Belasco v. Commissioner of Social Security Administration

Filing 18

Memorandum Opinion and Order affirming Commissioner's final decision. Magistrate Judge Nancy A. Vecchiarelli (C,KA)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

JEAN BELASCO,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,

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CASE NO. 1:14-CV-01778
MAGISTRATE JUDGE
VECCHIARELLI

MEMORANDUM OPINION AND
ORDER

Defendant.
Plaintiff, Jean Lynn Belasco (“Plaintiff”), challenges the final decision of Defendant,
Carolyn W. Colvin, Acting Commissioner of Social Security (“Commissioner”), denying
her applications for Period of Disability (“POD”), Disability Insurance Benefits (“DIB”), and
Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act, 42
U.S.C. §§ 416(i), 423, 1381 et seq. (“Act”). This case is before the undersigned United
States Magistrate Judge pursuant to the consent of the parties entered under the authority
of 28 U.S.C. § 636(c)(2). For the reasons set forth below, the Commissioner’s final
decision is AFFIRMED.
I.

PROCEDURAL HISTORY

On January 18, 2013, Plaintiff filed her applications for POD, DIB, and SSI, alleging
a disability onset date of May 30, 2010. (Transcript (“Tr.”) 10.) The claims were denied
initially and upon reconsideration, and Plaintiff requested a hearing before an
administrative law judge (“ALJ”). (Id.) On April 17, 2014, an ALJ held Plaintiff’s hearing.
(Id.) Plaintiff participated in the hearing, was represented by counsel, and testified. (Id.) A
vocational expert (“VE”) also participated and testified. (Id.) On May 5, 2014, the ALJ

found Plaintiff not disabled. (Tr. 7.) On July 11, 2014, the Appeals Council declined to
review the ALJ’s decision, and the ALJ’s decision became the Commissioner’s final
decision. (Tr. 1.)
On August 14, 2014, Plaintiff filed her complaint to challenge the Commissioner’s
final decision. (Doc. No. 1.) The parties have completed briefing in this case. (Doc. Nos.
15, 17.)
Plaintiff asserts the following assignment of error: (1) The ALJ erred in evaluating
the opinion of Plaintiff’s treating physician, Dr. Hochman; and (2) the ALJ erred in failing to
assign any weight to the July 2011 functional capacity assessment completed by Plaintiff’s
physical therapist, Mr. Walsh.
II.
A.

EVIDENCE

Personal and Vocational Evidence
Plaintiff was born in December 1963 and was 46-years-old on the alleged disability

onset date. (Tr. 19.) She had at least a high school education and was able to
communicate in English. (Id.) She had past relevant work as a licensed practical nurse.
(Id.)
B.

Medical Evidence 1
1.

1

Medical Reports

The ALJ found that Plaintiff had the following severe impairments: lumbar
degenerative disc disease, diabetes mellitus, diabetic retinopathy, affective
disorder (depressive disorder/bipolar disorder), anxiety disorder (panic
disorder without agoraphobia) and substance addiction disorder (alcohol).
(Tr. 12.) Plaintiff’s challenges to the ALJ’s decision concern only physical
impairments; therefore, the Court will limit its summary of Plaintiff’s medical
records to evidence relating to her physical impairments.
2

Internal medicine physician Todd S. Hochman, M.D., evaluated Plaintiff on February
17, 2011. (Tr. 878.) He reported that, in November 1995, Plaintiff was working as a nurse
and sustained a low back injury while transferring a patient. (Id.) Dr. Hochman indicated
that Plaintiff was treated conservatively with physical therapy but remained symptomatic,
and that a lumbar MRI revealed an L4-5 disc herniation. (Id.) Plaintiff had problems with
addiction to medication and was presenting with low back pain radiating into the left leg.
(Id.) She reported that her pain had been ongoing since 1995 and that she had no
intervening low back injuries. (Id.) A physical examination revealed some tenderness, and
pain with left-side straight leg raising. (Tr. 879.) Plaintiff had limited range of motion and
decreased but symmetric reflexes. (Id.) Dr. Hochman held off prescribing analgesic
medication in light of Plaintiff’s history but prescribed Topamax, physical therapy, an
updated MRI, and a pain management consultation with David A. Ryan, M.D. (Id.) An MRI
the following month revealed broad-based central disc herniation at L4-5 and a left central
disc herniation at L5-S1. (Tr. 880.) Plaintiff’s foramen were normal and there was no
thecal sac stenosis. (Tr. 880.)
Plaintiff participated in physical therapy at MetroHealth between March and April
2011 for treatment of her back and leg symptoms. (Tr. 369-373, 378-401, 407-428.) On
March 11, 2011, Jan Hornack, PT, reported that Plaintiff had not undergone any recent
treatment or used a TENS unit she had at home. (Tr. 369.) Plaintiff had used a back
brace in the past. (Id.) Plaintiff was independent with self care but had difficulty with
cooking, lifting, and carrying. (Id.) She reported back pain “burning down left leg” at level
7/10. (Tr. 370.) Ms. Hornack reported that Plaintiff was not in acute distress and rose
from her chair in the waiting room easily. (Id.) Plaintiff’s range of motion was within
3

