Zubal v. Commissioner Social Security
Memorandum Opinion and Order: The Commissioner's decision is REVERSED and REMANDED for further proceedings consistent with this opinion. Magistrate Judge Kathleen B. Burke on 10/17/2016. (D,I)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
DORA LUISE ZUBAL,
COMMISSIONER OF SOCIAL
CASE NO. 1:16CV189
KATHLEEN B. BURKE
MEMORANDUM OPINION & ORDER
Plaintiff Dora Zubal (“Zubal”) seeks judicial review of the final decision of Defendant
Commissioner of Social Security (“Commissioner”) denying her application for Disability
Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). Doc. 1. This Court has
jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before the undersigned Magistrate
Judge pursuant to the consent of the parties. Doc. 14.
As explained more fully below, any purported challenge that Zubal makes with respect to
Defendants’ denial of her DIB application is DENIED. Regarding her SSI application, the ALJ
did not sufficiently explain the weight he gave to the opinions of Zubal’s treating physician, Dr.
Appleby, and the consultative examiner, Dr. Ghoubrial. Accordingly, the Commissioner’s
decision is REVERSED and REMANDED for further proceedings consistent with this opinion.
I. Procedural History
In January 2012, Zubal protectively filed applications for DIB and SSI, alleging a
disability onset date of December 31, 2001. Tr. 12, 228, 230. She alleged disability based on the
following: lupus, Raynaud’s disease, scleroderma, glaucoma, neuropathy, and depression. Tr.
232. After denials by the state agency initially (Tr. 89, 90) and on reconsideration (Tr. 103,
104), Zubal requested an administrative hearing. Tr. 129. A hearing was held before
Administrative Law Judge (“ALJ”) Charles Shinn on July 2, 2014 (Tr. 10-60). In his July 18,
2014, decision (Tr. 12-24), the ALJ determined that Zubal could perform jobs that exist in
significant numbers in the national economy, i.e., she was not disabled. Tr. 22. Zubal requested
review of the ALJ’s decision by the Appeals Council (Tr. 8) and, on December 4, 2015, the
Appeals Council denied review, making the ALJ’s decision the final decision of the
Commissioner. Tr. 1-3.
A. Personal and Vocational Evidence
Zubal was born in 1965 and was 46 years old on the date her applications were filed. Tr.
228. She has a GED and no past relevant work. Tr. 35, 51.
B. Relevant Medical Evidence1
On May 24, 2006, Zubal saw rheumatologist Marie Kuchynski, M.D., for a consultation.
Tr. 316. She was referred by her Lupus support group. Tr. 316. Zubal stated that she was
diagnosed with lupus, systemic sclerosis and Raynaud’s disease in 2004 by her former
rheumatologist.2 Tr. 316, 318. Currently, she felt “miserable.” Tr. 316. She explained that her
Raynaud’s was so bad when she was first diagnosed that she had a surgical procedure to increase
the circulation to her hands, but her condition instead worsened. Tr. 318. Her hands had become
progressively more swollen and she reported “significant trouble trying to use her hands for
anything.” Tr. 318. Upon exam, her hand joints were diffusely swollen; her fingers were purple,
Zubal did not challenge the ALJ’s findings regarding her mental impairments. Accordingly, only the medical
evidence relating to Zubal’s challenged physical impairments is summarized and discussed herein.
Generally, lupus is a chronic inflammatory disease that occurs when the body’s immune system attacks its own
tissues and organs. Doc. 15, p. 3, n.2. Systemic sclerosis or scleroderma is the hardening and tightening of the skin
and connective tissues. Id. Raynaud’s disease is a vascular disorder that causes intermittent interruption of blood
flow to the extremities, causing areas of the body (primarily fingers and toes) to feel numb and cold in response to
cold temperatures or stress. Id.; Doc. 18, p. 4, n.5.
diffusely swollen, and she was unable to extend them; her elbows were swollen and she was
unable to extend them; her shoulders, wrists and ankles were normal; she had pain in her hips
and knees upon range of motion; and her feet were positive for Raynaud’s. Tr. 317. She had no
telangiectasia but she did have oral ulcers.3 Tr. 318. She had good peripheral pulses. Tr. 318.
Dr. Kuchynski suspected that she “most likely had a mixed connective tissue disease” and began
her on Viagra and methotrexate.4 Tr. 317, 318. She also ordered lab work. Tr. 317.
Zubal returned to Dr. Kuchynski two weeks later to discuss her lab test results. Tr. 318.
Her results for scleroderma were negative but the result of other testing was positive and
consistent with mixed connective tissue disease. Tr. 318. Zubal stated that, after taking Viagra
for two weeks, she started to notice some improvement. Tr. 318. Her hands were not as
discolored as they were two weeks prior at her first visit and she was able to fully extend her
hands with very little pain. Tr. 318. She still limped from severe pain in her legs. Tr. 318. Dr.
Kuchynski noted that Zubal should start noticing improvement within the next month as she
continued her methotrexate and Viagra and stated, “I sent a letter to her insurance to get approval
for off label use of Viagra.” Tr. 318. Meanwhile, Dr. Kuchynski provided her with Viagra and
scheduled a follow-up appointment a month later. Tr. 318.
At the follow-up appointment on July 12, 2006, Zubal reported “a marked decrease in
the swelling and in her severity of her Raynaud’s disease. She still has significant amount of
pain in her knees, hips, and shoulders and wonders if the medication is at its optimal dose, but
Telangiectasia is skin discoloration due to the dilation of small blood vessels. See Dorland’s Illustrated Medical
Dictionary, 32nd Edition, 2012, at 1878.
Mixed connective tissue disease “has signs and symptoms of a combination of disorders — primarily lupus,
scleroderma and polymyositis. For this reason, mixed connective tissue disease is sometimes referred to as an
overlap disease .... Early signs and symptoms often involve the hands. Fingers might swell like sausages, and the
fingertips become white and numb. In later stages, some organs — such as the lungs, heart and kidneys — may be
affected.” http://www mayoclinic.org/diseases-conditions/mixed-connective-tissue-disease/basics/definition/con20026515 (last visited 10/15/2016).
clearly she is no longer having severe cyanosis [skin discoloration] and she is able to tolerate
being in air-conditioned places.” Tr. 320. Tr. 320. Upon exam, Dr. Kuchynski observed that
Zubal’s hand swelling was “much less prominent,” she was able to make a fist, and she had no
active Raynaud’s attack that day. Tr. 320. She still had swelling in her knees “but good range of
motion in her ankles, shoulders, wrists, and elbows[.]” Tr. 320. Dr. Kuchynski considered an
increase of methotrexate if Zubal’s liver function tests were normal and scheduled a follow-up in
two to three months. Tr. 320.
Zubal saw Dr. Kuchynski again on September 13, 2006. Tr. 322. Zubal reported that her
Raynaud’s “has completely resolved with the initiation of Viagra,” but that she experienced
increased swelling in her hands and feet and increasing problems with her handgrip. Tr. 322.
Zubal stated that she believed that the methotrexate was no longer working. Tr. 322. Upon
exam, Zubal had diffuse swelling in her hands, a slight cyanotic discoloration, and problems with
handgrip. Tr. 322. Dr. Kuchynski discontinued Zubal’s methotrexate and stated that she was
doing bloodwork that day “to assess the activity of her disease.” Tr. 322. After Zubal’s results
were obtained, Dr. Kuchynski prescribed Imuran. Tr. 324.
On March 5, 2007, Zubal returned to Dr. Kuchynski. Tr. 324. She stated that the Viagra
was helping to increase mobility in her fingers. Tr. 324. She reported pain and swelling in her
joints and skin rashes. Tr. 324. Upon examination, she had some sausage digits in her fingers
but had no erythema and was able to fully extend her fingers. Tr. 324. Dr. Kuchynski stated that
she had put Zubal on the lowest dose of Imuran and ordered blood work to determine whether
her dose could be increased. Tr. 324. She also proscribed Voltaren for pain. Tr. 324.
