Diets v. Social Security Administration et al

Filing 14

REPORT AND RECOMMENDATION: For the above stated reasons, it is recommended that the plaintiff's motion for judgment on the record 11 be DENIED and the Commissioner's decision be AFFIRMED. Signed by Magistrate Judge Juliet E. Griffin on 11/26/12. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(tmw)

IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NORTHEASTERN DIVISION

ROBIN D. DIETS
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security

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No. 2:11-0066

To: The Honorable Thomas A. Wiseman, Jr., Senior District Judge

REPORT AND RECOMMENDATION
The plaintiff filed this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the
final decision of the Commissioner of Social Security (“Commissioner”) denying the plaintiff’s
claim for Disability Insurance Benefits (“DIB”), as provided by the Social Security Act (“the Act”).
Upon review of the Administrative Record as a whole, the Court finds that the
Commissioner’s determination that the plaintiff is not disabled under the Act is supported by
substantial evidence in the record as required by 42 U.S.C. § 405(g), and that the plaintiff’s motion
for judgment on the administrative record (Docket Entry No. 11) should be denied.

I. INTRODUCTION
On February 27, 2008, the plaintiff protectively filed an application for DIB, alleging a
disability onset date of June 1, 2007, due to chronic obstructive pulmonary disease (“COPD”),
chronic bronchitis, emphysema, high blood pressure, and a broken rib. (Tr. 96-98, 106-07, 125.) Her

application was denied initially and upon reconsideration. (Tr. 53-55, 60-61.) On January 19, 2010,
the plaintiff amended her alleged onset date to July 8, 2007 (tr. 168), and a hearing was held before
Administrative Law Judge (“ALJ”) Frank Letchworth. (Tr. 25-49.)

The ALJ delivered an

unfavorable decision on February 25, 2010 (tr. 14-21), and the plaintiff sought review by the Appeals
Council. (Tr. 8.) On May 10, 2011, the Appeal’s Council denied the plaintiff’s request for review
(tr. 1-3), and the ALJ’s decision became the final decision of the Commissioner.

II. BACKGROUND
The plaintiff was born on August 13, 1961, and was 45 years old as of July 8, 2007, her
alleged onset date. (Tr. 96.) She has completed her GED and previously worked as a cashier and
factory worker. (Tr. 30, 116-21.) The plaintiff’s date last insured for DIB is September 30, 2009.
(Tr. 156.)

A. Chronological Background: Procedural Developments and Medical Records
Between December of 2004, and August of 2006, the plaintiff presented to Dr. Douglas W.
Kane at Highland Rim Respiratory Specialists on eleven occasions with complaints of shortness of
breath on exertion, sinus congestion, and heartburn.1 (Tr. 484-519.) Over that time period, Dr. Kane
diagnosed her with “moderate to severe obstructive pulmonary disease secondary to COPD due to

1

The treatment notes from Dr. Kane’s office were occasionally signed or co-signed by
advanced practice registered nurses. (Tr. 466, 469, 472, 474, 476-77, 481-82, 488, 490-91, 492-93,
498, 500-01, 507-08, 510-11, 513-14.) For clarity’s sake, the Court will refer to each of these notes
as originating from Dr. Kane.
2

cigarette smoking,” moderate COPD, chronic bronchitis, hypertension, mild rhinitis, tobacco use,
and sinusitis. (Tr. 484, 488, 490, 492, 497, 500, 504, 508, 513-14, 517.) Dr. Kane encouraged the
plaintiff to quit smoking “in order to resolve her frequent COPD exacerbation” and prescribed
Combivent, Albuterol, Spiriva, Proventil, Xopenex, DuoNeb, Doxycycline, Augmentin, Keflex,
Prednisone, Flonase, Nasarel, and Bidex.2 (Tr. 490-91, 492, 497, 500, 505, 508, 510, 514.)
On September 16, 2006, the plaintiff went to the emergency room at Cookeville Regional
Medical Center (“CRMC”) with complaints of moderate shortness of breath. (Tr. 189-90.) An x-ray
of her chest revealed “[n]o acute disease” (tr. 191), and she was diagnosed with acute asthmatic
bronchitis. (Tr. 190.) On September 25, 2006, the plaintiff returned to Dr. Kane with complaints of
COPD. (Tr. 481.) A spirometry test indicated that the plaintiff registered a forced vital capacity
(“FVC”) of 58.3% and a forced expiratory volume in one second (“FEV1”) of 38.4%, “which
indicates severe obstruction.”3 Id. Dr. Kane noted that the plaintiff’s chronic bronchitis and sinusitis
were stable. Id. According to Dr. Kane, the plaintiff “continues to smoke quite heavily and this has
contributed to her recurrent infections.” Id. He diagnosed the plaintiff with “[m]oderate to severe

2

Combivent, Albuterol, Spiriva, Proventil, Xopenex, and DuoNeb are inhalation aerosols
used to treat bronchospasms with COPD; Doxycycline, Augmentin, and Keflex are antibiotics;
Prednisone, Flonase, and Nasarel are corticosteroid anti-inflammatories used to treat allergies; and
Bidex is an expectorant. Saunders Pharmaceutical Word Book 22, 71, 97, 178, 242, 247, 295, 388,
480, 575, 591, 657, 769 (2009) (“Saunders”).
3

FVC is the measurement of the maximum amount of air an individual is able to exhale in
a single breath, and FEV1 is the measurement of the amount of air an individual is able to exhale in
the first second of a Pulmonary Function Test (“PFT”). Johns Hopkins Medicine, “Pulmonary
Function Laboratory,” at http://www.hopkinsmedicine.org/pftlab/pftests.html.
3

