Kalbach v. Commissioner of Social Security
OPINION, signed by Magistrate Judge Hugh W. Brenneman, Jr (Magistrate Judge Hugh W. Brenneman, Jr., fhw)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
MARY J. KALBACH,
Case No. 1:11-cv-382
Hon. Hugh W. Brenneman, Jr.
COMMISSIONER OF SOCIAL
Plaintiff brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of
a final decision of the Commissioner of the Social Security Administration (Commissioner) denying
her claim for disability insurance benefits (DIB).
Plaintiff’s disability claim
Plaintiff was born on November 21, 1962 (AR 58).1 Plaintiff alleged a disability
onset date of October 1, 2001 (AR 58). She completed four years of college with a degree in
accounting (AR 88, 493). Plaintiff had previous employment as an accountant, accounting clerk,
secretary, dispatcher and house cleaner (AR 93-100). Plaintiff identified her disabling conditions as
blood clots, diabetic thyroid problems and back ailments (AR 83). Due to these conditions, plaintiff
was unable to stand, sit or walk for long periods of time, has constant pain in the legs, neck and back
and is overweight (AR 83).
Citations to the administrative record will be referenced as (AR “page #”).
The September 13, 2005 decision denying benefits
The ALJ reviewed plaintiff’s claim de novo at a hearing held on April 12, 2005 (AR
488-524) and entered a written decision denying benefits on September 13, 2005 (AR 14-23).
Plaintiff appealed the decision to the federal court, resulting in a reversal and remand pursuant to
sentence four of 42 U.S.C. § 405(g) for the purpose of re-evaluating opinion evidence regarding (1)
plaintiff’s need to elevate her legs and (2) the extent that plaintiff needed to avoid prolonged standing
or walking. See Kalbach v. Commissioner of Social Security, No. 1:06-cv-284 (W.D. Mich.)
(“Kalbach I”) (Report and Recommendation, April 3, 2007) (Order and Judgment Approving Report
and Recommendation, May 17, 2007).
The March 5, 2008 decision denying benefits
On remand, an ALJ held a second hearing on November 21, 2007 (AR 701-42) and
entered a written decision denying benefits on March 5, 2008 (AR 540-50). Plaintiff again appealed
to the federal court, resulting in a joint stipulation for remand pursuant to sentence four of 42 U.S.C.
§ 405(g) to “consider Dr. Sitek’s opinion and give further consideration to Plaintiff’s need to elevate
her lower extremity.” Kalbach v. Commissioner of Social Security, No. 1:08-cv-1061 (W.D. Mich.)
(“Kalbach II”)(Joint Stipulation for remand, March 24, 2009) (Order approving stipulation, March
The April 3, 2010 decision denying benefits
On second remand, the ALJ held a third hearing on January 27, 2010 (AR 898-939)
and entered a written decision denying benefits on April 3, 2010 (AR 755-64). The Appeals Council
declined to assume jurisdiction (AR 744). Accordingly, the ALJ’s April 3, 2010 decision has
become the final decision of the Commissioner and is now before the Court for review.
II. LEGAL STANDARD
This court’s review of the Commissioner’s decision is typically focused on
determining whether the Commissioner's findings are supported by substantial evidence. 42 U.S.C.
§405(g); McKnight v. Sullivan, 927 F.2d 241 (6th Cir. 1990). “Substantial evidence is 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. Secretary of Health & Human Servs.,
25 F.3d 284, 286 (6th Cir. 1994). A determination of substantiality of the evidence must be based
upon the record taken as a whole. Young v. Secretary of Health & Human Servs., 925 F.2d 146 (6th
The scope of this review is limited to an examination of the record only. This Court
does not review the evidence de novo, make credibility determinations or weigh the evidence.
Brainard v. Secretary of Health & Human Services, 889 F.2d 679, 681 (6th Cir. 1989). The fact that
the record also contains evidence which would have supported a different conclusion does not
undermine the Commissioner’s decision so long as there is substantial support for that decision in
the record. Willbanks v. Secretary of Health & Human Services, 847 F.2d 301, 303 (6th Cir. 1988).
Even if the reviewing court would resolve the dispute differently, the Commissioner’s decision must
stand if it is supported by substantial evidence. Young, 925 F.2d at 147.
