Toro v. Commissioner of Social Security Administration

Filing 30

Memorandum Opinion and Order that the decision of the Commissioner denying Toro's applications for disability insurance benefits and supplemental security income is affirmed. (Related Docs. # 1 , 14 ). Signed by Magistrate Judge William H. Baughman, Jr., on 1/31/2017. (S,MD)

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

MARITZA TORO,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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CASE NO. 1:15 CV 2220

MAGISTRATE JUDGE
WILLIAM H. BAUGHMAN, JR.

MEMORANDUM OPINION AND
ORDER

Introduction
Before me1 is an action by Maritza Toro under 42 U.S.C. § 405(g) for judicial review
of the final decision of the Commissioner of Social Security denying her applications for
disability insurance benefits and supplemental security income.2 The Commissioner has
answered3 and filed the transcript of the administrative record.4 Under my initial5 and

1

ECF # 14. The parties have consented to my exercise of jurisdiction.

2

ECF # 1.

3

ECF # 10.

4

ECF # 11.

5

ECF # 6.

procedural6 orders, the parties have briefed their positions7 and filed supplemental charts8 and
the fact sheet.9 They have participated in a telephonic oral argument.10

Facts
A.

Background facts and decision of the Administrative Law Judge (“ALJ”)
Toro who was 48 years old at the time of the administrative hearing,11 did not graduate

from high school and has not earned a general equivalency diploma (GED).12 She is not
married and lives with her mother and two adult daughters.13 Her past relevant employment
includes fast food cashier and daycare provider.14
The ALJ, whose decision became the final decision of the Commissioner, found that
Toro had the following severe impairments: cervical degenerative disc disease with

6

ECF # 13.

7

ECF # 27 (Commissioner’s brief); ECF # 20 (Toro’s brief).

8

ECF # 27-1 (Commissioner’s charts); ECF # 20-1 (Toro’s charts).

9

ECF # 19 (Toro’s fact sheet).

10

ECF # 29.

11

ECF #19 at 1.

12

Id.

13

ECF # 11, Transcript (“Tr.”) at 45.

14

Id. at 27.
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radiculopathy, status post C5-6 discectomy and fusion; asthma; obesity; and major depressive
disorder (20 C.F.R §404.1520 (c) and §416.920 (c)).15
After concluding that the relevant impairments did not meet or equal a listing, the ALJ
made the following finding regarding Toro’s residual functional capacity (“RFC”):
After careful consideration of the entire record, the undersigned finds that the
claimant retains the residual functional capacity to perform light work as
defined in 20 C.F.R §404.1567(b) and §416.967(b), except she can no more
than frequently stoop, kneel, crouch, or climb ramps or stairs; she can no more
than frequently handle or finger with the left, non-dominant upper extremity;
she can no more than occasionally crawl; she can no more than occasionally
push/pull or reach overhead with the left, non-dominant upper extremity; she
can never climb ladders, ropes or scaffolds; she should avoid all exposure to
hazards, such as unprotected heights, dangerous machinery; she should avoid
concentrated exposure to respiratory irritants, such as fumes, odors, dust,
gases, and poor ventilation; and she can perform simple to moderately complex
tasks with no fast-paced work, no strict production quotas, and no more than
minimal changes in the work setting.16

Given that residual functional capacity, the ALJ found Toro incapable of performing her past
relevant work as fast food cashier and daycare provider.17 Applying the medical-vocational
grids in Appendix 2 of the regulations, the ALJ found Toro not under a disability.18
Based on an answer to a hypothetical question posed to the vocational expert at the
hearing setting forth the residual functional capacity finding quoted above, the ALJ

15

Id. at 19.

16

Id. at 22.

17

Id. at 27.

18

Id. at 28.
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determined that a significant number of jobs existed locally and nationally that Toro could
perform.19
B.