COPD with exacerbation,” prescribed Prednisone, DuoNeb, Albuterol, and Zyrtec,4 and advised her
to stop smoking. (Tr. 481-82.)
On October 10, 2006, plaintiff presented to Dr. Matthew M. Bolton at Satellite Medical
Center (“Satellite”) with complaints of shortness of breath, coughing, drainage from her ears, and
congestion. (Tr. 239-40.) He diagnosed her with minor chronic bronchitis and prescribed Prednisone
and Doxycycline. (Tr. 241.) In November and December of 2006, the plaintiff returned to Satellite
with complaints of coughing and congestion, and Dr. Marilyn K. Vermeesch diagnosed her with
chronic bronchitis and COPD. (Tr. 247, 255.) Dr. Vermeesch prescribed Prednisone, Albuterol,
DuoNeb, Ciprofloxacin, and Verelan.5 (Tr. 248, 255.) On January 31, 2007, the plaintiff presented
to Dr. James Cates at Satellite and complained that her cough was worsening. (Tr. 206-08.) He
prescribed DuoNeb, Albuterol, and Verelan. (Tr. 207-08.)
Between March and August of 2007, the plaintiff presented to Dr. Bolton on several
occasions with complaints of coughing, congestion, and bronchitis. (Tr. 214-16, 221-24, 233-36.)
Dr. Bolton noted that the plaintiff continued to smoke, diagnosed her with COPD, and prescribed
Prednisone, Advair, Benicar,6 DuoNeb, and Proventil. Id. On September 22, 2007, the plaintiff
presented to Dr. Vermeesch with complaints of sinus congestion and coughing, and Dr. Vermeesch
noted that the plaintiff continued to smoke. (Tr. 236-37.) Dr. Vermeesch diagnosed the plaintiff with
sinusitis and prescribed Verelan and Benicar. (Tr. 237-38.) The plaintiff returned to Dr. Bolton on
multiple occasions between October of 2007, and May of 2008, with complaints of chest and sinus

4

Zyrtec is a decongestant used to treat allergic rhinitis. Saunders at 782.

5

Ciprofloxacin is an antibiotic, and Verelan is an antihypertensive. Saunders at 162, 751.

6

Benicar is an antihypertensive. Saunders at 88.
4

congestion, chronic bronchitis, a “stuffy” nose, and coughing, and Dr. Bolton noted that she
continued to smoke. (Tr. 217-20, 225-27, 243-46, 250-54, 257-61.) Dr. Bolton diagnosed the
plaintiff with bronchitis and COPD and prescribed Prednisone, Proventil, Doxycycline,
Ciprofloxacin, Benicar, Verelan, DuoNeb, Advair, and Chantix.7 Id.
On December 23, 2007, the plaintiff presented to the emergency room at CRMC complaining
that she had difficulty breathing and that her pain was a seven out of ten. (Tr. 312.) An x-ray of the
plaintiff’s chest revealed “[s]igns of COPD.” (Tr. 318.) The plaintiff was diagnosed with
pneumonia, congestive heart failure, and COPD. (Tr. 315.) On May 21, 2008, a Disability
Determination Services (“DDS”) PFT report showed that the plaintiff was not suffering from “any
acute respiratory illness,” wheezing, or broncho spasms. (Tr. 197-98.) On June 10, 2008, the
plaintiff returned to Satellite with complaints of having difficulty breathing and chronic bronchitis.
(Tr. 229-30.) She was given an injection of Solu-Medrol8 and prescribed Prednisone. (Tr. 231.) In
June and July of 2008, the plaintiff presented to the emergency room at CRMC with complaints of
COPD, wheezing, shortness of breath, a decrease of oxygen intake, and pain that was a seven out
of ten. (Tr. 295-99, 303-06.) X-rays of the plaintiff’s chest showed a “[s]table exam demonstrating
borderline hyperinflation and no acute process” (tr. 309) and “[n]o acute pulmonary process
demonstrated.” (Tr. 301.) The plaintiff was diagnosed with acute bronchitis, dyspnea,9 and COPD
and prescribed Solu-Medrol and Xopenex. (Tr. 297, 299, 304, 306.) On July 10, 2008, the plaintiff

7

Chantix is a “smoking cessation aid.” Saunders at 148.

8

Solu-Medrol is a corticosteroid anti-inflammatory. Saunders at 653.

9

Dyspnea is shortness of breath. Dorland’s Illustrated Medical Dictionary 578 (30th ed.

2003).
5

presented to Dr. James W. Cates at Satellite with complaints of bronchitis and shortness of breath.
(Tr. 331-34.) Dr. Cates noted that the plaintiff smoked and had “bilateral inspiratory wheezing.”
(Tr. 332.) He treated her with Ciprofloxacin and Prednisone and continued to prescribe Albuterol
and Advair inhalers, Verelan, Benicar, Chantix, and also prescribed Proventil (Tr. 333.)
On July 19, 2008, Dr. James B. Millis, a nonexamining consultative DDS physician,
completed a physical Residual Functional Capacity (“RFC”) assessment (tr. 285-92) and opined that
the plaintiff could lift and/or carry twenty pounds occasionally and ten pounds frequently, that in an
eight hour workday she could stand and/or walk for about six hours and sit for about six hours, and
that her ability to push and/or pull was unlimited. (Tr. 286.) Dr. Millis found no postural,
manipulative, visual, or communicative limitations, but found that the plaintiff should avoid
concentrated exposure to fumes, odors, dusts, gases, and poor ventilation. (Tr. 287-89.)
On July 25, 2008, Dr. Bolton examined the plaintiff and noted that she continued to smoke.
(Tr. 336.) He diagnosed her with COPD and chronic bronchitis and prescribed Prednisone and
Sulfamethoxazole.10 (Tr. 338-39.) In August of 2008, the plaintiff presented to Dr. Vermeesch with
complaints of congestion, sore throat, and coughing. (Tr. 341.) Dr. Vermeesch diagnosed the
plaintiff with “bronchitis, acute with bronchospasm” and “carotid bruits, bilateral;” recommended
that she quit smoking; and prescribed Prednisone and Zithromax.11 (Tr. 343-44.) An ultrasound of
the plaintiff’s carotid arteries revealed bilateral plaque disease with 8% stenosis on the right and 30%
stenosis on the left. (Tr. 321-22.) The plaintiff presented to Dr. Kane on August 21, 2008, and
related that she frequently wheezes and has a chronic cough. (Tr. 477.) A spirometry test revealed

10

Sulfamethoxazole is an antibiotic. Saunders at 669.

