Baranich v. Barnhart , 128 F. App'x 481 ( 2005 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0301n.06
Filed: April 19, 2005
No. 04-3461
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SHARON BARANICH, administratrix of )
the estate of John R. Baranich, deceased, )
)
Plaintiffs-Appellants, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR THE
) SOUTHERN DISTRICT OF OHIO
JO ANNE B. BARNHART, )
)
Defendant-Appellee. )
)
Before: COLE and GIBBONS, Circuit Judges; SCHWARZER, District Judge.*
JULIA SMITH GIBBONS, Circuit Judge. John Baranich filed an application for
disability benefits with the Social Security Administration. He alleged an inability to work due to
the effects of a heart condition and anxiety. His application for benefits was denied initially and
upon reconsideration. He then had a hearing before an administrative law judge (ALJ). The ALJ
determined that Baranich was not disabled, because he retained the capacity to work in a significant
number of jobs in the national economy. Baranich appealed to the Appeals Council of the Social
Security Administration; it declined his request for review of the ALJ’s decision. He then sought
judicial review of the decision, and the district court affirmed the denial of benefits. Baranich filed
a timely appeal. For the following reasons, we affirm the district court’s decision.
*
The Honorable William W Schwarzer, Senior United States District Judge for the Northern
District of California, sitting by designation.
Baranich v. Barnhart, No. 04-3461
I.
Baranich filed an application for Disability Insurance Benefits with the Social Security
Administration on February 9, 2001. In that application, he alleged that he had been unable to work
due to his disabling condition beginning May 8, 1999.1 Baranich stated that his ability to work was
limited due to the effects of a quadruple bypass and other heart conditions.
Baranich’s application for benefits was denied initially and upon reconsideration. He then
appeared at a hearing before an ALJ. Baranich, his wife Sharon, and independent vocational expert
Timothy Mahler testified at the hearing. The key evidence before the ALJ was as follows.
A.
Baranich suffered a heart attack in September 1998 and underwent quadruple bypass surgery.
After his heart attack, he was under the care of cardiologist Dr. William Noble.
In October 1998, Baranich reported to Dr. Noble that he had chest soreness, lightheadedness,
numbness in the right leg, and trouble sleeping. On a return visit to his cardiologist in February
1999, Baranich stated that he would like to go back to work at the coal mine. He also reported
dizziness and fatigue. However, by this appointment, Baranich had ceased rehabilitation.
On March 8, 1999, Dr. Noble saw Baranich again. At that time, he indicated that Baranich
had no angina and a benign stress test; Baranich also denied heart failure, dyspnea, palpitations, and
edema. They discussed Baranich’s return to work. Dr. Noble wrote in his notes that “I asked him
to have people help him [lift heavy objects]. . . . He has no specific restrictions.”
Baranich’s next visit with Dr. Noble was in August 1999. At that time, the doctor found no
1
This was the date on which the coal mine where he worked shut down.
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angina, dyspnea, palpitations, or edema. However, Baranich complained of a pulling feeling in his
chest after mowing the lawn. Dr. Noble admonished him to not mow the lawn and diagnosed the
pulling feeling as angina.
In October 1999, Baranich had good results on a stress test. However, Baranich reported that
he had gone to the emergency room two weeks prior to the appointment upon feeling a dull distress
in his chest. He believed that he had a case of the nerves and was given Ativan. Dr. Noble told
Baranich not to shovel snow or do heavy yard work.
Baranich next saw Dr. Noble in September 2000. He was suffering from what Dr. Noble
characterized as “rare angina” and what Baranich’s wife described as part of a pattern of frequent
angina. Dr. Noble gave Baranich nitroglycerin tablets to treat the angina; however, Baranich had
only taken two tablets over the past year because nitroglycerin caused headaches for him.
In November 2000, Baranich reported to Dr. Noble that his chest was hurting constantly.
He also reported that he was dizzy and nauseated and that his blood pressure dropped in the evening.
Baranich had an angioplasty in December 2000. After this procedure was performed,
Baranich reported dizziness, lightheadedness, and weakness. At an appointment later that month,
Baranich reported no angina, and a stress test on the treadmill went “quite well.”
During appointments in the beginning of 2001, Baranich reported fatigue but no angina or
chest pain. Additionally, the results of a March 2001 stress test were unchanged from the results
of a stress test in February 1999.