Issues on judicial review
Toro asks for reversal of the Commissioner’s decision on the ground that it does not

have the support of substantial evidence in the administrative record. Specifically, Toro
presents the following issues for judicial review:
•

Whether the ALJ erred in his analysis of the plaintiff’s pain
complaints.20

•

Whether the ALJ erred in not giving a RFC report of plaintiff’s
physician, who worked in the same office as plaintiff’s treating
physician, proper weight.21

•

Whether the ALJ erred in not considering plaintiff’s combined
impairments in the RFC assigned to plaintiff.22

For the reasons that follow, I will conclude that the ALJ’s finding of no disability is
supported by substantial evidence and, therefore, must be affirmed.

19

Id.

20

ECF # 20 at 1.

21

Id.

22

Id.
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Analysis
A.

Standards of review

1.

Substantial evidence

The Sixth Circuit in Buxton v. Halter reemphasized the standard of review applicable to
decisions of the ALJs in disability cases:
Congress has provided for federal court review of Social Security
administrative decisions. 42 U.S.C. § 405(g). However, the scope of review is
limited under 42 U.S.C. § 405(g): “The findings of the Secretary as to any fact,
if supported by substantial evidence, shall be conclusive....” In other words, on
review of the Commissioner’s decision that claimant is not totally disabled
within the meaning of the Social Security Act, the only issue reviewable by
this court is whether the decision is supported by substantial evidence.
Substantial evidence is “ ‘more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.’ ”
The findings of the Commissioner are not subject to reversal merely
because there exists in the record substantial evidence to support a different
conclusion. This is so because there is a “zone of choice” within which the
Commissioner can act, without the fear of court interference.23

Viewed in the context of a jury trial, all that is necessary to affirm is that reasonable minds
could reach different conclusions on the evidence. If such is the case, the Commissioner

23

Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001) (citations omitted).
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survives “a directed verdict” and wins.24 The court may not disturb the Commissioner’s
findings, even if the preponderance of the evidence favors the claimant.25
I will review the findings of the ALJ at issue here consistent with that deferential
standard.
B.

Application of standards
This case essentially involves a challenge to the RFC on three grounds:
•
•

a purported error in weighing the opinion of an allegedly treating source; and

•

1.

a claimed failure to properly analyze Toro’s credibility;

an asserted error in not considering the combination of mental and physical
limitations in fashioning the RFC.26

Credibility
Toro contends that the ALJ failed to assess her complaints of pain in conformity with

the applicable standards.27 To that point, Toro notes that the ALJ found that her ability to
care for her elderly mother undermines her credibility as to disabling pain.28 But, she asserts,
this finding is not supported by the facts, which, she argues, show only that she “keeps an

24

LeMaster v. Sec’y of Health & Human Servs., 802 F.2d 839, 840 (6th Cir. 1986);
Tucker v. Comm’r of Soc. Sec., No. 3:06CV403, 2008 WL 399573, at *6 (S.D. Ohio Feb. 12,
2008).
25

Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).

26

ECF # 20 at 1.

27

Id. at 10.

28

Id. at 11 (citing transcript at 24).
-6-

eye” on her mother while an aide performs the other duties.29 Further, she claims that the
“presumption” that she provides substantial care to her mother “ignores the reality” of how
any “occasional activities” by her in this context could translate into an ability to be
employed at a full-time job.30
Toro also argues that the ALJ failed to properly consider the objective medical
evidence that she claims support her complaints of on-going pain, such as an MRI of her
cervical spine which led to a 2011 surgery and the post-operative findings.31 She also points
to elements of the record detailing her use of medications for pain, and her participation in
physical therapy.32
In addressing Toro’s claims concerning the severity of her limitations, the ALJ here
provided an unusually thorough and detailed analysis of those claims, complete with
numerous specific, supporting citations to the record, which analysis extends over almost two
full pages of the opinion.33 While obviously the ALJ’s work in this regard is not judged
simply by the number of pages employed in its presentation, in the manner of a grade school
book report, I make this preliminary observation to emphasize the context of diligence within
which my judicial review takes place.

29

Id. at 11 (citing transcript at 61).

30

Id. at 11.

31

Id. at 12-13 (citing transcript at 299-300, 327, 436-37).

