Rosanne Amato Noto v. Comm. of Social Security
Filing
OPINION filed : AFFIRMED, decision not for publication. Jeffrey S. Sutton, Raymond M. Kethledge, Circuit Judges and Sandra S. Beckwith (Authoring), U.S. District Judge for the Southern District of Ohio, sitting by designation.
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0753n.06
No. 15-1309
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ROSANNE AMATO NOTO,
Plaintiff-Appellant,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant-Appellee.
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FILED
Nov 16, 2015
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MICHIGAN
OPINION
BEFORE: SUTTON and KETHLEDGE, Circuit Judges; BECKWITH, District Judge.*
BECKWITH, Senior District Judge. Plaintiff-Appellant Rosanne Amato Noto appeals
the district court’s judgment upholding the denial of her application for disability insurance
benefits. We affirm.
I.
In February 2007, Plaintiff–Appellant Rosanne Amato Noto filed an application with the
Social Security Administration for disability insurance benefits based on impairments of chronic
back and neck pain and chronic headaches. She alleged an onset date of disability of December
27, 2005. Plaintiff’s impairments allegedly stem from an automobile accident that occurred in
2001.
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The Honorable Sandra S. Beckwith, Senior United States District Judge for the Southern
District of Ohio, sitting by designation.
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Plaintiff’s claim was denied. She requested and received an evidentiary hearing before
an administrative law judge (“ALJ”), which took place in August 2009. In October 2009, the
ALJ issued a written decision finding that Plaintiff is not disabled under the Social Security
regulations because she has the residual functional capacity to perform her past relevant work as
a customer care representative, a service department administrator, and a personal assistant to a
vice president. The Appeals Council, however, remanded the case to the ALJ to re-evaluate the
medical source evidence, Plaintiff’s subjective complaints of pain, her maximum residual
functional capacity, and her residual functional capacity vis-à-vis her past relevant work.
The ALJ held a second evidentiary hearing on Plaintiff’s application in October 2011,
during which Plaintiff and a vocational expert testified. During the hearing, Plaintiff testified
that chronic, severe neck and back pain precludes her from performing almost all activities of
daily living. Plaintiff testified that she is able to do some minor cooking, and can drive short
distances, but has difficulty with most everything else, including eating and brushing her teeth.
In fact, Plaintiff testified that her neck is so weak that she must support her head with one of her
hands while eating. The ALJ, however, asked the vocational expert to assume that Plaintiff has
the residual functional capacity to perform sedentary work with restrictions on environmental
and noise exposure, use of ramps and stairs, and reaching, pushing, and pulling. The ALJ also
stated that Plaintiff must have the ability to switch at will between sitting and standing. The
vocational expert testified that this residual functional capacity would permit Plaintiff to perform
her past relevant work as a customer service representative and as an administrative assistant.
In November 2011, the ALJ issued a second written decision denying Plaintiff’s
application at the fourth step of the sequential disability analysis on the grounds that she has the
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residual functional capacity to perform her past relevant work as a customer care representative
and as an administrative assistant. The ALJ made an alternative finding at the fifth step that
Plaintiff is not disabled because she has the residual functional capacity to perform other
sedentary office clerk and general secretarial jobs that exist in significant numbers in the national
economy.
The ALJ thoroughly summarized the medical evidence in arriving at Plaintiff’s residual
functional capacity. The ALJ, however, did not state the weight he assigned to each medical
opinion. Nevertheless, it is evident from his decision that the ALJ assigned the greatest weight
to the opinions of the state agency examining and consulting physicians. Stacey v. Comm’r of
Soc. Sec., 451 F. App’x 517, 520 (6th Cir. 2011) (ALJ not required to state weight given to
opinion of a non-treating physician, however, “the ALJ’s decision still must say enough to allow
the appellate court to trace the path of his reasoning.”) (internal quotation marks omitted).
Drs. Patel, Shelby-Lane, and Karo each performed consultative examinations of Plaintiff
for the Social Security Administration. Dr. Patel’s report, completed in May 2007, documented
essentially unremarkable findings on examination of Plaintiff. He found “no physical or mental
limitations” and concluded that Plaintiff was malingering. AR 388-395. Dr. Shelby-Lane
examined Plaintiff and provided a report in May 2011. She concluded that Plaintiff has some
limitations in reaching and pushing and pulling but otherwise is capable of performing sedentary
work. AR 893-908. Dr. Karo examined Plaintiff and provided a report in July 2011. Dr. Karo’s
report is somewhat contradictory. At one point, she stated that Plaintiff has no limitations in
sitting, standing, or walking, AR 994, but later she indicated that Plaintiff can only sit, stand, or
walk for five minutes at a time. AR 1001. Dr. Karo otherwise indicated that Plaintiff is capable
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of performing light work with some environmental restrictions and restrictions on working
around unprotected heights and moving machinery. AR 992-1005.
