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Case: 1:12-cv-00276-SAS-SKB Doc #: 15 Filed: 07/11/13 Page: 1 of 13 PAGEID #: 360











UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

















Case No. 1:12-cv-276


Spiegel, J.
Bowman, M.J.



























v.


Plaintiff,


HAROLD G. FOSSITT,






COMMISSIONER OF SOCIAL SECURITY,





Defendant.






REPORT AND RECOMMENDATION





Plaintiff Harold G. Fossitt filed this Social Security appeal in order to challenge

the Defendant’s finding that he is not disabled. See 42 U.S.C. §405(g). Proceeding

through counsel, Plaintiff presents three claims of error for this Court’s review. As

explained below, the ALJ’s finding of non-disability should be AFFIRMED, because it is

supported by substantial evidence in the administrative record.





I. Summary of Administrative Record

Plaintiff filed an application for disability insurance benefits (“DIB”) in December

2007, alleging a disability onset date of August, 2004 based solely upon physical

impairments. After his application was denied initially and on reconsideration, he

requested a hearing de novo before an Administrative Law Judge (“ALJ”). In

November 2010, an evidentiary hearing was held before ALJ Samuel A. Rodner.

Plaintiff appeared with counsel and provided testimony, as did a vocational expert. (Tr.

28-68). On December 10, 2010, the ALJ denied Plaintiff’s application in a written

decision. (Tr. 15-23).

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Because Plaintiff was 60 years old at the time of the hearing, with a high school

education, he is considered “of advanced age” under Social Security regulations. (Tr.

22). Plaintiff previously worked as an electrician for more than 35 years, but had not

engaged in substantial gainful activity since his alleged disability onset date. He is

insured only through December 31, 2009, and therefore must prove that he became

disabled prior to that date. (Tr. 17).

The ALJ determined that Plaintiff had severe impairments of “morbid obesity (not

extreme), hypertension, and shortness of breath (etiology unclear).” (Tr. 17). However,

none of those impairments, alone or in combination, met or medically equaled one of

the listed impairments in 20 C.F.R. 404, Subpart P, Appendix 1. (Id.). Based upon the

record presented, the ALJ determined that Plaintiff retained the residual functional

capacity (“RFC”) to perform medium work, except, due to his “protuberant abdomen the

claimant can stoop occasionally.” (Tr. 18). Plaintiff is 5’11” and weighs 280 pounds.

(Tr. 34). In addition, based the alleged side effects of his blood pressure medication

and other impairments, the ALJ determined that Plaintiff “should avoid concentrated

exposure to fumes, dusts, gases, poorly ventilated areas, hazardous machinery, and

unprotected heights.” (Tr. 18).

Although Plaintiff was not able to perform his past relevant work as an electrician,

the vocational expert testified that an individual with the same vocational profile and

RFC, during the relevant insured period, would have been able to perform “jobs that

existed in significant numbers in the national economy,” including the representative

unskilled occupations of assembler, inspector, and hand packager. (Tr. 22-23).

Therefore, the ALJ determined that Plaintiff was not disabled. (Tr. 23).



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The Appeals Council denied Plaintiff’s request for review, leaving the ALJ’s

decision as the Defendant’s final determination. On appeal to this Court, Plaintiff

contends that the ALJ erred: (1) by failing to find that Plaintiff’s gout was a severe

impairment; (2) by misconstruing medical evidence to find Plaintiff capable of “medium”

work; and (3) by improperly assessing Plaintiff’s credibility.

II. Analysis

A. Judicial Standard of Review



To be eligible for benefits, a claimant must be under a “disability” within the

definition of the Social Security Act. See 42 U.S.C. §1382c(a). Narrowed to its

statutory meaning, a “disability” includes only physical or mental impairments that are

both “medically determinable” and severe enough to prevent the applicant from (1)

performing his or her past job and (2) engaging in “substantial gainful activity” that is

available in the regional or national economies. See Bowen v. City of New York, 476

U.S. 467, 469-70 (1986).



