Sklodowski v. Commissioner of Social Security Administration

Filing 19

Memorandum and Opinion: The decision of the Administrative Law Judge is affirmed; substantial evidence supports the finding of the Administrative Law Judge that plaintiff retained the residual functional capacity to perform medium work relatin g to a significant number of jobs in the national economy; therefore, plaintiff was not disabled, and, hence, she is not entitled to disability insurance benefits and supplemental security income (Related document 1 ). Signed by Magistrate Judge George J. Limbert on 1/11/16. (S,AA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

JOYCE SKLODOWSKI

)
)
Plaintiff
)
)
v.
)
)
CAROLYN W. COLVIN,
)
ACTING COMMISSIONER OF SOCIAL )
SECURITY ADMINISTRATION
)
)
)
Defendant.
)

CASE NO. 1:14CV2396
MAGISTRATE JUDGE
GEORGE J. LIMBERT

MEMORANDUM AND OPINION

Plaintiff requests judicial review of the final decision of the Commissioner of Social Security
denying Joyce Sklodowski Disability Insurance Benefits (DIB) and Supplemental Security Income
(SSI). The Plaintiff asserts that the Administrative Law Judge (ALJ) erred in his July 12, 2013
decision in finding that Plaintiff was not disabled because she retained the residual functional capacity
(RFC) to perform medium work relating to a significant number of jobs in the national economy (Tr.
21-35). The Court finds that substantial evidence supports the ALJ’s decision for the following
reasons:

I.

PROCEDURAL HISTORY
Plaintiff applied for DIB and SSI in September 2009, respectively, alleging a disability onset

date of February 15, 2001 (Tr. 21, 220, 227). The state disability determination service (DDS) denied
Plaintiff’s applications initially (Tr. 103-104) and on reconsideration (Tr. 105-106), and Plaintiff
1

requested a hearing before an ALJ (Tr. 147). ALJ Patrick J. Rhoa dismissed Plaintiff’s request for
a hearing after Plaintiff failed to appear at the hearing (Tr. 114-115). However, the Appeals Council
granted Plaintiff’s request for review, and remanded it to ALJ Eric Westley (hereinafter, the ALJ),
concluding that the dismissal was not appropriate (Tr. 117-118). The ALJ held a hearing in June
2013, at which time Plaintiff, who was represented by counsel, and a vocational expert testified (Tr.
43-73). At the hearing, Plaintiff withdrew her DIB claim, and amend her onset date to September 22,
2009 (Tr. 22, 51-52). On July 12, 2013, the ALJ issued a written decision denying Plaintiff’s
applications (Tr. 21-35). The Appeals Council denied Plaintiff’s request for review (Tr. 1), thereby
making the ALJ’s decision the final decision of the Commissioner. 20 C.F.R. Sections 416.1455,
416.1481. Plaintiff seeks judicial review under 42 U.S.C. Section 405(g) and 1383(c)(3).

II.

STATEMENT OF FACTS
Plaintiff was born on April 29, 1958, and was fifty-one years old as of her alleged onset date,

and had reached age fifty-five at the time of the hearing (Tr. 53, 220). She is a high school graduate,
with four or more years of college, and has past relevant work experience as a nurse (medium, skilled)
(Tr. 65, 290, 294).

III.

SUMMARY OF MEDICAL EVIDENCE
A.

Physical Condition

Patrick A. Tessman, M.D. saw Plaintiff for a neurologic consultation in November 2008,
following complaints of a right arm tremor and balance problems (Tr. 403). Plaintiff reported that
her balance problems gradually increased over the past several months, and indicated that she was