Dr. Mazhari treated Plaintiff for neck and back pain over about a four-year period. In
August 2005, Dr. Mazhari wrote an office treatment note documenting an essentially normal
physical examination of Plaintiff except for some mild to moderate cervical pain that was
intermittent, increased with activity, but disappeared during the weekend. AR 341. Dr. Mazhari
recommended that Plaintiff restrict flexion and extension of her neck. AR 343. The ALJ found
that this restriction was “incompatible” with subsequent medical records showing improvement
in Plaintiff’s neck pain with steroid injections. AR 18. Additionally, in July 2002, Dr. Mazhari
wrote an office note stating that Plaintiff should “stay away from over reaching [sic], pulling,
and pushing frequently” due to neck and upper bilateral pain. AR 739. The ALJ, however,
concluded that these limitations would not preclude Plaintiff from performing the work described
at the evidentiary hearing. The ALJ also noted that Plaintiff was actually performing her past
relevant work when Dr. Mazhari wrote this note. AR 17.
Plaintiff was also treated by Dr. Maltese (AR 612-618) and Dr. Easton (AR 404-419) for
her neck and back pain. Dr. Maltese noted that Plaintiff has cervical and lumbar pain and
radiculopathy but he did not indicate any functional limitations resulting from these symptoms.1
Dr. Easton treated Plaintiff during and after her pregnancy. While Dr. Easton found severe
In June 2009, Dr. Maltese wrote “off work indefinitely” on a prescription pad. AR 618. As the
district court aptly observed, we have previously held that this kind of one-sentence note does
not qualify as a “medical opinion” under the Social Security regulations because it does not
reflect a judgment about the nature and severity of the claimant’s impairments. Dunlap v.
Comm’r of Soc. Sec., 509 F. App’x 472, 476 (6th Cir. 2012); see 20 C.F.R. § 404.1527(d)(1).
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degenerative disc disease at C3-4, a disc herniation at C5-6, and a herniated disc causing central
canal stenosis at L4-L5, he likewise did not indicate any functional limitations resulting from
these conditions. The ALJ noted both doctors’ records in his decision, however. AR 19.
Specifically, the ALJ cited Dr. Easton’s treatment note recording that Plaintiff stated that she did
not experience “a lot of” back pain during her pregnancy. AR 19.2 The ALJ cited Dr. Maltese’s
January 2009 treatment note recording that physical therapy was helping Plaintiff’s symptoms
and that she was not taking any medication at the time. Id.
In May 2009, Dr. Syed evaluated Plaintiff for arthritis after a referral from Dr. Maltese.
AR 609-611. Dr. Syed’s findings were mostly normal except for some limited cervical and
lumbar motion. He did not indicate any functional limitations in his notes. AR 611. The ALJ
concluded that Dr. Syed’s notes support Plaintiff’s ability to perform sedentary work because of
his essentially normal findings on physical examination and Plaintiff’s report that her pain was
controlled by epidural injections and heating pads. AR 20.
In October 2006, Plaintiff obtained a consultative examination from Dr. Zurawski. He
concluded that Plaintiff’s prognosis is guarded without surgical intervention. Dr. Zurawski
stated that Plaintiff would not be able to perform the job duties of a secretary without substantial
rest periods throughout the day. AR 304-306. The ALJ, however, rejected Dr. Zurawski’s
opinion on three grounds: 1) none of Plaintiff’s treating physicians had indicated a need for rest
2
The ALJ actually wrote in his decision that Dr. Easton documented that Plaintiff said that she
did not experience “any” back pain during her pregnancy. Plaintiff argues that the ALJ’s
misstatement shows that he inadequately evaluated Dr. Easton’s records and that, therefore, the
ALJ’s decision is not supported by substantial evidence. We disagree. The difference between
“any” and “not a lot of” is slight. The important and reasonable point the ALJ derived from Dr.
Easton’s note is that Plaintiff apparently did not complain about experiencing a disabling level of
back pain during her pregnancy.
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periods during the work day; 2) the available medical records did not indicate that Plaintiff’s
impairments are severe enough to warrant the need for rest periods; and 3) Dr. Zurawski’s
opinion was contradicted by Dr. Patel’s opinion. AR 18-19.
Dr. Herkowitz examined Plaintiff in July 2009. He provided a report indicating a largely
normal physical examination of Plaintiff except for some pain on palpitation of the mid- and
lower cervical spine and some restricted range of motion in the cervical and lumbar spine. AR
536. He stated that Plaintiff did not display any inappropriate pain responses. Id. Dr. Herkowitz
also stated that he did not believe that surgical intervention would be beneficial because
Plaintiff’s symptoms are limited to chronic neck and back pain. AR 537. He seemed to endorse
physical therapy and pain management to address Plaintiff’s symptoms. Id. Dr. Herkowitz did
not indicate any functional limitations in his report.