Zubal saw Dr. Kuchynski for a follow-up on June 4, 2007. Tr. 326. Her chief complaint
was that she believed that she had a blood clot in her left leg because her left leg was swollen
with severe pain and she had a history of blood clots in her right leg. Tr. 326. She also had
increased achiness and pain in the left side of her body. Tr. 326. Upon exam, she had normal
pulses in her feet and ankles but swelling in her left leg and she appeared to be in pain. Tr. 326.
She had diffuse swelling in her fingers and a decreased ability to make a fist. Tr. 326. Dr.
Kuchynski ordered an ultrasound of her leg, switched her Voltaren prescription to Daypro, and
set up a follow-up appointment for three months or sooner, depending on the test results. Tr.
On May 30, 2008, Zubal saw Dr. Kuchynski. Tr. 310. She reported that she had been
taking her medications and that she was feeling better. Tr. 310. She had decreased swelling and
improved vascular circulation. Tr. 310. She had been without her Viagra for some time because
of insurance problems, but she had an ample supply at the time of her visit. Tr. 310. Upon
exam, Dr. Kuchynski noted that Zubal “does clearly have decreased swelling in her hands and is
able to wear rings.” Tr. 310. Her fingers were not as cold and the discoloration was gone. Tr.
310. She had no pain upon range of motion in any of her joints, although she still had livedo
reticularis5 on her legs. Tr. 310. Dr. Kuchynski stated that Zubal’s mixed connective tissue
disease appeared to be responding to therapy. Tr. 310.
On August 29, 2008, Zubal saw Dr. Kuchynski for a follow-up visit. Tr. 311. She stated
that she was feeling much better and tolerating her medications well. Tr. 311. She still had
some “mild problems with stiffness in her hands.” Tr. 311. Upon exam, Zubal had some mild
diffuse swelling in her fingers, but no cyanosis and “her mobility was much better.” Tr. 311.
She had no rashes or synovitis in any of her joints. Tr. 311. Dr. Kuchynski noted that her mixed
Livedo reticularis “is a vascular response to any of various disorders, caused by dilation of the subpapillary
venous plexus as a result of both increased blood viscosity and blood vessel changes that delay flow away from the
skin.” Dorlands, at 1067.
connective tissue disease was responding to therapy and that she would continue to monitor her
liver functioning. Tr. 311.
Zubal saw Dr. Kuchynski again about a year later, on September 2, 2009. Tr. 312.
Zubal reported that most of her symptoms had been relatively stable since her last appointment
and that she came to this appointment for a medication refill. Tr. 312. She complained primarily
of left hip pain. Tr. 312. Upon exam, she had cold fingers but no active Raynaud’s attack. Tr.
312. She had full extension and flexion of her fingers, an improvement from the year before,
“clearly showing that there is decreased synovitis and inflammation in her tendons.” Tr. 312.
She had no synovitis in any of her other joints but a hip exam revealed some discomfort. Tr.
312. Dr. Kuchynski ordered blood work and a follow-up visit in three months. Tr. 312.
On March 29, 2010, Zubal returned to Dr. Kuchynski for her follow-up visit. Tr. 313.
Zubal explained that she had not followed up sooner “since she has been caring for her ill sister
and father.” Tr. 313. She reported that her finger swelling had decreased and she did not get
cyanosis as much as she used to. Tr. 313. Upon exam, she had no synovitis, swelling or pain in
any of her joints except her fingers, which were sausage digits, though decreased in size. Tr.
313. She had a good pulse in all four extremities, mildly cyanotic fingers, and a normal gait. Tr.
313. She was to follow up in three months. Tr. 313.
On August 19, 2010, Zubal saw Dr. Kuchynski for a follow up from an ER visit. Tr. 314.
She had been cleaning the house and she bumped her left wrist, which then swelled and was
painful. Tr. 314. She had been diagnosed with cellulitis. Tr. 314. Upon exam, her left forearm
was tender from her wrist to her elbow; she also had decreased swelling. Tr. 314. Her other
joints were normal. Tr. 314. Dr. Kuchynski ordered an MRI of her left forearm and a follow-up
visit in three months. Tr. 314.
Zubal next saw Dr. Kuchynski on June 2, 2011. Tr. 315. She reported that she had no
worsening pain, stiffness or swelling since her last visit and that her medications were working to
keep her symptoms under control. Tr. 315. She still had pain in her left hip and stated that it
caused her to have trouble walking, that her hip would give out, and that she had fallen several
times. Tr. 315. She had no rashes and no fatigue. Tr. 315. Upon exam, her joints were normal
except for her left hip, which had a limited range of motion and pain with movement. Tr. 315.
She walked with a limp but had normal pulses in all extremities and a normal neurological
examination. Tr. 315. Zubal was to follow up in three months. Tr. 315.
On August 30, 2011, Zubal reported to her primary care physician, Robert Cain, M.D.,
that she had had throbbing left arm pain for five to six months. Tr. 334-335. The pain was “only
on the ventral aspects of the fourth and fifth digits on the wrist and volar forearm up to just
proximal to the elbow.” Tr. 335. She felt “some sense of weakness” and some pain in her neck
at times also. Tr. 335. Upon exam, she had some neck spasms on her right side extending into
her trapezius where she had multiple trigger points. Tr. 335. Dr. Cain ordered an x-ray and
referred Zubal to physical therapy to work on her muscle spasm. Tr. 335. He opined that her left
forearm pain may have more to do with her connective tissue disease than nerve pain. Tr. 335.
An x-ray of Zubal’s cervical spine was positive for degenerative changes at C5/C6. Tr. 339.
On July 11, 2012, Zubal returned Dr. Kuchynski. Tr. 413. Zubal stated that her
Raynaud’s was not worse but that she still had finger swelling and a rash. Tr. 413. Dr.
Kuchynski wrote, “On further questioning, [Zubal] went off Imuran 7 months ago. States that
neurologist told her gabapentin was better for pain. I informed [Zubal] that Imuran not for pain
but for her connective tissue disorder. Advised [Zubal] to restart to decrease her symptoms.” Tr.
413. Upon exam, Zubal had a rash on her arms, a normal gait and normal joints, except for her
fingers, in which she had fusiform swelling. Tr. 413.
On November 12, 2012, Zubal saw Andrew Huang, M.D., complaining of a lower
backache that she had had for four days that had radiated to her left abdomen. Tr. 370-372.
Upon exam, she had normal muscle strength in her arms and legs. Tr. 371. She had no rash,
cyanosis, or edema. Tr. 371. Dr. Huang opined that her pain could be a muscle strain. Tr. 371.
On November 14, 2012, Zubal saw Dr. Kuchynski for a follow-up visit. Tr. 404. She
informed Dr. Kuchynski that she may have a kidney stone. Tr. 404. She reported no worsening
pain or stiffness but increased swelling. Tr. 404. Her medications were working to keep her
symptoms under control. Tr. 404. She had no rashes, a normal neurological exam, a normal
gait, normal pulses, and normal joints (no warmth, tenderness, swelling, synovitis), including all
her finger joints, except for her hands, in which there was diffuse swelling. Tr. 404. Dr.
Kuchynski advised Zubal to continue her medications. Tr. 404.
On July 17, 2013, Zubal saw Dr. Kuchynski. Tr. 396. Zubal again reported no
worsening stiffness, swelling or pain since her last visit. Tr. 396. Her medications were
“partially” working to keep her symptoms under control. Tr. 396. She had no worsening fatigue
but positive Raynaud’s when exposed to cooler temperatures. Tr. 396. She had a rash and was
seeing a dermatologist. Tr. 396. Upon exam, Zubal had a normal gait and normal pulses, joints,
and neurological findings. Tr. 396. She had psoriasis. Tr. 396. Dr. Kuchynski again ordered
lab work to assess her disease activity. Tr. 396. Zubal requested a walker “for days when she
has more pain and feels unsteady.” Tr. 396.