11

Zithromax is an antibiotic. Saunders at 778.
6

that she had an FVC of 66% and an FEV1 of 46%, “which is improved and indicates a moderately
severe obstructive ventilatory defect.” Id. Dr. Kane diagnosed the plaintiff with moderately severe
COPD that was stable, chronic bronchitis, allergic rhinitis, tobacco addiction, and an inspiratory
squeak and prescribed DuoNeb, Ceftin, and theophylline.12 Id.
On September 2, 2008, the plaintiff presented to Dr. Bolton with complaints of shortness of
breath, and he noted that she had good air movement and moderate wheezes. (Tr. 383, 385.) He
diagnosed her again with chronic bronchitis and COPD and prescribed Prednisone and
Ciprofloxacin. (Tr. 385-86.) A CT scan of the plaintiff’s chest revealed “some mild scattered
probable chronic changes” but “[n]o significant acute or focal abnormalities.” (Tr. 429.) On
September 18, 2008, the plaintiff presented to Dr. Kane, and he noted that her dyspnea was
“somewhat improved.” (Tr. 476.) A CT scan of the plaintiff’s chest revealed “acute emphysematous
changes” but “no acute or focal abnormalities” such as bronchiectasis. Id. He diagnosed the plaintiff
with moderately severe COPD with persistent bronchospasm, chronic bronchitis, tobacco addiction,
and chronic respiratory squeaks; prescribed Spiriva, DuoNeb, Prednisone, and Azithromycin;13 and
recommended that the plaintiff quit smoking. Id. On October 7, 2008, the plaintiff presented to
Dr. Vermeesch with complaints of shortness of breath and coughing, and she noted that the plaintiff
continued to use tobacco. (Tr. 379-80.) Dr. Vermeesch diagnosed her with COPD and a cough and
prescribed Prednisone. (Tr. 381-82.)

12

Ceftin is an antibiotic, and theophylline is a bronchodilator. Saunders at 141, 697.

13

Spiriva is prescribed for emphysema and COPD, and Azithromycin is an antibiotic.
Saunders at 75, 657.
7

In November of 2008, the plaintiff presented to Dr. Bolton on two occasions complaining
of a COPD exacerbation, shortness of breath, coughing, and having a panic attack due to dyspnea.
(Tr. 371, 375.) Dr. Bolton diagnosed her with bronchitis and COPD and prescribed Prednisone and
Azithromycin. (Tr. 373-74, 377-78.) In December of 2008, the plaintiff returned to Dr. Vermeesch
with complaints of shortness of breath and a dry cough and reported that she was not able to quit
smoking. (Tr. 366-67.) Dr. Vermeesch diagnosed her with pneumonia and a cough and prescribed
Bactrim,14 Prednisone, and Sulfamethoxazole. (Tr. 369-70.) She then presented to Rebecca E.
Vaughn, a nurse practitioner at Satellite, for follow-up examinations for her pneumonia. (Tr. 35865.) X-rays of the plaintiff’s chest revealed chronic bronchitis and COPD and Ms. Vaughn
prescribed Clarithromycin15 and Prednisone. (Tr. 360, 364-65.)
On January 12, 2009, the plaintiff presented to Dr. Bolton, and he diagnosed her with COPD,
chronic bronchitis, and hypertension. (Tr. 355.) Dr. Bolton prescribed Prednisone, Albuterol,
Benicar, and Verelan. (Tr. 355-56.) On January 16, 2009, the plaintiff presented to Dr. Vermeesch
with complaints of bronchitis. (Tr. 456-58.) Dr. Vermeesch diagnosed her with asthmatic bronchitis
and prescribed Albuterol, Solu-Medrol, Atrovent, and ceftriaxone.16 (Tr. 458-59.) Dr. Vermeesch
“stressed the need” for the plaintiff to quit smoking and to use the Chantix that she had prescribed.
(Tr. 458.) On January 17, 2009, the plaintiff went to the emergency room at CRMC with complaints
of shortness of breath and chest pain caused by COPD. (Tr. 419-22.) An x-ray of the plaintiff’s chest

14

Bactrim is an antibacterial medication. Saunders at 78.

15

Clarithromycin is an antibiotic. Saunders at 165.

16

Atrovent is used to treat COPD and bronchospasms and ceftriaxone is an antibiotic.
Saunders at 70, 141.
8

showed “underlying COPD” and “[e]vidence of past granulomatous disease with no acute
cardiopulmonary disease.” (Tr. 426.) The plaintiff was diagnosed with COPD. (Tr. 422.) Two days
later, she returned to the emergency room at CRMC and was admitted to the hospital with
complaints of shortness of breath and wheezing. (Tr. 402-406.)
On January 20, 2009, Dr. Kane examined the plaintiff in the hospital and noted that she “has
significant hyperinflation and a mildly reduced diffusion capacity.” (Tr. 399.) Dr. Kane relayed that,
despite discussing smoking cessation “numerous times” with the plaintiff, she “continues to smoke,”
and he expressed pessimism that she would begin taking Chantix. Id. He diagnosed the plaintiff
with COPD “with severe exacerbation,” acute chronic bronchitis, tobacco use, and hypertension; and
he noted that, during her hospitalization, she would be “treated aggressively for COPD exacerbation”
and not allowed to smoke. (Tr. 401.) Dr. Kane “feared” that the plaintiff may have “interstitial
disease and/or some underlying bronchiectasis;” however, he “could not verify this.” (Tr. 399.) The
plaintiff was discharged from CRMC on January 22, 2009, after her condition improved and she had
become stable enough to be discharged. (Tr. 397.)
On January 29, 2009, the plaintiff presented to Dr. Kane and told him that “theophylline
ha[d] made a significant improvement in her wheezing dyspnea.” (Tr. 474.) Dr. Kane opined that
the plaintiff improved with aggressive corticosteroids, beta agonists, anticholinergics, and
theophylline and noted that she had a FVC of 67% and a FEV1 of 48% “which is improved and
indicates a moderately severe obstructive ventilatory defect.” Id. Dr. Kane opined that the plaintiff’s
smoking led to her COPD exacerbations. Id. He diagnosed her with resolved acute COPD
exacerbation, chronic bronchitis, and “tobacco habituation” and prescribed DuoNeb, theophylline,
and Chantix. Id. On February 25, 2009, the plaintiff returned to Dr. Kane, and he reported that she
9