A claimant must prove that he suffers from a disability in order to be entitled to
benefits. A disability is established by showing that the claimant cannot engage in 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 twelve months. See 20 C.F.R. §§ 404.1505 and 416.905; Abbott v. Sullivan, 905 F.2d
918, 923 (6th Cir. 1990). In applying the above standard, the Commissioner has developed a fivestep analysis:
The Social Security Act requires the Secretary to follow a “five-step
sequential process” for claims of disability. First, plaintiff must demonstrate that she
is not currently engaged in “substantial gainful activity” at the time she seeks
disability benefits. Second, plaintiff must show that she suffers from a “severe
impairment” in order to warrant a finding of disability. A “severe impairment” is one
which “significantly limits . . . physical or mental ability to do basic work activities.”
Third, if plaintiff is not performing substantial gainful activity, has a severe
impairment that is expected to last for at least twelve months, and the impairment
meets a listed impairment, plaintiff is presumed to be disabled regardless of age,
education or work experience. Fourth, if the plaintiff's impairment does not prevent
her from doing her past relevant work, plaintiff is not disabled. For the fifth and final
step, even if the plaintiff’s impairment does prevent her from doing her past relevant
work, if other work exists in the national economy that plaintiff can perform, plaintiff
is not disabled.
Heston v. Commissioner of Social Security, 245 F.3d 528, 534 (6th Cir. 2001) (citations omitted).
The claimant bears the burden of proving the existence and severity of limitations
caused by her impairments and the fact that she is precluded from performing her past relevant work
through step four. Jones v. Commissioner of Social Security, 336 F.3d 469, 474 (6th Cir. 2003).
However, at step five of the inquiry, “the burden shifts to the Commissioner to identify a significant
number of jobs in the economy that accommodate the claimant’s residual functional capacity
(determined at step four) and vocational profile.” Id. If it is determined that a claimant is or is not
disabled at any point in the evaluation process, further review is not necessary. Mullis v. Bowen, 861
F.2d 991, 993 (6th Cir. 1988).
III. ALJ’S APRIL 3, 2010 DECISION DENYING BENEFITS
Plaintiff’s claim failed at the fourth step of the evaluation. The ALJ initially found
that plaintiff has not engaged in substantial gainful activity since the alleged onset date of October
1, 2001 through the last insured date of December 31, 2006 (AR 757). Second, the ALJ found that
through the date last insured, plaintiff had the following severe impairments: morbid obesity (May
2006 height- 64 inches, weight - 270 pounds); right shoulder type III acromion impingement; right
trochanteric bursitis; and degenerative disc disease of the cervical spine with disc protrusions and
nerve root irritation (AR 758). The ALJ also found that through the date last insured, plaintiff had
the following non-severe impairments: deep vein thrombosis (DVT) with mild chronic venous stasis;
diabetes mellitus; and minimal carpal tunnel syndrome (AR 758). At the third step, the ALJ found
that plaintiff did not have an impairment or combination of impairments that met or equaled the
requirements of the Listing of Impairments in 20 C.F.R. Pt. 404, Subpt. P, App. 1 (AR 758). In this
regard, the ALJ reviewed Listings 1.02 (major joint dysfunction), 1.04 (disorders of the spine), 11.04
(central nervous system vascular accident), and 11.08 (spinal cord nerve root lesions) (AR 758).
The ALJ decided at the fourth step that through her date last insured, plaintiff had the
residual functional capacity (RFC) to perform a range of sedentary work as defined in 20 C.F.R. §
404.1567(a) as follows:
Clamant was able to lift and carry a maximum of ten pounds. During an eight-hour
workday with normal breaks, she was able to stand or walk for two hours
(cumulatively), and she required a discretionary sit/stand option at will. She was
able to climb stairs and ramps frequently, but she could not climb ladders, ropes or
scaffolds. She was able to balance, stoop, kneel, crouch or crawl occasionally.
Claimant was unable to work at hazards, such as working at unprotected heights or
involving the operation of dangerous machinery with moving parts.
(AR 759). At the fourth step, the ALJ found that through the date last insured, plaintiff was capable
of performing her past relevant work as an accounting clerk, work which “did not require
performance of work-related activities precluded by the claimant’s residual functional capacity” (AR
763). Accordingly, the ALJ determined that plaintiff has not been under a disability, as defined in
the Social Security Act, from October 1, 2001 (the alleged onset date) through December 31, 2006
(the date last insured) (AR 764).