On September 23, 2013, Zubal saw neurologist Kristin Appleby, M.D. Tr. 504. Dr.
Appleby’s summary of Zubal’s last visit, in November 2012, included a notation that Zubal’s
restless leg syndrome symptoms had been well controlled until about 2 weeks prior, at which
time she was started on Seroquel, and that “this may be the culprit.” Tr. 504. Zubal’s current
complaint included that she had fallen 2 weeks ago and scraped her leg. Tr. 504. She stated that
her feet and hands were turning purple, especially with the cooler weather, and wondered if it
was circulation. Tr. 505. Her legs were also swelling and her shoe sized had increased by 1.5.
Tr. 505. She was on a diuretic for her edema; Dr. Appleby stated, “No etiology for the
swelling.” Tr. 505. She had “pain from head to toe,” her arms would get numb, and her legs
were giving out, although she reported falling less since she got her walker, cane, and her
bathroom adapted. Tr. 505. Upon exam, her gait was antalgic but stable with a cane. Tr. 506.
Dr. Appleby advised Zubal to discuss her worsening Raynaud’s symptoms with her
rheumatologist. Tr. 507.
On November 13, 2013, Zubal saw Dr. Kuchynski. Tr. 430. She reported “a lot of pain
and swelling.” Tr. 430. She was taking NSAIDs for her pain but they were not controlling it.
Tr. 430. She had no worsening rashes or fatigue and her Raynaud’s was only active with cold
weather. Tr. 430. She had normal pulses, a normal gait, and normal joints, except for
“sclerodactyly.”6 Tr. 430. Dr. Kuchynski prescribed Lasix for her swelling and Ultram for her
pain. Tr. 430.
On March 5, 2014, Zubal saw Dr. Kuchynski for a follow-up visit. Tr. 489. The
treatment note stated that no medication changes occurred at the last visit and that Zubal was
currently experiencing symptoms; the onset of these symptoms was gradual, occurred
intermittently, and the pain was achy. Tr. 489. Stress and cold exacerbated her symptoms and
rest relieved them. Tr. 489. Her symptoms did not include malaise or fever. Tr. 489. Overall,
Zubal had a good tolerance of treatment and fair symptom control. Tr. 489. She had no back
Sclerodactyly is a hardening and thickening of the skin of the fingers. See Dorland’s, at 1679.
pain, no morning stiffness, no localized joint pain, no joint swelling, no muscle weakness, no
skin lesions, no rashes, no clubbing and no nail abnormalities.” Tr. 489-490. Upon physical
examination, Zubal had a normal gait, fingernail clubbing, Raynaud’s phenomenon and
sclerodactyly, no joint swelling, normal skin color and no visible rash. Tr. 493. Dr. Kuchynski’s
impression was that Zubal’s disease appeared stable and her Raynaud’s more active in cold
weather. Tr. 494.
C. Medical Opinion Evidence
1. Treating Physician
In May or June 2006 and in February 2008,7 Dr. Kuchynski wrote a “Letter of Medical
Necessity” on behalf of Zubal for purposes of obtaining insurance approval for off label use of
Viagra. Tr. 368. Dr. Kuchynski’s letter states, in pertinent part, that Zubal is a new patient “who
unfortunately has systemic lupus erythematosus, scleroderma and Raynaud’s phenomenon” and
“is most limited by the Raynaud’s disease as she has severe vasospastic disease and swelling.
She is unable to use her hands.” Tr. 368. She had been on all the standard medications used to
treat her symptoms to no avail. Tr. 368. Dr. Kuchynski stated, “[her] disease is extremely
disabling.” Tr. 368.
On August 5, 2013, Ernest Michaud, an occupational therapist, completed a functional
capacity evaluation on Zubal at the request of treating neurologist Dr. Appleby. Tr. 512-515.
Zubal reported to Michaud that she had fallen the day before and that her left hip was tender. Tr.
512. She also complained of “many things wrong” and falling often and she admitted that she
The letter is undated. The letter was apparently sent to the insurance company after Zubal’s first visit with Dr.
Kuchynski. See Tr. 318 (Dr. Kuchynski’s treatment note dated June 8, 2006, stating that she had sent a letter to
Zubal’s insurance company to obtain medication approval). A handwritten notation on the letter dated February 29,
2008, reads, “No change in medical necessity. Medication still required.” Tr. 368. This handwritten notation
would appear to coincide with Zubal’s statement to Dr. Kuchynski in May 2008 that she had been without her
Viagra because of insurance problems. Tr. 310. In other words, it appears as though Dr. Kuchynski drafted and sent
the letter to Zubal’s insurance company in 2006 and then resent the letter in 2008 for continued approval.
did not always use her cane or walker. Tr. 512. She stated that she had “already broke my arm
at the distal radius and a toe too.” Tr. 512. Her pain was currently at 9/10 and was throughout
her body. Tr. 512. Michaud’s examination consisted of some subjective testing, including
Zubal filling out “surveys of function.” Tr. 512-513. Upon physical exam, her range of motion
was painful in her back, shoulders, left elbow, and both wrists. Tr. 513-514. Her carrying and
handling scores were well below normal. Tr. 513, 515. She exhibited unsteadiness while
carrying; she could not safely carry a maximum of 5 pounds a distance of 30 feet. Tr. 513. She
completed the 9-hole peg test in 52.83 seconds for her right hand (normal is 19.5 seconds) and
54.10 seconds for her left hand (normal is 22.0 seconds). Tr. 519. Tr. 513. Michaud concluded:
“I do not believe she would be effective at an 8 hour day with modifications with these issues at
this time so she is not even an effective Sedentary with modifications worker.” Tr. 515. Thus,
he classified her as “somewhat less than sedentary.” Tr. 515.
On September 23, 2013, Dr. Appleby filled out a medical opinion form by writing, “See
attached FCE,” integrating by reference Michaud’s evaluation and opinion. Tr. 510.
2. Consultative Examiner
On August 7, 2012, Zubal saw Sam Ghoubrial, M.D., for a consultative examination. Tr.
357-361. Zubal told Dr. Ghoubrial that she was unable to work predominately because of
complications of lupus. Tr. 357. She reported Reynaud’s disease, poor circulation in her hands
and feet, and pain in her legs at a 7/10 and in her feet a 10/10. Tr. 357. Dr. Ghoubrial noted,
“negative for any change in hair or nails, rashes, or skin lesions” and no musculoskeletal issues:
“negative connective tissue disease.” Tr. 358-359. Upon examination, she had no cyanosis or
rash and her skin elasticity was within normal limits. Tr. 359. Her hands were “somewhat cold”
to the touch. Tr. 359. She had “mild swelling” in the metacarpal phalangeal joints of her hands
but her pincer movements and fine coordination appeared to be within normal limits. Tr. 360.
Her grip strength was “RT: 2# 2# 1# LT: 1# 1# 0#.” Tr. 359. The veins in her lower
extremities were normal. Tr. 360. She was able to get on and off the exam table without
difficulty, could heel to toe walk, and did not use a cane or walker. Tr. 361. Dr. Ghoubrial
performed manual muscle testing and Zubal scored normal in all areas except that her
dynamometer readings regarding grip strength were abnormally low. Tr. 353-356. Dr.
Ghoubrial assessed that Zubal had the following diseases: lupus, glaucoma, Raynaud’s
phenomenon, restless leg syndrome, mixed connective tissue disease, and sleep apnea. Tr. 365.
He concluded, “[Zubal] would have no difficulty sitting, standing, hearing, speaking, seeing, or
traveling. I don’t feel she would have any difficulty lifting or carrying objects less than ten
pounds for four hours in an eight hour day.” Tr. 361.