had been “working hard on smoking cessation” and was “doing fairly well,” that “[t]heophylline has
made significant improvement in her bronchospasm,” and that “[h]er dyspnea, cough and wheezing
are improved.” (Tr. 472.) A spirometry test revealed an FVC of 81% and a FEV1 of 62.5%, “which
is improved by 16% and indicates a moderate obstructive ventilatory defect.” Id. Dr. Kane
diagnosed the plaintiff with “[m]oderately severe chronic obstructive pulmonary disease with
significant improvement in pulmonary function, likely due to decreased tobacco habituation;” stable
chronic bronchitis; “[m]ild upper respiratory viral infection versus allergic rhinitis;” and tobacco
habituation. Id. He prescribed DuoNeb, Theophylline, Phenergan, and Chantix. Id.
On April 20, 2009, the plaintiff returned to Satellite with complaints of chest congestion and
shortness of breath. (Tr. 452.) Melissa R. Myrick, a nurse practitioner, examined the plaintiff and
diagnosed her with bronchitis with acute bronchospasms and prescribed Prednisone. (Tr. 454-55.)
On May 13, 2009, the plaintiff presented to Dr. Bolton with complaints of chest congestion.
(Tr. 448.) The plaintiff relayed to him that she had cut down her smoking to 4-5 cigarettes per day
while she was taking Chantix. Id. He noted that she had a “mild expiratory wheeze” and “good air
movement;” diagnosed her with chronic bronchitis, extrinsic asthma, and chronic COPD with acute
exacerbation; and prescribed Prednisone and cefuroxime.17 (Tr. 449-50.) On June 2, 2009, Laura
J. Lata, a registered nurse at Satellite, examined the plaintiff and noted that the plaintiff was still
smoking. (Tr. 444-47.) She diagnosed the plaintiff with COPD with acute exacerbation but found
that it had “improved” and prescribed Prednisone. (Tr. 446.)
Between June and September of 2009, the plaintiff presented to Dr. Bolton on three
occasions with complaints of nausea, coughing, and sinus congestion. (Tr. 432-43.) He diagnosed
17

Cefuroxime is an antibiotic. Saunders at 141.
10

her with expiratory wheezes, COPD, and chronic bronchitis and prescribed Prednisone and
cefuroxime. (Tr. 434, 438-439, 442-43.) On August 6, 2009, and November 9, 2009, the plaintiff
presented to Dr. Kane with complaints of shortness of breath and coughing. (Tr. 466, 469.) Dr. Kane
noted that the plaintiff “continues to smoke” (tr. 466) and “is smoking more than she did before.”
(Tr. 469.) He explained that “[w]hen she is not smoking, her pulmonary function significantly
improves.” (Tr. 466.) Spirometry tests revealed that she had a FVC of 73% and 81% and a FEV1
of 47% and 60%, indicating that she had a moderate to moderately severe obstructive ventilatory
defect. (Tr. 466, 469.) Dr. Kane diagnosed the plaintiff with “moderately severe” COPD and stable
chronic bronchitis, sinusitis, and tobacco habituation and prescribed DuoNeb, Spiriva, Theophylline,
Prednisone, Ceftin, and Symbicort.18 Id.

B. Hearing Testimony
At the hearing, the plaintiff was represented by a non-attorney “social security consultant,”
and the plaintiff and Dr. Jay D. Flynn, a vocational expert (“VE”), testified. (Tr. 14, 25-49, 168.)
The plaintiff testified that she has a GED, is able to drive, and has worked as a cashier at a
convenience store and machine press operator. (Tr. 29-35.) She related that she stopped working
due to shortness of breath and pain in her legs, feet, and chest. (Tr. 36.) The plaintiff used to smoke
approximately three packs of cigarettes per day but has reduced that amount and now smokes
between a pack and a pack and a half of cigarettes per day. (Tr. 37-38.) The plaintiff explained that
she tried to quit smoking by taking Chantix and Nicorette gum but that Chantix made her sick and
she “didn’t seem to do very well at all” while taking the Nicorette gum. (Tr. 38-39.) The plaintiff
18

Symbicort is a corticosteroidal anti-inflammatory inhaler. Saunders at 677.
11

admitted that since she started smoking, she had not gone more than “three or four days at home
without” smoking a cigarette. (Tr. 39.)
The plaintiff related that she is constantly “short of breath,” has to stop and use her inhaler
while walking around her house, and is exhausted after taking a shower. (Tr. 40-41.) She testified
that she developed breathing problems and bronchitis while working as a machine press operator.
(Tr. 42.)
The VE testified that her testimony was consistent with the Dictionary of Occupational Titles
(“DOT”) and classified the plaintiff’s past job as a cashier as light and unskilled, as a machine
operator19 as sedentary and unskilled, and as a hand packager as medium and unskilled.20 (Tr. 45,
47.) The ALJ asked the VE if the plaintiff could perform her past relevant work if she could do work
at the light level but could have no concentrated exposure to “temperature extremes, excessive
humidity levels, or pulmonary irritants.” (Tr. 45.) The VE answered that she could work as a cashier
or an assembler. Id. The ALJ then asked the VE whether the plaintiff could return to her past
relevant work if she must avoid all exposure to “temperature extremes, excessive humidity, and
pulmonary irritants,” and the VE replied that she would be precluded from all work. (Tr. 45-46.)
Next, the ALJ asked if there would be jobs at the light level if the plaintiff “could only work
in air-conditioned and heated and for lack of a better expression, ‘climate-controlled facilities’” and
that “climate-controlled” included exposure to “pulmonary irritants such as smoke, fumes, dust,
gases, and noxious odors.” (Tr. 46.) The VE responded that the plaintiff could work in such

19

The VE further classified the plaintiff’s machine operator job as an “assembler.” (Tr. 45.)

20

In her work history report, the plaintiff indicated that she had previously worked as a hand
packager at a warehouse (Tr. 120, 126.)
12

representative occupations as a silver wrapper, information clerk, or school bus monitor. Id. Finally,
the VE testified that, if the plaintiff had to miss more than two days of work per month or if her
testimony were found to be credible, she would be precluded from working. (Tr. 48.)

III. THE ALJ’S FINDINGS
The ALJ issued an unfavorable decision on February 25, 2010. (Tr. 14-21.) Based on the
record, the ALJ made the following findings:
1.

The claimant last met the insured status requirements of the Social Security
Act on September 30, 2009.

2.

The claimant did not engage in substantial gainful activity during the period
from her alleged onset date of June 1, 200721 through her date last insured of
September 30, 2009 (20 CFR 404.1571 et seq.).

3.

Through the date last insured, the claimant had the following severe
impairments: chronic obstructive pulmonary disease and arthropathies22 (20
CFR 404.1520(c)).
***

21

On the date of the hearing, the plaintiff amended her alleged onset date to July 8, 2007.

(Tr. 168.)
22

The ALJ did not explain which “arthropathies” are severe impairments, nor does it appear
that the plaintiff ever asserted that she was disabled as a result of arthropathies, nor does the record
reflect treatment for arthropathies or any form of arthritis. In his July 19, 2008 RFC assessment,
Dr. Millis refers to a secondary diagnosis of arthralgias (tr. 285), and the Social Security disability
determination forms include a secondary diagnosis of “[o]ther and unspecified arthropathies” (tr. 5051); however there is no support in the record for such a diagnosis, much less for a finding that
arthropathies are severe impairments for the plaintiff. In fact, any references to arthritis or
arthropathies in the record indicate that the plaintiff denied such symptoms and/or that there were
no findings of such a condition. (Tr. 173, 206, 240, 400, 504, 507, 510, 513.)
13

4.

