Gregory v. SSA - Document 13
MEMORANDUM OPINION & ORDER: 1. Plaintiff's motion for summary judgment (Doc. # 11 ) be, and it hereby is, GRANTED IN PART as to Plaintiff's request for a reversal of the Commissioner's decision, and DENIED IN PART as to his request f or a court ordered award of benefits; 2. Defendant's motion for summary judgment (Doc. # 12 ) be, and it hereby is, DENIED; 3. This action be, and it is, hereby REMANDED to the Commissioner under sentence four of 42 U.S.C. § 405(g). Signed by Judge David L. Bunning on 11/3/11.(SYD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CIVIL ACTION NO. 10-243-DLB
MEMORANDUM OPINION & ORDER
MICHAEL J. ASTRUE, Commissioner
SOCIAL SECURITY ADMINISTRATION
* * * * *
This action was brought pursuant to 42 U.S.C. § 405(g) to obtain judicial review of
an administrative decision of the Commissioner of Social Security. The Court, having
reviewed the record and the parties’ dispositive motions, reverses and remands the
Commissioner’s decision for further consideration consistent with this opinion.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff Larry Gregory applied for a period of disability and disability insurance
benefits (DIB) on May 19, 2005, alleging a disability onset date of February 11, 2005 due
to heart disease. (Tr. 15, 50). At the time of filing, Plaintiff was 45 years old. (Tr. 15). His
application was denied initially and again on reconsideration. (Id.). At Plaintiff’s request,
an administrative hearing was conducted on May 19, 2006. (Id.). On June 13, 2006,
Administrative Law Judge (ALJ) Frank Letchworth ruled that Plaintiff was not disabled and
therefore not entitled to DIB. (Tr. 22). This decision became the final decision of the
Commissioner when the Appeals Council denied Plaintiff’s request for review. (Tr. 5).
Plaintiff filed an action in the United States District Court for the Eastern District of
Kentucky to obtain judicial review of the unfavorable administrative decision. On January
23, 2008, the Court concluded that the administrative decision must be reversed and
remanded for further consideration. (Tr. 328). The case was again assigned to ALJ
Letchworth on remand from the Appeals Council pursuant to the District Court’s remand.
Plaintiff appeared and testified at an administrative hearing conducted on October
29, 2009 before ALJ Letchworth. On January 24, 2010, the ALJ ruled that Plaintiff was not
disabled and therefore not entitled to DIB. (Tr. 359). This decision became the final
decision of the Commission when the Appeals Council denied Plaintiff’s request for review
on July 21, 2010.
On August 28, 2010, Plaintiff filed this action. (Doc. # 1). The matter has culminated
in cross-motions for summary judgment, which are now ripe for adjudication. (Docs. # 11,
Overview of the Process
Judicial review of the Commissioner’s decision is restricted to determining whether
the decision is supported by substantial evidence and was made pursuant to proper legal
standards. See Colvin v. Barnhart, 475 F.3d 727, 729 (6th Cir. 2007). “Substantial
evidence” is defined as “more than a scintilla of evidence but less than a preponderance;
it is such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994).
Courts are not to conduct a de novo review, resolve conflicts in the evidence, or make
credibility determinations. Id. Rather, we are to affirm the Commissioner’s decision,
provided it is supported by substantial evidence, even if we might have decided the case
differently. Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999). If supported
by substantial evidence, the Commissioner’s findings must be affirmed, even if there is
evidence favoring Plaintiff’s side. Listenbee v. Sec’y of Health & Human Servs., 846 F.2d
345, 349 (6th Cir. 1988). Similarly, an administrative decision is not subject to reversal
merely because substantial evidence would have supported the opposite conclusion.
Smith v. Chater, 99 F.3d 780, 781-82 (6th Cir. 1996).