In April 2001, Dr. Starr, a consultant for the government, reviewed Baranich’s medical
records. He determined that Baranich could occasionally lift fifty pounds, frequently lift up to
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twenty-five pounds, stand and/or walk for about six hours in an eight hour workday, sit for about
six hours in an eight hour workday, and push or pull with no limits. He also concluded that
Baranich’s allegations of symptoms were only “partially credible” as Baranich claimed that he
became fatigued with minimal exertion, but stress tests showed that Baranich had a good capacity
for exercise. Further, Dr. Starr found that Baranich could stand and walk normally, exercise, and
perform household chores with little difficulty.
In April 2001, Dr. Hedges, one of Baranich’s physicians, told Baranich to continue using
nitroglycerin on an as-needed basis. However, Dr. Hedges noted that “he has not had any chest pain
and has had no need to use the Nitroglycerin.”
In May 2002, Dr. Noble wrote to Baranich’s attorney. He stated, “He has serious heart
disease. He is status-post myocardial infarction and bypass. . . . His job has required great labor.
It is not prudent for him to do such effort with this degree of coronary disease.”
B.
Baranich also suffered from anxiety, dating back to the 1970s. At the request of the Ohio
Bureau of Disability Determination, Baranich saw David Bousquet, M.Ed., for a disability
assessment in March 2001. Bousquet diagnosed Baranich with a “mood disorder due to cardiac
condition with mixed features,” “somatoform disorder not otherwise specified,” dependence on
Xanax, and generalized anxiety disorder. He concluded that Baranich would have difficulties
dealing with stress and pressure associated with daily work, would experience an exacerbation of
his anxiety under stress and pressure, and would have trouble maintaining his attention and
concentration. However, Bousquet also concluded that Baranich could relate effectively with other
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workers and supervisors and follow directions.
Rod Coffman, Ph.D., reviewed Baranich’s medical records in April 2001. He found that
Baranich had an anxiety-related disorder, somatoform disorder, and a substance addiction. Dr.
Coffman concluded that Baranich “should be capable of completing simple tasks in a low-stress
environment with little public interaction.”
C.
At the hearing, Baranich testified that he completed high school and worked as a coal miner
for twenty-eight years. He stopped working in May 1999, because the coal mine at which he worked
closed. For the next two years, Baranich went through vocational training and studied the
automotive, welding, construction, and electronics trades. He obtained certification in these trades.
He testified that he suffers from some chest pain on a normal day and that the chest pain
increases with stress or exertion. He also testified about dizziness, numbness, and anxiety. He
stated that he has to sit down often and lie down around lunch and in the late afternoon.
Baranich testified that he could not do a job working with other people, with stress, where
there was exposure to heat, cold, or fumes, or that required standing in one place. He further stated
that he lost his breath walking to his mailbox, that he could walk one city block at a time, and that
he could sit for a half an hour before his back tightened up and his leg became numb.
Upon questioning by the ALJ, Baranich admitted going deer hunting twice in fall 2001. He
also testified that he was active in the Eagles and the American Legion.
Sharon Baranich, Baranich’s wife, also testified at his hearing. She stated that he suffered
from a lot of chest pain and would turn clammy and get sweaty when the chest pain increased. She
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also indicated that Baranich complained of nausea and dizziness, was frequently worried, and
suffered panic attacks.
Timothy Mahler testified as the independent vocational expert (“VE”). The ALJ posed a
hypothetical to the VE, assuming an individual
approaching advanced age with a high school education, ability to read and write,
additional vocational certificates, precluded from performing all but light work with
a sit/stand option, no repetitive bending, no hazards such as dangerous and moving
machinery, work at unprotected heights, controlled environment, that is free of
excessive dust, fumes, pollutants, finally, unskilled low stress work, low stress
defined as one and two step processes, primarily working with things rather than
people, routine and repetitive tasks entry level.
The ALJ asked if any work would be available to such an individual. The VE listed jobs such as
an inspector checker, laundry folder, hand packer, and assembler in small products. These types
of jobs were available in the local and national economy. The VE stated that his conclusions were
consistent with the Department of Labor’s Dictionary of Occupational Titles (DOT), except that the
DOT does not state whether jobs have a sit/stand option. However, he stated that based on his
twenty-two years of experience placing disabled individuals, these jobs typically offer a sit or stand
option.
D.