2

having difficulty walking around her house and had started using a walker (Tr. 403). Plaintiff also
described gradually increasing right upper arm tremors over the past six months (Tr. 403). She denied
any vertigo, dizziness, or new weaknesses (Tr. 403). Plaintiff was currently taking Geodon, Lithium,
and Lamictal for bipolar disorder (Tr. 403).
Dr. Tessman’s examination findings included “very minimal increased tone” in the right arm
compared to the left and tremors seen at rest and with facial movements (Tr. 403). Dr. Tessman noted
that Plaintiff’s “finger-to-nose” was normal, strength was fully intact, senses were intact to pinprick,
reflexes were full and symmetric, and gait was normal (Tr. 403). Plaintiff maintained balance fairly
well, and there was no evidence of ataxia (Tr. 403). Dr. Tessman opined that Plaintiff’s tremor was
most likely medication related and probably caused by Geodon or possibly Lithium (Tr. 404). He
noted that, despite Plaintiff’s alleged imbalance, Plaintiff “actually does quite well, without a walker
today,” and exhibited only evidence of mild neuropathy on examination (Tr. 404). Dr. Tessman
recommended decreasing Geodon if possible, noting that Plaintiff exhibited dependent behaviors by
having her mother help with simple tasks “although she could clearly execute them independently,”
and prescribed a low dose of primidone to treat Plaintiff’s tremor (Tr. 404).
On July 29, 2009, Dr. Tessman reported that Plaintiff had tolerated and initially benefitted,
but was no longer benefitting, from Mysoline (Tr. 398). She continued to report a tremor more
pronounced in her right upper arm compared to her left (Tr. 398). Dr. Tessman’s examination
findings included normal muscle strength and tone in all extremities, bilaterally symmetric reflexes,
normal coordination, and no ataxia (Tr. 398). He opined that Plaintiff likely had a neuropathy related
to vitamin B12 deficiency, and an essential tremor related to Geodon and possibly Lithium (Tr. 398).
He noted that Plaintiff’s balance complaints also persisted, despite her normal examination, and
referred Plaintiff to physical therapy and another physician (Tr. 399). He prescribed a follow-up
3

appointment in three months (Tr. 399).
On January 14, 2010, Willa Caldwell, M.D. reviewed the record for the DDS (Tr. 515-522).
Dr. Caldwell opined that Plaintiff remained able to occasionally lift and/or carry fifty pounds, and
frequently carry twenty-five pounds, and was otherwise unlimited in her pushing and pulling abilities
(Tr. 516). She opined that Plaintiff could stand and/or walk, or sit, for about six hours apiece in an
eight-hour workday (Tr. 516). As supporting findings, Dr. Caldwell cited Plaintiff’s diagnosis with
vitamin B12 deficiency and an essential tremor, and recounted Dr. Tessman’s normal examination
findings apart from tremor (Tr. 517). She indicated that Plaintiff could never climb ladders, ropes,
or scaffolds, and could only occasionally balance (Tr. 517). Dr. Caldwell recommended that Plaintiff
avoid all exposure to hazards, due to her reported difficulty balancing (Tr. 519). She opined that
Plaintiff’s self-described functional limitations were partially credible, because they were more
restrictive than the evidence suggested (Tr. 520).
Plaintiff saw Dr. Tessman on September 15, 2010 (Tr. 742-743). She reported that primidone
was helping, but her tremors continued (Tr. 742). Plaintiff had not had her B12 levels checked (Tr.
742). Apart from bilateral coarse tremors, Dr. Tessman’s examination findings were normal (Tr. 742).
His diagnoses remained the same, and he increased Plaintiff’s primidone prescription (Tr. 742-743).
He prescribed a follow-up appointment in three months (Tr. 743).
Plaintiff was hospitalized from March 20, 2011 through March 29, 2011 for right leg pain,
following a fall down some stairs (Tr. 561, 564). She was diagnosed with an abscess and an inability
to ambulate (Tr. 562, 566). However, she was observed to be ambulatory and in only mild distress
with no musculoskeletal issues (Tr. 561, 564). Plaintiff was discharged to Wickliffe Country Place
for rehabilitation (Tr. 566).

4

By May 15, 2011, Plaintiff’s right leg pain and swelling was improving, and Plaintiff was
reportedly happy with her progress (Tr. 622). She was doing okay in rehabilitation and in no acute
pain (Tr. 622). However, Plaintiff reportedly felt weak and had difficulty walking (Tr. 622). Despite
these complaints, Plaintiff had normal reflexes, senses, and motor examination findings (Tr. 622).
The attending physician encouraged more physical therapy to resolve her difficulty walking, and the
treatment note did not prescribe or document the use of any assistive device (Tr. 622-623).
Plaintiff’s consultative neurological examination was scheduled, but on July 21, 2011, Plaintiff
requested that it be rescheduled with Dr. Tessman instead of the DDS physician (Tr. 372). The day
before her appointment, Plaintiff called and indicated that she was having a panic attack and did not
wish to attend (Tr. 374).