normal limits in all planes and her strength was intact in her bilateral legs except for 4/5
strength in her left glute. (Tr. 370-371.) Plaintiff’s sensation was intact and straight leg
raise testing was negative. (Tr. 371.) Her gait was independent without any assistive
device but was slow. (Id.) Ms. Hornack noted that Plaintiff had “gotten away from doing
exercises,” but retained good range of motion and gross lower extremity strength. (Tr.
371-372.) Ms. Hornack prescribed 18 physical therapy visits and recommended
investigating using a TENS unit for pain control. (Tr. 372.)
On March 31, 2011, Dr. Hochman noted that Plaintiff was undergoing physical
therapy that would likely be followed by work condition and a post-condition functional
capacity examination. (Tr. 876.) Per Ms. Hornack’s recommendation, Dr. Hochman
prescribed a new TENS unit. (Id.) Plaintiff complained of discomfort with straight leg
raising and exhibited decreased sensation in her feet. (Id.)
On April 15, 2011, Plaintiff saw Bobby Golbaba, M.D., upon referral from Dr.
Hochman. (Tr. 402.) Plaintiff complained of lumbar back pain that had been ongoing for
15 years, and reported that past treatments produced moderate relief for transient periods.
(Id.) On examination, Plaintiff had only mild pain with range of motion exercises, and a
normal neurologic examination. (Tr. 403.) Her reflexes, senses, and motor strength were
intact in her bilateral upper and lower extremities. (Id.) David A. Ryan, M.D.,
recommended performing diagnostic medial nerve branch blocks. (Tr. 405.)
A work conditioning evaluation from May 4, 2011, revealed that Plaintiff had been
diagnosed with lumbar sprain with disc herniation and found decreased range of motion,
decreased strength, tender points, decreased functional skills, complaints of pain, and
decreased fitness affecting her ability to work. (Tr. 432.)
4

Per Dr. Hochman’s request, physical therapist Tim Walsh, PT, DPT, CWCE,
conducted a functional capacity evaluation on July 5, 2011. (Tr. 1161-1179.) Mr. Walsh
concluded that Plaintiff demonstrated the ability to lift “within the lower end of the Medium
Lifting Category” of 20-50 pounds occasionally and 10-25 pounds frequently with up to 10
pounds constantly. (Tr. 1163.) Plaintiff was able to frequently walk, reach, handle, and
finger and could occasionally stoop, crouch, kneel, crawl, balance, and climb. (Tr. 11641165.) She was observed sitting for one hour with some discomfort at the end of the hour,
performed static standing for 10 minutes and dynamic standing for 45 minutes, and
continuously walked for 15 minutes. (Tr. 1166.) Plaintiff had normal grip strength
bilaterally, normal posture and strength, and a normal range of motion apart from
moderate pain with left-sided motion in her trunk. (Tr. 1168.) Plaintiff demonstrated
inconsistent reliability of pain and disability reporting based on the testing compared to pain
questionnaires. (Tr. 1172.) Mr. Walsh concluded that Plaintiff would be unable to perform
the demands of her past work as a licensed practical nurse, but possessed physical
abilities that might be compatible with other employment. (Tr. 1177.)
At discharge from physical therapy and work condition, Plaintiff’s occupational
therapist reported that Plaintiff was able to tolerate lifting and carrying 22.5 pounds and had
pushing/pulling abilities of 20 to 30 pounds. (Tr. 471.) The therapist reported that Plaintiff
had made slow progress and benefitted from using TENS units, hot packs, and ice. (Id.)
She noted that Plaintiff was to participate in the July 2011 functional capacity evaluation to
determine specific work tolerances to be used during her job search. (Id.)
In August 2011, Dr. Hochman noted that Plaintiff would not be able to return to her
previous position as a nurse or home health aide due to the high level of physical demand
5