Through the date last insured, the claimant did not have an impairment or
combination of impairments that met or medically equaled one of the listed
impairments in 20 CFR 404, Subpart P, Appendix 1 (20 CFR 404.1520(d),
404.1525 and 404.1526).
***

5.

After careful consideration of the entire record, the undersigned finds that,
through the date last insured, the claimant had the residual functional capacity
to perform light work as defined in 20 CFR 404.1567(b) or to lift/carry
twenty pounds occasionally and ten pounds frequently as well as
sit/stand/walk six hours of an eight-hour workday. The undersigned
determines that the claimant should avoid concentrated exposure to
temperature extremes, excessive humidity or pulmonary irritants.
***

6.

Through the date last insured, the claimant was capable of performing past
relevant work as a cashier and machine operator assembler. This work did
not require performance of work-related activities precluded by the
claimant’s residual functional capacity (20 CFR 404.1565).
***

7.

The claimant was not under a disability, as defined in the Social Security Act,
at any time from June 1, 2007, the alleged onset date, through September 30,
2009, the date last insured (20 CFR 404.1520(f)).

IV. DISCUSSION
A. Standard of Review
The determination of disability under the Act is an administrative decision, and the only
questions before this Court are whether the decision of the Commissioner is supported by substantial
evidence and whether the Commissioner employed the proper legal standards in reaching his
conclusion. 42 U.S.C. § 405(g). See also Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420,
14

28 L.Ed. 2d 842 (1971) (adopting and defining substantial evidence standard in context of Social
Security cases); Kyle v. Comm’r Soc. Sec., 609 F.3d 847, 854 (6th Cir. 2010). The Commissioner’s
decision must be affirmed if it is supported by substantial evidence, “even if there is substantial
evidence in the record that would have supported an opposite conclusion.” Blakely 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));
Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003); Her v. Comm’r of Soc. Sec., 203
F.3d 388, 389-90 (6th Cir. 1999). Substantial evidence is defined as “more than a mere scintilla”
and “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson, 402 U.S. at 401 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206,
83 L.Ed. 126 (1938)); Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007); Le Master
v. Weinberger, 533 F.2d 337, 339 (6th Cir. 1976) (quoting Sixth Circuit opinions adopting language
substantially similar to that in Richardson).
A reviewing court may not try the case de novo, resolve conflicts in evidence, or decide
questions of credibility. See, e.g., Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984) (citing
Myers v. Richardson, 471 F.2d 1265, 1268 (6th Cir. 1972)). The Court must accept the ALJ’s
explicit findings and determination unless the record as a whole is without substantial evidence to
support the ALJ’s determination. 42 U.S.C. § 405(g). See, e.g., Houston v. Sec’y of Health &
Human Servs., 736 F.2d 365, 366 (6th Cir. 1984).
The Commissioner must employ a five-step evaluation process in determining the issue of
disability. See, e.g., Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 534 (6th Cir. 2001) (citing Abbot
v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990)). The original burden of establishing disability is on
the plaintiff, and impairments must be demonstrated by medically acceptable clinical and laboratory
15

diagnostic techniques. See 42 U.S.C. § 1382c(a)(3)(D); 20 C.F.R. §§ 404.1512(a), (c), 404.1513(d).
First, the plaintiff must show that she is not engaged in “substantial gainful activity” at the time she
seeks disability benefits. Id. (citing 20 C.F.R. §§ 404.1520(b), 416.920(b)); Cruse v. Comm’r of Soc.
Sec., 502 F.3d 532, 539 (6th Cir. 2007). A plaintiff who is performing substantial gainful activity
is not disabled no matter how severe the plaintiff’s medical condition may be. See, e.g., Dinkel v.
Sec’y of Health & Human Servs., 910 F.2d 315, 318 (6th Cir. 1990).
Second, the plaintiff must show that she suffers from a severe impairment that meets the
twelve month durational requirement. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). See also
Edwards v. Comm’r of Soc. Sec., 113 Fed. Appx. 83, 85 (6th Cir. 2004). A “severe impairment” is
one which “significantly limits . . . physical or mental ability to do basic work activities.” Barnhart
v. Thomas, 540 U.S. 20, 24, 124 S.Ct. 376, 157 L.Ed.2d 333 (2003) (citing 20 C.F.R.
§§ 404.1520(c), 416.920(c)). Basic work activities are “the abilities and aptitudes necessary to do
most jobs,” such as “walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or
handling; [c]apacities for seeing, hearing, and speaking; [u]nderstanding, carrying out, and
remembering simple instructions; [u]se of judgment; [r]esponding appropriately to supervision, coworkers and usual work situations; and [d]ealing with changes in a routine work setting.” 20 C.F.R.
§ 404.1521(b). The Commissioner is required to consider the combined effects of impairments that
individually are not severe but cumulatively may constitute a severe impairment. 42 U.S.C.
§ 423(d)(2)(B); Foster v. Bowen, 853 F.2d 483, 490 (6th Cir. 1988).
Third, if the plaintiff is not engaging in substantial gainful activity and is suffering from a
severe impairment that has lasted or is expected to last for a continuous period of at least twelve
months, and her impairment meets or equals a listed impairment, the plaintiff is presumed disabled
16

without further inquiry, regardless of age, education or work experience. Id. (citing 20 C.F.R.
§§ 404.1520(d), 416.920(d)). The plaintiff may establish that she meets or equals a listed
impairment, and that the impairment has lasted or is expected to last for at least twelve months or
result in death. See Listenbee v. Sec’y of Health & Human Servs., 846 F.2d 345, 350 (6th Cir. 1988).
The plaintiff is not required to show the existence of a listed impairment in order to be found
disabled, but such a showing results in an automatic finding of disability. See Blankenship v. Bowen,
874 F.2d 1116, 1122 (6th Cir. 1989).
Fourth, if the plaintiff’s impairment does not prevent her from doing her past relevant work,
she is not disabled. Id. The plaintiff has the burden of proving inability to perform past relevant
work, or proving that a particular past job should not be considered relevant. Cruse, 502 F.3d at 539;
Jones, 336 F.3d at 474 (“Through step four, the [plaintiff] bears the burden of proving the existence
and severity of limitations caused by her impairments and the fact that she is precluded from
performing her past relevant work”); Smith v. Sec’y of Health & Human Servs., 893 F.2d 106, 109
(6th Cir. 1989). If the plaintiff fails to carry this burden, she must be denied disability benefits.
Once the plaintiff establishes a prima facie case that she is unable to perform her prior
relevant employment, the burden shifts in step five to the Commissioner to show that the plaintiff
can perform other substantial gainful employment, and that such employment exists in significant
numbers in the national economy. Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir.
2005) (quoting Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir.1997)). See also Felisky
v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994). To rebut a prima facie case, the Commissioner must
come forward with proof of the existence of other jobs a plaintiff can perform. Longworth, 402 F.3d
at 595. See also Kirk v. Sec’y of Health & Human Servs., 667 F.2d 524, 528 (6th Cir. 1981), cert.
17