She again indicated that she would like Dr. Tessman to conduct the

examination, but the DDS noted that Plaintiff had not been seen by Dr. Tessman in several months
(Tr. 374). It was noted that Plaintiff had not received any treatment or had any examinations since
being released from rehabilitation for her leg injury (Tr. 374). Plaintiff stated that she would contact
Dr. Tessman for an appointment and to get him to release medical records (Tr. 374).
On September 20, 2011, Dr. Tessman noted that Plaintiff’s tremors were unchanged (Tr. 819).
Plaintiff asserted that she had been unable to schedule follow-up appointments because her mother
had not been able to drive her to her appointments (Tr. 819). Dr. Tessman’s examination findings
remained the same, and he adjusted Plaintiff’s medication, and again prescribed a three-month followup appointment (Tr. 819-820).
In January 2012, Plaintiff reported to Dr. Tessman that she had experienced no problems on
her new medication, and that her tremors had improved (Tr. 821-822). Her primary complaint was
monthly headaches (Tr. 821). Dr. Tessman’s examination findings were the same, and he continued
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Plaintiff on the same medication, with additional medication for headaches (Tr. 821-822).
B.

Mental Condition

Plaintiff received mental health counseling and medication management from February 2008
through October 2009 at Connections in Beachwood (Tr. 405-440). In February 2008, the provider
noted that Plaintiff had experienced a five-day episode of irritability, and was depressed about her
brother’s death (Tr. 439). She ambulated with a walker (Tr. 439). She was cooperative and had fair
insight and judgment (Tr. 439). Plaintiff was given samples of Depakote and Geoden (Tr. 440).
Plaintiff saw Laura Steinberg, M.D. the following month (Tr. 437-438, 440). Dr. Steinberg
reported that Plaintiff’s medication had helped and that her irritability was in control (Tr. 437). Her
grief over her brother’s death was improved (Tr. 437). Mental status examination findings were
largely normal, and Dr. Steinberg also noted that Plaintiff ambulated with a walker (Tr. 437). Dr.
Steinberg adjusted Plaintiff’s medications (Tr. 438).
On April 3, 2008, Plaintiff reported to Dr. Steinberg that she had a “nice” and “very
uneventful” month (Tr. 435). Dr. Steinberg did not report any ambulatory aid, and her mental status
examination findings were entirely normal (Tr. 435). She noted that Plaintiff was doing well and had
a low risk of harming herself or others (Tr. 436).
Plaintiff also reported continued improvement in June 2008 (Tr. 429-430, 433-434). However,
she reported irritability in September 2008 that improved the following month (Tr. 423-426). Dr.
Steinberg did not note any ambulatory aid (Tr. 413, 415, 419, 421, 423, 425, 456, 458).

By

December 2008, Plaintiff was doing “ok,” with “no complaints” (Tr. 419). She was still “doing well
overall” in April 2009 and June 2009 (Tr. 414-415). Following her father’s death in May 2009 (Tr.
413), a period of depression resurfaced before her September 2009 appointment, but had resolved
itself (Tr. 411). She was anxious, but less irritable, in October 2009 (Tr. 409-410).
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Plaintiff again reported improvement in November 2009 (Tr. 458-459). She exhibited only
mild depression (Tr. 459). In December 2009, she was doing “well” with the addition of medication
(Tr. 456). She had a good mood, and, although she reported still experiencing panic attacks, her
anxiety had also improved (Tr. 456).
Karen Terry, Ph.D. reviewed the record for the DDS on December 15, 2009 (Tr. 441-453).
Dr. Terry opined that Plaintiff’s depression was not severe (Tr. 441, 444), and caused only mild
limitations in daily activities, social functioning, and maintaining concentration, persistence, or pace
(Tr. 451). She indicated that Plaintiff had not experienced any extended episodes of decompensation
(Tr. 451). Dr. Terry concluded that Plaintiff’s impairments would have “no more than a minimal
impact on work activity,” and noted that Plaintiff’s allegations were only partially credible, as her
ability to drive and go to appointments contradicted her representation that it was hard for her to go
outside (Tr. 453).
Dr. Steinberg completed a medical source statement on December 24, 2009 (Tr. 513-514).
In the check-box form, Dr. Steinberg endorsed either “good” or “fair” abilities to perform
occupational, intellectual, and personal/social activities, apart from a poor ability to deal with work
stress (Tr. 513-514). Dr. Steinberg opined that Plaintiff’s mood symptoms would “interfere” with her
ability to work, and that she had difficulty leaving the house due to anxiety (Tr. 514). However, while
she stressed that Plaintiff had a “fair” ability to leave the house, Dr. Steinberg opined that Plaintiff
retained a “good” ability to understand, remember, and carry out even complex job instructions (Tr.
514), and a good ability to relate to and interact with co-workers and supervisors (Tr. 513).
Plaintiff was discharged from Dr. Steinberg’s care after her December 2009 appointment (Tr.
759).