required. (Tr. 873.)
Plaintiff underwent a bilateral L3, L4, and L5 branch block on September 29, 2011.
(Tr. 477.) On October 25, 2011, she reported to David A. Ryan, M.D., that the branch
block had initially nearly completely resolved her pain and she was able to go shopping
and walk without any pain. (Tr. 479.) Dr. Ryan noted that “the pain slowly returned but
was more than 50% for the first weeks and is still improved.” (Id.) He recommended
exploring an L3 to L5 medial branch radiofrequency ablation (RFA) procedure for potential
longer-term relief. (Tr. 480.)
In October 2011, Dr. Hochman noted that Plaintiff was about to begin a job search
but was “currently having some difficulty with 8 hours per day, 5 days per week.” (Tr.
872.) Plaintiff’s lumbar extension had improved and pain was decreased, but she still had
some low back discomfort with left straight leg raising, some tenderness, and some pain
with a Patrick’s maneuver. (Id.)
In March 2012, Dr. Hochman noted that Plaintiff had responded to Dr. Ryan’s
injections and had last seen Dr. Ryan in October 2011. (Tr. 870.) Dr. Hochman reported
that Plaintiff’s RFA procedures had been approved and that Plaintiff had secured
employment at a position that accommodated her restrictions. (Id.) Plaintiff had mild
discomfort with straight leg raising. (Id.)
In June 2012, Dr. Hochman noted that Plaintiff’s return to work “did not last” and
that she was again searching for employment within her restrictions. (Tr. 869.) Plaintiff
had some shaking in her legs with pain on lumbar extension and “tightness” with straight
leg raising. (Id.)
Plaintiff underwent L3 to L5 medial branch RFA procedures in August and
6

September 2012. (Tr. 482-487.) On October 8, 2012, Dr. Hochman reported that Plaintiff
had only minimal discomfort to the left of the midline and had less pain with lumbar
extension. (Tr. 867.) She still complained of pain with straight leg raise testing. (Id.) Dr.
Hochman recommended a follow up appointment in three months. (Id.)
On October 13, 2012, Plaintiff reported to Dr. Ryan that her pain was gradually
improving and that her radicular leg pain was gone. (Tr. 488.) Dr. Ryan reported that
Plaintiff had normal strength and reflexes in all extremities but some tenderness to
palpation over her paraspinal muscles. (Tr. 489.) He concluded that Plaintiff had exhibited
“relatively good results” from her procedures. (Tr. 490.) Dr. Ryan noted that Plaintiff
“clearly does not have pain at the facet level anymore and recognizes that she is pain-free
on the right side” and counseled Plaintiff about substance addiction. (Tr. 490-491.)
In November 2012, Plaintiff’s pain continued to gradually improve and became
intermittent. (Tr. 493.) It worsened with standing and movement. (Id.) Plaintiff had no
tenderness to palpations and full strength, intact reflexes, intact senses, normal gait, and
no clonus and a negative Patrick’s sign. (Id.)
At Plaintiff’s next appointment in February 2013, Dr. Hochman reported that Plaintiff
had less pain with straight leg raising but still some discomfort with extension. (Tr. 866.)
He noted that Dr. Ryan’s treatment had provided some relief. (Id.)
On April 16, 2013, Angel Martino, one of Plaintiff’s counselors, completed a “Daily
Activities Questionnaire.” (Tr. 908-909.) In relevant part, Ms. Martino reported that Plaintiff
was living in her own home that was in foreclosure. (Tr. 908.) She could prepare easy
meals but had difficulty standing for long periods. (Tr. 909.) Plaintiff could perform
household chores slowly with rest breaks, shower daily, and shop with assistance. (Id.)
7