Plaintiff has raised one issue on appeal.
The ALJ failed to give appropriate weight to the opinions of
Nurse Practitioner (NP) Gabrielle Cochran-Walters (Walters)2
Plaintiff’s claims of impairment
Plaintiff testified at a hearing held on January 27, 2010 (AR 898-939).3 Plaintiff had
consistent pain and swelling with her legs which has worsened over time (AR 903). She had some
improvement with the use of compression stockings, rest and elevation of her legs every half-hour
(AR 904). Plaintiff later estimated that on a typical day, she will elevate her legs five or six times
for about 15 minutes each time (AR 914-15). Plaintiff stated that walking, sitting and standing in
one spot aggravates the swelling and that she can stand in one place for only five to ten minutes (AR
905-06). Plaintiff is a diabetic and at the time of the hearing had almost daily spikes in her blood
sugar (AR 907). Due to her carpal tunnel syndrome, she has problems picking up things and often
drops things (AR 908). Plaintiff can lift up to ten pounds but cannot lift over shoulder height (AR
909). Plaintiff also has shoulder problems, neck pain and excruciating pain in her right hip (AR 91011). Plaintiff placed her current weight as 270 pounds (AR 921). Plaintiff’s doctor discussed
bariatric surgery as a means to lower her weight, but plaintiff has refused the surgery because it is
The court notes that NP Walters is sometimes referred to as Gabrielle Walters, Gabrielle Cochran
and Gabrielle Cochran-Walters.
Plaintiff’s most recent hearing occurred more three years after her last insured date. The court notes
that while the testimony reflected plaintiff’s current medical condition, plaintiff linked little of the testimony
to her medical condition during the relevant time period (October 1, 2001 through December 31, 2006).
in her opinion “just a band-aid” (AR 924). Plaintiff stated that in a typical day, she will get in the
tub for at least an hour, get a bite to eat, lay down for about one-half hour, maybe go shopping
(pushing a grocery cart or stroller), watch television and “mess with the computer” (AR 912-13).
Plaintiff cannot take care of basic household chores but she can drive and go grocery shopping (AR
913-14). Plaintiff also cared for four foster children who were at that time aged 11, 14, 16 and 17
The ALJ found that plaintiff’s medically determinable impairments could reasonably
be expected to cause the alleged symptoms, but that plaintiff’s statements concerning the intensity,
persistence and limiting effects of those symptoms were not credible to the extent those statements
were inconsistent with the RFC determination (AR 760). The ALJ found that plaintiff’s claim was
not credible, in part, because she was able to raise eleven children (including five adopted children
and four foster children) during the relevant time period and because she failed to comply with
treatment recommendations (AR 760-61). The ALJ’s evaluation of plaintiff’s credibility, which is
relevant to her claim presently before the court, is set forth below in its entirety:
Claimant’s alleged functional problems, including the contention of inability
to engage in substantial gainful activity, are not reasonably supported by the record
as a whole. During the pertinent period, claimant maintained an active lifestyle
raising her seven children (including five adopted children) (Exhibit 2F/4).
Additionally, the claimant testified that she cared for at least four foster children for
which she was paid foster care payments by the State of Michigan (as much as $600
per week by her own estimate). Claimant also traveled to Florida for several months
at a time (Exhibit 17F/4).
During the hour long hearing, the claimant appeared to be seated comfortably
and was not observed to elevate either leg or request the opportunity to do so.
Claimant’s earnings record reflects rather marginal earnings with several
years of no earning predating the alleged onset date in October 2001.
The undersigned also notes claimant’s multiple instances of non-compliance
with treatment recommendations including those of Nurse Practitioner CochranWalters, who authored several letters imploring the claimant to change her unhealthy
diet and poor exercise habits. In May 2006, the nurse practitioner agreed with the
claimant’s subjective comment that she doubted she would live until age 55
(approximately ten years from then) if she did not make recommended dietary and
exercise changes. Ms. Cochran-Walters characterized the claimant’s remark as
“flippant” (Exhibit 18F/13). In April 2004, Edward J. Brophy, DO, likewise advised
a vigorous exercise program (Exhibit 4F).