denied, 461 U.S. 957, 103 S.Ct. 2428, 77 L.Ed.2d 1315 (1983) (upholding the validity of the
medical-vocational guidelines grid as a means for the Commissioner of carrying his burden under
appropriate circumstances). It remains the plaintiff’s burden to prove the extent of her functional
limitations. Her, 203 F.3d at 391. Even if the plaintiff’s impairment does prevent her from doing
her past relevant work, if other work exists in significant numbers in the national economy that the
plaintiff can perform, she is not disabled. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 652 (6th
Cir. 2009). See also Tyra v. Sec’y of Health & Human Servs., 896 F.2d 1024, 1028-29 (6th Cir.
1990); Farris v. Sec’y of Health & Human Servs., 773 F.2d 85, 88-89 (6th Cir. 1985); Mowery v.
Heckler, 771 F.2d 966, 969-70 (6th Cir. 1985).
If the question of disability can be resolved at any point in the sequential evaluation process,
the claim is not reviewed further. 20 C.F.R. § 404.1520(a)(4). See also Higgs v. Bowen, 880 F.2d
860, 863 (6th Cir. 1988) (holding that resolution of a plaintiff’s claim at step two of the evaluative
process is appropriate in some circumstances).

B. The five step inquiry
In this case, the ALJ resolved the plaintiff’s claim at step four of the five step process.
(Tr. 19-21.) At step one, the ALJ found that the plaintiff had not engaged in substantial gainful
activity during the period from her alleged onset date through her date last insured. (Tr. 16.) At step
two, the ALJ determined that the plaintiff’s COPD and arthropathies were severe impairments. Id.
At step three, the ALJ found that the plaintiff’s impairments, either singly or in combination, did not
meet or medically equal one of the listed impairments in 20 C.F.R. Pt. 404, Subpt. P, App. 1.
(Tr. 17.) At step four, the ALJ concluded that the plaintiff had the RFC to perform light work but
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“should avoid concentrated exposure to temperature extremes, excessive humidity or pulmonary
irritants,” and thus she could perform her past relevant work as a cashier and machine operator
assembler. (Tr. 17-19.)

C. The Plaintiff’s Assertions of Error
The plaintiff contends that the ALJ erred in: (1) determining that she did not meet or equal
Listing 3.07(B); and (2) finding that she was “only restricted to concentrated levels of pulmonary
irritants.” Docket Entry No. 12, at 21-25.

1. The ALJ properly determined that the plaintiff did not meet or equal Listing 3.07(B).
The plaintiff contends that the ALJ erred in failing to find that she meets or equals Listing
3.07(B) for bronchiectasis. Docket Entry No. 12, at 21. In his step three analysis, the ALJ did not
specifically determine whether the plaintiff’s impairments satisfied Listing 3.07(B), but generally
found that none of the plaintiff’s impairments met or equaled a listing. The plaintiff argues that her
medical records reflect numerous episodes of bronchitis sufficient to satisfy that listing. Id. at 22.
At step three, the burden of proof lies with the plaintiff to prove that her impairment meets
or equals an impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1. Her v. Comm’r of Soc. Sec,
203 F.3d 388, 391 (6th Cir. 1999); Little v. Astrue, 2008 WL 3849937, at *4 (E.D.Ky. Aug. 15,
2008). The plaintiff’s impairment must meet all of the listing’s specified medical criteria and “[a]n
impairment that manifests only some of those criteria, no matter how severely, does not qualify.”
Sullivan v. Zebley, 493 U.S. 521, 530, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990). See also Elam ex rel.
Golay v. Comm’r of Soc. Sec., 348 F.3d 124, 125 (6th Cir. 2003). If the plaintiff’s impairment does
19

not meet the criteria of a listing, she can present evidence that her impairment is medically
equivalent to a listing. Bailey v. Comm’r of Soc. Sec., 413 Fed. Appx. 853, 854 (6th Cir. 2011);
20 C.F.R. §§ 404.1525(c)(5); 404.1526. For the plaintiff to establish medical equivalence, she “must
present medical findings equal in severity to all the criteria for the one most similar listed
impairment.” Zebley, 493 U.S. at 531 (emphasis in original). If the plaintiff demonstrates that her
impairment meets or equals a listed impairment, then the ALJ “‘must find the [plaintiff] disabled.’”
Little, 2008 WL 3849937, at *4 (quoting Buress v. Sec’y of Health and Human Servs., 835 F.2d 139,
140 (6th Cir. 1987)).
In this case, the plaintiff asserts that she is entitled to a finding of disability under Listing
3.07(B), which provides as follows:
3.07 Bronchiectasis (demonstrated by appropriate imaging techniques). With:
....
B. Episodes of bronchitis or pneumonia or hemoptysis (more than blood-streaked
sputum) or respiratory failure (documented according to 3.00C), requiring physician
intervention, occurring at least once every 2 months or at least six times a year. Each
in-patient hospitalization for longer than 24 hours for treatment counts as two
episodes, and an evaluation of at least 12 consecutive months must be used to
determine the frequency of episodes.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 3.07(B). Additionally, Section 3.00(C) explains that:
When a respiratory impairment is episodic in nature, as can occur with exacerbations
of asthma, cystic fibrosis, bronchiectasis, or chronic asthmatic bronchitis, the
frequency and intensity of episodes that occur despite prescribed treatment are often
the major criteria for determining the level of impairment.
....
Attacks of asthma, episodes of bronchitis or pneumonia or hemoptysis (more than
blood-streaked sputum), or respiratory failure as referred to in paragraph B of 3.03,
3.04, and 3.07, are defined as prolonged symptomatic episodes lasting one or more
days and requiring intensive treatment, such as intravenous bronchodilator or
antibiotic administration or prolonged inhalational bronchodilator therapy in a
hospital, emergency room or equivalent setting. Hospital admissions are defined as
inpatient hospitalizations for longer than 24 hours. The medical evidence must also
20