When a court is asked to review the Commissioner’s denial of benefits, the

court’s first inquiry is to determine whether the ALJ’s non-disability finding is supported

by substantial evidence. 42 U.S.C. § 405(g). 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) (additional citation and internal

quotation omitted). In conducting this review, the court should consider the record as a

whole. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial evidence

supports the ALJ’s denial of benefits, then that finding must be affirmed, even if



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substantial evidence also exists in the record to support a finding of disability. Felisky v.

Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994). As the Sixth Circuit has explained:

The Secretary’s findings are not subject to reversal merely because
substantial evidence exists in the record to support a different conclusion.
. .. The substantial evidence standard presupposes that there is a ‘zone of
choice’ within which the Secretary may proceed without interference from
the courts. If the Secretary’s decision is supported by substantial
evidence, a reviewing court must affirm.


Id. (citations omitted).



In considering an application for disability benefits, the Social Security Agency is

guided by the following sequential benefits analysis: at Step 1, the Commissioner asks if

the claimant is still performing substantial gainful activity; at Step 2, the Commissioner

determines if one or more of the claimant’s impairments are “severe;” at Step 3, the

Commissioner analyzes whether the claimant’s impairments, singly or in combination,

meet or equal a Listing in the Listing of Impairments; at Step 4, the Commissioner

determines whether or not the claimant can still perform his or her past relevant work;

and finally, at Step 5, if it is established that claimant can no longer perform his past

relevant work, the burden of proof shifts to the agency to determine whether a

significant number of other jobs which the claimant can perform exist in the national

economy. See Combs v. Com’r of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 2006); 20

C.F.R. §§404.1520, 416.920.







B. Plaintiff’s Statement of Errors

1. Failure to Find Gout a “Severe” Impairment

Plaintiff first complains that the ALJ erred in failing to find that his gout was a

“severe” impairment. The ALJ noted that Plaintiff “had a positive test for uric acid on

June 4, 2008” with a test result of 9.60, above the normal range of 4.0 to 8.0. However,



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the ALJ stated that the test result was not “correlated by any substantiated evidence of

clinical signs of gout. The claimant alleged arthritic joints all over, but there is no

substantiated evidence of this as a severe impairment.” (Tr. 17).

Plaintiff argues persuasively that the first statement was factually incorrect,

insofar as the record reflects at least modest evidence of “clinical signs of gout.”

Defendant responds by rephrasing the ALJ’s statement as one confirming that Plaintiff

did not have “ongoing, substantial clinical abnormalities from gout.” (Doc. 13 at 4).

While the latter statement may well have been what the ALJ meant, it is not what is

written.

Nevertheless, the undersigned finds no reversible error, because substantial

evidence supports the ALJ’s conclusion that Plaintiff’s gout was not a severe

impairment. In the alternative, the undersigned concludes that any error in finding

Plaintiff’s gout to be non-severe at Step 2 was harmless, because the ALJ determined

that Plaintiff had other severe impairments, and therefore proceeded to the next steps of

the sequential analysis, at which time both severe and non-severe impairments were

considered. See 20 C.F.R. §404.1545(a)(2); see also Walton v. Astrue, 773 F. Supp.2d

742, 747 (N.D. Ohio 2011)(citing Maziarz v. Sec’y of Heatlh and Human Servs., 837

F2d 240, 244 (6th Cir. 1987), for the proposition that error at step two is harmless when

ALJ proceeds to subsequent steps of the sequential process).

In considering the degree of limitation claimed by Plaintiff with respect to his

gout, the ALJ noted Plaintiff’s testimony that he had problems with his knees and feet,

“and that gout or arthritis were the suspected cause.” However, Plaintiff testified that

“he does not take medication for these problems because he already takes too many



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medications.” (Tr. 19). At a consultative examination on March 19, 2008, Plaintiff

reported that he could walk for three quarters of a mile on level terrain without difficulty,

even though he stated that he had experienced “a dull ache” for approximately five

years “over the top of his feet,” that was exacerbated upon “prolonged ambulation.” (Tr.