The ALJ, in determining disability, conducts a five-step analysis. Step 1 considers
whether the claimant still performs substantial gainful activity; Step 2, whether any of the
claimant’s impairments, alone or in combination, are “severe”; Step 3, whether the
impairments meet or equal a listing in the Listing of Impairments; Step 4, whether the
claimant can still perform his past relevant work; and Step 5, whether a significant number
of other jobs exist in the national economy which the claimant can perform. As to the last
step, the burden of proof shifts from the claimant to the Commissioner to identify “jobs in
the economy that accommodate [Plaintiff’s] residual functional capacity.” See Jones v.
Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003); see also Preslar v. Sec’y of Health
& Human Servs., 14 F.3d 1107, 1110 (6th Cir. 1994).
The ALJ’s Determination
At Step 1, the ALJ found that Plaintiff had not engaged in substantial gainful activity
during the period from his alleged onset date through the date he was last insured,
December 31, 2007. (Tr. 353). At Step 2, the ALJ found that Plaintiff had the following
severe impairments during that same time period: precocious coronary artery disease with
mild to moderate peri-infarction ischemia; Type II diabetes mellitus (controlled); history of
alcohol abuse; cigarette abuse against medical advice; and obesity. (Tr. 353). At Step 3,
the ALJ found that Plaintiff did not have an impairment or combination of impairments that
were severe enough to meet or medically equal one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1 during the time period at issue. (Tr. 354).
At Step 4, the ALJ found that Plaintiff possessed the residual functional capacity
(RFC) to perform light work as defined in 20 C.F.R. § 404.1567(b) between his alleged
onset date through the date he was last insured. (Tr. 354). However, he required the
flexibility to sit and stand at will with no prolonged or uninterrupted sitting or standing in
excess of one-half hour. (Tr. 354). He was also precluded from exposure to extreme
temperatures, unprotected heights, or moving equipment. (Tr. 354). Furthermore, he was
precluded from tasks that required him to raise his right arm above his shoulder. (Tr. 354).
Based upon these findings, the ALJ found that Plaintiff was unable to perform any past
relevant work through the date last insured. (Tr. 354).
At Step 5, the ALJ found that Plaintiff was born on July 17, 1960, was 44 years old
at the time of his alleged disability onset, and was 47 years old on the date last insured,
which is defined as a younger individual. (Tr. 358). See 20 C.F.R. § 404.1563. The ALJ
also found that Plaintiff has at least a high school education and is able to communicate
in English. (Tr. 358). Relying on the testimony of a vocational expert (VE) and considering
Plaintiff’s age, education, work experience and RFC, the ALJ determined that a significant
number of jobs existed in the national economy that Plaintiff could have performed
between his alleged onset date through the date he was last insured. (Tr. 358). ALJ
Letchworth therefore concluded that Plaintiff was not under a disability within the meaning
of the Social Security Act during the relevant time period. (Tr. 358).
Plaintiff has failed to comply with General Order 09-13 issued by the Chief Judge
of the Eastern District of Kentucky, which requires plaintiffs to “include a statement of the
legal arguments presented at the beginning of the motion . . . in a numbered list.” While
the Court may deny Plaintiff’s motion based on this failure alone, the Court has attempted
to discern Plaintiff’s arguments from the entirety of his memorandum. This has been a
difficult task because Plaintiff’s memorandum is disorganized and fails to clearly articulate
any individualized arguments.1
Plaintiff raises seven arguments on appeal. First, the ALJ found Plaintiff had
several severe impairments, which Plaintiff argues he experienced for more than twelve
months, thus meeting the definition of “disability” as defined at 42 U.S.C. § 423(d)(1)(A).
Second, the ALJ erred in finding that Plaintiff did not meet a listed impairment. Third, the
ALJ failed to consider the cumulative effect of Plaintiff’s obesity on his cardiovascular
impairment. Fourth, the ALJ erred in finding that Plaintiff had the RFC to perform light work
with some limitations because Plaintiff’s sit/stand option precluded even a finding that
Plaintiff had the RFC to perform sedentary work. Fifth, the ALJ erred in finding that Plaintiff
had at least a highschool education. Sixth, the ALJ improperly ignored the opinion of
More specifically, Plaintiff’s brief was woefully deficient in that it primarily consisted of rambling
without distinct arguments. Despite the flaws in Plaintiff’s brief, because the ALJ failed to consider the
combined effect of Plaintiff’s obesity on his cardiovascular impairment, remand is warranted. Plaintiff’s
counsel is cautioned to be more precise in her arguments the next time she files a Social Security appeal.