7

Ellen Rozenfeld, Psy.D. completed a Psychiatric Review Technique for the DDS on November
26, 2010 (Tr. 536-550). Dr. Rozenfeld opined that Plaintiff was moderately restricted in activities of
daily living and in maintaining concentration, persistence, or pace, and was mildly restricted with
social functioning (Tr. 544). She found that Plaintiff had not experienced any extended episodes of
decompensation (Tr. 544). In her mental RFC assessment, Dr. Rozenfeld opined that the treatment
notes through December 2009 indicated waxing and waning of symptoms, but that, overall, Plaintiff’s
symptoms were “fairly well controlled” (Tr. 550). Dr. Rozenfeld opined that Plaintiff retained the
ability to remember work locations and work-related procedures, and had the capacity to understand
and remember instructions for both simple and more detailed tasks (Tr. 550). She opined that Plaintiff
retained sufficient attention and concentration to persist at and complete simple and routine activities
for extended periods, and that Plaintiff would be able to follow an ordinary routine without special
supervision and make simple work-related decisions (Tr. 550). Plaintiff would be able to accept
instructions, tolerate supervision, and get along with co-workers, and retained an adequate ability to
tolerate routine workplace changes (Tr. 550).
Thereafter, Plaintiff sought treatment from Robin Krause, APRN on July 29, 2011 (Tr. 828830). Ms. Krause noted that Plaintiff was stable on medication, and Plaintiff admitted depression, but
denied feeling hopeless or helpless (Tr. 828). Plaintiff sometimes had difficulty concentrating, but
her ability was “fairly good for the most part” (Tr. 828). She stopped seeing Dr. Steinberg after she
had moved in order to live with her mother (Tr. 828). Apart from sadness over the loss of
independence from moving in with her mother, which Plaintiff was “coping with,” and a reported
history of auditory hallucinations three years earlier, Ms. Krause’s mental status exam findings were
normal (Tr. 829). Ms. Krause diagnosed “Bipolar I disorder, depressed in the past, current stable,”
and endorsed a Global Assessment of Functioning (GAF) score of 55-60 (Tr. 829). Ms. Krause
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continued Plaintiff’s current medications (Tr. 829).
Plaintiff reported increased panic attacks and depression on September 27, 2011, and Ms.
Krause increased Plaintiff’s medication at her request (Tr. 831). On October 27, 2011, Plaintiff
reported improvement with the increase in medication (Tr. 832). On December 8, 2011, Plaintiff had
only “mild” irritability that she suspected related to new breathing medications (Tr. 833).
On December 8, 2011, Ms. Krause completed a medical source statement form that appears
identical to the form that Dr. Steinberg completed (Tr. 757-758). Ms. Krause opined that Plaintiff had
poor abilities to function in every category on the check-box form apart from fair abilities in carrying
out simple job instructions, maintaining appearance, and socializing (Tr. 758). As “medical/clinical
findings” that supported her assessment, Ms. Krause cited only Plaintiff’s diagnoses of bipolar
disorder and depression (Tr. 758).
On April 20, 2012, Ms. Krause reported that Plaintiff was “doing well” and was more hopeful,
with a brighter and stable mood (Tr. 835). Her mood remained stable on June 8, 2012, and Plaintiff
was working with her therapist on gaining more independence from her mother (Tr. 836). Plaintiff
reported that she was using her walker to walk in the driveway, and Ms. Krause discussed doing chair
exercises to increase stamina, as Plaintiff was overweight and reportedly had difficulty getting around
(Tr. 836). Ms. Krause assessed Plaintiff with a GAF score or 55-60 (Tr. 837).
In July 2012, Ms. Krause reported that Plaintiff was dong “very well,” and was “more
functional” (Tr. 838). She again assessed a GAF score of 55-60 (Tr. 838). She assessed the same
GAF score the following month (Tr. 839).
On October 16, 2012, Plaintiff reported that her weight had increased due to emotional eating
(Tr. 841). Nevertheless, she indicated that she was “doing well” on medication, and felt “quite well,”
with no mood swings or racing thoughts, and appeared “very pleasant” (Tr. 841). Ms. Krause again
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assessed a GAF score of 55-60 in October 2012, December 2012, January 2013, and May 2013 (Tr.
841-844).