3. State Agency Reviewers
On August 28, 2012, state agency physician Gerald Klyop, M.D., reviewed Zubal’s file.
Tr. 69-76. Regarding Zubal’s residual functional capacity (“RFC”), Dr. Klyop opined that Zubal
was able to perform work at the light exertional level with limited bilateral fingering and must
avoid concentrated exposure to extreme cold and moderate exposure to hazards. Tr. 68-70.
On January 14, 2013, state agency physician Gary Hinzman, M.D., adopted Dr. Klyop’s
findings except that he opined that Zubal had no manipulative limitations. Tr. 99-100.
D. Testimonial Evidence
1. Zubal’s Testimony
Zubal was represented by counsel and testified at the administrative hearing. Tr. 32-50.
For the past two years she had been living in a house with her father and sister. Tr. 36. Her
father has health issues and her sister does not work outside the home, but instead takes care of
Zubal and her father. Tr. 36. Her father’s retirement provides income for the household. Tr. 36.
Zubal listed all her medications that she is currently taking. Tr. 36-38. When asked if
she has side effects from her medications, she stated that she has impairments such as tiredness,
joint swelling, sore joints, legs giving out, and blurry vision, but that she was not sure whether
the medications or her diseases cause these impairments. Tr. 38-39. When asked how her lupus
affects her, she answered, “I want to do stuff, but my body won’t allow me to do stuff. It affects
my legs, my hands, my arms, my whole body.” Tr. 40. For example, her legs give out: “It’s a
lot to do with the Raynaud’s  because no circulation [in] my hands and feet.” Tr. 40. She has
tried going to a lupus support group in addition to taking medications for her lupus. Tr. 40. She
attends “maybe once every two weeks.” Tr. 40. She also sees a doctor every two weeks, a
counselor, and attends AA meetings. Tr. 41-42. She also goes to church. Tr. 43.
When asked if her lupus is affected by weather, Zubal stated that it is, explaining, “that
leads to the mixed tissue disorder, if I’m allowed to go there, I —because of the circulation my
hands and feet will turn white like—like they’re embalmed and then they go black and I have no
feeling in my feet or hands. And they’ve tried the surgery and it did not work.” Tr. 40-41. She
had the surgery six years prior to the hearing. Tr. 41. The ALJ asked Zubal, “how effective is
your medication? Does the medication help you with your lupus pain?” and Zubal answered,
“Yeah, the pain medicine, yes.” Tr. 41.
On days that she does not go to a doctor’s appointment, Zubal spends the day watching
television and tries to do some walking and different exercises, “if permitted. Other than that it’s
nothing.” Tr. 42. She does not cook; “my sister does that.” Tr. 42. She stopped cooking
when she started losing feeling in her hands and could not tell the difference between hot and
cold, “probably eight, nine years [ago] now”. Tr. 42. The ALJ remarked that Zubal had
indicated in a function report she filled out in 2012 that she was able to make sandwiches and use
the microwave. Tr. 43. Zubal said that she can do that; “I thought you meant cooking on a
stove.” Tr. 43. Her sister does laundry and brings it to her and she folds the laundry. Tr. 43.
She no longer drives “because of the glaucoma at night” and “now without knowing the feeling
when my hands and feet give out, I can’t take that chance.” Tr. 43. The ALJ asked her if she
helps take care of her father and she answered that she did not. Tr. 44. The ALJ mentioned that
Zubal had told one of her doctors in 2010 that she had not been to see the doctor in about a year
because she had been taking care of her sister and her father, but Zubal did not recall that. Tr.
Zubal testified that her sister helps her shower by walking her into the shower “and she
bathes me basically because I can’t tell hot from cold water.” Tr. 45. Zubal’s sister also helps
her get dressed; “buttons, zippers, ... stuff that I can’t normally do. That I—when I don’t feel it.”
Tr. 45. There are not really any days that she can button or zipper but she can “pull up.” Tr. 45.
She is able to feed herself. Tr. 45. When asked what is the longest period of time that she can
use her hands for any activity, Zubal replied, “it all depends on when they give out.” Tr. 46. She
stays away from the cold because “everything goes numb, white, and then black[.]” Tr. 46. She
stopped smoking cigarettes but is “doing the electronic cigarettes.” Tr. 47.
Zubal explained the problems with her legs: “with the neuropathy and everything they
just give out. From my hips down.” Tr. 47. The last time she fell was about four months ago
when she was trying to go down steps. Tr. 48. She has trouble with steps; “I don’t know if it’s
just strength or if they give out on me.” Tr. 48. She does not believe she could work because of
her circulation and body problems. Tr. 48. “I don’t know when I would be able to hold
something, carry something, or fall.” Tr. 48. The day of the hearing she was using a cane,
which she has been using every day for three years. Tr. 49. She uses it when she is in the house
and also uses a walker. Tr. 49. She does not trust herself to stand without the cane. Tr. 50. She
carries it in her right hand. Tr. 50.
2. Vocational Expert’s Testimony
Vocational Expert (“VE”) Mark Anderson testified at the hearing. Tr. 50-58. The ALJ
asked the VE whether a hypothetical individual of Zubal’s age, education and work experience
could perform work if the individual had the following characteristics: can perform light work as
it is defined by the regulations (lift, carry, push and pull limitations of 20 pounds occasionally
and 10 pounds frequently); cannot climb ladders, ropes or scaffolding; can occasionally climb
ramps and stairs; can occasionally stoop, kneel, crouch and crawl; can frequently handle and
finger bilaterally; must avoid workplace hazards such as unprotected heights and exposure to
dangerous moving machinery; must avoid concentrated exposure to temperature extremes of hot
and cold; is limited to simple, routine tasks that do not involve arbitration, negotiation, or
confrontation; cannot perform work that requires strict production quotas and cannot perform
piece rate work or assembly line work; and can occasionally interact with others. Tr. 52. The
VE answered that such an individual can perform work as an inspector and hand packager
(235,000 national jobs; 22,500 state jobs; 4,500 regional jobs), an assembler of electrical
accessories (244,000 national jobs; 9,000 state jobs; 3,500 regional jobs), and electronics worker
(240,000 national jobs; 13,000 state jobs; 3,500 regional jobs). Tr. 53.
Second, the ALJ asked the VE whether the same hypothetical individual described above
could perform work if the individual would be limited to sedentary work as it is defined in the
regulations (lift, carry, push and pull limitations of 10 pound occasionally and 5 pounds
frequently). Tr. 53. The VE answered that such an individual could perform work as a patcher
(280,000 national jobs; 25,000 state jobs; 4,500 regional jobs), a touchup screener (158,000
national jobs; 5,200 state jobs; 1,700 regional jobs); and bonder (110,000 national jobs; 10,000
state jobs; 2,500 regional jobs). Tr. 54. The ALJ asked the VE whether such an individual could
perform work if the individual was limited to frequent, instead of occasional, handling and
fingering. Tr. 55. The VE responded that there would be no work such an individual could
perform. Tr. 55.
Lastly, the ALJ asked the VE whether the second hypothetical individual described above
would be precluded from competitive employment if that individual could only sustain a five
hour work day. Tr. 56. The VE confirmed that such an individual would be precluded from
competitive employment. Tr. 56.
Zubal’s attorney asked the VE whether the jobs he cited were assembly line jobs, given
that the ALJ’s hypothetical contained a restriction for no assembly line work. Tr. 57. The VE
explained that the jobs that he cited were jobs in which the individual worked at an individual
work station, not on a production line. Tr. 57. Zubal’s attorney asked whether there would be
strict production quotas in these jobs and the VE stated that the jobs he cited did not contain
strict production quotas. Tr. 57. Zubal’s attorney then asked the VE if his answer to the ALJ’s
first hypothetical (restricted to light work) would change if the individual’s handling and
fingering limitations were reduced to occasionally rather than frequently. Tr. 58. The VE stated
that there would be no jobs such an individual could perform. Tr. 58.