32

Id. at 13 (citing transcript at 50, 377, 709).

33

Tr. at 23-25.
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That said, it is immediately apparent that while Toro may disagree with the
conclusions drawn from the medical evidence by the ALJ as regards her subjective
complaints, there is no dispute that the medical evidence was extensively considered in this
regard by the ALJ, as is required by the regulations.34 In that regard, the ALJ specifically
discussed a post-surgical X-ray study, a post-surgical MRI, and additional X-rays of Toro’s
right knee and lumbar spine, all of which revealed either good results, or mostly mild to
moderate difficulties.35 The ALJ then noted some fifteen separate mental or physical
examinations which disclosed some level of impairment36 before detailing the results of 62
separate mental and physical examinations which resulted in mostly normal or unremarkable
findings that were inconsistent with Toro’s allegations of pain.37
In addition to reviewing the objective medical evidence as discussed above, the ALJ
then proceeded to review the treatments Toro received for any of her acknowledged medical
problems.38 In this review, the ALJ considered evidence which, inter alia, showed that:
•

34

Toro’s surgeon considered her spinal fusion a success, and released her to
return to work;

See, SSR 96-7p; 20 C.F.R. § 404. 1529 c.

35

Tr. at 23 (citing transcript). Only the post-surgical MRI of 2012 showed “severe”
neoroforaminal stenosis at the C5-C6 level. Id. (citing transcript).
36

Id. at 23 (citing transcript).

37

Id. at 23-24 (citing transcript).

38

Id. at 24 (citing transcript).
-8-

•

Toro declined to receive epidural steroid injections for pain, despite the fact
that they are “essential diagnostic tools for evaluating radiculopathy;”

•

Toro “only occasionally”received narcotic painkillers, and then only from her
primary care physician, while the pain management specialist prescribed only
anti-inflammatory medication;

•

Toro did not avail herself of multiple conservative therapies, such as aquatic
exercise and smoking cessation, as suggested by the pain management
specialist.39

With this evidentiary basis, the ALJ concluded that the treatments Toro has sought
and received is not what one would expect in the case of a person disabled by the level of
pain claimed by Toro.40
Finally, and in the area most disputed here, the ALJ reviewed Toro’s daily activities
and found that they reflect a “greater physical and mental functional ability than she
alleges.”41 It is here, among a list of activities that includes Toro being independent in caring
for herself and also caring for her young adult daughter with cerebral palsy, that the ALJ
further noted that Toro provides care for her elderly mother who is confined to a wheelchair
as the result of a stroke.42
In this respect, Torro correctly observes that ALJs must be very cautious in
determining that actions done periodically in the course of daily personal life are fully

39

Id.

40

Id.

41

Id.

42

Id. at 24-25.
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indicative of a claimant’s capacity to do full-time work in the economy.43 But, as the
Commissioner notes, the single reference to Toro’s care for her mother was within the
context of a more extensive examination of all of her daily activities, which itself was only
one element of the wider review of all the evidence - medical and testimonial - that was
considered as part of the determination of whether Toro’s subjective complaints of disabling
pain were supported by the other evidence.
Therefore, in light of the controlling rubrics and considering that Toro’s care for her
mother was in no way the decisive factor in the ALJ’s extensive and well-supported analysis
of Toro’s credibility, I find no error in that analysis.
2.

Dr. Shah
Toro contends here that the ALJ erred by not giving substantial weight to a functional

capacity opinion from Dr. Jamil Shah, M.D.44 To that point, she contends that although she
actually only saw Dr. Shah once - and then only for the purpose of obtaining a functional
capacity opinion - nevertheless Dr. Shah’s opinion should be viewed as “the closest evidence
to a treating physician report” because Dr. Shah is in the same practice as her treating
physician and it was too difficult to obtain a timely appointment with her treating doctor for
that same purpose.45

43

ECF # 20 at 13 (quoting Lorman v. Comm. of Soc. Sec., 107 F. Supp. 3d 829 (S.D.
Ohio 2015)(citing Rogers, 486 F. 3d at 248).
44

ECF # 15 at 14.

