perform his or her past relevant
work -- and also considering the claimant’s age, education, past work
experience, and RFC -- do significant numbers of other jobs exist in the
national economy which the claimant can perform?

20 C.F.R. § 404.1520(a)(4); see also Miller v. Comm’r of Soc. Sec., 181 F. Supp. 2d 816, 818
(S.D. Ohio 2001). A claimant bears the ultimate burden of establishing that he or she is
“disabled” under the Social Security Act’s definition. Key v. Comm’r of Soc. Sec., 109 F.3d 270,
274 (6th Cir. 1997). During the first four steps of the five-step sequential analysis, the claimant
has the burden of proof. 42 U.S.C. § 423(d)(2); 20 C.F.R. § 404.1520. Should the claimant meet
all requirements of the previous steps, at Step 5 the burden shifts to the Commissioner to
establish that the claimant retains the RFC to perform other substantial gainful activity existing
in the national economy. Key, 109 F.3d at 274.
III.
Having carefully reviewed the 1,200-plus page administrative record and the parties’
briefs, and also having carefully considered the ALJ’s analysis leading to the non-disability
finding here at issue, the Court finds the ALJ carefully and reasonably reviewed the record;
appropriately considered the medical evidence at issue (and applied the “good reasons” rule with
respect to the medical evidence by Plaintiff’s treaters); asked appropriate hypothetical questions
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of the VE; and -- acting in reasonable reliance upon the VE’s responsive testimony -- satisfied
the shifting burden and reasonably found, at Step 5, that Plaintiff is not disabled. That analysis,
without question, is supported by substantial evidence. Plaintiff, believing to the contrary,
argues that the ALJ erred by failing to give controlling weight to the medical opinion of his
treating physician, Rajendra Aggarwal, M.D.; and also failed to properly consider his morbid
obesity under Social Security Ruling (“SSR”) 02-01p. 7 Doc. 10 at PageID 1232.
The Court finds fault with Plaintiff’s two suggested errors. The opinions of treating
physicians are typically entitled to controlling weight. Cruse v. Comm’r of Soc. Sec., 502 F.3d
532, 540 (6th Cir. 2007). Under the “treating physician rule,” the ALJ is required to “generally
give greater deference to the opinions of treating physicians than to the opinions of non-treating
physicians.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009). Nevertheless, a
treating physician’s statement -- that a claimant is disabled -- is not determinative of the ultimate
issue of disability. Landsaw v. Sec’y of H.H.S., 803 F.2d 211, 213 (6th Cir. 1986). A treating
physician’s opinion is to be given controlling weight only if it is well-supported by medically
acceptable clinical and laboratory techniques, not inconsistent with the other evidence of record,
and supported by the factors listed in 20 C.F.R. § 404.1527(d)(2). These factors include, inter
alia, the length and frequency of examinations, the amount of evidence used to support an
opinion, the specialization of the physician, and consistency with the record. Wilson v. Comm’r
of Soc. Sec., 378 F.3d 541, 546 (6th Cir. 2004); 20 C.F.R. § 404.1527(d)(2).
The ALJ properly analyzed Dr. Aggarwal’s opinion under the treating physician rule. He
found “Dr. Aggarwal’s assessment cannot be given controlling weight because he does not
7

SSR 02-01p provides in relevant part: “[o]besity is a risk factor that increases an individual’s chances of
developing impairments in most body systems.” SSR 02-01p, 2000 WL 628049 at *3. However, SSR 02-01p “does
not mandate a particular mode of analysis. It only states that obesity, in combination with other impairments, “may”
increase the severity of other limitations.” Bledsoe v. Barnhart, 165 F. A’ppx 408, 411-12 (6th Cir. 2006).
SSR 02-01p does not offer any particular procedural mode of analysis for obese claimants. Id.