IV.

SUMMARY OF TESTIMONY
When Plaintiff filed her application, she identified her disabling impairments as bipolar

disorder, agoraphobia, and depression (Tr. 289). According to Plaintiff, these conditions make it hard
for her to go outside, limit her driving, and cause panic attacks, fast heartbeats, a sense of dread, and
tearfulness (Tr. 289, 319). Plaintiff reported that her mental disorders make it difficult for her to get
out of bed or out of the car, and to concentrate and think, caused excessive absenteeism, and make
her cry multiple times throughout the day (Tr. 289, 332). Plaintiff also explained that she has
dizziness and balance issues, which cause her to always use a cane or walker, and has medication side
effects impacting her memory and concentration(Tr. 295, 304, 321, 332, 335). She can only stand for
five minutes, walk for five to ten minutes, and has difficulty caring for her hygiene and performing
activities of daily living (Tr. 319, 330-332, 334). She is accompanied to appointments by her mother,
and she moved in with her mother while her disability claim was pending (Tr. 333, 346, 348).
Plaintiff testified at her new hearing by telephone (Tr. 45, 387-388). Plaintiff testified that she
performs no chores outside, due to an inability to leave the house (Tr. 55). She described panic
attacks as feeling jittery, shaking all over, and experiencing heart palpitations and shortness of breath
(Tr. 55). Plaintiff also explained that she has tremors and poor balance, feels tired and lightheaded,
and uses a rolling walker (Tr. 60). Before the rolling walker, as early as 2004 or 2005, she used a
regular walker and a quad cane (Tr. 63).
Thereafter, the vocational expert was questioned regarding medium, light, and sedentary work
by an individual with an inability to climb ladders, ropes, or scaffolds, occasional balance, the need
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to avoid all exposure to hazards, the inability to work at a production pace but can perform goaloriented work, in a relatively static work setting with few changes (Tr. 67-69). The vocational expert
testified that these functional capacities would preclude past work, but unskilled jobs at these
exertional levels remained (Tr. 67-69). The vocational expert testified that no work could be
performed by an individual who would be absent four or more days a month, or who would be off task
twenty percent of the time (Tr. 70). On cross-examination, the vocational expert stated that the use
of a cane or walker reduces an individual to sedentary activity, and that use of the upper extremities
on only an occasional basis precludes all jobs (Tr. 441).

V.

STEPS TO EVALUATE ENTITLEMENT TO SOCIAL SECURITY BENEFITS
An ALJ must proceed through the required sequential steps for evaluating entitlement to

disability insurance benefits and supplemental security income. These steps are:
1.

An individual who is working and engaging in substantial gainful
activity will not be found to be “disabled” regardless of medical
findings (Sections 20 C.F.R. 404.1520(b) and 416.920(b) (1992);

2.

An individual who does not have a “severe impairment” will not be
found to be “disabled” (Sections 20 C.F.R. 404.1520(c)and
416.920(c)(1992);

3.

If an individual is not working and is suffering from a severe
impairment which meets the duration requirement, see Sections 20
C.F.R. 404.1509 and 416.909 (1992), and which meets or is equivalent
to a listed impairment in Sections20 C.F.R. Pt. 404, Subpt. P, App. 1,
a finding of disabled will be made without consideration of vocational
factors (Sections 20 C.F.R. 404.1520(d) and 416.920(d) (1992);

4.

If an individual is capable of performing the kind of work he or she has
done in the past, a finding of “not disabled” must be made (Sections 20
C.F.R. 404.1520(e) and 416.920(e) (1992);

5.

If an individual’s impairment is so severe as to preclude the
performance of the kind of work he or she has done in the past, other
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factors including age, education, past work experience and residual
functional capacity must be considered to determine if other work can
be performed (Sections 20 C.F.R. 404.1520(f) and 416.920(f) (1992).

Hogg v. Sullivan, 987 F.2d 328, 332 (6th Cir. 1992). The claimant has the burden of going forward
with the evidence at the first four steps and the Commissioner has the burden at Step Five to show that
alternate jobs in the economy are available to the claimant, considering her age, education, past work
experience and residual functional capacity. See, Moon v. Sullivan, 923 F.2d 1175, 1181 (6th Cir.
1990).

VI.