Finally, the undersigned must also note a significant change in the claimant’s
otherwise pleasant demeanor at the hearing when the issue of her raising and caring
for foster children was discussed. The undersigned sympathizes with the argument
set forth by counsel at hearing that both disabled and non-disabled individuals can
have children and care for them appropriately. However, the claimant has made it
an endeavor if not a business to care for multiple foster children in addition to her
own children and this activity (on an everyday basis over a prolonged period)
certainly speaks to the claimant’s overall ability to function in areas that have a
common ground with those involved in the performance [of] basic work activities.
The ability to function is [sic] a home or non-work community setting is not
altogether different from functioning in a work setting. In the instant case, the
medical and other evidence convinces me that the claimant was never disabled
through the date insured. Even in the absence of the claimant’s extensive childcare
activity, however, the medical evidence would also lead me to the identical
NP Walters’ restrictions
Plaintiff’s claim is based upon an opinion given by NP Walters on November 9, 2004
(AR 444-48). Plaintiff’s Brief at p. 3. In Kalbach I, the court summarized the substance of that
[C]laimant was diagnosed with type II diabetes mellitus, hypertension, clinical
severe obesity, severe dyslipidemia, chronic DVT, bilateral carpal tunnel syndrome,
chronic neck pain, and possible fibromyalgia. The claimant has symptoms of
persistent leg pain with standing, walking or any movement, right shoulder pain
limiting her range of motion, and bilateral hand pain which limited her finger
dexterity. The claimant was incapable of tolerating even a low stress job. The
claimant can walk one-half to one block without having to rest or severe pain, sit for
30 minutes a time before having to get up, and stand for ten minutes before needing
to sit down or walk around. She can stand and/or walk for a total of two hours in an
eight-hour work day, and sit for a total of four hours in an eight-hour work day. She
must be able to walk around every 30 minutes, lasting five minutes in an eight-hour
work day. She must have a sit, stand, or walk option. She needs to elevate her leg
80 to 120 percent [sic] of the time during an eight-hour working day. She could
occasionally lift and carry less than ten pounds in a competitive work situation. She
can frequently look down, look up, and hold head in static position. She can
occasionally turn her head from right to left. She can occasionally stoop. She can
rarely twist, crouch/squat, and climb stairs. She must never climb ladders. Out of
an eight-hour work day, the claimant can grasp, turn, twist objects, and perform fine
manipulations 20 percent with the right hand and 30 percent with the left. She
cannot reach overhead with her right hand and only 50 percent with the left. She will
be absent from work more than four days per month because of her impairments
producing a bad day (Exhibit 16F).
Kalbach I, Report and Recommendation at p. 5 (quoting ALJ’s summary of the report at AR 21,
444-48). NP Walters further noted that plaintiff’s impairments can be expected to last “Forever”
The ALJ’s review of NP Walters’ opinions
In the April 3, 2010 decision under review, the ALJ engaged in a lengthy evaluation
of NP Walters’ treatment notes and opinions, including a sworn statement from December 8, 2009,
in which NP Walters discussed her treatment of plaintiff (AR 873-84). Given that this is plaintiff’s
third appeal filed in this court, and that the central issue raised in this appeal involves the ALJ’s
review of NP Walters’ opinions, the court will set forth those portions of the decision which relate
to NP Walters.
The undersigned considered the office notes and opinion statements of
Family Nurse Practitioner Gabrielle (Cochran) Walters, FNP, including the
December 2009 deposition statement in exhibit 27F. This source is an “other”
source rather than an acceptable medical source (20 CFR 404.1513). In the
deposition statement, Nurse Cochran opined that among a host of required physical
and mental restrictions, every 30 minutes the claimant would need to sit down and
elevate her legs above heart level for 10 to 15 minutes (Exhibit 27F/8).