include information documenting adherence to a prescribed regimen of treatment as
well as a description of physical signs. For asthma, the medical evidence should
include spirometric results obtained between attacks that document the presence of
baseline airflow obstruction.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 3.00(C).
The plaintiff argues that she meets the listing due to episodes of bronchitis requiring
physician intervention that occurred between August 2007 and August 2009. Docket Entry No.12,
at 22. In support of her claim, the plaintiff cites twenty-six occasions during this two-year period
in which she was treated for acute bronchitis.23 Docket Entry No. 12, at 22-25.
After reviewing the record, the Court concludes that the plaintiff fails to meet the
requirements of Listing 3.07(B). First, the plaintiff has never been diagnosed with bronchiectasis.
Although the plaintiff has repeatedly been diagnosed with bronchitis and COPD (tr. 217, 221, 224,
227-32, 246-49, 254-55, 299, 306, 315, 338, 343, 355, 381, 385, 401, 406, 421, 446, 449, 454, 458,
466, 469, 474, 476-77, 481-82, 484-519), the record does not contain any diagnosis of
bronchiectasis, much less one supported by “appropriate imaging techniques.” In fact, Dr. Kane, the
plaintiff’s respiratory specialist, evaluated the plaintiff for bronchiectasis on September 18, 2008,
and again on January 20, 2009, and found no evidence to support such a diagnosis. (Tr. 399, 476.)
Because nothing in the record indicates that she has been diagnosed with bronchiectasis, the plaintiff
does not satisfy the diagnostic requirements of Listing 3.07(B).

23

The Commissioner contests the plaintiff’s alleged twenty-six episodes, arguing that only
five of the episodes required “intensive treatment” as described in Listing 3.07(B). Docket Entry
No. 13, at 8-9. The Court finds it unnecessary to determine whether the plaintiff satisfied the number
of episodes required by Listing 3.07(B) because, as discussed below, the plaintiff was never
diagnosed with bronchiectasis and did not adhere to her prescribed treatment plan.
21

Second, for the plaintiff to satisfy Listing 3.07(B), the medical record must include
“information documenting adherence to a prescribed regimen of treatment . . . .” 20 C.F.R. Pt. 404,
Subpt. P, App. 1, § 3.00(C). As explained in section 3.00(C), “[w]hen a respiratory impairment is
episodic in nature . . . the frequency and intensity of episodes that occur despite prescribed treatment
are often the major criteria for determining the level of impairment.” Id. Here, the medical records
reveal that the plaintiff repeatedly disregarded her doctors’ orders to stop smoking and to take her
prescribed smoking cessation medicine Chantix.
From as early as December 1, 2004, Dr. Kane instructed the plaintiff to quit smoking,
describing tobacco cessation as a “life saving maneuver.” (Tr. 517.) The plaintiff continued to
express disinterest in quitting smoking, despite Dr. Kane’s explanation that it would reduce the
number of exacerbations of her chronic bronchitis. (Tr. 505, 508.) As plaintiff’s medical records
indicate, from December 1, 2004, until the plaintiff’s amended onset date of July 8, 2007, she was
told multiple times to quit smoking by her doctors. (Tr. 481, 484, 488, 491, 492, 497, 500, 505, 508,
511, 514, 517.) Despite these instructions and the awareness that her COPD and bronchitic
exacerbations were aggravated by her tobacco habit, the plaintiff continued to smoke. (Tr. 214, 218,
222, 234, 240, 243-244, 247, 251, 254, 481, 484, 488, 490-492, 497, 500, 504, 507-508, 510-511,
513-514, 516-517.)
Between August 2007, and August 2009, the plaintiff was repeatedly instructed to quit
smoking. Dr. Bolton at Satellite continued to stress the importance of tobacco cessation, but the
plaintiff continued to smoke. (Tr. 244, 338, 385.) Dr. Bolton’s instructions to quit smoking were
echoed numerous times throughout this two-year period by Dr. Vermeesch of Satellite Medical
Clinic, Dr. Mullen of the CRMC emergency room, and various other nurses. (Tr. 227, 275, 338, 343,
22

360, 369, 381, 385, 454.) Dr. Kane himself continued to stress the importance of tobacco cessation,
noting that “we have gone over this numerous times in the office” and that he hoped that she would
“be able to quit before [sh]e end[s] up on the mechanical ventilator.” (Tr. 347, 397, 399.) Despite
all warnings and instructions to quit, however, the plaintiff testified that, with the exception of a brief
hospitalization, she continued to smoke through the date of her hearing. (Tr. 37-38.)
In an effort to help the plaintiff quit smoking, Dr. Kane initially told her about Chantix on
September 25, 2006, although she declined a prescription at that time. (Tr. 481.) Dr. Bolton later
prescribed Chantix on April 12, 2008 (tr. 217-219); however, the plaintiff did not immediately begin
taking Chantix despite Dr. Bolton’s continued instructions to do so. (Tr. 227.) Following a
January 29, 2009 visit to Dr. Kane’s office, the plaintiff was once again prescribed Chantix and
finally agreed to start taking it, over nine months after it was initially prescribed. (Tr. 474.)
After beginning to take Chantix, the plaintiff’s medical treatment became much more
infrequent. In fact, the plaintiff only visited medical facilities for routine lab work from January 29,
2009, until April 20, 2009, when she visited Satellite for shortness of breath and congestion and was
encouraged to “continue Chantix.” (Tr. 390-395, 452.) According to a June 30, 2009 medical report
from Satellite, the plaintiff stopped taking Chantix due to persistent nausea.24 (Tr. 440.) On
August 6, 2009, Dr. Kane noted that the plaintiff’s “pulmonary function dropped about 20% after

