Moller v. Commissioner of Social Security

Filing 12

REPORT AND RECOMMENDATIONS: For the foregoing reasons, the Court finds Plaintiffs assignments of error unmeritorious. IT IS THEREFORE RECOMMENDED THAT: (1) the Commissioners non-disability finding be found supported by substantial evidence, and AFFIRMED; and (2) this case be CLOSED. Objections to R&R due by 1/19/2018. Signed by Magistrate Judge Michael J. Newman on 1/5/18. (kma)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
PETER H. MOLLER,
Plaintiff,

Case No. 3:16-cv-365

vs.
COMMISISONER OF SOCIAL SECURITY,

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

Defendant.
______________________________________________________________________________
REPORT AND RECOMMENDATION1 THAT: (1) THE ALJ’S NON-DISABILITY
FINDING BE FOUND SUPPORTED BY SUBSTANTIAL EVIDENCE AND AFFIRMED;
AND (2) THIS CASE BE CLOSED ON THE COURT’S DOCKET
______________________________________________________________________________
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”).

This case is before the Court upon

Plaintiff’s Statement of Errors (doc. 10), the Commissioner’s memorandum in opposition (doc.
11), the administrative record (doc. 8), and the record as a whole.
I.
A.

Procedural History

Plaintiff filed an application for DIB asserting disability as of October 25, 2009. PageID
189-91. Plaintiff claims disability as a result of multiple impairments including, inter alia, low
back pain, thoracic or lumbosacral neuritis or radiculitis and a seizure disorder. PageID 57,
1435.

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Attached hereto is a NOTICE to the parties regarding objections to this Report and
Recommendation.

After initial denial of his application, Plaintiff received a hearing before ALJ Anne
Sharrard on July 9, 2015. PageID 75-114. The ALJ issued a written decision on August 20,
2015 finding Plaintiff not disabled. PageID 55-69. Specifically, the ALJ found at Step 5 that,
based upon Plaintiff’s residual functional capacity (“RFC”) to perform light work, 2 “there are
jobs that exist in significant numbers in the national economy that [Plaintiff] can perform[.]”
PageID 58-69.
Thereafter, the Appeals Council denied review on June 22, 2016, making the ALJ’s nondisability finding the final administrative decision of the Commissioner. PageID 45-48. See
Casey v. Sec’y of Health & Human Servs., 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.

Evidence of Record

The evidence of record is adequately summarized in the ALJ’s decision (PageID 55-69),
Plaintiff’s Statement of Errors (doc. 10), and the Commissioner’s memorandum in opposition
(doc. 11). The undersigned incorporates all of the foregoing and sets forth the facts relevant to
this decision herein.
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
the correct legal criteria. 42 U.S.C. § 405(g); Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 745Light 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. Sedentary work “involves
lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files,
ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain
amount of walking and standing is often necessary in carrying out job duties.” Id. § 404.1567(a).
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46 (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 ALJ has a “‘zone of
choice’ within which he [or she] 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 [Social Security Administration] 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
ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), the complete sequential

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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?; and

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 disability under the
Social Security Act’s definition. Key v. Comm’r of Soc. Sec., 109 F.3d 270, 274 (6th Cir. 1997).
III.
In his Statement of Errors, Plaintiff argues that the ALJ erred by: (1) improperly
weighing opinion evidence, including the opinion of treating physicians Brian E. Higgins, D.O.
and Vandersluis; (2) improperly addressing his RFC; and (3) improperly assessing his
credibility. Doc. 10 at PageID 1438-46. Having carefully reviewed the 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 developed
and reviewed the record, appropriately considered the medical evidence at issue, as well as
Plaintiff’s credibility, and thus accurately determined Plaintiff’s RFC. As more fully explained
herein, the undersigned finds that the ALJ’s non-disability finding should be affirmed.

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A. Medical Source Opinions
Until March 27, 2017, “the Commissioner’s regulations [that apply to this appeal]
establish[ed] a hierarchy of acceptable medical source opinions[.]” Snell v. Comm’r of Soc. Sec.,
No. 3:12-cv-119, 2013 WL 372032, at *9 (S.D. Ohio Jan. 30, 2013). In descending order, these
medical source opinions are: (1) treaters; (2) examiners; and (3) record reviewers. Id. Under the
regulations then in effect, which control here, the opinions of treaters are entitled to the greatest
deference because they “are likely to be . . . most able to provide a detailed, longitudinal picture
of [a claimant’s] medical impairment(s) and may bring a unique perspective to the medical
evidence that cannot be obtained from the objective medical findings alone or from reports of
individual examinations[.]” 20 C.F.R. § 404.1527(c)(2).
A treater’s opinion must be given “controlling weight” if “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and . . . 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). Even if a treater’s opinion is not entitled to controlling weight, “the ALJ
must still determine how much weight is appropriate by considering a number of factors,
including the length of the treatment relationship and the frequency of examination, the nature
and extent of the treatment relationship, supportability of the opinion, consistency of the opinion
with the record as a whole, and any specialization of the treating physician.” Blakley v. Comm’r
of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see also 20 C.F.R. § 404.1527(c).3