225). Despite this reported ache, Plaintiff admitted he had never sought any medical

attention for foot pain, such as physical therapy, injections, or surgery. Nor had Plaintiff

tried any self-treatment for his alleged pain, such as orthotics, heating pads or

ambulatory aids. (Tr. 19, 225). The examining consultant, Dr. Bailey, found that Plaintiff

had a normal gait. (Tr. 19, 227). Plaintiff did not have pedal edema, and had no history

of instability or falls. (Tr. 21, 225).

Plaintiff focuses on a handful of medical records to support his claim of painful

gout. For example, at a follow-up appointment for treatment of his high blood pressure

on June 4, 2008, Dr. Bill noted some pitting edema, which can be a symptom of gout.

(Tr. 246). Dr. Bill referred Plaintiff for lab work (which resulted in the single abnormal

uric acid result), and recommended that Plaintiff decrease his alcohol consumption. On

October 5, 2008, Dr. Bill formally diagnosed gout and recommended treatment through

dietary changes. (Tr. 261). Dr. Bill repeated his advice to reduce alcohol intake at a

later appointment on February 12, 2009. The record shows that Plaintiff again

complained of joint ache in one of his big toes on September 9, 2010. (Tr. 282).

However, the last complaint was nine months after the expiration of Plaintiff’s insured

status. Moreover, the examining physician at that time, Dr. Mueller, felt that gout was

“less likely” than some other condition to be the cause of Plaintiff’s joint pain, including

in his toe. Dr. Mueller prescribed only Tylenol. (Tr. 282-283, 286-287).



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Although Plaintiff testified at the hearing that his feet hurt so severely that he was

often unable to wear shoes, the ALJ did not find that testimony to be credible in light of

the medical evidence as a whole, including Plaintiff’s report to Dr. Bailey, and Dr.

Bailey’s notation that Plaintiff walked one to one and a half miles every day. (Tr. 21).

The credibility issues are discussed at greater length in the context of Plaintiff’s third

assertion of error. With respect to the first assertion – that the ALJ committed reversible

error by failing to find gout a severe impairment – it is enough to say that the

undersigned finds substantial evidence in the record as a whole to support the

determination that Plaintiff’s gout was non-severe.

A severe impairment is defined as one that significantly impacts an individual’s

physical or mental ability to perform basic work activities. 20 C.F.R. §404.1521.

Plaintiff can be found to be disabled only if he suffered from at least one severe

impairment that caused significant limitations for a period lasting 12 months or more.

Here, Plaintiff sought almost no treatment at all for his gout, which a physician

discovered only in the course of treating Plaintiff’s high blood pressure. Plaintiff fails to

identify any ongoing symptoms that his physicians attributed to gout, and treatment was

conservative (primarily dietary recommendations, and a suggestion to reduce alcohol

intake). Dr. Bill advised Plaintiff to use over-the-counter ibuprofen or Aleve as needed

for any flare-ups (Tr. 247, 261). In October 2008, Dr. Bill indicated that Plaintiff’s uric

acid level at 9.0 was “still high, but better” than the previously reported 9.6, and that he

would continue to monitor it. (Tr. 265). Treatment notes in 2009 indicated no edema,

and reflect no complaints of musculoskeletal pain at all. (Tr. 260, 295). Thus, the

evidence strongly supports the ALJ’s conclusion that – whatever the cause of Plaintiff’s



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alleged foot pain and however many months he may have had symptoms– his foot

condition did not significantly impact his ability to perform work.





2. Review of Medical Evidence Supports RFC of “Medium” Work

Again relying on the failure of the ALJ to find his gout to be a severe impairment,

Plaintiff argues that the ALJ improperly determined that he was able to perform

“medium level” work, which requires an individual to be able to stand or walk “a good

deal” or alternatively, to sit “most of the time with some pushing and pulling of arm or leg

controls,” and to occasionally lift and carry up to 50 pounds, and frequently lift or carry

25 pounds. 20 C.F.R. §404.1567(c)(defining medium work, incorporating postural

abilities of light work).1 Plaintiff concedes that no treating source submitted any RFC

opinion on his behalf. In fact, no treating doctor has ever opined that Plaintiff has any

work-related limitations (Tr. 21). By contrast, one state agency consultant (Dr. Cho)

found “no severe impairment,” suggesting that Plaintiff has no work-related limitations at

all. (Tr. 21, 251).