III. Standard for Disability
Under the Act, 42 U.S.C. § 423(a), eligibility for benefit payments depends on the
existence of a disability. “Disability” is defined as the “inability to engage in any 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.” 42 U.S.C. § 423(d)(1)(A). Furthermore:
[A]n individual shall be determined to be under a disability only if his physical or
mental impairment or impairments are of such severity that he is not only unable
to do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in
the national economy . . . .
42 U.S.C. § 423(d)(2).
In making a determination as to disability under this definition, an ALJ is required to
follow a five-step sequential analysis set out in agency regulations. The five steps can be
summarized as follows:
If claimant is doing substantial gainful activity, he is not disabled.
If claimant is not doing substantial gainful activity, his impairment must
be severe before he can be found to be disabled.
If claimant is not doing substantial gainful activity, is suffering from a
severe impairment that has lasted or is expected to last for a continuous
period of at least twelve months, and his impairment meets or equals a
listed impairment, claimant is presumed disabled without further inquiry.
If the impairment does not meet or equal a listed impairment, the ALJ
must assess the claimant’s residual functional capacity and use it to
determine if claimant’s impairment prevents him from doing past relevant
work. If claimant’s impairment does not prevent him from doing his past
relevant work, he is not disabled.
If claimant is unable to perform past relevant work, he is not disabled if,
based on his vocational factors and residual functional capacity, he is
capable of performing other work that exists in significant numbers in the
20 C.F.R. §§ 404.1520, 416.920;8 see also Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987).
Under this sequential analysis, the claimant has the burden of proof at Steps One through Four.
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997). The burden shifts to the
Commissioner at Step Five to establish whether the claimant has the vocational factors to
perform work available in the national economy. Id.
IV. The ALJ’s Decision
In his July 18, 2014, decision, the ALJ made the following findings:
The claimant meets the insured status requirements of the Social Security
Act through December 31, 2001. Tr. 14.
The claimant has not engaged in substantial gainful activity since
December 31, 2001, the alleged onset date. Tr. 14.
The claimant has the following severe impairments: systemic lupus
erythematosus, Raynaud’s phenomenon, depression, bipolar disorder and
polysubstance abuse. Tr. 14.
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. Tr. 15.
The claimant has the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) and 416.967(b) except that the claimant
may occasionally stoop, kneel, crouch, crawl, climb ramps and stairs, but
may never climb ladders, ropes, or scaffolds; the claimant may frequently
handle and finger bilaterally; the claimant must avoid exposure to
workplace hazards, including unprotected heights or dangerous moving
machinery; the claimant must avoid concentrated exposure to extremes of
heat and cold; the claimant is limited to the performance of simple,
routine tasks that do not involve arbitration, negotiation or confrontation,
undertaken in a setting free of strict production quotas, piece-rate work or
assembly line work, which setting requires no more than occasional
interaction with others. Tr. 17.
The DIB and SSI regulations cited herein are generally identical. Accordingly, for convenience, further citations
to the DIB and SSI regulations regarding disability determinations will be made to the DIB regulations found at 20
C.F.R. § 404.1501 et seq. The analogous SSI regulations are found at 20 C.F.R. § 416.901 et seq., corresponding to
the last two digits of the DIB cite (i.e., 20 C.F.R. § 404.1520 corresponds to 20 C.F.R. § 416.920).
The claimant has no past relevant work. Tr. 22.
The claimant was born on September 20, 1965 and was 36 years old,
which is defined as a younger individual age 18-49, on the alleged
disability onset date. Tr. 22.
The claimant has at least a high school education and is able to
communicate in English. Tr. 22.
Transferability of job skills is not an issue because the claimant does not
have past relevant work. Tr. 22.
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. Tr. 22.
The claimant has not been under a disability, as defined in the Social
Security Act, from December 31, 2001, through the date of this decision.
V. Parties’ Arguments
Zubal challenges the ALJ’s decision on five grounds. These can be consolidated into
four arguments that the ALJ committed errors in the following: (1) his Step Three determination
when he found Zubal did not meet Listing 14.02 (Systemic Lupus Erythematosus); (2) the ALJ’s
treatment of the opinion evidence; (3) his credibility assessment; and (4) his RFC assessment
with respect to Zubal’s handling and fingering limitations. Doc. 15, pp. 10-19. In response, the
Commissioner argues that this case only encompasses Zubal’s SSI application, not her DIB
application; that the ALJ did not commit errors at the challenged steps in the sequential
evaluation; and that his decision is supported by substantial evidence. Doc. 18, pp. 9-16.
VI. Law & Analysis
A reviewing court must affirm the Commissioner’s conclusions absent a determination
that the Commissioner has failed to apply the correct legal standards or has made findings of fact
unsupported by substantial evidence in the record. 42 U.S.C. § 405(g); Wright v. Massanari, 321
F.3d 611, 614 (6th Cir. 2003). “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.” Besaw v. Sec’y of Health & Human Servs., 966 F.2d 1028,
1030 (6th Cir. 1992) (quoting Brainard v. Sec’y of Health and Human Servs., 889 F.2d 679, 681
(6th Cir. 1989) (per curium) (citations omitted)). A court “may not try the case de novo, nor
resolve conflicts in evidence, nor decide questions of credibility.” Garner v. Heckler, 745 F.2d
383, 387 (6th Cir. 1984).
A. Zubal only challenges the denial of her SSI application, not her DIB
It is well settled that a claimant cannot be entitled to DIB unless the claimant proves she
became disabled before her date last insured. E.g., Mullis v. Sec’y of Health & Human
Servs., 861 F.2d 991, 994 (6th Cir. 1988) (claimant has the burden of showing that he
became disabled prior to the date last insured and remained continuously disabled until
some time within the twelve months prior to his disability insurance benefits application);
SSR 83-10. Here, Claimant’s date last insured is December 31, 2001 (Tr. 13). As the ALJ
points out, other than a psychological diagnosis from 2000, there is no “treatment in the
record until well after the application date” (Tr. 15) .... [T]he opinions Claimant relies on
in her brief significantly post-date Claimant’s date last insured: Dr. Kuchynski’s opinion
is from 2008 and Dr. Appleby’s is from 2013 (Pl. Br. at 6). Thus, the issues in this case
can only relate to SSI, not DIB....
Doc. 18, pp. 9-10. Zubal did not respond to this argument in her reply brief. Because Zubal has
not presented evidence that she became disabled before her date last insured (December 31,
2000), she is not entitled to DIB. Accordingly, the Court finds that Zubal is only contesting the
ALJ’s decision with respect to her SSI application.
B. The ALJ did not err in his Step Three determination
Zubal argues that the ALJ erred at Step Three when he failed to find that she “satisfied
the criteria of Listing 14.02.” Doc. 15, p. 11. Listing 14.02, Systemic Lupus Erythematosus
a chronic inflammatory disease that can affect any organ or body system. It is frequently,
but not always, accompanied by constitutional symptoms or signs (severe fatigue, fever,
malaise, involuntary weight loss). Major organ or body system involvement can include:
Respiratory (pleuritis, pneumonitis), cardiovascular (endocarditis, myocarditis,
pericarditis, vasculitis), renal (glomerulonephritis), hematologic (anemia, leukopenia,
thrombocytopenia), skin (photosensitivity), neurologic (seizures), mental (anxiety,
fluctuating cognition (“lupus fog”), mood disorders, organic brain syndrome, psychosis),
or immune system disorders (inflammatory arthritis). Immunologically, there is an array
of circulating serum auto-antibodies and pro- and anti-coagulant proteins that may occur
in a highly variable pattern.