The ALJ determined that Baranich was not disabled. Specifically, the ALJ concluded that
Baranich’s impairments were not severe enough to meet or medically equal the impairments listed
in the regulations. He stated, “Neither the claimant’s treating cardiologist nor the state agency
medical consultant believes the claimant’s coronary artery disease is sufficiently severe to meet or
equal any cardiac listings. . . . Likewise the claimant’s anxiety is not of listing-level severity.” The
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ALJ then determined that Baranich retained the ability to perform light work. Further, based upon
the VE’s testimony, the ALJ concluded that Baranich “is capable of making a vocational adjustment
to work that exists in significant numbers in the national economy.”
Baranich appealed to the Appeals Council. The Appeals Council denied his request for
review, rendering the ALJ’s decision the final decision of the Commissioner of Social Security.
Baranich sought judicial review of the Commissioner’s decision pursuant to 42 U.S.C. §
405(g). The district court affirmed the decision. Baranich appealed to this court.2
II.
When reviewing the Commissioner’s decision as to whether an individual is disabled, this
court can only assess whether substantial evidence in the record supports the ALJ’s determination
and whether the ALJ followed the proper legal standards. Key v. Callahan, 109 F.3d 270, 273 (6th
Cir. 1997). Substantial evidence means “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). The
Commissioner’s findings are not subject to reversal “merely because there exists in the record
substantial evidence to support a different conclusion.” Buxton v. Halter, 246 F.3d 762, 772 (6th
Cir. 2001). The court may not review the case de novo, resolve conflicts in evidence, or decide
questions of credibility. Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
III.
2
John Baranich passed away after his appeal was filed in this court. Sharon Baranich, his
widow, is substituted on appeal as the administratrix of his estate.
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Baranich raises a number of issues on appeal with respect to how the ALJ conducted the
hearing and the conclusions reached by the ALJ. Despite Baranich’s contentions, we conclude that
the ALJ’s findings were supported by substantial evidence.
A.
Baranich first contests the ALJ’s formulation of the hypothetical. Baranich argues that the
ALJ did not incorporate into the hypothetical Baranich’s limitations with respect to difficulties
maintaining concentration when performing simple tasks, persistence, and punctuality. Further, he
contends that medical evidence does not support that he could perform a job with a sit/stand option.
“Substantial evidence may be produced through reliance on the testimony of a vocational
expert in response to a ‘hypothetical’ question, but only ‘if the question accurately portrays [the
claimant’s] individual physical and mental impairments.’” Varley v. Sec’y of Health & Human
Servs., 820 F.2d 777, 779 (6th Cir. 1987) (quoting Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir.
1984)). In this case, the hypothetical accurately portrayed Baranich’s limitations. With respect to
Baranich’s difficulties maintaining concentration and persistence, Dr. Coffman’s assessment found
that Baranich displayed moderate limitations in ability to maintain concentration, persistence, or
pace, but that he “should be capable of completing simple tasks in a low-stress environment with
little public interaction.” This conclusion was incorporated into the hypothetical. Additionally,
none of the reviewing physicians determined that he had a problem with punctuality, and therefore
this alleged limitation was properly excluded from the hypothetical. With respect to the sit/stand
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option,3 while Baranich may have suffered from lightheadedness, numbness, dizziness, and fatigue,
the ALJ properly determined that these limitations were not so disabling as to prevent Baranich from
performing a job with a sit/stand option. No physician ever concluded that these limitations would
prevent Baranich from working or performing less demanding tasks, as he was only restricted by
his physicians from lifting heavy objects, mowing the lawn, and doing other physically challenging
endeavors. Further, after his bypass surgery, Baranich returned to work at the coal mine, attended
vocational school, hunted, and socialized at the American Legion and Eagles. The ALJ’s
formulation of the hypothetical thus accurately portrayed the limitations faced by Baranich and
incorporated those impairments that would impact his ability to work.
B.
Next, Baranich challenges the ALJ’s assessment of his residual functional capacity. He
argues that the ALJ erred in not fully giving credit to his allegations of disabling symptoms
stemming from physical and mental impairments.
As a preliminary matter, Baranich argues that the ALJ erred in not following the framework
established by Duncan v. Secretary of Health & Human Services, 801 F.2d 847 (6th Cir. 1986).
3
Baranich also argues that the sit/stand option should not have been included in the
hypothetical, because information about whether jobs allow a sit/stand option is not contained in the
Dictionary of Occupational Titles. However, the VE is permitted to rely on sources other than the
DOT in evaluating a hypothetical. See 20 C.F.R. § 404.1566(d). In Barker v. Shalala, 40 F.3d 789,
795 (6th Cir. 1994), this court rejected the plaintiff’s argument that “only the Dictionary of
Occupational Titles can be used as a basis for defining the characteristics of jobs occurring in the
national economy.” Barker concluded that “[i]t would be manifestly inappropriate to make the
Dictionary of Occupational Titles the sole source of evidence concerning gainful employment.” Id.