45

ECF # 20 at 14-15.
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In this regard, Toro cites to regulations and cases approving of the use of functional
opinions from otherwise unacceptable medical sources such as nurse practitioners and
physician assistant who practice in managed care environments.46 I have had the opportunity
to recently discuss the problems that may arise when patients receive treatment from a
medical team led by a physician but which also includes other professionals such as
counselors, therapists and nurse practitioners. In those circumstances, courts recognize that
a functional opinion prepared by a non-physician member of the treatment team but later
signed by the physician, is considered to be the view of the physician as an acceptable
treating source, in that he is deemed to have “adopted” as his own a report that may have
been prepared by an otherwise non-acceptable source.47
Of course, the key in that reasoning is that a physician who himself qualifies as a
treating source - i.e., one who has an established treating relationship with the patient - may
adopt or ratify an opinion originally prepared by another source. Here, there is no indication
that Dr. Khalid Elamin, M.D., Toro’s treating physician, reviewed, ratified, adopted or even
knew about the functional opinion of Dr. Shah. As such, the opinion cannot be viewed as
his. Instead, the record is plain that Dr. Shah saw Toro only once, and then solely for the

46

Id. at 16-17 (citing SSR 06-*03p; Craddock v. Colvin, No. 1:14 CV 01328, 2015
WL 4664006 (N.D. Ohio Aug. 6, 2015)).
47

Mitchell v. Comm’r of Soc. Sec., No. 5:15 CV 974, 2016 WL 4507791, at * 6 (N.D.
Ohio Aug. 29, 2016)(citation omitted).
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express purpose of having him prepare a functional capacity assessment in support of her
application for benefits.48
The Sixth Circuit authority is clear that, in general, a single visit to a doctor is
insufficient to establish a treating relationship, absent any different result dictated by the
protocols of a particular specialty.49 In a situation, like here, where the single visit was for
the purpose of obtaining a functional capacity opinion, the Sixth Circuit in Smith v.
Commissioner of Social Security has definitively found that such a visit does not make the
resulting opinion the report of a treating source.50 Moreover, Smith teaches that “in the
absence of treating source status for these doctors [who give functional opinions after a
single visit], we do not reach the question of whether the ALJ violated Wilson by failing to
give good reasons for not accepting their reports.”51

48

Tr. at 793.

49

Shy v. Comm’r of Soc. Sec., No. 1:14 CV 2544, 2016 WL 775299, at ** 6-7 (N.D.
Ohio Feb. 29, 2016)(citations omitted); see also, Adcox v. Colvin, No. 3:15 CV 236-PLRCCS, 2016 WL 4991597, at * 13 (E.D. Tenn. Aug. 22, 2016)(despite a prior long-term
treating relationship, the fact that physician had provided no treatment during or around the
relevant time period other than a single office visit meant that there was no “longitudinal
view” of claimant’s functional capacity as would entitle that physician’s functional opinion
to controlling weight).
50

Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 876 (6th Cir. 2007)(citations omitted);
accord, Hackle v. Comm’r or Soc. Sec., No. 1:12 CV 145, 2013 WL 618630, at * 7 (S.D.
Ohio Feb. 19, 2013)(physician who examined claimant “only once before giving an RFC
assessment” had not “demonstrate[d] the type of ongoing treatment relationship the Social
Security regulations envision for treating physician status”).
51

Smith, 482 F.3d at 876.
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Accordingly, for the reasons stated, I need not address the issue of whether the ALJ
analyzed Dr. Shah’s opinion in conformity with the treating source rubric. Rather, in the
situation, as here, where the opinion at issue is from an acceptable examining medical source
who is not a treating source, the Sixth Circuit in Ealy52 states that in general an opinion from
an examining source will receive more weight than an opinion from a non-examining
source,53 and that the weight ultimately assigned to the opinion of the examining source
should reflect consideration of factors such as “the length and nature of the treatment
relationship, the evidence the physician offered in support of the opinion, how consistent the
opinion is with the record as a whole, and whether the physician was practicing in her
specialty.”54
In the present case, the ALJ precisely and thoroughly followed the analytical template
that is required for an evaluation of Dr. Shah’s opinion. The ALJ expressly noted that:
•

the examination was the only time Dr. Shah had examined Torro, and the
examination was solely “to complete the [residual functional capacity] form”
in the absence of Torro’s regular primary care physician;

52

Ealy v. Comm’r of Soc. Sec., 594 F. 3d 504 (6th Cir. 2010).