20 CFR Part 404, Subpart P, Appendix 1, Listing 14.00D1. To satisfy Listing 14.02, a claimant
must have SLE as described above and:
A. Involvement of two or more organs/body systems, with:
1. One of the organs/body systems involved to at least a moderate level of
2. At least two of the constitutional symptoms or signs (severe fatigue, malaise, or
involuntary weight loss).
Id., Listing 14.02A.9
Zubal argues that she satisfies Listing 14.02A. Doc. 15, p. 10. The ALJ considered
whether Zubal met or equaled Listing 14.02:
Relevant to Listing 14.02, the record does not support involvement of two or more body
systems, nor do there appear to be repeated manifestations of systemic lupus
erythematosus. Rather, the record appears to indicate that the claimant’ lupus is stable
with medications (4F/7), (12F/2).
Zubal argues that the ALJ did not properly evaluate Zubal’s SLE because his decision is
“contrary to the office notes of Zubal’s treating rheumatologist, Dr. Kuchynski.” Doc. 15, p. 11.
She criticizes the ALJ for citing only two of Dr. Kuchynski’s treatment notes, from June 2011
and July 2013, and argues that, in other treatment notes from Dr. Kuchynski dated before and
after these dates, Zubal was found to have swollen hands, fingers, knees, leg; Raynaud’s; edema;
Although there is a Listing 14.02B, Zubal does not allege that she meets or equals Listing 14.02B.
and sclerodactyly. Doc. 15, p. 11. She cites numerous treatment notes in support of her
argument. Her argument, however, is not persuasive.
First, Zubal’s reliance upon early treatment notes from Dr. Kuchynski dated prior to
Zubal starting her medication regime are not persuasive evidence that the ALJ’s conclusion—
that she was stable on medications—was erroneous.10 Second, symptoms Zubal presented with
during the time she was being treated by Dr. Kuchynski but not taking her medication are also
not persuasive evidence. See, e.g., Tr. 413 (July 2012 treatment note wherein Zubal presented
with swollen fingers and a rash: Dr. Kuchynski wrote, “On further questioning, [Zubal] went off
Imuran 7 months ago. States that neurologist told her gabapentin was better for pain. I informed
[Zubal] that Imuran not for pain but for her connective tissue disorder. Advised [Zubal] to
restart to decrease her symptoms.”). Finally, Dr. Kuchynski herself repeatedly opined that
Zubal’s lupus was stable with medications. See Tr. 315 (June 2011 “Medications are working to
keep sx under control.”); Tr. 404 (November 2012 (same, “stable on therapy”); Tr. 396 (July
2012 “Medications are working to keep sx under control partially”; “stable on therapy”); Tr. 430
(November 2013 “increased pain,” prescribed Ultram for pain and Lasix for swelling); Tr. 489
(March 2014 treatment note history: “good tolerance of treatment and fair symptom control”; Dr.
Kuchynski’s impression: “disease appears stable. Raynaud’s more active with cold weather.”).
Next, Zubal argues that she satisfies the criteria of Listing 14.02 “in that she had
involvement of two or more organs/body systems.” Doc. 15, p. 11. Even if Zubal could
demonstrate involvement of two or more organs/body systems to at least a moderate level of
severity, as set forth in Listing 14.02A(1), she does not allege that she meets the additional
criteria set forth in 14.02(A)(2): “[and] at least two of the constitutional symptoms or signs
For example, Zubal cites to Dr. Kuchynski’s treatment note from Zubal’s first visit to her. Doc. 15, p. 11 (citing
Tr. 322). The correct treatment note of Dr. Kuchynski’s first visit is actually Tr. 318; however, as Defendant points
out, Zubal’s citations to the transcript, mysteriously, are all four pages later than the correct page.
(severe fatigue, malaise, or involuntary weight loss).” 20 CFR Part 404, Subpart P, Appendix 1,
Listing 14.02A (requiring a claimant to show both subsections (1) and (2)).11 Nor does the
record support a finding that she satisfies 14.02A(2). In other words, she has not shown that she
satisfies all the requirements of Listing 14.02. Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (a
claimant must meet all of the specified medical criteria to meet a listing: “An impairment that
manifests only some of those criteria, no matter how severely, does not qualify.”); Buress v.
Sec’y of Health & Human Servs., 835 F.2d 139, 140 (6th Cir. 1987) (a claimant has the burden of
showing her condition is equivalent to a listed impairment). Because she cannot show that she
satisfies the criteria of Listing 14.02, any purported infirmity in the ALJ’s Step Three
determination considering Listing 14.02 is harmless. See Todd v. Astrue, 2012 WL 2576435 at
*10 (N.D. Ohio May 15, 2012) (“No principle of administrative law or common sense requires
us to remand a case in quest of a perfect opinion unless there is reason to believe that the remand
might lead to a different result,” quoting Shkarbari v. Gonzales, 427 F.3d 324, 328 (6th Cir.
C. The ALJ did not err in assessing Zubal’s credibility
Zubal argues that the ALJ erred when he assessed her credibility. Doc. 15, p. 16. She
provides no specific argument in support of her allegation; she merely recites the reasons the
ALJ gave when finding her not entirely credible and provides evidence that the ALJ allegedly
“ignored” that she believes supports a contrary conclusion. Doc. 15, pp. 17-18. Zubal’s
arguments are without merit.
The ALJ, in great detail, explained why he found Zubal’s statements concerning the
intensity, persistence and limiting effects of her symptoms not entirely credible. Tr. 17. He
In her brief on the merits, Zubal did not allege that she satisfies Listing 14.02(A)(2). Defendant, in her brief,
points out that Zubal did not allege she satisfied 14.02(A)(2) and asserts that Zubal cannot show she satisfies
14.02(A)(2). Doc. 18, pp. 11-12. In her reply brief, Zubal does not mention 14.02(A)(2).
explained that, although she was diagnosed with systemic lupus erythematosus, a diagnosis that
is consistent with Zubal’s complaints of overall soreness and body pain, the record as a whole
did not support the conclusion that her impairments precluded her from performing all types of
work. Tr. 18. He explained that physical examination findings have largely been normal or
minimal, with some stated exceptions. Tr. 18. He explained that Zubal takes medications that
are effective in controlling her lupus and Raynaud’s symptoms, her impairments were stable, and
her symptoms intermittent, as stated by her treating rheumatologist Dr. Kuchynski. Tr. 18.
The ALJ further explained,
At one point or another in the record (either in forms completed in connection with the
application and appeal, in medical reports or records, or in the claimant’s testimony), the
claimant has reported the following daily activities: the ability to attend to her personal
hygiene and grooming, the ability to maintain an independent household, to manage her
own medications, appointments and finances, to shop in stores, drive a car, watch old
movies and read for pleasure, to help care for her elderly father, to attend alcoholics
anonymous, a lupus support group, and church, to walk and exercise and to have her hair
colored every two months (3E), (8F/3), (15F/35), (hearing testimony). In short, the
claimant has described daily activities, which are not limited to the extent one would
expect, given the complaints of disabling symptoms and limitations. While none of these
activities, considered in isolation, would warrant or direct a finding of “not disabled”;
when considered in combination, they strongly suggest that the claimant would be
capable of engaging in the work activity contemplated by the residual functional
A review of the claimant’s work history shows that the claimant worked only
sporadically prior to the alleged disability onset date (9D), which raises a question as to
whether the claimant’s continuing unemployment is actually due to medical impairments.
This question is also raised by the claimant’s report that she filed for disability benefits
because of her recent divorce (8F/2).