She was unable to drive due to a DUI but was compliant with keeping appointments. (Tr.
909.)
In June 2013, Dr. Hochman reported that Plaintiff’s pain was recurring and that she
had increased tenderness and pain with range of motion and more tightness with straight
leg raising. (Tr. 1115.) In October 2013, he reported that Plaintiff had obtained a part-time
job but was having difficulty maintaining work. (Tr. 1114.) He noted that Plaintiff had
applied for disability based on psychological issues, but that she had been denied benefits.
(Id.) Dr. Hochman suggested that Plaintiff re-enter vocational rehabilitation. (Id.)
In December 2013, Dr. Hochman completed a physical capacity questionnaire.
(Tr. 1075-1076.) He indicated that Plaintiff remained able to lift 25 pounds occasionally
and 10 pounds frequently; stand for four hours in an eight-hour day for 15-30 minutes at a
time; and sit for six hours in an eight-hour workday for 15-30 minutes at a time. (Tr. 1075.)
She could rarely climb, balance, and crawl; occasionally stoop, crouch, kneel, reach,
push, and pull; and frequently perform fine and gross manipulation. (Tr. 1075-1076.)
Plaintiff had no environmental limitations, and Dr. Hochman indicated that she had been
prescribed a cane, brace, and TENS unit. (Tr. 1076.) He indicated that Plaintiff would
need to alternate positions at will and experienced moderate pain. (Id.) Dr. Hochman
opined that Plaintiff would not need to elevate her legs and would not require unscheduled
breaks. (Id.) As supporting medical findings, he cited Plaintiff’s L4-5 disc herniation. (Tr.
1075-1076.)
Dr. Ryan examined Plaintiff in January 2014. (Tr. 1140-1142.) Plaintiff reported
that she continued to have pain on her left side. (Tr. 1140.) She noted that sleeping on a
mattress on the floor and walking up stairs were helpful. (Id.) Dr. Ryan noted that Plaintiff
8

applied for “permanent total disability based on psychological allowances.” (Id.) Plaintiff
had tenderness and a positive Patrick’s sign at her sacroiliac (SI) joint, but straight leg
raise testing was negative bilaterally and she had intact and symmetric reflexes and intact
strength. (Tr. 1141.) Dr. Ryan opined that Plaintiff described radicular symptoms “[t]o
some extent” but that her dominant problem was her SI joint. (Id.)
2.

Agency Reports

On April 12, 2013, state agency physician Gerald Klyop, M.D., reviewed the record
for the state disability determination service. (Tr. 86-87.) Dr. Klyop opined that Plaintiff
remained capable of lifting and/or carrying 20 pounds occasionally and 10 pounds
frequently. (Tr. 86.) He indicated that could stand and/or walk for a total of six hours in an
eight-hour workday, and sit, with normal breaks, for a total of six hours in an eight-hour
workday. (Id.) Dr. Klyop further opined that Plaintiff could frequently balance, stoop, kneel,
and crouch; occasionally crawl and climb ramps and stairs; and never climb ladders,
ropes, or scaffolds. (Tr. 86-87.) Dr. Klyop opined that Plaintiff was not otherwise limited.
(Tr. 87.)
Rachel Rosenfeld, M.D., reviewed the record on July 4, 2013. (Tr. 122-123.) Dr.
Rosenfeld’s assessment was identical to Dr. Klyop’s, except that she concluded that
Plaintiff would be able to frequently climb ramps and stairs and frequently crawl. (Tr. 122123.)
C.

Hearing Testimony
1.

Plaintiff’s Hearing Testimony

Plaintiff testified that she lived with her daughter and two grandchildren in her
daughter’s home. (Tr. 36.) Plaintiff did light housekeeping and cooked on occasion. (Id.)
9

She did her own laundry and went grocery shopping with her daughter. (Id.) Plaintiff
testified that she stopped driving because she would “start to go somewhere and turn
around and have to come back home because of anxiety,” and because her license was
suspended after an OVI conviction. (Tr. 37.) Plaintiff testified that she kept in contact with
her mother, sisters, and friends. (Tr. 38.) She attended AA meetings twice a week. (Id.)
She testified that she had been sober since October 2012. (Tr. 39.)
Plaintiff testified that the biggest problem she faced that kept her from working was
that her “brain doesn’t work the way it did.” (Tr. 47.) Upon questioning by the ALJ, Plaintiff
clarified that she believed it was a “mental type of issue” that kept her from working. (Id.)
Plaintiff further testified that she had back pain, which was being treated with physical
therapy, occupational therapy, and injections. (Tr. 48.) She stated that her back pain
radiated down into her left ankle. (Tr. 50.)
2.