STANDARD OF REVIEW
Under the Social Security Act, the ALJ weighs the evidence, resolves any conflicts, and makes

a determination of disability. This Court’s review of such a determination is limited in scope by
Section 205 of the Act, which states that the “findings of the Commissioner of Social Security as to
any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. Section 405(g).
Therefore, this Court is limited to determining whether substantial evidence supports the
Commissioner’s findings and whether the Commissioner applied the correct legal standards. See,
Abbott v. Sullivan, 905 F.2d 918, 922 (6th Cir. 1990). The Court cannot reverse the ALJ’s decision,
even if substantial evidence exists in the record that would have supported an opposite conclusion, so
long as substantial evidence supports the ALJ’s conclusion. See, Walters v. Commissioner of Social
Security, 127 F.3d 525., 528 (6th Cir. 1997). Substantial evidence is more than a scintilla of evidence,
but less than a preponderance. See, Richardson v. Perales, 402 U.S. 389, 401 (1971). It is evidence
that a reasonable mind would accept as adequate to support the challenged conclusion. See, id.,
Walters, 127 F.3d 525, 532 (6th Cir. 1997). Substantiality is based upon the record taken as a whole.

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See, Houston v. Secretary of Health and Human Servs., 736 F.2d 365 (6th Cir. 1984).

VII.

ANALYSIS
Plaintiff asserts two assignments of error:
A.

WHETHER SUBSTANTIAL EVIDENCE SUPPORTS THE ALJ’S
DETERMINATION THAT PLAINTIFF HAS THE PHYSICAL
FUNCTIONAL CAPACITY FOR MEDIUM WORK.

B.

WHETHER THE ALJ ERRED IN FAILING TO RECOGNIZE THAT
PLAINTIFF WOULD BE OFF TASK OR UNABLE TO COMPLETE
A NORMAL WORK DAY AND WORK WEEK WITHOUT
PSYCHOLOGICALLY-BASED INTERRUPTIONS TO SUCH AN
EXTENT THAT ALL WORK IS PRECLUDED.

1. Substantial evidence supports the ALJ’s RFC assessment that Plaintiff has the
physical functional capacity for medium work. The ALJ accommodated the limiting effects of
Plaintiff’s impairments by restricting her to a reduced range of medium work, with numerous
additional postural, environmental, and mental restrictions (Tr. 27). The ALJ supported these
limitations by explaining that they were consistent with the largely normal objective medical findings
in the record, the credible medical opinions of record, Plaintiff’s success with treatment, and Plaintiff’s
course of seeking treatment for her allegedly disabling impairments (Tr. 26-32).
In regard to Plaintiff’s physical limitations, the ALJ’s physical RFC findings were entirely
consistent with Dr. Tessman’s treatment notes, Plaintiff’s treatment success with medication, and her
history of selective compliance with recommended treatment and appointments. The ALJ noted that
Dr. Tessman’s treatment notes documented that Plaintiff’s tremors had improved following an
adjustment from Primodone to Propranolol (Tr. 28-29, 821-822). In addition, the ALJ noted that this
improvement was supported by Plaintiff’s own behavior, as she sought treatment only on an annual
basis rather than every three months as Dr. Tessman had directed. Furthermore, she failed to follow
his recommendation to get vitamin B12 injections (Tr. 28; see Tr. 398-399, 742-743, 819-820). The
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ALJ noted that Plaintiff’s ability to consistently attend her psychiatric appointments indicated that she
chose to comply when she felt it was necessary (Tr. 31). In addition, the ALJ noted that Dr. Tessman
opined that Plaintiff’s tremor was likely related to her psychiatric medication, rather than a physical
impairment (Tr. 28, 398, 403-404). Also, the ALJ noted that Dr. Tessman observed that Plaintiff
walked with a normal gait and was doing “quite well” without using a walker (Tr. 403-404), and that
she could “clearly” execute simple tasks independently even before medication (Tr. 404). In addition,
the ALJ noted that Plaintiff’s musculoskeletal and neurological functioning was observed to be
normal, despite Plaintiff’s self-reported difficulty walking, and that Dr. Tessman’s treatment notes did
not indicate any trouble with walking or balance (Tr. 28; see Tr. 398-399, 403-404, 742-743, 819822). Finally, the ALJ concluded that Plaintiff’s alleged ongoing limitations were contradicted by her
refusal to attend the DDS-requested consultative neurological examination, despite several
accommodations (Tr. 28-29, 346-354, 372-374). While the ALJ acknowledged that Plaintiff cited
psychological reasons for failing to attend her examination with the independent examiner (Tr. 29,
374), he noted that she, nevertheless, offered to make an appointment with Dr. Tessman (Tr. 372,
374), and was able to provide in-person authorization to release records at Dr. Tessman’s office.
Based upon substantial evidence, the ALJ correctly concluded that the observations from Dr.
Tessman’s most recent appointment (Tr. 821-822) provided the most accurate and current picture of
the functional severity of Plaintiff’s physical limitations. As indicated by the ALJ, Plaintiff indicated
to Dr. Tessman that she was not experiencing any problems on Propranolol, and that her tremors had
improved (Tr. 29, 821). Dr. Tessman’s neurologic and musculoskeletal examination findings
remained normal, with normal strength and no “drift,” normal bilateral finger-to-nose coordination,
no ataxia, and normal cerebellar signs (Tr. 29, 821). Additionally, the ALJ noted that Plaintiff did not
follow Dr. Tessman’s recommendation to follow up in three months (Tr. 29, 822). The ALJ further
noted that Dr. Tessman’s records did not indicate that Plaintiff needed to use any assistive device, and