In essence, “opinions of a treating source . . . must be analyzed under a two-step process, with
care being taken not to conflate the steps.” Cadle v. Comm’r of Soc. Sec., No. 5:12-cv-3071, 2013 WL
5173127, at *5 (N.D. Ohio Sept. 12, 2013). Initially, “the opinion must be examined to determine if it is
entitled to controlling weight” and “[o]nly if . . . the ALJ does not give controlling weight to the treating
physician’s opinion is the opinion subjected to another analysis based on the particulars of”
20 C.F.R. § 404.1527. Id.
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After treaters, “[n]ext in the hierarchy are examining physicians and psychologists, who
often see and examine claimants only once.” Snell, 2013 WL 372032, at *9.
Record reviewers are afforded the least deference and these “non-examining physicians’
opinions are on the lowest rung of the hierarchy of medical source opinions.” Id. Put simply,
“[t]he regulations provide progressively more rigorous tests for weighing opinions as the ties
between the source of the opinion and the individual [claimant] become weaker.” Id. (citing
SSR 96-6p, 1996 WL 374180, at *2 (July 2, 1996)). In the absence of a controlling treating
source opinion, an ALJ must “evaluate all medical opinions” with regard to the factors set forth
in 20 C.F.R. § 404.1527(c), i.e., length of treatment history; consistency of the opinion with
other evidence; supportability; and specialty or expertise in the medical field related to the
individual’s impairment(s). Walton v. Comm’r of Soc. Sec., No. 97-2030, 1999 WL 506979, at
*2 (6th Cir. June 7, 1999).
Plaintiff first argues that the ALJ erred by failing to give controlling weight to the
opinion of Dr. Higgins, his treating primary care physician. Doc. 10 at PageID 1438-39. On
December 10, 2012 Dr. Higgins opined that, as a result of post-laminectomy syndrome, lumbar
radiculopathy, post-concussive syndrome and grand mal seizures, Plaintiff “is permanently and
totally disabled.” PageID 1433. The ALJ gave no special significance to Dr. Higgins’ opinion.
PageID 67.
A medical source’s opinion -- including the opinion of a treating medical source -- that a
claimant is disabled is an issue “reserved to the Commissioner” and not entitled to “any special
significance.” 20 C.F.R. § 404.1527(d)(1). In fact, “treating source opinions on issues reserved
to the Commissioner are never entitled to controlling weight[,]” although they must be
considered. See SSR 96-5p, 1996 SSR LEXIS 2 at *1, 1996 WL 374183, at *1-3 (1996).

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Given that Dr. Higgins’ opinion was on an issue reserved to the Commissioner -- i.e., that
Plaintiff “remains permanently and totally disabled” -- the ALJ properly determined that it was
not entitled to controlling weight. As a result, Plaintiff's alleged error in this regard is without
merit.
Plaintiff also argues that the ALJ failed by assigning the opinion of his neurologist, Dr.
Vandersluius’ just “some weight.” PageID 1440. Specifically, Plaintiff argues that despite Dr.
Vandersluius opining that Plaintiff is unable to drive, the ALJ found that Plaintiff could
occasionally operate motor vehicles. PageID 67, 1440. However, at the hearing before the ALJ,
Plaintiff testified that he drives.

PageID 95-96.

Specifically, in responding to the ALJ’s

question regarding driving, “Are you limited as to when or because you have the seizures
controlled pretty much, you’re allowed to?” Plaintiff responded “Yes. Now, I am limited but it’s
my own limitations really.” PageID 95. In light of this conflicting testimony, the ALJ assigned
Dr. Vandersluis’ opinion “some weight.” As a result, Plaintiff's alleged error in this regard is
without merit.
Based upon the foregoing, the undersigned finds the ALJ’s assessment of medical source
opinions supported by substantial evidence. As a result, the ALJ’s findings in this regard should
be affirmed.
B. RFC
Plaintiff next argues that his RFC is, as a general matter, unsupported by substantial
evidence. Again, the Court disagrees for two reasons. First, the record strongly suggests that
Plaintiff can perform a wide range of activities and is not disabled. See supra. This conclusion is
supported by the medical evidence, discussed above, which shows that Plaintiff’s impairments,
whether viewed singly or in combination, do not demonstrate disability. Id. Second, it is not the