Vocational Expert’s Hearing Testimony

Kathleen Rice, a vocational expert, testified at Plaintiff’s hearing. The ALJ asked
the VE to consider a hypothetical individual of Plaintiff’s age, education, and past work
experience. (Tr. 64.) The individual could occasionally lift 20 pounds and frequently lift ten
pounds; stand and walk for six hours in an eight-hour workday; sit for six hours in an eighthour workday; have an unlimited ability to push and pull other than shown for lift and/or
carry; occasionally climb ramps and stairs; never climb ladders, ropes, or scaffolds; and
frequently balance. (Tr. 64.) The individual could perform simple, routine tasks consistent
with unskilled work; relate to coworkers, supervisors, and the general public on a
superficial level, meaning of a short duration for a specific purpose; perform work with
occasional changes in routine; and adapt to a setting where there would be no demands
10

for a fast pace. (Id.) The individual could perform low stress work meaning no arbitration,
negotiation, or responsibility for the safety of others or supervisory responsibility. (Tr. 65.)
The VE testified that the hypothetical individual could perform such jobs as a cashier II,
housekeeping cleaner, and a merchandise marker. (Id.)
III.

STANDARD FOR DISABILITY

A claimant is entitled to receive benefits under the Social Security Act when she
establishes disability within the meaning of the Act. 20 C.F.R. § 416.905; Kirk v. Sec’y of
Health & Human Servs., 667 F.2d 524 (6th Cir. 1981). A claimant is considered disabled
when she cannot perform “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.” 20 C.F.R. § 416.905(a).
The Commissioner reaches a determination as to whether a claimant is disabled
by way of a five-stage process. 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4); Abbott v.
Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). First, the claimant must demonstrate that she
is not currently engaged in “substantial gainful activity” at the time she seeks disability
benefits. 20 C.F.R. §§ 404.1520(b) and 416.920(b). Second, the claimant must show that
she suffers from a “severe impairment” in order to warrant a finding of disability. 20 C.F.R.
§§ 404.1520(c) and 416.920(c). A “severe impairment” is one that “significantly limits . . .
physical or mental ability to do basic work activities.” Abbot, 905 F.2d at 923. Third, if the
claimant 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,
the claimant is presumed to be disabled regardless of age, education or work experience.
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20 C.F.R. §§ 404.1520(d) and 416.920(d). Fourth, if the claimant’s impairment does not
prevent her from doing her past relevant work, the claimant is not disabled. 20 C.F.R. §§
404.1520(e)-(f) and 416.920(e)-(f). For the fifth and final step, even if the claimant’s
impairment does prevent her from doing her past relevant work, if other work exists in the
national economy that the claimant can perform, the claimant is not disabled. 20 C.F.R.
§§ 404.1520(g), 404.1560(c), and 416.920(g).
IV.

SUMMARY OF COMMISSIONER’S DECISION

The ALJ made the following findings of fact and conclusions of law:
1.

The claimant meets the insured status requirements of the Soc ial
Security Act through December 31, 2015.

2.

The claimant has not engaged in substantial gainful activity since May
30, 2010, the alleged onset date.

3.

The claimant has the following severe impairments: lumbar
degenerative disc disease, diabetes mellitus, diabetic retinopathy,
affective disorder (depressive disorder/bipolar disorder), anxiety
disorder (panic disorder without agoraphobia) and substance addiction
disorder (alcohol).

4.

The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.

5.