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that Dr. Tessman did not prescribe any assistive device for ambulating (Tr. 29, 398-399, 403-404, 742743, 819-822).
Finally, based upon substantial evidence, in reaching his RFC conclusions, the ALJ gave great
weight to Dr. Caldwell’s RFC assessment that Plaintiff retained the ability to engage in a range of
medium work (Tr. 32, 515-522). Dr. Caldwell was the only medical source to offer a functional
capacity opinion with respect to Plaintiff’s physical abilities, and she based her opinion on Dr.
Tessman’s diagnoses and examination findings (Tr. 517). The ALJ correctly gave proper weight to
Dr. Caldwell’s interpretation of Dr. Tessman’s treatment notes and Plaintiff’s resulting limitations in
assessing her physical RFC (Tr. 32). In addition, the ALJ correctly discounted Plaintiff’s allegations
of greater limitations because they were inconsistent with the objective and opinion medical evidence,
as well as Plaintiff’s successful treatment with Propranolol and her inconsistent treatment history. 20
C.F.R. Section 416.929(c)(2), (c)(3)(iv), and (c)(3)(v).
Also, Plaintiff’s challenges to the ALJ’s assessment of her physical limitations are not
convincing, because they are based on her subjective representations and are not supported by Dr.
Tessman’s treatment notes and are contrary to Dr. Caldwell’s opinion. Furthermore, Dr. Tessman
never opined that Plaintiff required any assistive device to ambulate, and offered no opinion regarding
Plaintiff’s standing and walking abilities (Tr. 398-399, 403-404, 742-743, 819-822). The only
reference Dr. Tessman made to any ambulatory aid was simply recounting Plaintiff’s subjective report
during her initial appointment that she used a walker (Tr. 403); Dr. Tessman never prescribed any
ambulatory aid or indicated that Plaintiff’s’s self-reported use was medically required. As a matter
of fact, he observed that Plaintiff did “quite well” without a walker (Tr. 404). The ALJ properly
addressed her alleged need to use ambulatory aids (Tr. 29), and correctly recounted that Dr. Tessman’s
records neither indicated that they were required, nor indicated that he prescribed them (see Tr. 398399, 403-404, 742-743, 819-822).