Dr. Bailey opined that Plaintiff could perform “at least a mild amount of sitting,

ambulating, standing, bending, kneeling, pushing, pulling, lifting and carrying heavy

objects…and would do best in a dust-free environment.” (Tr. 228). Plaintiff contends

that Dr. Bailey’s use of the phrase “mild amount” is inconsistent with the ALJ’s RFC

determination that he can perform medium work. However, Plaintiff’s argument ignores

that Dr. Bailey expressed her opinion in terms of the minimum Plaintiff could do, i.e. “at

least a mild amount.” (Id., emphasis added). Dr. Bailey also observed that Plaintiff

ambulated with a normal gait, was comfortable in sitting and standing positions, could

1Plaintiff incorrectly posits that medium work mandates that an individual be “on their feet standing or
walking the better part of a day.” (Doc. 9 at 4). As quoted, the definition of medium work allows for sitting
most of the time.



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forward bend and squat without difficulty, and demonstrated normal range of motion in

his extremities and back. (Tr. 19, 21, 227, 230-231). As Defendant notes, Dr. Bailey

conducted her exam at a time when Plaintiff’s hypertension was uncontrolled, but

Plaintiff’s hypertension was brought into control just a week later, after referral for

treatment by his primary care physician. (Tr. 234). The ALJ gave Dr. Bailey’s opinions

only “some weight.” (Tr. 21). However, despite referencing Dr. Bailey’s statement that

Plaintiff could perform “at least a mild amount” of work-related postural activities, the

ALJ did not further explain any implicit inconsistency between medium work and Dr.

Bailey’s “mild” statement. (Tr. 19). The undersigned again finds no reversible error,

because the record as a whole supports the ALJ’s determination that Plaintiff is capable

of performing medium work. Additionally, although an ALJ must consider every medical

source opinion, an ALJ is not legally required to articulate as extensively his reasons for

rejecting the opinions of a non-examining consultant, as he is when he rejects the

opinion of a treating physician. Compare 20 C.F.R. §404.1527(c)(2) (dictating that

“good reasons” be given for the weight given to “your treating source’s opinion.”).



3. Credibility Assessment

In his last assignment of error, Plaintiff complains that the ALJ erred in finding

him to be only “partially” credible. (Tr. 20). An ALJ’s credibility assessment must be

supported by substantial evidence, but “an ALJ’s findings based on the credibility of the

applicant are to be accorded great weight and deference, particularly since an ALJ is

charged with the duty of observing a witness’s demeanor and credibility.” Walters v.

Com’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997). Further, a credibility

determination cannot be disturbed “absent a compelling reason.” Smith v. Halter, 307



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F.3d 377, 379 (6th Cir. 2001). Thus, it is proper for an ALJ to discount the claimant’s

testimony where there are contradictions among the medical records, his testimony, and

other evidence. Warner v. Com’r of Soc. Sec., 375 F.3d at 387, 392 (6th Cir. 2004).

Plaintiff relies heavily on his strong record of 35 years of employment as an

electrician, since prior work record is an important factor in determining credibility. SSR

96-7p. However, the ALJ did not find that work history to be dispositive concerning

Plaintiff’s credibility in this case:

The claimant did have a good work record up to 2004, [when]…he [could
not] do his past relevant work. However, he has made no effort to retrain
himself or look at other types of work.


Plaintiff argues that the ALJ erred by suggesting that Plaintiff’s lack of retraining

negatively impacted his credibility, since even the ALJ acknowledged that Plaintiff could

no longer perform his prior work. The ALJ’s comment reflects no error, but rather,

merely an appropriate finding that Plaintiff made no serious attempts to look for other

work he could perform, after he became unable to continue as an electrician.2 To that

extent, his claim that he was disabled from all work (and not just work as an electrician)

was not fully credible.