After careful consideration of the entire record, the undersigned finds
that the claimant has the residual functional capacity to perform light
work as defined in 20 CFR 404.1567(b) and 416.967(b), meaning she
can occasionally lift 20 pounds and frequently lift 10 pounds, is able to
stand and walk for 6 hours of an 8-hour workday, and is able to sit for
6 hours of an 8-hour workday. She has unlimited ability to push and pull
other than shown for lift and/or carry. Additional limits include
occasionally climbing ramps and stairs, but never climbing ladders,
ropes, and scaffolds. The claimant can frequently balance. The
claimant can perform simple routine tasks consistent with unskilled
work; can relate to co-workers, supervisors, and the general public on
a superficial level (meaning of a short duration for a specific purpose);
with occasional changes in routine; can adapt to a setting where there
12

are no demands for a fast pace; can perform low stress work meaning
no arbitration, negotiation, responsibility for the safety of others or
supervisory responsibility.
6.

The claimant is unable to perform any past relevant work.

7.

The claimant was born in December 1963 and was 46-years-old, which
is defined as a younger individual age 18-49, on the alleged disability
onset date. The claimant subsequently changed age category to
closely approaching advanced age.

8.

The claimant has at least a high school education and is able to
communicate in English.

9.

Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a framework
supports a finding that the claimant is “not disabled,” whether or not the
claimant has transferable job skills.

10.

Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform.

11.

The claimant has not been under a disability, as defined in the Act, from
May 30, 2010, through the date of this decision.

(Tr. 12-20.)
V.
A.

LAW & ANALYSIS

Standard of Review

Judicial review of the Commissioner’s decision is limited to determining whether
the Commissioner's decision is supported by substantial evidence and was made
pursuant to proper legal standards. Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 512 (6th
Cir. 2010). Review must be based on the record as a whole. Heston v. Comm’r of Soc.
Sec., 245 F.3d 528, 535 (6th Cir. 2001). The court may look into any evidence in the
record to determine if the ALJ’s decision is supported by substantial evidence, regardless

13

of whether it has actually been cited by the ALJ. Id. However, the court does not review
the evidence de novo, make credibility determinations, or weigh the evidence. Brainard v.
Sec’y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989).
The Commissioner’s conclusions must be affirmed absent a determination that the
ALJ failed to apply the correct legal standards or made findings of fact unsupported by
substantial evidence in the record. White v. Comm’r of Soc. Sec., 572 F.3d 272, 281 (6th
Cir. 2009). Substantial evidence is more than a scintilla of evidence but less than a
preponderance and is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Brainard, 889 F.2d at 681. A decision supported by
substantial evidence will not be overturned even though substantial evidence supports the
opposite conclusion. Ealy, 594 F.3d at 512.
B.

Plaintiff’s Assignments of Error
1.

The ALJ Erred in Evaluating the Opinion of Plaintiff’s Treating
Physician.

Plaintiff argues that the ALJ erred in evaluating Dr. Hochman’s December 2013
medical source statement regarding Plaintiff’s physical capacity. (Tr. 1075-1076.) The
ALJ addressed Dr. Hochman’s opinion and gave it “some weight,” explaining: “This opinion
is given some weight but the limits as to standing and walking are not supported by the
medical evidence of record. The claimant was prescribed a back brace, but there is little,
if any mention of use of a cane.” (Tr. 17.) According to Plaintiff, the ALJ erred in
evaluating Dr. Hochman’s opinion, because “the ALJ applied a more strict and
unsatisfactory scrutiny to Dr. Hochman’s opinion and findings, holding that it was not
supported by the evidence of record, while giving great weight to reviewing physicians who

14

opined the Plaintiff could perform six hours of standing, walking, and sitting without any
interruption.” (Plaintiff’s Brief (“Pl.’s Br.”) at 11.) For the following reasons, Plaintiff’s
argument is not well taken.
“An ALJ must give the opinion of a treating source controlling weight if he finds the
opinion ‘well-supported by medically acceptable clinical and laboratory diagnostic
techniques’ and ‘not inconsistent with the other substantial evidence in the case record.’”
Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004) (quoting 20 C.F.R. §
404.1527(d)(2)) (internal quotes omitted). If an ALJ decides to give a treating source’s
opinion less than controlling weight, she must give “good reasons” for doing so that are
sufficiently specific to make clear to any subsequent reviewers the weight given to the
treating physician’s opinion and the reasons for that weight. See Wilson, 378 F.3d at 544
(quoting S.S.R. 96-2p, 1996 WL 374188, at *5 (S.S.A.)). This “clear elaboration
requirement” is “imposed explicitly by the regulations,” Bowie v. Comm’r of Soc. Sec., 539
F.3d 395, 400 (6th Cir. 2008), and its purpose is to “let claimants understand the
disposition of their cases” and to allow for “meaningful review” of the ALJ’s decision,
Wilson, 378 F.3d at 544 (internal quotation marks omitted). Where an ALJ fails to explain
her reasons for assigning a treating physician’s opinion less than controlling weight, the
error is not harmless and the appropriate remedy is remand. Id.
As an initial matter, Plaintiff does not meaningfully argue that the ALJ failed to
provide “good reasons” for assigning less than controlling weight to Dr. Hochman’s
opinion. Rather, Plaintiff maintains that the ALJ erred by assigning more weight to the
opinions of the state agency physicians than to Dr. Hochman’s opinion. State agency
physicians Drs. Klyop and Rosenfeld opined, in relevant part, that Plaintiff could stand and
15