15

Actually, Dr. Tessman’s examination findings, apart from the existence of a tremor that Dr.
Tessman attributed solely to Plaintiff’s psychiatric medication (Tr. 398-399, 742-743, 819-822), were
normal. Dr. Tessman opined that Plaintiff exhibited normal strength, intact senses, full and symmetric
reflexes, normal gait, normal coordination, and no ataxia, despite her subjective complaints (Tr. 398,
403, 742, 819, 821). He also noted that Plaintiff maintained her balance fairly well, with no evidence
of ataxia and “actually does quite well, without a walker” (Tr. 404).
In addition, Dr. Caldwell considered these examination findings and Dr. Tessman’s diagnoses
(Tr. 517), and correctly concluded that they were consistent with an ability to perform a range of
medium work (Tr. 516-519).
Plaintiff also argues that “no examining evidence” supports the capacity for medium work (Pl.
Br. 11). However, Dr. Tessman’s examination findings and Plaintiff’s own history of success with
medication and non-compliance with treatment recommendations are substantial evidence supporting
a capacity for medium work (see Tr. 28-30). Dr. Caldwell’s review also affirms that Dr. Tessman’s
findings were consistent with medium work (Tr. 517). As the ALJ noted, Plaintiff refused to appear
for a consultative neurological examination, despite several accommodations, and her excuses for
failing to appear were contradicted by the indication that she would, nevertheless, be willing to
undergo an examination with Dr. Tessman(Tr. 28-29, 346-354, 372-374). In conclusion, the ALJ
correctly assessed Plaintiff’s physical impairments and cited substantial evidence in the record to
support his conclusion that Plaintiff remained able to perform a reduced range of medium work.
2. Substantial evidence supports the ALJ’s RFC that Plaintiff has the mental capacity
for medium work. The ALJ correctly concluded that Plaintiff remained able to perform work in a
relatively static work setting with few changes and no production-pace work, despite her bipolar and
anxiety disorders (Tr. 27). In reaching this conclusion, the ALJ correctly noted that Plaintiff was able
to engage in activities of daily living both inside and outside her home, and that her mental functioning

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was stable when compliant with medication (Tr. 30). The treatment notes support the ALJ’s opinion
of stable mental functioning on medication (Tr.414-415, 419, 429-430, 433-434, 435, 437, 458-459,
832, 833, 835, 836, 838, 841). Furthermore, the ALJ noted that Ms. Krause assessed GAF scores that
indicated moderate symptoms (Tr. 30, 829, 837-839, 841-844). Finally, the ALJ indicated that Ms.
Krause’s opinion that Plaintiff was safe for outpatient treatment undermined her allegations of
agoraphobic symptoms (Tr. 31, 842, 844).
Although the ALJ noted that in Dr. Steinberg’s opinion and treatment notes she discussed
panic attacks when Plaintiff left her home, the ALJ correctly concluded that those attacks were acute
exacerbations rather than persistent symptoms, and Dr. Steinberg opined that Plaintiff had at least fair
abilities to make occupational, personal, and social adjustments (Tr. 31, 513-514). Therefore, the ALJ
correctly discounted Dr. Steinberg’s opinion on that basis because it was not supported by the
remainder of her assessment. Also, the ALJ noted that Ms. Krause’s medication adjustments in 2011
and 2012 further improved Plaintiff’s symptoms (Tr. 31, 832, 833, 835, 836, 838, 841). Hence, the
ALJ gave good reasons for the weight he assigned to Dr. Steinberg’s opinion.
While Plaintiff cites the treating source rule in connection with Ms. Krause’s opinion, the rule
does not apply to Ms. Krause, a nurse practitioner, because she is not a treating source. 20 C.F.R.
Sections 416.902, 416.913(d)(1). Acceptable medical sources do not include nurse practitioners or
therapists. 20 C.F.R. Section 416.913(d)(1). An opinion that is not from a treating source is not
entitled to the same degree of deference granted to a treating physician opinion. Griffith v. Comm’r
of Soc. Sec., 582 F.App’x 555, 564 (6th Cir. Aug. 7, 2014). However, although assigned due less
weight and not subject to the protections of the treating source rule, ALJs are still required to evaluate
opinions form “other sources” under regulatory factors in 20 C.F.R. Section 416.927(c). SSR 06-03p,
2006 WL 2329939, at *4-5.

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As the ALJ explained that he was giving less weight to Ms. Krause’s opinion as opposed to
Dr. Steinberg’s or Rozenfeld’s opinions because it was not supported by her treatment notes, which
indicated moderate limitations in light of Plaintiff’s positive responses to medication adjustments (Tr.
31, 832-844). This conclusion is supported by the record, as Ms. Krause continually assessed
moderate GAF scores over a long period of time (Tr. 829, 837-839, 841-844), and she indicated
improvement in Plaintiff’s condition with medication adjustments (Tr. 832-841).

VIII. CONCLUSION
Based upon a review of the entire record and law, the undersigned affirms the ALJ’s decision.
Substantial evidence supports the finding of the ALJ that Plaintiff retained the residual functional
capacity (RFC) to perform medium work relating to a significant number of jobs in the national
economy, and, therefore, was not disabled. Hence, she is not entitled to DIB and SSI.

Dated: January 11, 2016

/s/George J. Limbert
GEORGE J. LIMBERT
UNITED STATES MAGISTRATE JUDGE

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