Plaintiff’s treating physician. Seventh, the ALJ “underestimates the challenges it takes in
quitting smoking.” (Doc. # 11, at 11).
The ALJ Failed to Properly Consider the Cumulative Effect of
Obesity on Plaintiff’s Other Impairments
Plaintiff makes a perfunctory argument that the ALJ failed to consider the combined
effect of Plaintiff’s obesity on his cardiovascular impairment. Upon the Court’s own review
of the ALJ’s decision and case law, the Court concludes that the ALJ failed to properly
consider Plaintiff’s obesity in compliance with Social Security Ruling 02-1p, 2002 WL
3468621. Therefore, this case is reversed and remanded to the Commissioner for further
Although obesity no longer constitutes a listed impairment, the combined effects of
obesity on musculoskeletal, respiratory, and cardiovascular listings must still be
considered. SSR 02-1p, at *1. In fact, the combined effects of obesity must be considered
in determining whether (1) the claimant has a medically determinable impairment(s), (2)
whether the claimant’s impairments are severe, (3) whether the claimant’s impairments
meet or medically equal a listing, and (4) whether the claimant’s impairment(s) prevents
him or her from doing past relevant work and other work that exists in significant number
in the national economy. Id. at 3. While SSR 02-1p does not offer “any particular
procedural mode of analysis” for the ALJ’s consideration of obesity, Bledsoe v. Barnhart,
165 F. App’x 408, 412 (6th Cir. 2006), it offers guidance as to how obesity should be
considered at each step of the sequential analysis. For example, at Step 3, “obesity may
increase the severity of coexisting or related impairments to the extent that the combination
of impairments meets the requirements of a listing.” SSR 02-1p, at *5. Additionally, at
Step 4, “[a]n assessment should be made of the effect obesity has upon the individual’s
ability to perform routine movement and necessary physical activity within the work
environment.” Id. at *6. Most importantly, the ALJ must “explain how [he or she] reached
[the] conclusion on whether obesity caused any physical or mental limitations.” Id. at *7.
The ALJ did mention Plaintiff’s obesity several times in his opinion. For instance,
at Step 2, the ALJ concluded that Plaintiff’s severe impairments included obesity. (Tr.
353). At Step 4, the ALJ stated that Plaintiff weighed 242 pounds and maintained a body
mass index (BMI) above 34. (Tr. 355-357). The ALJ also found that doctors recommended
to Plaintiff that he lose weight through proper dieting and exercise, but that Plaintiff failed
to follow those recommendations. However, the ALJ’s passing references to Plaintiff’s
obesity did not sufficiently “explain how [the ALJ] reached [his] conclusion on whether
obesity caused any physical or mental limitations,” as the ALJ is required to do by SSR 021.
After Step 2, where the ALJ found that Plaintiff’s severe impairments included
obesity, the ALJ’s opinion is devoid of any indication that the ALJ ever considered the
effects of Plaintiff’s obesity. At Step 3, it does not appear that the ALJ considered
Plaintiff’s obesity when he determined whether Plaintiff met or medically equaled a listed
impairment, particularly for cardiovascular impairments. The ALJ simply stated that he
“reviewed the Code of Federal Regulations with respect to musculoskeletal, cardiovascular,
and endocrine impairment, but does not find [Plaintiff’s] limitations meet or equal criteria
set forth in the medical listings.” (Tr. 354). This statement gives no indication that the ALJ
considered the combined effects of Plaintiff’s obesity on any of the listed impairments.