In March 2011, the ALJ sent Plaintiff for a functional capacity evaluation and report.
Amy Modrich, a physical therapist, provided a report stating that Plaintiff has some functional
capacity in the sedentary range, but that she would not be able to sustain an eight-hour work day
due to severe pain in her back and neck which limits her endurance to about 15 minutes of
activity. Modrich also stated that her evaluation of Plaintiff could be considered an accurate
representation of her functional capacity based on her physiological responses and her movement
and muscle recruitment patterns while aware and unaware of observation. AR 276-287. The
ALJ, however, rejected Modrich’s opinion because it was based on Plaintiff’s subjective
complaints of pain. The ALJ also noted that Modrich’s opinion was contradicted by the opinions
of state agency consultants finding that Plaintiff is not precluded from performing sedentary
work. AR 20-21.
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The Appeals Council denied Plaintiff’s request for review of the ALJ’s decision, making
the ALJ’s decision the final decision of the Commissioner. Plaintiff filed a timely complaint in
the district court for judicial review of the ALJ’s decision. The parties then filed cross-motions
for summary judgment. As is relevant to this appeal, Plaintiff contended that the ALJ committed
numerous analytical and procedural errors in evaluating the record, particularly in regard to his
treatment of the medical opinions. She also contended that the ALJ erred by not ascertaining
whether any conflicts existed between the vocational expert’s testimony and the job descriptions
provided by the Dictionary of Occupational Titles (“DOT”). Because of these alleged errors,
Plaintiff argued that the ALJ’s decision was not supported by substantial evidence. A magistrate
judge issued a report concluding otherwise, however, and recommended that the ALJ’s decision
be affirmed.
objections.
The district court adopted the report and recommendation over Plaintiff’s
Plaintiff filed a timely appeal from the district court’s judgment.
II.
We review de novo the district court’s legal conclusion that the ALJ’s decision was
supported by substantial evidence. Valley v. Comm’r of Soc. Sec., 427 F.3d 388, 390 (6th Cir.
2005). Under 42 U.S.C. § 405(g), the ALJ’s findings are conclusive if they are supported by
substantial evidence. Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001). When deciding
whether substantial evidence supports the ALJ’s decision, we do not try the case de novo, resolve
conflicts in evidence, or decide questions of credibility. Smith v. Halter, 307 F.3d 377, 379 (6th
Cir. 2001). Instead, we consider the ALJ’s decision determinative if there is “such relevant
evidence as a reasonable mind might accept” as sufficient to support the ALJ’s conclusion.
Foster, 279 F.3d at 353.
The substantial evidence standard is less exacting than the
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preponderance of evidence standard. Bell v. Comm’r of Soc. Sec., 105 F.3d 244, 245 (6th Cir.
1996). If the ALJ’s decision is supported by substantial evidence, then reversal would not be
warranted even if substantial evidence would support the opposite conclusion. Longworth v.
Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005).
III.
We find no reversible error in the ALJ’s analysis of the medical evidence and conclude
that his decision denying Plaintiff’s application for disability insurance benefits was supported
by substantial evidence.
Plaintiff first argues that the ALJ violated Social Security Ruling 06-03p and 20 C.F.R. §
404.1513 in evaluating the opinion of physical therapist Amy Modrich.
Section 404.1513
establishes two categories of medical evidence, “acceptable medical sources” and “other
sources.”
Generally speaking, “acceptable medical sources” are licensed physicians and
psychologists. 20 C.F.R. § 404.1513(a). The regulations establish the weight or deference that
must be given to the opinion of an acceptable medical source depending on whether it is a
“treating source,” a “non-treating (but examining) source,” or a “non-examining source.” Smith
v. Comm’r of Social Sec., 482 F.3d 873, 875 (6th Cir. 2007). “Other sources” is everyone else,
including nurse practitioners, physician’s assistants, and therapists. 20 C.F.R. § 404.1513(d)(1).
More specifically, nurse practitioners, therapists, and the like are “non-acceptable medical
sources.” See id. The opinion of a “non-acceptable medical source” is not entitled to any
particular weight or deference – the ALJ has discretion to assign it any weight he feels
appropriate based on the evidence of record. Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 530
(6th Cir. 1997); Engebrecht v. Comm’r of Soc. Sec., 572 F. App’x 392, 397-98 (6th Cir. 2014).