The claimant has made inconsistent statements on issues central to the resolution of these
claims. The claimant reports using a cane regularly (hearing testimony), and that such
was prescribed for her (3E/7); however, the claimant is reported on multiple occasions to
ambulate with a normal gait (7F/10), (11F/8), 12F/2), (16F/5), and careful reading of the
record indicates that the claimant herself requested an ambulatory aid, on July 17, 2013
(12F/2). The claimant reported to her treating source that she left the work force due to
her physical health (15F/37), yet indicated to the consultative examiner that she stopped
work to become a housewife, and then “fears and phobias” kept her from returning to
work (8F/3). As previously noted, the claimant ostensibly filed for benefits on the
grounds of debilitating medical conditions, yet reported to the consultative examiner that
she applied for benefits because of a recent divorce (8F/2). Although the inconsistent
information provided by the claimant may not be the result of a conscious intention to
mislead, nevertheless the inconsistencies suggest that the information provided by the
claimant generally may not be entirely reliable.
Tr. 20. The ALJ’s credibility assessment is supported by substantial evidence; it must, therefore,
be upheld. See Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003) (so long as there
is substantial evidence to support the ALJ’s credibility determination, the Commissioner’s
decision must be affirmed).
C. The ALJ’s consideration of opinion evidence
Zubal argues that the ALJ erred when he considered the opinions of the following: her
treating sources, Drs. Kuchynski and Appleby; the consultative examiner, Dr. Ghoubrial; and
occupational therapist Michaud. Doc. 15, pp. 12-16.
1. Treating source opinions
Under the treating physician rule, “[a]n 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); 20 C.F.R. §
404.1527(c)(2). If an ALJ decides to give a treating source’s opinion less than controlling
weight, he 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. Wilson, 378 F.3d at 544. In deciding the weight given, the ALJ must consider
factors such as the length, nature, and extent of the treatment relationship; specialization of the
physician; the supportability of the opinion; and the consistency of the opinion with the record as
a whole. See 20 C.F.R. § 416.927(c); Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 747 (6th Cir.
a. The ALJ did not err when he considered Dr. Kuchynski’s opinion
Zubal contends that the ALJ erred when he gave “little weight” to the opinion of Zubal’s
treating rheumatologist, Dr. Kuchynski. Doc. 15, p. 13. Dr. Kuchynski’s opinion, expressed in a
letter sent on February 29, 2008, to Zubal’s insurance company, was that Zubal was “unable to
use her hands” and that her condition was “extremely disabling.” Doc. 15, p. 13; Tr. 368. The
ALJ considered Dr. Kuchynski’s letter and explained why he gave it little weight:
This opinion was dated February 29, 2008, and was issued for the purpose of securing
insurance approval of several recommended drugs. Leaving aside consideration of the
potential application of SSR 96-5p, this opinion is otherwise obsolete. The requested
medications were in fact approved, and the subsequent assessments that the claimant’s
condition was controlled with medications and stable, were also recorded by Dr.
Kuchynski (4F/7), (12F/2). Accordingly, little weight was accorded this opinion.
Zubal argument that the ALJ erred when he characterized Dr. Kuchynski’s opinion and
gave it little weight fails. She concedes that the letter predated the majority of Zubal’s visits to
Dr. Kuchynski (Doc. 19, p. 3);12 she only argues that, after that date, Dr. Kuchynski “observed
swelling and problems with Zubal’s hands on many occasions.” Doc. 15, p. 13. This argument
is baseless. The ALJ properly characterized the letter as an opinion written early on in Zubal’s
treatment for the purpose of obtaining approval of medication; observed that the medication was
approved and obtained; and correctly noted that Dr. Kuchynski thereafter assessed Zubal stable
and her condition controlled by medications. In other words, Dr. Kuchynski’s opinion expressed
in the letter was inconsistent with the later medical record and her own treatment notes and, to
Indeed, the first draft of the letter was apparently sent to the insurance company after Zubal’s first visit with Dr.
Kuchynski. See Tr. 318 (Dr. Kuchynski’s treatment noted dated June 8, 2006, stating that she had sent a letter to
Zubal’s insurance company to obtain medication approval).
the extent that she opined that Zubal’s condition was “disabling,” reached a conclusion on an
issue reserved to the Commissioner, as the ALJ observed. See 404.1527(c)(2) (the ALJ
considers whether the treating source opinion is consistent with the record as a whole, the length
of the treatment relationship, and the supportability of the opinion by the source’s own treatment
notes); SSR 96-5p. 1996 WL 374183 (whether an individual is “disabled” is an issue left to the
Moreover, Zubal does not and cannot dispute that the symptoms she had during later
visits with Dr. Kuchynski after she was on her obtained medication were decidedly less severe
than her symptoms present during visits with Dr. Kuchynski prior to Zubal obtaining her
medication. See Tr. 318 (at Zubal’s first visit in May 2006, she had purple, diffusely swollen
fingers; was unable to fully extend her hands; swelling in her elbows; pain in her hips and knees
with limited range of motion; and Raynaud’s in her feet; after starting Viagra for two weeks,
Zubal “is starting to notice some improvement.”); Tr. 320 (in July 2006, “The patient reports that
since being on Viagra and methotrexate, she has noticed a marked decrease in the swelling and
in the severity of her Raynaud’s disease. She still has significant amount of pain in her knees,
hips and shoulders ... but clearly she is no longer having severe cyanosis and she is able to
tolerate being in air-conditioned places.”); Tr. 315 (June 2011, upon exam, normal joint exam in
all areas, including hands and fingers, except pain and limited range of motion in left hip;
“Medications are working to keep sx under control.”); Tr. 396 (July 2012, upon exam, all normal
joints, including fingers; “Medications are working to keep sx under control partially.”; “stable
on therapy”); Tr. 404 (November 2012, upon exam, normal joints, including fingers, but diffuse
hand swelling; Dr. Kuchynski wrote, “stable on therapy”); Tr. 430 (November 2013, upon exam,
sclerodactyly and “increased pain,” prescribed Ultram for pain and Lasix for swelling); Tr. 489
(March 2014, no joint pain or joint swelling; upon exam: fingernail clubbing, Raynaud’s and
sclerodactyly, normal skin, normal gait; treatment note history: “good tolerance of treatment and
fair symptom control” and “intermittent symptoms”; Dr. Kuchynski’s impression: “disease
appears stable. Raynaud’s more active with cold weather.”).
The ALJ’s consideration of Dr. Kuchynski’s opinion was not erroneous; Zubal’s
argument to the contrary is without merit.
b. The ALJ erred when he considered Dr. Appleby’s opinion
Zubal argues that the ALJ erred when he gave “little weight” to the opinion of Zubal’s
treating neurologist, Dr. Appleby. Doc. 15, p.14. Dr. Appleby opined that Zubal could perform
less than sedentary work because of her lift/carry and grip/pinch limitations observed upon
testing.13 Tr. 513, 515. The ALJ considered Dr. Appleby’s opinion:
An opinion from the claimant’s treating source, Kristen Appleby, M.D., based on a
functional capacity evaluation administered by Ernest Michaud, OTR, indicated that the
claimant was unemployable and could perform less than sedentary work. Dr. Appleby
has treated the claimant over a lengthy period and Mr. Michaud administered testing
within his professional certifications; however, the conclusions, although correlative of
the test results, were not consistent with the essentially normal findings on other,
contemporary physical examinations included in the record (17F/3), (14F/2). Little
weight was accorded this opinion.
Tr. 21. Zubal contends that the ALJ ignored observations made by Dr. Appleby and Michaud,
which were contrary to the ALJ’s conclusion. Doc. 15, p. 14. Defendant submits that the ALJ
provided good reasons for giving little weight to Dr. Appleby’s opinion and that, even if he did
not, his failure to do so is harmless error. Doc. 18, pp. 16-17.
Even though Michaud did the testing, Dr. Appleby ordered the evaluation (Tr. 512) and her opinion adopted
Michaud’s evaluation. The ALJ treated Michaud’s opinion as that of Dr. Appleby’s. Tr. 21. Defendant, in her
brief, argues that because Dr. Appleby did not conduct the testing herself, it is less compelling evidence. Doc. 18, p.