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provide detailed, objective findings consistent with such extreme limitation.” PageID 52. In all
five of his RFC assessments, Dr. Aggarwal did not offer detailed physical examination notes in
support of his opinion regarding Plaintiff’s disability status. PageID 475-76, 560-61, 769-70,
878-79. Additionally, he listed only conclusory diagnoses in support of his reported limitations.
Id. The ALJ correctly found that Dr. Aggarwal is not an orthopedic specialist but, rather, a
family doctor with no particular specialty in the areas of Plaintiff’s impairments. PageID 52.
Further, the ALJ noted the record did not indicate any need for surgery on Plaintiff’s back. Id.
The ALJ also reasonably found there was no evidence of neurological damage or objective
evidence, consistent with Dr. Aggarwal’s reports, to support Plaintiff’s allegation of a serious
pain condition. Id. As such, the ALJ properly applied the treating physician rule and offered
good reasons for his refusal to credit Dr. Aggarwal’s disability opinion.

20 C.F.R.

§ 404.1527(d)(2).
The Court also finds the ALJ appropriately considered, in his RFC finding and written
decision, all of Plaintiff’s functional limitations, whether arising from Plaintiff’s obesity or
otherwise. To that end, the ALJ reasonably and appropriately considered Plaintiff’s impairments
both singularly and in combination. For example, the ALJ noted that in an October 2008
consultative examination, it was determined that Plaintiff had “poor exercise tolerance secondary
to obesity.” PageID 49. As such, a “clean-air, temperature controlled environment was added to
the [RFC].”

PageID 50.

Additionally, the ALJ noted that Plaintiff’s “obesity has been

considered in combination with [his] back condition” in establishing Plaintiff’s RFC. PageID
53. SSR 02-01p advises that “obesity may be considered severe alone or in combination with
another medically determinable impairment” and the ALJ is to assess the “impact of obesity on
an individual’s functioning.” SSR 02-01p, 2000 WL 628049 at *3 (Sept. 12, 2002). The record
demonstrates that the ALJ took the appropriate steps in evaluating Plaintiff’s obesity, and
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considered its effects in formulating his RFC determination. See, e.g., PageID 51, 53. As such,
the Court finds this second assignment of error unpersuasive.
IV.
It is not the Court’s role to sift through the facts and make a de novo determination
regarding a claimant’s alleged disability status. The ALJ, not the Court, is the finder of fact.
Siterlet, 823 F.2d at 920. If substantial evidence supports the ALJ’s resolution of the disputed
facts, the Court must affirm the ALJ even if the Court might have resolved the disputed facts in
Plaintiff’s favor had it been the trier of fact. Nunn v. Bowen, 828 F.2d 1140, 1144 (6th Cir.
1987). The Court finds the ALJ’s non-disability finding was within the reasonable “zone of
choice,” which merits affirmance in this particular instance. Buxton, 246 F.3d at 773.
IT IS THEREFORE RECOMMENDED THAT:
1.

The Commissioner’s non-disability finding be found supported by
substantial evidence, and AFFIRMED; and

2.

This case be CLOSED on the Court’s docket.

January 29, 2014

s/ Michael J. Newman
United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within FOURTEEN days after being
served with this Report and Recommendation. Pursuant to Fed. R. Civ. P. 6(d), this period is
extended to SEVENTEEN days because this Report and Recommendation is being served by
one of the methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F), and may be
extended further by the Court on timely motion for an extension. Such objections shall specify
the portions of the Report and Recommendation objected to, and shall be accompanied by a
memorandum of law in support of the objections. If the Report and Recommendation is based in
whole or in part upon matters occurring of record at an oral hearing, the objecting party shall
promptly arrange for the transcription of the record, or such portions of it as all parties may agree
upon or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise
directs. A party may respond to another party’s objections within FOURTEEN days after being
served with a copy thereof.

As is made clear above, this period is likewise extended to

SEVENTEEN days if service of the objections is made pursuant to Fed. R. Civ. P. 5(b)(2)(C),
(D), (E), or (F). Failure to make objections in accordance with this procedure may forfeit rights
on appeal. See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d
947, 949-50 (6th Cir. 1981).

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