Baranich is therefore incorrect to argue that the ALJ could not include a sit/stand option when such
an option is not indicated in the DOT, as the DOT is only one source to be used in assessing the
availability of jobs for the claimant.
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Baranich’s contention is without merit. Duncan requires a claimant complaining of subjective
symptoms to first show that there is objective medical evidence of an underlying condition. Id. at
853. If objective medical evidence exists, the court must then examine whether objective evidence
confirms the severity of the alleged symptoms or whether the medical condition is of such severity
that it can reasonably be expected to produce such symptoms. Id. In assessing Baranich’s residual
functional capacity, the ALJ explicitly stated that he was following the “requirements of 20 C.F.R.
§ 404.1529 and Social Security Ruling 96-7p.” These provisions govern the evaluation of subjective
medical complaints. In particular, “[w]hen the medical signs or laboratory findings show that you
have a medically determinable impairment(s) that could reasonably be expected to produce your
symptoms, . . . we must then evaluate the intensity and persistence of your symptoms.” 20 C.F.R.
§ 404.1529(c)(1). As this court has recognized, this analysis is not markedly different than the
Duncan analysis. See McCoy v. Chater, 81 F.3d 44, 47 (6th Cir. 1995) (concluding that the most
recent version of 20 C.F.R. § 404.1529 is “in no way . . . inconsistent with the standards applied by
this court” in Duncan). The ALJ did not commit error in failing to explicitly follow Duncan.
In determining Baranich’s residual functional capacity, the ALJ concluded that Baranich had
serious heart disease and a history of anxiety. The ALJ then determined that Baranich’s allegations
concerning his symptoms were generally, but not totally, credible.
On appeal, Baranich argues that the ALJ did not take into account or credit evidence of his
subjective symptoms, including fatigue, weakness, chest pain, dizziness, nausea, and headache.
However, “an ALJ is not required to accept a claimant’s subjective complaints and may properly
consider the credibility of a claimant when making a determination of disability.” Jones v. Comm’r
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of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003). In this case, substantial evidence supports the ALJ’s
decision not to fully credit Baranich’s complaints about his subjective impairments and their effects
on his ability to work. After his bypass surgery, Baranich returned to work at the coal mine,
obtained certification in four trades, hunted, and attended meetings at the American Legion and
Eagles. See Bogle v. Sullivan, 998 F.2d 342, 348 (6th Cir. 1993) (“The ALJ may consider the
household and social activities in evaluating complaints of disabling pain or other symptoms.”).
Additionally, the physicians who evaluated Baranich never concluded that his symptoms were
totally disabling. In March 1999, Dr. Noble placed “no specific restrictions” on Baranich’s return
to work; in 2002, Dr. Noble only indicated that Baranich should not do a job requiring as much
effort as coal mining. Dr. Starr concluded that Baranich would have some restriction on lifting
heavy objects, but could otherwise stand and walk normally, exercise, and perform chores with little
difficulty. Substantial evidence supports the ALJ’s decision to not fully credit Baranich’s
complaints.
Baranich also disputes the ALJ’s conclusion that Baranich did well on stress tests, the ALJ’s
statement that he did not take nitroglycerin for his angina, and the ALJ’s observation that he was not
in treatment for anxiety. However, these conclusions are more than adequately supported by his
medical records. The results of his stress tests were described as either benign or fine and were
interpreted as showing normal exercise capacity. Baranich also did not take his nitroglycerin on a
regular basis. While this may have been because he suffered headaches when taking the medication,
the record also reflects that after his angioplasty, he suffered no chest pain for which he would need
to use it. As Dr. Hedges observed in April 2001, Baranich “has not had any chest pain and has no
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need to use the Nitroglycerin.” Finally, the ALJ correctly observed that Baranich was not receiving
treatment for his anxiety, despite the fact that he could have done so at the VA Clinic.
Next, Baranich states that his hiatal hernia, back problems, and right leg numbness should
have been considered by the ALJ. The ALJ specifically referenced Baranich’s chronic back pain
in his decision. The ALJ did not discuss Baranich’s hiatal hernia, which Baranich only briefly
discussed in his testimony. However, the ALJ did incorporate “no repetitive bending” into the
hypothetical to the VE, which presumably would eliminate jobs that would bother Baranich because
of his back problems and hernia. The ALJ also did not specifically discuss Baranich’s numbness.