53

Id. at 514 (citations omitted).

54

Id. (citing 20 C.F.R. 404.1527(d)). This analysis is essentially the second distinct
level of a treating source analysis, and it comes only after first ascertaining if the opinion of
a treating source should not receive controlling weight. That first analysis, with its own
standards, is separate from that for assigning weight, and only that first analysis further
requires that a negative conclusion be supported by “good reasons.” See, e.g., Albelo v.
Comm’r of Soc. Sec., No. 1:12 CV 2590, 2014 WL 1093130 at ** 3-4 (N.D. Ohio Mar. 17,
2014)(citation omitted).
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•

the examination was “cursory,” and yielded findings that Torro “had normal
strength in all extremities, had no spinal or paraspinal tenderness, reported
intact sensation in all extremities, and was able to ambulate without assistance,
albeit with short steps and a slight limp;”

•

these “minimal clinical findings” are “inconsistent” with the opinion
statements that, inter alia, Torro could stand or walk for only 30 minutes in an
eight hour work day and that her pain would interfere with concentration
causing her to be off task and absent from work;

•

thus, Dr. Shah’s opinion was given “little weight” because the limitations in
his opinion are “out of proportion with the clinical findings he documented,”
as well as with Torro’s activities of daily living.55

For the above reasons, I find no error with the ALJ’s handling of Dr. Shah’s opinion.
3.

Combination of impairments
Finally, Torro argues that the ALJ erred in not fully considering the combined effects

of her impairments.56 Specifically, she maintains that although the ALJ did address her
mental health issues in the decision, he “only included minimal restrictions” within the
RFC.57 In this case, she asserts, it is “the overlapping, combined effects” of her conditions
that produce her “symptoms and impairments.”58

55

Tr. at 25 (citing record).

56

ECF # 20 at 19.

57

Id.

58

Id.
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Toro points to her mental health issues in particular as “further complicat[ing] her
ability to maintain gainful employment.” 59 In this regard, she cites to evidence that she has
only a 10th grade education, that she suffers from Major Depressive Disorder and has a GAF
score, and that after her surgery she isolated herself, no longer desired to drive, and appeared
lethargic.60 She also points to a report from her social worker which notes that Toro seemed
depressed and irritable.61 Finally, she observes that her own testimony was that her
depression causes her to become bedridden for up to an hour at a time approximately three
times a week.62
With these restrictions, she contends that it “would be unreasonable to assume” that
she could work on a regular basis without regular interruptions due to he “ongoing issues
with mental health.”63
The ALJ here expressly identified major depressive disorder as a severe impairment
at Step 2.64 At Step 3 he further analyzed, inter alia, whether that mental impairment meets
or equals a listing.65 Here, the ALJ considered whether Toro’s mental health impairment

59

Id. at 20.

60

Id. (citing record).

61

Id. (citing record).

62

Id. (citing record).

63

Id. at 21.

64

Tr. at 19.

65

Id. at 20.
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limited her ability to function in the four categories set out in Section 12.00 C of the
Listing.66 While being careful to note that the analysis for the severity of symptoms at Steps
2 and 3 is not the same or as detailed as the analysis for residual functional capacity done at
Steps 4 and 5,67 the ALJ nevertheless found that Toro’s mental health impairment results in
only mild restrictions in the range of her activities of daily living and in social functioning,
and in moderate difficulty in maintaining concentration, persistence and pace, and further has
not produced any extended episodes of decompensation.68
In the more detailed analysis at Step 4, which has been discussed earlier, the ALJ
expressly set forth Toro’s own testimony about how her depression effects her ability to
complete tasks, handle stress, go out alone and concentrate.69 He then found that although
her impairments could reasonably be expected to cause these symptoms, Toro’s claims in this
regard were not credible70 because of the objective medical evidence,71 the treatment she has
received72 and her own testimony as to activities of daily living.73

66

Id.