Moreover, it is not clear whether the ALJ considered the combined effects of
Plaintiff’s obesity and his cardiovascular impairment in making an RFC determination. The
ALJ did mention Plaintiff’s weight and BMI at Step 4, but failed to explain whether Plaintiff’s
weight affected his ability to work. Although Plaintiff’s obesity may have been considered
when the ALJ discussed Plaintiff’s diabetes and the results of Plaintiff’s treadmill stress
test, this is not sufficient to “explain how [the ALJ] reached [his] conclusion on whether
obesity caused any physical or mental limitations.” See SSR 02-1, at *7. Consequently,
the ALJ’s opinion fails to adequately comply with SSR 02-1p and is, thus, reversed and
remanded for further consideration. See Wilson v. Astrue, No. 11-8-DLB, 2011 WL
4479032, at *3-4 (E.D. Ky. Sept. 26, 2011) (reversing and remanding because ALJ failed
to consider how plaintiff’s obesity, alone or in combination, would effect plaintiff’s ability to
conduct light work); See also Maddex v. Astrue, No. 3:10-cv-159, 2011 WL 1990588, at
*11-13 (S.D. Ohio May 2, 2011) (ALJ’s decision was reversed and remanded because the
ALJ failed to discuss Plaintiff’s obesity at Step 3 when determining whether Plaintiff’s
impairment or combination of impairments met or medically equaled a listing and failed to
discuss Plaintiff’s obesity at Step 4 when determining Plaintiff’s RFC); cf. Coldiron v.
Comm’r of Soc. Sec., 391 F. App’x 435, 443 (6th Cir. 2010) (holding that ALJ properly
considered the effect of plaintiff’s obesity on his ability to conduct sedentary work because
ALJ discussed the plaintiff’s obesity throughout findings of fact, and ALJ used RFCs from
physicians who explicitly considered plaintiff’s obesity).
Having concluded that remand is warranted to require the ALJ to consider the
combined effect of Plaintiff’s obesity on his cardiovascular impairment, the Court will not
consider whether the ALJ erred in determining Plaintiff’s RFC. However, Plaintiff’s other
arguments will be considered at this time, as they are not dependent on the
Commissioner’s conclusions regarding Plaintiff’s obesity.
The Mere Existence of a Severe Impairment for Twelve Months
Does Not Necessitate a Finding of Disability
Plaintiff appears to argue that the ALJ’s findings at Step 2 of the sequential analysis
necessitated a finding of disability. At Step 2, the ALJ concluded that Plaintiff suffered
from multiple severe impairments. Although Plaintiff’s argument is unclear, he seems to
assert that because the ALJ found that he suffered from multiple severe impairments, the
ALJ was required to find that Plaintiff was under a disability as defined by the Social
Security Act (Act). However, Plaintiff’s argument fails to understand both the definition of
“disability” as defined by the Act and the five-step sequential analysis that the ALJ
undertakes to determine whether the claimant is under a disability.
The Social Security Act defines “disability” as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A).2 This definition has three distinct parts. First, the individual must not be able
to engage in any substantial gainful activity. Id. Second, the individual must be limited by
a medically determinable physical or mental impairment. Id. Third, the impairment must
be expected to result in death or continue for a period not less than twelve months. Id.
Plaintiff’s argument fails to consider that the individual must be unable to engage in any
The Act also includes a separate definition of “disability” for individuals who have attained the age
of 55 and are blind. 42 U.S.C. § 423(d)(1)(B).
substantial gainful activity. At Step 2, the ALJ stated that the Plaintiff’s “impairments result
in significant limitations of the ability to perform work activity.” (Tr. 353). Plaintiff suggests
that this statement means that the ALJ concluded that Plaintiff was unable to perform any
substantial gainful activity, rendering him disabled within the meaning of the Social Security
Act. However, this is a misinterpretation and misapplication of the ALJ’s statement. The
ALJ only stated that Plaintiff was limited in his ability to perform work activity, not that he
was unable to perform all substantial gainful activity.