/or walk, with normal breaks, for a total of six hours in an eight-hour workday. (Tr. 86,
122.) The ALJ gave “great weight” to the opinions of the State agency consultants, noting
that their opinions were consistent with the evidence of record. (Tr. 18.) Plaintiff
maintains that the ALJ should have given Dr. Hochman’s opinion more deference than the
opinions of the state agency consultants, because Dr. Hochman was a treating physician.
As the Commissioner explains in her Brief on the Merits, however, the Social Security
Regulations provide that “in appropriate circumstances, opinions from State agency
medical and psychological consultants . . . may be entitled to greater weight than the
opinions of treating or examining sources.” S.S.R. 96-6p. Indeed, “[t]he opinion of a
medical expert who has not examined the claimant [] is not automatically entitled to less
deference than that of a treating physician. . . . [T]he regulations permit an ALJ, under
appropriate circumstances, to give great, even dispositive, weight to a medical expert’s
opinion.” Matelski v. Comm'r of Soc. Sec., 149 F.3d 1183, *5 (6th Cir. 1998).
Here, substantial evidence in the record, discussed in detail by the ALJ, supports
the ALJ’s decision to assign less than controlling weight to Dr. Hochman’s opinion
regarding Plaintiff’s ability to stand and walk, while assigning great weight to Drs. Klyop
and Rosenfeld’s opinions that Plaintiff could stand, walk, and sit for six hours total in an
eight-hour workday. In determining Plaintiff’s physical residual functional capacity (RFC),
the ALJ analyzed the relevant medical evidence of record, which included largely normal
examination findings and documented treatment success with physical therapy and RFA
procedures. (Tr. 16-17.) The ALJ recounted that as of 2011, Plaintiff’s treatment for back
pain was conservative and consisted of only physical therapy, occupational therapy,
acupuncture, and nerve blocks. (Tr. 16, 878.) Examination findings were generally
16

normal, as Plaintiff could easily rise from her chair; exhibited full strength apart from SIrelated pain; had bilaterally negative straight leg raise testing; and had good range of
motion and gross lower extremity strength. (Tr. 16, 370-372.) In April 2011, Plaintiff’s
neurological exam remained normal, including normal senses and motor strength. (Tr. 16,
403.) Plaintiff was able to participate in a work conditioning program and had a lifting
tolerance of 22.5 pounds in July 2011. (Tr. 16, 471.) The ALJ noted that Plaintiff
underwent a medial branch block in September 2011 and medial branch RFA procedures
in August and September 2012. (Tr. 17, 477, 482-487.) Plaintiff’s pain gradually improved
following the RFA procedures, and by November 2012, her back was symmetric with no
abnormal curvature; her strength was intact bilaterally; her sensation was intact; her gait
was normal; and she was to be weaned off Percocet. (Tr. 17, 490-491, 493, 867.)
In addition to discussing the medical evidence, the ALJ addressed the opinion
evidence as well, and relied, in part, on the opinions of the State agency consultants to
determine Plaintiff’s RFC. Although Drs. Klyop and Rosefeld did not treat Plaintiff, the ALJ
was not prohibited from assigning great weight to their opinions, finding that they were
more consistent with the record evidence than Dr. Hochman’s opinion. Accordingly and
for the foregoing reasons, Plaintiff’s first assignment of error is without merit.
2.