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Court’s role to sift through the facts and make a de novo determination of whether or not a
claimant is disabled. The ALJ, not the Court, is the finder of fact. Siterlet v. Sec'y of Health &
Human Servs., 823 F.2d 918, 920 (6th Cir. 1987). The ALJ reasonably undertook that role in
this case. Id. So long as the Commissioner’s decision is supported by substantial evidence, it
must be affirmed. 42 U.S.C. §405(g); Richardson, 402 U.S. at 401. Where, as here, there is
substantial evidence supporting the ALJ’s resolution of the disputed facts, the Court must affirm
the ALJ even if the Court might have resolved those disputed facts in Plaintiff's favor had it been
the trier of fact. Nunn v. Bowen, 828 F.2d 1140, 1144 (6th Cir. 1987).
C. Credibility
Plaintiff lastly challenges the ALJ’s credibility finding, arguing that the ALJ’s
explanation is unsupported by substantial evidence. Doc. 10 at PageID 1444. The ALJ, and not
this Court, “evaluate[s] the credibility of witnesses, including that of the claimant.” Rogers v.
Comm'r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007). A reviewing Court must “accord the
ALJ’s determinations of credibility great weight and deference particularly since the ALJ has the
opportunity, which we do not, of observing a witness’s demeanor while testifying.” Jones v.
Comm'r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003) (citations omitted).
Nevertheless, in setting forth a credibility finding, the ALJ’s determination “cannot be
based on an intangible or intuitive notion about an individual’s credibility[,]” and instead, “[t]he
reasons for the credibility finding must be grounded in the evidence and articulated in the
determination or decision.” See SSR 96-7p, 1996 SSR LEXIS 4 at *11, 1996 WL 374186, at *7
(July 2, 1996). In fact, the ALJ must set forth “specific reasons for the finding on credibility,
supported by the evidence in the case record, and must be sufficiently specific to make clear to

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the individual and to any subsequent reviewers the weight the adjudicator gave to the
individual’s statements and the reasons for that weight.” Id.
Pursuant to SSR 96-7p, upon determining that “an underlying physical or mental
impairment” exists “that could reasonably be expected to produce the individual’s pain or other
symptoms[,]” the ALJ must “evaluate the intensity, persistence, and limiting effects of the
individual’s symptoms to determine the extent to which the symptoms limit the individual’s
ability to do basic work activities.”

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

Where a

claimant’s subjective complaints concerning “the intensity, persistence, or functionally limiting
effects of pain or other symptoms are not substantiated by objective medical evidence,” the ALJ
must then determine the claimant’s credibility “based on a consideration of the entire case
record.” See id.; 20 C.F.R. § 404.1529(c)(3).
In considering the entire case record, 20 C.F.R. § 404.1529(c)(3) and SSR 96-7p also
require consideration of the following factors: (1) the claimant’s daily activities; (2) the location,
duration, frequency, and intensity of symptoms; (3) factors that precipitate and aggravate
symptoms; (4) the type, dosage, effectiveness, and side effects of any medication taken to
alleviate the symptoms; (5) treatment undertaken by the claimant; (6) measures undertaken by
the claimant to relieve symptoms, such as lying on one’s back; and (7) any other factors bearing
on the limitations of the claimant to perform basic functions. 20 C.F.R. § 404.1529(c)(3); see
Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007).
The Court finds no error in the ALJ’s credibility determination because although Plaintiff
presented objective medical evidence of an underlying medical condition and the ALJ found that
Plaintiff’s impairments could reasonably cause the kind of limitations he alleged, Plaintiff’s
statements about the intensity, persistence, and limiting effect of his alleged symptoms were not

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entirely credible because they were inconsistent with the evidence of record. PageID 66, 698,
861-62, 920-21, 1262-63, 1417, 1430. Such conclusions are supported by substantial evidence
and, as a result, the undersigned finds Plaintiff’s challenge to the ALJ’s credibility assessment to
be without merit.
IV.
For the foregoing reasons, the Court finds Plaintiff’s assignments of error unmeritorious.
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.
Date: January 5, 2018

s/ Michael J. Newman
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. This period is not extended by virtue of Fed. R.
Civ. P. 6(d) if served on you by electronic means, such as via the Court’s CM/ECF filing system.
If, however, this Report and Recommendation was served upon you by mail, this deadline is
extended to SEVENTEEN DAYS by application of Fed. R. Civ. P. 6(d). Parties may seek an
extension of the deadline to file objections by filing a motion for extension, which the Court may
grant upon a showing of good cause.
Any objections filed 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 noted above, this period is not extended by virtue of Fed. R. Civ.
P. 6(d) if served on you by electronic means, such as via the Court’s CM/ECF filing system. If,
however, this Report and Recommendation was served upon you by mail, this deadline is
extended to SEVENTEEN DAYS by application of Fed. R. Civ. P. 6(d).
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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