Furthermore, Plaintiff’s reliance on the ALJ’s findings at Step 2 is misguided. In
determining disability, the ALJ undertakes a five-step sequential analysis as described
above. 20 C.F.R. § 404.1520(a). At Step 2 of the analysis, the regulations require the ALJ
to find that the claimant’s impairments are not severe unless the evidence indicates that
there is more than a minimal limitation in the claimant’s ability to do basic work activities.
20 C.F.R. §§ 404.1520(a)(4)(ii), 404.1520(c). The purpose of this step is to enable the
Commissioner to screen out “totally groundless claims.” Farris v. Sec'y of Health and
Human Servs., 773 F.2d 85, 89 (6th Cir.1985). At Step 3, the ALJ determines whether the
claimants condition is severe enough to meet a listing; if it does, a finding of disability is
warranted. 20 C.F.R. § 404.1520(a)(4)(iii). At Steps 4 and 5, the ALJ determines whether
the claimant is capable of performing any substantial gainful employment. 20 C.F.R. §§
404.1520(a)(4)(iv), 404.1520(a)(4)(v). If not, the claimant is determined to be disabled.
In short, once the ALJ finds that the claimant’s condition is severe enough to proceed past
Step 2, the ALJ must make an additional finding before concluding that the claimant is
disabled. Here, ALJ Letchworth concluded at Step 2 that Plaintiff suffered from multiple
severe impairments, but without making additional findings, the ALJ’s conclusion at Step
2 does not warrant a finding of “disability.”
Plaintiff Failed to Show That He Meets a Listing
Plaintiff further argues that the ALJ should have found his impairments severe
enough to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1. On remand, the Commissioner must consider Plaintiff’s obesity
in determining whether Plaintiff’s impairments meet or medically equal a listing. However,
to the extent that Plaintiff claims he meets the “listing” in 20 C.F.R. Part 404, Subpart P,
Appendix 1, § 4.00(A)(1)(b)(I), his argument has no merit.
Plaintiff asserts that he has “chronic heart failure which meets the listed impairment”
of 20 C.F.R. Part 404, Subpart P, Appendix 1, § 4.00(A)(1)(b)(I). This section is not a
“listing” contemplated by 20 C.F.R. § 404.1520(a)(4)(iii). Instead, the section that Plaintiff
has cited is a general introduction to cardiovascular impairments. Thus, Plaintiff has failed
to identify which listing(s) his impairments allegedly meet.
If Plaintiff were to have properly identified a listing for cardiovascular impairment,
he would have identified one found in 20 C.F.R. Part 404, Subpart P, Appendix 1, §§ 4.02 4.12. The specific listing for chronic heart failure, as Plaintiff claims he has, is found in 20
C.F.R. Part 404, Subpart P, Appendix 1, § 4.02. In order to meet the listing, a claimant
must show that the chronic heart failure is severe enough to meet the requirements in both
§ 4.02(A) and § 4.02(B). However, Plaintiff fails to argue that he meets this listing
generally and also fails to show how he meets the requirements of paragraphs A and B
within the listing. As a result, Plaintiff’s argument has no merit to the extent that he argues
he meets the listing in 20 C.F.R. Part 404, Subpart P, Appendix 1, § 4.00(A)(1)(b)(I).3
Not only has Plaintiff failed to direct the Court’s attention to which listing(s) his
impairments allegedly meet or medically equal, Plaintiff has also failed to offer any
supporting medical evidence that his impairments meet any listing. “When a claimant
alleges that he meets or equals a listed impairment, he must present specific medical
findings that satisfy the various tests listed in the description of the applicable impairment
or present medical evidence which describes how the impairment has such equivalency.”
Thacker v. Soc. Sec. Admin., 93 F. App’x 725, 727 (6th Cir. 2004). Without citing any
medical evidence to show that he meets a listing, Plaintiff has failed to meet this burden.