The ALJ Erred in Failing to Assign Any Weight to the July 2011
Functional Capacity Assessment Completed by Plaintiff’s
Physical Therapist, Mr. Walsh.

Plaintiff argues that the ALJ erred in rejecting the functional capacity evaluation
results obtained by physical therapist Tim Walsh. Per Dr. Hochman’s request, Mr. Walsh
conducted a functional capacity evaluation on July 5, 2011. (Tr. 1161-1179.) The ALJ
acknowledged the results of Mr. Walsh’s functional capacity evaluation in her opinion,
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noting that it “has been considered in assessing the claimant’s residual functional
capacity, but this evaluation is based largely on subjective self-report of the claimant and is
not totally objective.” (Tr. 17.) Plaintiff maintains that the ALJ erred in her evaluation of Mr.
Walsh’s opinion, because she failed to apply the appropriate analytical standards for
evaluating non-medical source evidence. Plaintiff’s argument is not well taken.
Social Security Ruling 06-3p explains that opinions and other evidence from
medical sources who are not “acceptable medical sources,” such as physical therapists,
are relevant to the ALJ’s determination of a claimant’s RFC.
Since there is a requirement to consider all relevant evidence in an
individual’s case record, 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.
Although there is a distinction between what an adjudicator must
consider and what the adjudicator must explain in the disability
determination or decision, the adjudicator generally should explain
the weight given to opinions from these “other sources,” or
otherwise ensure that the discussion of the evidence in the
determination or decision allows a claimant or subsequent
reviewer to follow the adjudicator’s reasoning, when such opinions
may have an effect on the outcome of the case.
SSR 06-03P, *6 (S.S.A Aug. 9, 2006). Furthermore, Social Security Ruling 06-3p provides
that when evaluating opinion evidence from “other sources” who have seen the individual
in their professional capacity, certain factors should be considered,2 such as:
•
•
•

2

How long the source has known and how frequently the
source has seen the individual;
How consistent the opinion is with other evidence;
The degree to which the source presents relevant
evidence to support an opinion;

Not every factor for weighing evidence will apply in every case. SSR 0603P, *5 (S.S.A. Aug. 9, 2006).
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•
•
•

How well the source explains the opinion;
Whether the source has a specialty or area of expertise
related to the individual’s impairment(s); and
Any other factors that tend to support or refute the opinion.

Id. at *4-5.
Here, Plaintiff maintains that the ALJ did not follow the requirements of Social
Security Ruling 06-3p when assessing Mr. Walsh’s opinion. The Court disagrees. As an
initial matter, Social Security Ruling 06-3p, by its language, does not require the ALJ to
specifically address and evaluate Mr. Walsh’s opinion in her hearing decision. The
language of the ruling is permissive; it states that the case record “should,” not “shall,”
reflect the consideration of opinions from “other sources.” Furthermore, because Mr.
Walsh is not an “acceptable medical source,” the ALJ had no burden to analyze his
opinion or provide “good reasons” for rejecting it. Nonetheless, the ALJ, although not
required by Ruling 06-3p, specifically addressed Mr. Walsh’s July 2011 report in her
hearing decision; summarized the report’s key findings; expressly stated that she
considered the report in assessing Plaintiff’s RFC; and noted that she considered the
evaluation to be based largely on the subjective reports of Plaintiff, which the ALJ found to
be less than fully credible. (Tr. 15, 17.) Indeed, the evaluation report expressly states that
Plaintiff demonstrated an “inconsistent reliability of pain and disability reporting as
determined by a battery of tests that include: repetitive movement testing, multiple pain
questionnaires, and objective/subjective matching.” (Tr. 1172.) The ALJ’s explanation for
rejecting Mr. Walsh’s opinion is sufficient, as Mr. Walsh, a physical therapist, was not an
acceptable medical source and therefore was not entitled to consideration under the
treating physician rule. For the foregoing reasons, Plaintiff’s second assignment of error

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does not present a basis for remand of her case.
VI.

CONCLUSION

For the foregoing reasons, the Commissioner’s final decision is AFFIRMED.
IT IS SO ORDERED.
s/ Nancy A. Vecchiarelli
U.S. Magistrate Judge
Date: July 7, 2015

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