Plaintiff next criticizes the ALJ’s reference to the lack of any medical opinions that

his is disabled, arguing that the fact that examining physicians have not found him to be

disabled “is of no consequence.” (Doc. 9 at 6). Again, however, the undersigned finds

no error in the ALJ’s reasoning that Plaintiff’s failure to submit any limiting opinions, by

any treating physician, reflected negatively on his claim that he is precluded from all


2Plaintiff testified that he briefly considered applying for work at Home Depot, but “nixed that idea”
because he did not believe he could stand on concrete for the time that position would require. (Tr. 34).



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work. The fact that the ultimate determination of disability rests with the Commissioner

does not mean that supporting medical opinions are wholly irrelevant.

Plaintiff argues that the ALJ was wrong to highlight Plaintiff’s testimony that he

never missed a dose of his medication (Tr. 20), and to contrast that with records

reflecting that Plaintiff reported on two occasions to different physicians that he had run

out of medications – for at least a couple of months. (Id.). Plaintiff points out that he

explained in his testimony that he was “between doctors.” (Tr. 52). However, the ALJ

did not err by pointing out the inconsistency in his testimony on this issue. Plaintiff

testified that Dr. Bills suddenly told him to find a new doctor, and that it took about a

month and a half for him to get an appointment with Dr. Mueller. (Tr. 52-53). But, while

Plaintiff’s last visit with Dr. Bill was in September 2009 (Tr. 295), his first visit with Dr.

Mueller was not until July 2010 (Tr. 289) – ten months later, not a month and a half. In

his reply memorandum, Plaintiff offers several explanations. The new explanations do

not alter the reasonableness of the ALJ’s interpretation, that Plaintiff was not completely

truthful, in light of the record as a whole.

Finally, Plaintiff accuses the ALJ of “cherry-picking” evidence concerning his

ability to walk long distances, because despite reporting that he could walk three

quarters of a mile to one physician, he reported to the same physician that prolonged

ambulation or standing exacerbates the pain in his feet. (Tr. 21, 225). The mere fact

that Plaintiff made both statements does not mean that he could not walk fairly long

distances. In fact, Plaintiff reported to Dr. Bill in 2009 that he walked one to one-and-a-

half miles per day (Tr. 21, 260), which he tried to explain away at the hearing as “not

true,” because it probably “just seemed like a mile and a half.” (Tr. 42). As pointed out



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by Defendant, the 2009 treatment notes concerning the lack of edema or complaints of

musculoskeletal pain, in combination with Dr. Bill’s prescription for over-the-counter

ibuprofen or Aleve for occasional flare-ups of toe pain, undermines Plaintiff’s testimony

that his doctors did not treat his gout more aggressively because he was “on too many

medications.” (Tr. 19, 45, 50). Plaintiff also reported to Dr. Mueller in 2010 that “he

may have to go back to work,” expressing concern only about climbing ladders or on

roofs because of his lightheadedness from his blood pressure medication. (Tr. 282).

Plaintiff’s statement to Dr. Mueller suggests that Plaintiff felt capable of working, with

some restriction for dizziness, which was in fact included in the ALJ’s RFC. In sum, on

the record presented, the ALJ’s assessment of credibility is supported by substantial

evidence. See Walters v. Com’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997).

III. Conclusion and Recommendation

For the reasons discussed, IT IS RECOMMENDED THAT:

1. The Commissioner’s decision to deny Plaintiff DIB benefits be AFFIRMED;

2. As no other matters remain pending, this case be closed.































s/ Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge



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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION





















v.


Plaintiff,


HAROLD G. FOSSITT,







COMMISSIONER OF SOCIAL SECURITY,



Defendant.

























Case No. 1:12-cv-276

Spiegel, J.

Bowman, M.J.











Pursuant to Fed. R. Civ. P 72(b), any party may serve and file specific, written

NOTICE

objections to this Report and Recommendation (“R&R”) within FOURTEEN (14) DAYS

of the filing date of this R&R. That period may be extended further by the Court on

timely motion by either side for an extension of time. All objections shall specify the

portion(s) of the R&R objected to, and shall be accompanied by a memorandum of law

in support of the objections. A party shall respond to an opponent’s objections within

FOURTEEN (14) DAYS after being served with a copy of those objections. Failure to

make objections in accordance with this procedure may forfeit rights on appeal. See

Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir.

1981).










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