However, there was substantial evidence in the record indicating that, even if Baranich did suffer
from numbness, the numbness was not so severe that it would have prevented him from working.
Further, while the ALJ is required to develop the record, the “ALJ is not required to discuss all the
evidence submitted.” Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000).
Baranich also argues that the ALJ did not credit the testimony of Sharon Baranich. The ALJ
did not err in this respect. The ALJ did not reject Mrs. Baranich’s testimony, but rather observed
that it corroborated his subjective complaints. Further, the ALJ is not required to extensively discuss
all the evidence submitted. Id. (“Although required to develop the record fully and fairly, an ALJ
is not required to discuss all the evidence submitted, and an ALJ’s failure to cite specific evidence
does not indicate that it was not considered.”). The record reflects that the ALJ considered Mrs.
Baranich’s testimony and incorporated it into the decision-making process.
Finally, Baranich claims that the ALJ erred in failing to consider the combination of his
impairments in setting his residual functional capacity. This contention is erroneous, as the ALJ
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indicated in his findings that he considered the “combination of impairments” suffered by Baranich
to be severe. Further, the hypothetical posed to the VE combined many of Baranich’s impairments,
including his anxiety and cardiac condition, and requirements, including being free from pollutants,
the ability to sit or stand, and no repetitive bending.
We conclude that the ALJ’s assessment of Baranich’s subjective symptoms and residual
functional capacity was supported by substantial evidence.
C.
Baranich next contends that Dr. Noble concluded that his cardiac condition met the listings.
Under the Social Security regulations, “[i]f a claimant is not doing 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 his impairment meets or equals a listed impairment, claimant is
presumed disabled without further inquiry.” Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th
Cir. 1997) (citing 20 C.F.R. § 404.1520). The ALJ determined that Baranich’s cardiac conditions
were not of listing-level severity. In reaching this conclusion, he observed, “Neither the claimant’s
treating cardiologist nor the state agency medical consultant believes the claimant’s coronary artery
disease is sufficiently severe to meet or equal any cardiac listings.”
Before this court, Baranich argues that Dr. Noble implied that the listings were equaled with
respect to his cardiac condition. He references a letter from Dr. Noble, which states as follows.
By the social security listings for cardiovascular impairment under (C), there is in
section B then a greater than 70% narrowing of a non-bypassed coronary artery.
Specifically the right coronary artery was bypassed but that bypass is occluded so
there is some narrowing still in that distribution.
Contrary to Baranich’s assertions, Dr. Noble’s letter does not state that Baranich met the listing.
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Instead, Dr. Noble correctly recites the listing requirement of a greater than 70% narrowing of a non-
bypassed artery. See 20 C.F.R. § 404, Subpart P, Appx. 1. He then states that Baranich’s artery has
been bypassed and has some narrowing. The facts as Dr. Noble recites them in his letter indicate
that Baranich has not met the listings.
D.
Finally, Baranich takes issue with the way the ALJ conducted the hearing. He argues that
the ALJ improperly restricted his cross-examination of the VE and also wasted time and space at
the hearing and in the decision on non-disputed issues.
A review of the hearing transcript shows that the ALJ did not prevent Baranich’s attorney
from questioning the VE. Rather, the ALJ asked Baranich’s attorney to rephrase a question. The
attorney did not attempt to restate the question and instead abandoned all questioning. His failure
to continue cross-examination resulted from his own decision and not from a directive of the ALJ.
Next, Baranich complains that the ALJ wasted time at the hearing by reconsidering Stages
1, 2, and 4 of the five-step sequential analysis set forth in 20 C.F.R. § 404.1520. He argues that 20
C.F.R. § 404.946 limits issues heard at hearing to issues not previously decided in the claimant’s
favor. Additionally, Baranich contends that the ALJ’s decision was too short and wasted space on
“boilerplate definitions from the law and the act” instead of addressing “live issues.”
Baranich’s contentions with respect to how the ALJ approached his case are without merit.
The ALJ followed the appropriate legal analysis set forth in 20 C.F.R. § 404.1520 in reviewing
Baranich’s claim. That the ALJ also briefly reviewed certain undisputed steps of that legal analysis
does not render the ALJ’s decision-making process infirm.
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IV.
For the foregoing reasons, we conclude that the ALJ’s decision was supported by substantial
evidence and affirm the decision of the district court.
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