18. As noted, however, the ALJ did not find that Dr. Appleby’s opinion was less compelling because it relied on the
testing of another. Thus, Defendant’s argument is post-hoc rationalizing, which is not permitted by the Court on
review. See S.E.C. v. Chenery, 332 U.S. 194, 196 (1947) (a reviewing court must judge the propriety of agency
action “solely by the grounds invoked by the agency”).
The Court finds that the ALJ did not provide good reasons for giving little weight to Dr.
Appleby’s opinion. First, Defendant’s assertion that Dr. Appleby’s opinion that Zubal was
“unemployable” was inconsistent with another opinion she provided on the same day that Zubal
was “employable” (Doc. 18, p. 17) is not persuasive. The other opinion referred to by Defendant
was a mental functional capacity evaluation form; that Dr. Appleby did not find that Zubal’s
mental impairments rendered her unemployable is completely irrelevant to whether Dr. Appleby
found Zubal’s physical impairments to render her unemployable.
Second, the ALJ’s sole reason for discounting Dr. Appleby’s opinion (which he stated
was “correlative of the test results”) was that it was “not consistent with the essentially normal
findings on other, contemporary physical examinations included in the record (17F/3), (14F/2).”
The records that the ALJ cites, however, do not explain nor appear to support his conclusion.
“17F/3” is a treatment note from Zubal’s visit to Dr. Appleby on September 23, 2013. Tr. 506.
This cited page of Dr. Appleby’s treatment note is not particularly instructive; it merely notes
that Zubal had 5/5 motor strength “but limited by pain,” relatively normal reflexes, intact
sensation, and an antalgic gait that was stable with a cane. Tr. 506. On other pages of the
treatment note from the September 23, 2013, visit with Dr. Appleby, Zubal reported that she was
“falling less often since obtained walker, cane, adapted bathroom” and had pain “from head to
toe.” Tr. 505. “14F/2” is a treatment note from Zubal’s November 13, 2013, visit to Dr.
Kuchynski. Tr. 430. That day, Zubal reported “a lot of pain and swelling” and upon exam she
had normal joints except that she had sclerodactyly. Tr. 430. Without further explanation by the
ALJ, it is not clear what about these treatment notes the ALJ found to be inconsistent with
Zubal’s test results and Dr. Appleby’s opinion. Again, the opinion of Dr. Appleby was that
Zubal could perform less than sedentary work because of her lifting, carrying, gripping and
pinching limitations. Tr. 515.
The ALJ’s stated reasons for giving this treating source opinion “little weight” do not
make clear to this reviewer the reasons for that weight. Wilson, 378 F.3d at 544. It appears that
the ALJ discounted lift/carry and grip/pinch restrictions found by Dr. Appleby, which were
based on testing, because Zubal’s hands sometimes outwardly appeared normal when observed
upon examination, although sometimes they did not. There is no obvious correlation between
the way Zubal’s hands appeared to a provider upon examination and what Zubal was able to do
with her hands. Thus, the ALJ needed to explain his basis for his conclusion that there was a
correlation. Without such an explanation, the Court cannot know why the ALJ discounted the
testing performed and relied upon by Zubal’s treating physician. Because the Court cannot know
the ALJ’s reasons, the ALJ violated the treating physician rule and failed to give good reasons in
support of his decision such that the Court cannot determine whether his decision was supported
by substantial evidence.
Zubal also challenges the ALJ’s assessment of Michaud’s opinion. Doc. 15, p. 15. The
ALJ assessed Michaud’s opinion when he assessed Dr. Appleby’s opinion. Thus, on remand, the
ALJ will also have an opportunity to reconsider his assessment of Michaud’s opinion.
2. The ALJ erred when he considered consultative examiner Dr. Ghoubrial’s
Zubal argues that the ALJ erred when assessing the opinion of consultative examiner Dr.
Ghoubrial. Doc. 15, p. 14-15. The Court agrees. Regarding Dr. Ghoubrial’s opinion, the ALJ
Little weight was accorded the opinion of the consultative physical examiner, Sam
Ghoubrial, M.D., that the claimant could perform less than sedentary work for less than
eight hours. Dr. Ghoubrial examined the claimant on a single occasion and was reporting
within the bounds of his professional certifications. However, the restrictions as
proposed find no correlation with his own examination, the sole abnormal clinical
findings from which, was mild swelling of the fingers, and that the claimant’s hands were
somewhat cold to the touch (7F/8, 9).
Tr. 21. The ALJ’s explanation ignores Zubal’s abnormal dynamometer readings (grip strength)
found on testing by Dr. Ghoubrial. Tr. 353, 359. Defendant asserts that any error by the ALJ
was harmless because an ALJ is not required to provide reasons for rejecting a consultative
examiner’s opinion. Doc. 18, p. 19. In this case the ALJ did provide a reason but the reason is
insufficient because it is based on an incorrect reading of Dr. Ghoubrial’s opinion. The ALJ
listed the “sole abnormal clinical findings” as mild finger swelling and cold hands but ignored
the abnormal grip strength testing shown by dynamometer reading. In other words, the ALJ’s
assessment of Dr. Ghoubrial’s opinion is based on his mischaracterization of Dr. Ghoubrial’s
findings. An incorrect reading of Dr. Ghoubrial’s opinion does not provide substantial evidence
to support the ALJ’s assessment of Dr. Ghoubrial’s opinion.14
Defendant asserts that, because the ALJ gave “great weight” to the state agency
reviewers’ finding that Zubal was not disabled, and the state agency reviewers, in turn, relied on
Dr. Ghoubrial’s opinion when making their own findings, there is no reversible error. The Court
disagrees because there are inconsistencies in the state agency reviewers’ opinions vis a vis Dr.
Ghoubrial’s opinion. Both state agency reviewers gave Dr. Ghoubrial’s opinion “great weight”
(Tr. 68, 98); identified his opinion as “I don’t feel she would have any difficulty lifting or
carrying objects less than 10 pounds for four hours in an eight hour day (Tr. 68, 98); but then
assessed an RFC for light work that included restrictions for lifting and carrying that were less
It is possible that the ALJ does not consider a dynamometer reading to be a “clinical finding.” If not, he needed
to explain why he discounted the dynamometer reading. As with his discussion of Dr. Appleby’s opinion, the ALJ
discounted test results based on the outward appearances of Zubal’s hands, without any explanation. Because the
Court cannot know the ALJ’s reasons, the Court cannot determine whether his decision is supported by substantial
than those assessed by Dr. Ghoubrial: 20 pounds occasionally (1/3 or less of an 8-hour day) and
10 pounds frequently (up to 2/3 of an 8-hour day). In other words, the state agency reviewers,
despite giving Dr. Ghoubrial’s opinion “great weight,” rendered opinions that were not
consistent with Dr. Ghoubrial’s opinion and they did not explain the inconsistencies. Thus, the
ALJ’s treatment of the state agency reviewers’ opinions cannot serve to remedy the ALJ’s
mischaracterization of Dr. Ghoubrial’s opinion.
D. On remand, the ALJ will have an opportunity to reconsider Zubal’s RFC
Lastly, Zubal challenges the ALJ’s RFC determination. Doc. 15, pp. 18-19. On remand,
the ALJ will have an opportunity to reassess Zubal’s RFC after his consideration of the opinions
of Drs. Appleby and Ghoubrial and the test results and opinion rendered by Michaud.
Accordingly, the Court does not address Zubal’s challenge to the ALJ’s RFC determination.
For the reasons set forth herein, the Commissioner’s decision is REVERSED and
REMANDED for further proceedings consistent with this opinion.15
Dated: October 17, 2016
Kathleen B. Burke
United States Magistrate Judge
This opinion should not be construed as a recommendation that, on remand, Zubal be found disabled.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?