The undersigned must assign reduced weight to Nurse Cochran-Walters’
opinion statements in view of the lack of supportability of such statements. The
medical evidence does not support her conclusions that the claimant must take
unscheduled breaks, that she must elevate her legs or that she must abide by any
other work-preclusive limitation. It is noted that within several months after her
hospitalization for right leg deep vein thrombosis in early 2003, an Ultrasound
Doppler study concluded that claimant’s right lower extremity DVT had resolved
(Exhibit 9F/6). The clinical records of Nurse Cochran-Walters – reflecting 26 office
visits from May 28, 2003 to October 10, 2006 – make little reference to the existence
of any subsequent residual lower extremity problems until well after claimant’s last
insured status in December 2006. An emergency room visit on September 8, 2004
for right calf pain was equivocal for DVT and the fact that there is no reference to
this visit or to any right leg symptoms in Nurse Cochran-Walters next office visit
note of October 5, 2004 render it highly unlikely that such was a recurrent DVT
(Exhibit 17F/7). That claimant was able to engage in normal, even active, lifestyle
events shortly afterward is reflected in the office note of November 11, 2004 where
claimant informed her nurse that she was leaving for Florida for 2 months and
advised upon her returning that she tried to exercise daily and exhibited “minimal
peripheral edema” on exam (Exhibit 17F/4-7). This is consistent with several other
references in the physical examination portions of Nurse Cochran-Walters notes
which record her observations that claimant’s extremities were “symmetric without
peripheral edema” (Exhibits 13F/27; 18F/6). Noteworthy also is the fact that the last
such observation was made on January 10, 2007, less than 2 weeks after claimant’s
Title II [DIB] insured status expired.
In further discussion of the applicable weight to be assigned to the opinions
of Nurse Cochran-Walters, there is a disturbing contradiction between the nurse’s
wide-ranging statement of limitations in support of her patient’s claim for Social
Security Disability benefits and those responding to the inquiries of the Child and
Family Services division of the State of Michigan regarding the claimant’s functional
capabilities in activities related to child care. For example, in a statement to the State
of Michigan asking for her expert opinion about claimant’s fitness to provide
adequately for children that may be placed under her care, Nurse Walters was
strangely reserved and uninformative, mentioning absolutely nothing about the
myriad of serious physical and psychological limitations she had published
previously in support of claimant’s Social Security Disability claim (Exhibit 16F and
29F/3). One is left to speculate as to why this licensed health care professional
would in one forum be so nondescript in describing her patient’s alleged limitations
as they would impact the possible safety and welfare of children who were being
considered for foster care placement in claimant’s home yet be so precisely detailed
and inclusive when it came time to list an exposition of restrictions for consideration
in claimant’s efforts to obtain disability benefits, affirming many of the same
opinions under oath [on December 8, 2009] (Exhibit 27F/4) [AR 873-84].
The ALJ determined that there was little objective evidence to support plaintiff’s leg
Additionally, there is a notable absence of objective findings and other
rationale to support the proposed leg elevation requirements. The family nurse
practitioner does not explain how she devised the proposed limitations. Her office
notes within several months after claimant’s February 2003 DVT hospitalization are
devoid of any findings of leg pain or swelling or other problems which could
reasonably explain the need for elevation of the legs. There is no record of a
physical capacities evaluation (or other objective testing) to explain or quantify the
Nurse Cochran-Walter’s [sic] characterization of chronic right leg deep vein
thrombosis (DVT) is a misnomer. During the pertinent period from the alleged onset
date through the date last insured, the claimant was treated for DVT only once
(during the February 3, 2003 hospitalization). Dorland’s Illustrated Medical
Dictionary (30th edition) describes chronic as “persisting over a long period of
time.” An objective view of the medical evidence does not support a chronic or
persistent DVT problem at any time after the February 2003 hospitalization through
the date last insured. There was an initial occurrence in 1985 and then a recurrent
DVT in February 2003. There was no evidence of subsequent DVT recurrence from
April 2003 through the date last insured of December 31, 2006.
At best, the medical record evidence post May 2003 supports ongoing mild
chronic venous stasis, which was the diagnosis of Dr. Potthoff, a peripheral vascular
surgeon. He prescribed Coumadin and the use of support stockings to treat this
malady but offered no other restrictions or recommendations and notably expressed
no opinion about elevating the legs (Exhibit 3F/2). As of that point, Dr. Potthoff was
the physician responsible for managing claimant’s DVT care. After May 2003,
claimant was not treated by Dr. Potthoff or any other vascular surgeon again for
DVT until at least February 2009 (Exhibit 29F/4-5).
By September 2004, Nurse Cochran-Walters offered an optimistic picture of
claimant’s health status, reporting that the right shoulder had improved significant
[sic] following an injection, that she (the claimant) wanted to hold off on surgery for
minimal carpal tunnel syndrome, and that she was not having the same level of
discomfort of the legs and feet with the use of well-supported hiking boots (Exhibit
The undersigned does take note of the advice from the hospital discharge
physician Dr. Sitek in February 2003 that the claimant should elevate her right lower
extremity “whenever possible” (Exhibit 2F/4). This recommendation was offered
in the context of the physician’s other hospital discharge instructions including that
the claimant follow-up with her primary care physician within 10-14 days.