The only evidence that Plaintiff has offered to prove he meets a listing cannot be
considered on appeal. Plaintiff quotes an article on coronary artery disease and attaches
it to his memorandum. The author and publisher of the article are not identified. Even
more problematic, the article is not part of the administrative record. The Court is “confined
to review evidence that was available to the Secretary ... to determine whether the decision
of the Secretary is supported by substantial evidence.” Cotton v. Sullivan, 2 F.3d 692, 696
(6th Cir. 1993). Thus, this article will not be considered.
The ALJ Properly Considered Plaintiff’s Education Level
Despite Stating that Plaintiff “Has At Least a High School
Plaintiff states that “the ALJ [found he] has at least a high school education.
Although Plaintiff has a GED, this is not the same as a high school education . . . .”
In reaching this conclusion, the Court does not hold that the ALJ’s finding at Step 3 is supported
by substantial evidence. Instead, on remand the ALJ must consider whether Plaintiff’s impairments met or
medically equal a listed impairment, giving due consideration to the combined effects of Plaintiff’s obesity on
his other impairments.
Plaintiff makes no argument in support of this conclusory statement, nor does he cite any
law that would give the Court some indication as to what his argument might be. If Plaintiff
is attempting to argue that the ALJ erred in concluding that Plaintiff had a high school
education when determining Plaintiff’s vocational ability, his argument has no merit.
Although it appears to be a generally accepted principle that a GED is the equivalent
of a high school education, the Court need not make any finding in this regard. Instead,
the Court finds that the ALJ properly considered Plaintiff’s education level in determining
Plaintiff’s vocational ability. To determine a claimant’s vocational ability, an ALJ may rely
on the testimony of a VE in response to a hypothetical question so long as the hypothetical
accurately portrays the claimant’s condition and circumstances. Varley v. Sec’y of Health
and Human Servs., 820 F.2d 777, 779 (6th Cir. 1987). Here, the ALJ’s hypothetical
question posed to the VE accurately reflected Plaintiff’s education level – he has a GED,
not a highschool diploma. In describing Plaintiff’s background to the VE, the ALJ asked,
“GED, I believe, is your education level? Is that right, Mr. Gregory?” (Tr. 457). Plaintiff
responded, “Yes, sir.” (Tr. 457). Therefore, to the extent that Plaintiff is challenging the
ALJ’s vocational assessment because his education level was not properly considered, his
challenge is unpersuasive.
The ALJ Appropriately Considered the Treating Physician’s
Plaintiff states that “the ALJ ignored evidence of the treating physicians and of the
administration’s consultants and substitutes his own biased opinion. Dr. Chatterjee, [the
treating physician], fully explained why he found Larry disabled with his detailed findings
and long treatment.” (Doc. # 11-1, at 11). While Plaintiff’s argument is ambiguous, it
appears that Plaintiff is alleging that the ALJ improperly disregarded his treating physician’s
opinion that he was disabled. Plaintiff cites to a Second Circuit decision for the proposition
that the ALJ may not arbitrarily substitute his or her own opinion in place of a competent
medical opinion offered by a treating physician. Balsamo v. Chater, 142 F.3d 75, 81 (2d
Cir. 1998). However, the Second Circuit’s opinion specifically addresses whether the ALJ
improperly disregarded the treating physician’s opinion on the claimant’s residual functional
capacity. Id. It does not address whether the ALJ improperly disregarded the treating
physician’s ultimate conclusion that the claimant was disabled within the meaning of the
Social Security Act. See id.
“The medical opinions and diagnosis of treating physicians are generally accorded
substantial deference, and if the opinions are uncontradicted, complete deference . . . .
This is true, however, only if the treating physician’s opinion is based on sufficient medical
data . . . . Ultimately, of course, the determination of disability is the prerogative of the
Secretary, not the treating physician.” Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985).
“A statement by a medical source that [the claimant is] ‘disabled’ or ‘unable to work’ does
not mean that [the Commissioner] will determine that [the claimant is] disabled.” 20 C.F.R.