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Social Security Ruling 06-03p elaborates further as to how the ALJ should treat evidence
from a non-acceptable medical source. SSR 06-03p, 2006 WL 2329939 (Aug. 9, 2006). This
ruling recognizes that in some cases a non-acceptable medical source may have an insight as to
the claimant’s impairment that outweighs even a treating source’s opinion depending on the
nature of her treatment relationship with the claimant and the quality and supportability of her
opinion. 2006 WL 2329939, at *5. Thus, “[o]pinions from these medical sources . . . are
important and should be evaluated on key issues such as impairment severity and functional
effects, along with the other relevant evidence in the file.” Id. at *3. Moreover, “the case record
should reflect the consideration of opinions from medical sources who are not ‘acceptable
medical sources’ and from ‘non-medical sources’ who have seen the claimant in their
professional capacity.” Id. at *6. Finally, “the adjudicator generally should explain the weight
given to opinions from these ‘other sources,’ or otherwise ensure that discussion of the evidence
in the determination or decision allows a claimant and subsequent reviewer to follow the
adjudicator’s reasoning[.]” Id.
Modrich is a physical therapist. She is, therefore, a “non-acceptable medical source” and
the ALJ was not required to give her opinion any particular weight. Social Security Ruling 0603p, however, required the ALJ to consider Modrich’s opinion, and he did. The ALJ provided
appropriate reasons for discounting her conclusion that Plaintiff cannot sustain even sedentary
work for an eight-hour work day. The most important reason cited by the ALJ, we think, is that
Modrich’s opinion is not consistent with the opinions of the state agency examining physicians.
Although Modrich stated that Plaintiff cannot sustain sedentary work, near-contemporaneous
opinions from Dr. Shelby-Lane and Dr. Karo indicate that Plaintiff’s overall endurance is
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sufficient to perform sedentary work. We cannot conclude that Modrich’s one-time evaluation
of Plaintiff is so much more probative of the issue of disability than the opinions of the
examining physicians that the ALJ violated Social Security Ruling 06-03p by not giving
Modrich’s opinion more weight than he did.
Plaintiff next contests the ALJ’s overall treatment of the medical evidence, including the
weight (or lack thereof) he assigned to the various medical opinions. We find no reversible error
in the ALJ’s analysis of the medical evidence, however. The only valid medical opinions from
treating physicians were from Dr. Mazhari. The ALJ provided a “good reason” for discounting
Dr. Mazhari’s opinion that Plaintiff has restrictions on flexion and extension of her neck –
subsequent medical records showed that Plaintiff’s neck pain improved with injections. AR 309,
379, 474, 843, 857, 878; White v. Comm’r of Soc. Sec., 572 F.3d 272, 286 (6th Cir. 2009) (ALJ
appropriately discounted treating physician’s opinion because it conflicted with evidence
demonstrating claimant’s sustained improvement). Although the ALJ did not specifically state
the weight he gave to Dr. Mazhari’s other opinion, he did incorporate into his residual functional
capacity Dr. Mazhari’s restriction that Plaintiff should not engage in too much reaching, pushing,
and pulling by limiting her to occasionally performing those activities. Therefore, the ALJ’s
failure to state the specific weight he gave this opinion is a harmless error. See Wilson v.
Comm’r of Soc. Sec., 378 F.3d 541, 547-48 (6th Cir. 2004) (stating that the ALJ’s failure to state
weight given to a treating physician’s opinion may be a harmless error where he adopts the
opinion of the treating source).
The ALJ had a substantial basis for rejecting Dr. Zurawski’s opinion because it was
contradicted by the opinions of at least three other state agency examining physicians and by
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subsequent medical records. In addition to the opinions of the state agency consultants, the
opinions of Drs. Herkowitz and Syed were consistent with the ALJ’s determination that Plaintiff
has the capacity to perform a limited range of sedentary work.
Nor did the ALJ commit harmful error by not discussing specific records indicating that
Plaintiff received injections and had headaches. The ALJ adequately considered the same type
of evidence and reasonably concluded that this type of evidence did not change his opinion. And
the ALJ need not expressly mention every piece of evidence so long as the overall decision was
supported by substantial evidence. Loral Def. Sys.-Akron v. NLRB, 200 F.3d 436, 453 (6th Cir.
1999); see 20 C.F.R. § 404.953. This one was.
While the overall record substantiates that Plaintiff does indeed have severe impairments
resulting in chronic cervical and lumbar spine pain, the opinion evidence from acceptable
medical sources consistently indicates that Plaintiff is capable of performing a reduced range of
sedentary work. Consequently, there is substantial evidence to support the ALJ’s conclusion that
Plaintiff is not disabled because she has the residual functional capacity to perform her past
relevant work.
Since we have concluded that the ALJ’s decision to deny Plaintiff’s application at the
fourth step was supported by substantial evidence, we need not address her contention that the
ALJ committed errors at the fifth step of the disability analysis.
AFFIRMED.
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