Moreover, there are no records of any subsequent treatment contacts with Dr. Sitek.
The record is quite clear that the physician responsible at that point forward for the
care of claimant’s lower extremity vascular health was Dr. Potthoff. The efficacy of
the treatment he recommended (the ongoing use of Coumadin and support hose) is
borne out by the fact that at no point from the date of his May 9, 2003 report through
the date claimant’s Title II insured status expired (December 31, 2006) is there any
evidence of recurrent DVT, no findings related thereto such as leg edema, erythema
and only a few scattered references to right leg pain reflected in the medical evidence
The ALJ could properly assign reduced weight to NP Walters’ opinions
Plaintiff contends that the ALJ should have given at least “considerable weight”
rather than “reduced weight” (AR 761) to NP Walters’ opinions. Plaintiff’s Brief at p. 3. The court
disagrees. The ALJ could properly discount NP Walters’ opinions because she is not an acceptable
medical source under 20 C.F.R. § 404.1513. While NP Walters’ opinions can be considered as
evidence from an “other” medical source, they are not entitled the weight given to the opinion of an
“acceptable medical source” such as a doctor. See 20 C.F.R. § 404.1513(d)(1) (evidence from
“other” medical sources includes information from nurse-practitioners, physician’s assistants,
naturopaths, chiropractors, audiologists and therapists). See also, Shontos v. Barnhart, 328 F.3d
418, 425-26 (8th Cir. 2003) (nurse practitioner is not an “acceptable medical source” under §
404.1513(a), but can be considered as an “other” medical source under 20 C.F.R. § 404.1513(d)(1));
Nierzwick v. Commissioner of Social Security, No. 00-1575, 2001 WL 303522 at * 4 (6th Cir. March
19, 2001) (physical therapist’s report not afforded significant weight because the therapist is not
recognized as an acceptable medical source).
In SSR 06-3p, the Commissioner acknowledged that with the growth of managed
health care in recent years, nurse practitioners have increasingly assumed a greater percentage of
treatment and evaluation functions previously handled primarily by physicians and psychologists.4
For this reason, opinions from other medical sources, such as nurse practitioners and physician’s
assistants “are important and should be evaluated on key issues such as impairment severity and
functional effects, along with other relevant evidence in the file.” SSR 06-3p. Consistent with SSR
06-3p, the ALJ evaluated and then properly discounted NP Walters’ opinions.
In contesting this decision, plaintiff contends that “[n]one of the reasons cited by the
Commissioner for discounting Nurse Walters’ opinions regarding the Claimant’s need to elevate her
lower extremities is valid.” 5 First, plaintiff contends that the ALJ “implies that the Claimant has
recovered from her deep vein thrombosis condition because she has not sought regular treatment
from specialists.” Plaintiff’s Brief at p. 5. Plaintiff’s first contention is without merit. The ALJ’s
decision points out that plaintiff had only one incident of DVT, that being in February 2003 (AR
762). The incident was resolved by April 18, 2003, when an ultrasound found no evidence of a clot,
concluding that “DVT clinically reported has resolved” (AR 185).
There is no evidence that
plaintiff suffered from the condition after the February 2003 incident, which led the ALJ to
determine that NP Walters’ characterization of “chronic” right leg DVT was a misnomer (AR ).
SSR’s “are binding on all components of the Social Security Administration” and “represent
precedent final opinions and orders and statements of policy and interpretations” adopted by the agency. 20
C.F.R. § 402.35(b)(1).
Plaintiff cites no legal authority to support her three criticisms of the ALJ’s decision. The legal
authority cited by plaintiff at the end of her brief relates to the court’s review of a treating physician’s
opinion. See Plaintiff’s Brief at p. 7. As discussed in Kalbach I and in this opinion, supra, the treating
physician standard is inapplicable to NP Walters.
Second, plaintiff contends that it was improper “to downgrade Nurse Walters’
opinions based on the fact that Ms. Walters has been very critical of the Claimant’s lifestyle
regarding diet and exercise in her notes, yet is supportive of the Claimant’s need for limitations.”