§ 404.1527(e)(1). Additionally, if the treating physician opines that the claimant is disabled,
his or her opinion is afforded no deference if it is contradicted and not based on convincing
evidence. Harrington v. Sec’y of Health and Human Servs., No. 85-4069,1986 WL 18406,
at *2 (6th Cir. Nov. 18, 1986).
Here, the ALJ appropriately disregarded Plaintiff’s treating physician’s opinion that
Plaintiff was disabled. Although the treating physician’s opinion is normally afforded
substantial deference, the ALJ properly stated that determining whether Plaintiff is disabled
requires a legal interpretation and analysis of the Social Security Act and is, therefore, the
prerogative of the Secretary. (Tr. 357).
Additionally, the ALJ rejected the treating physicians opinion as to the ultimate issue
of Plaintiff’s disability because it was contradicted by the medical evidence. Objective
metrics of Plaintiff’s heart function show that his ejection fraction measured between 35
and 45 percent during the time period at issue, which the medical expert (ME)
appropriately described as “reduced from normal, but not, not at listing-level severity.”4 (Tr.
433). Results from a treadmill stress test indicated that Plaintiff had a “normal exercise
tolerance,” as described by the ME. (Tr. 434). Thus, the objective findings contradict the
treating physician’s opinion to the extent that he found Plaintiff “disabled,” adding support
to the ALJ’s decision not to give weight to the treating physician’s opinion.
In short, the Court holds that the ALJ did not improperly ignore the treating
physician’s opinion that Plaintiff was disabled.
That conclusion is reserved for the
Commissioner; the treating physician’s opinion on the matter is not to be given any special
significance. 20 C.F.R. §§ 404.1527(e)(1) - (3). Therefore, the ALJ did not err in failing
to credit the treating physician’s opinion on this issue.
Plaintiff Fails to Make a Legal Argument Regarding His Smoking
Plaintiff asserts that “the ALJ underestimates the challenges it takes in quitting
smoking.” (Doc. # 11-1, at 11). Plaintiff then provides a two-page summary of articles
from the American Council on Science and Health and Time.com in support of his
To prove listing-level severity for systolic chronic heart failure, the claimant’s ejection fraction must
be 30 percent or less during a period of stability or the claimant must have left ventricular end diastolic
dimensions greater than 6.0 cm. 20 C.F.R. Part 404, Subpart P, Appendix 1, § 4.02(A)(1).
“argument.” However, Plaintiff never cites to law, evidence in the record, or the ALJ’s
opinion in crafting this argument. In fact, Plaintiff fails to offer any explanation as to how
the ALJ underestimates the challenges associated with quitting smoking. Beyond merely
summarizing these articles, Plaintiff fails to demonstrate how the articles apply to his own
condition. Having provided no argument or analysis, the Court will not attempt to formulate
arguments on Plaintiff’s behalf. Hollon ex rel. Hollon v. Commr. of Soc. Sec., 447 F.3d,
477, 491 (6th Cir. 2006). Furthermore, without citing to any portion of the administrative
record, the Court refuses to undertake an open-ended review of the entirety of the record
in search of some possible error on the part of the ALJ. Id. Therefore, Plaintiff’s
unsupported argument, or lack thereof, concerning his smoking habit will not be
Accordingly, for the reasons stated herein, the Court concludes that this case must
be remanded so that the ALJ may consider the combined effect of Plaintiff’s obesity on his
cardiovascular impairment at all stages of the five-step sequential analysis.
IT IS ORDERED as follows:
Plaintiff’s motion for summary judgment (Doc. # 11) be, and it hereby is,
GRANTED IN PART as to Plaintiff’s request for a reversal of the
Commissioner’s decision, and DENIED IN PART as to his request for a court
ordered award of benefits;
Defendant’s motion for summary judgment (Doc. # 12) be, and it hereby is,
This action be, and it is, hereby REMANDED to the Commissioner under
sentence four of 42 U.S.C. § 405(g) with instructions to consider the
combined effect of Plaintiff’s obesity on his cardiovascular impairment.
This 3rd day of November, 2011.