67

Id. at 22.

68

Id. at 21.

69

Id. at 23.

70

Id. at 23.

71

Id.

72

Id. at 24.

73

Id. at 24-25.
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The ALJ further reviewed the functional capacity opinions in some detail, specifically
finding “some” merit in the report of consulting psychologist Kathleen Payne, Ph.D., who
“indicated that [Toto] retained a low-average cognitive capacity for understanding,
remembering and carrying out instructions” and further found that Toro would have “some
difficulty responding appropriately to work pressures.”74 Therefore, the ALJ fashioned the
RFC to include “limitations against fast-paced work, strict production quotas and frequent
work setting changes.”75
The ALJ then examined the opinion of Robyn Hoffman, Ph.D., an agency reviewing
psychologist.76 In giving Dr. Hoffman’s opinion “considerable weight,” the ALJ observed
that Dr. Hoffman had found that Toro had a moderate impairment in the domain of
concentration, persistence and pace, but no more than a mild impairment in the domains of
activities of daily life and social functioning.77 The ALJ further noted that Dr. Hoffman had
determined that Toro “retained the mental capacity to perform three - and four- step tasks
without fast paced production quotas in settings where duties are relatively static and any
changes can be explained.”78 The ALJ then particularly observed that this finding by Dr.
Hoffman was consistent with Toro’s “limited approach to mental health treatment” and

74

Id. at 25 (citing record).

75

Id.

76

Id.

77

Id. at 26 (citing record).

78

Id.
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reports of “good results therefrom,”79 which conservative treatment record was extensively
reviewed earlier in the opinion, and discussed here above.
Finally, the ALJ considered the various GAF scores in the record, noting first that
such “snapshot ratings” from different sources outside of an ongoing treatment situation are
of “limited utility” in determining “long-term mental functional capacity.”80 But, the ALJ
concluded, these scores“taken together” “generally support a finding that [Toro’s] mental
disorders have imposed significant limitations on her ability to perform basic work
activities.”81
As the above detailed presentation has shown, the ALJ addressed with great
specificity every claim of mental limitation that Toro now asserts was ignored, and
concluded not that this impairment produced no work-related limitations, but rather that
“they imposed significant limitations” on her functional capacity. To the extent that the ALJ
did not include greater restrictions, he fully explained his reasons in that regard in his finding
on Toro’s credibility, in his reliance on clearly identified portions of two functional capacity

79

Id.

80

Id. at 26-27.

81

Id. at 27 (emphasis added).
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opinions from state agency consultants,82 together with reasons for why these elements
deserved weight, and in his review of significance of the GAF scores.
Therefore, for the reasons stated, I find no error in the manner by which the ALJ
considered Toro’s impairments as a whole in formulating the RFC.

Conclusion
Accordingly, and for the reasons stated above, I find that the decision of the
Commissioner denying benefits to Maritza Toro is supported by substantial evidence, and
the same is hereby affirmed.
IT IS SO ORDERED.
Dated: January 31, 2017

s/ William H. Baughman, Jr.
United States Magistrate Judge

82

See, SSR 96-6p (indicating that ALJs are “required” to consider opinions on the
nature and severity of impairments offered by state agency consultants); see also,
Washington v. Comm’r of Soc. Sec., No. 1:13 CV 624, 2014 WL 2002988, at * 3 (N.D. Ohio
May 14, 2014)(citation omitted)(“it is not improper [in formulating the RFC] for the ALJ to
rely upon the opinion of a non-examining state agency source, who is generally considered
to be an expert in Social Security disability evaluations, and who are acknowledged to be
useful to the ALJ in making sense of the whole record”).
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