Plaintiff’s Brief at pp. 5-6. Plaintiff’s second contention is without merit. The ALJ could take
plaintiff’s non-compliance with NP Walters’ recommendations into account. As a general rule, an
impairment that can be remedied by treatment with reasonable effort and safety cannot support a
finding of disability. Johnson v. Secretary of Health and Human Services, 794 F.2d 1106, 1111 (6th
Cir. 1984); 20 C.F.R. § 404.1530(a) (in order to get benefits, the claimant must follow the treatment
prescribed by the claimant’s physician). See, e.g., Raney v. Barnhart, 396 F.3d 1007, 1011(8th Cir.
2005) (diabetic claimant’s non-compliance with dietary regime and medication is inconsistent with
an allegation of disability). Contrary to plaintiff’s contention, while NP Walters’ recognized that
plaintiff was not following her recommended or prescribed treatment, the ALJ did not discount NP
Walters’ opinions for voicing a frank assessment of plaintiff (AR 761-63).
Third, plaintiff contends that the Commissioner improperly “questions Nurse
Walters’ opinions expressed in the Residual Functional Capacity when he compares that form to the
paperwork completed regarding the Claimant’s fitness to be a foster parent.” Plaintiff’s Brief at p.
6. Plaintiff’s third contention is without merit. Plaintiff is referring to two reports issued by NP
Walters, i.e., the November 9, 2004 report issued in support of plaintiff’s DIB claim characterized
her as disabled (AR 444-48), and the November 21, 2008 report issued in support of plaintiff’s
application to be an adoptive parent (Child and Family Services of Michigan, Medical Release &
Adoptive Applicant’s Physical Exam) minimized or failed to mention plaintiff’s alleged disabling
conditions (AR 896-97). For example, in her report to Child and Family Services, NP Walters
described plaintiff’s “general and mental health” as follows, “Health problems, but no limitations
in caring for children” explaining those problems as “Chronic DVT’s & Diabetes.” (AR 897).
The record does not include the specific medical requirements which plaintiff needed
to meet to qualify as a foster parent. Nevertheless, the court agrees with the ALJ’s determination
that claimant’s care for multiple foster children in addition to her own children on an everyday basis
over a prolonged period, speaks to the claimant’s overall ability to function in areas that have a
common ground with those involved in the performance of basic work activities. Given this
“common ground,” NP Walters’ determination that plaintiff had no limitations in caring for children
is inconsistent with Walters’ previous statement that plaintiff suffered from a myriad medical
conditions which so limited her ability to perform work-related activities as to render her unable to
perform even “low stress” jobs (AR 444-48). Nothing in the record indicates that plaintiff’s
condition improved between 2004 and 2008, nor does NP Walters explain how plaintiff’s condition
changed between those dates. On the contrary, plaintiff testified that she had consistent pain and
swelling with her legs which has worsened over time (AR 903). An ALJ does not err in rejecting
a physician’s opinion, where that opinion changes without explanation. See Stanley v. Secretary of
Health and Human Services, 39 F.3d 115, 118 (6th Cir. 1994) (ALJ did not err in declining to refer
to a physician’s opinion, where the physician originally opined that the claimant could perform
sedentary work and later reported that the claimant was disabled but “did not provide any objective
medical evidence to support his change of heart”); Hall v. Bowen, 837 F.2d 272, 276 (6th Cir.1988)
(holding that an ALJ’s rejection of a treating physician’s opinion that the claimant lacked the
capacity to perform light or sedentary work was supported by substantial evidence where the opinion
was “inconsistent” with the treating physician’s earlier evaluation and there were “no significant or
specific changes” in the claimant’s overall condition between the dates of the reports).
Furthermore, the court notes that the ALJ reviewed NP Walters’ November 21, 2008
report in conjunction with an evaluation of plaintiff’s credibility. In this regard, the ALJ found that
even in the absence of plaintiff’s extensive childcare activity, the medical evidence would lead to
the conclusion that plaintiff was not disabled through the date insured (AR 761).
The ALJ’s determination of plaintiff’s residual functional capacity provides
substantial evidence to support the ALJ’s finding that plaintiff could perform her past relevant work
as an accounting clerk. Accordingly, the Commissioner’s decision will be affirmed pursuant to 42
U.S.C. § 405(g). A judgment consistent with this opinion shall be issued forthwith.
Dated: September 24, 2012
/s/ Hugh W. Brenneman, Jr.
HUGH W. BRENNEMAN, JR.
United States Magistrate Judge
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