24

It is not clear to the Court whether the plaintiff remained on Chantix during this entire five
month period. At the hearing, the plaintiff testified that she was taking Chantix for approximately
“two and a half months,” toward the beginning of 2009, but did not provide any dates. (Tr. 37.) An
April 20, 2009 report from Satellite notes that plaintiff was “encouraged to continue Chantix and to
continue smoking cessation effort,” but it is not clear whether she had stopped taking it or was
simply receiving encouragement to continue taking it.
23

she increased her tobacco [use] after stopping Chantix.” (Tr. 469.) At the hearing, the plaintiff
testified that she continued to smoke over a pack of cigarettes a day. (Tr. 37-38.)
The regulations require that an episodic respiratory impairment, such as the one the plaintiff
alleges, be measured by the “episodes that occur despite prescribed treatment.” 20 C.F.R. Pt. 404,
Subpt. P, App.1, § 3.00(C). Moreover, if a plaintiff does not follow the prescribed treatment without
a good reason, she will not be found to be disabled. 20 C.F.R. § 404.4530(b). See also Arnold v.
Comm’r of Soc. Sec., 238 F.3d 419, 2000 WL 1909386, at *3 (6th Cir. 2000); Hall-Thulin v. Comm’r
of Soc. Sec., 110 F.3d 64, 1997 WL 144237, at *1 (6th Cir. 1997) (citing Sias v. Secretary of Health
and Human Servs., 861 F.2d 475, 480 (6th Cir. 1988)). In this case, the record fully supports a
finding that the plaintiff’s bronchitis exacerbations were caused by her failure to stop smoking as
recommended by her medical providers. Consequently, substantial evidence supports the ALJ’s
conclusion that the plaintiff “did not have an impairment or combination of impairments that met
or equaled one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.”25 (Tr. 17.)

2. The ALJ’s RFC finding was supported by substantial evidence.
The plaintiff also contends that the ALJ erred in finding that the plaintiff was only restricted
to concentrated levels of pulmonary irritants. Docket Entry No. 12, at 25. She argues that the VE
testified that, if she were required to avoid all exposure to all environmental irritants, all work would

25

Although the plaintiff captions her first Statement of Error as the ALJ’s error “in failing
to find [the plaintiff] meets or equals Listing 3.07B” (Docket Entry No. 12, at 21), she argues only
that she met the listing and does not argue that she equaled the listing. Even if the plaintiff had
argued that she equaled, rather than met, Listing 3.07(B), her argument would fail because she did
not follow her prescribed treatment.
24

be eliminated. Id. The plaintiff, however, offers no argument or evidence as to why the ALJ should
have adopted this limitation. Id.
The Regulations allow the ALJ to rely on a VE at step four to determine whether a plaintiff
is able to perform her past work. 20 C.F.R. § 404.1560(b)(2). The VE’s testimony, in response to
an ALJ’s hypothetical question, will be considered substantial evidence “‘only if that [hypothetical]
question accurately portrays [the plaintiff’s] individual physical and mental impairments.’” White
v. Comm’r of Soc. Sec., 312 Fed. Appx. 779, 785 (6th Cir. Feb. 24, 2009) (quoting Varley v. Sec’y
of Health & Human Servs., 820 F.2d 777, 779 (6th Cir. 1987)). See also Anderson v. Comm’r of Soc.
Sec., 2010 WL 5376877, at *3 (6th Cir. Dec. 22, 2010) (citing Felisky v. Bowen, 35 F.3d 1027, 1036
(6th Cir. 1994)) (“As long as the VE’s testimony is in response to an accurate hypothetical, the ALJ
may rely on the VE’s testimony to find that the [plaintiff] is able to perform a significant number of
jobs.”). Although a hypothetical must accurately portray a plaintiff’s impairments, an ALJ “is
required to incorporate only those limitations that he accepts as credible.” Griffeth v. Comm’r of Soc.
Sec., 217 Fed. Appx. 425, 429 (6th Cir. 2007) (quoting Casey v. Sec’y of Health & Human Servs.,
987 F.2d 1230, 1235 (6th Cir. 1993)).
In his July 19, 2008 RFC assessment, Dr. Millis concluded that the plaintiff could have
unlimited exposure to extreme heat, extreme cold, wetness, humidity, noise, vibration, and hazards.
(Tr. 289.) He only limited the plaintiff from concentrated exposure to such pulmonary irritants as
fumes, odors, dusts, gases, and poor ventilation. Id. Dr. Millis did not find that plaintiff should avoid
all exposure to all environmental limitations; instead he concluded that the plaintiff should merely
avoid concentrated exposure to pulmonary irritants. Id. The record also demonstrates that none of

25

the plaintiff’s treating physicians limited her environmental exposure, let alone contradicted
Dr. Millis’ assessment.
In his findings, the ALJ was in fact more generous than necessary to the plaintiff in
describing her environmental limitations. Rather than concluding that the plaintiff should only avoid
concentrated exposure to pulmonary irritants, the ALJ more broadly found that she should also avoid
“concentrated exposure to temperature extremes, [and] excessive humidity.” (Tr. 17.)
The confusion the plaintiff demonstrates appears to be rooted in the testimony of the VE
before the ALJ. In the first hypothetical posed by the ALJ, the VE testified that, if the plaintiff could
not have “concentrated exposure to temperature extremes, excessive humidity levels, or pulmonary
irritants,” she would be able to perform her past relevant work as a cashier or assembler. (Tr. 45.)
(Emphasis added). In the next hypothetical, the ALJ inquired whether there would be work available
if the plaintiff must avoid “all exposure” to the aforementioned factors. Id. (Emphasis added). In
other words, the ALJ was asking what the effect would be if the plaintiff could not have any
exposure whatsoever. The VE testified that, if this were indeed the case, the plaintiff would be
precluded from all work in all settings. Id. Thus, while the plaintiff would be disabled based on the
facts posed in the second hypothetical, neither the ALJ nor the VE in fact concluded that it was a
factually accurate representation. It was merely speculative analysis, not a fact-driven conclusion.
The ALJ made it clear that his actual determination was based upon extensive objective medical
evidence including medical reports from Satellite, Dr. Kane, and Dr. Millis. (Tr. 17-19.) As such,
the ALJ’s determination was clearly based upon substantial evidence.

26

V. RECOMMENDATION
For the above stated reasons, it is recommended that the plaintiff’s motion for judgment on
the record (Docket Entry No. 11) be DENIED and the Commissioner’s decision be AFFIRMED.
Any objections to this Report and Recommendation must be filed with the Clerk of Court
within fourteen (14) days of service of this Report and Recommendation, and must state with
particularity the specific portions of this Report and Recommendation to which the objection is
made. Failure to file written objections within the specified time can be deemed a waiver of the right
to appeal the District Court’s order. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed. 2d
435 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

Respectfully submitted,

JULIET GRIFFIN
United States Magistrate Judge

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