Vroman v. Commissioner of Social Security
Memorandum Opinion and Order affirming Commissioner's decision denying benefits. Magistrate Judge James R. Knepp, II on 3/29/17. (A,P)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
MARK A. VROMAN,
Case No. 1:16 CV 487
Magistrate Judge James R. Knepp II
COMMISSIONER OF SOCIAL SECURITY,
MEMORANDUM OPINION AND ORDER
Plaintiff Mark A. Vroman (“Plaintiff”) filed a complaint against the Commissioner of
Social Security (“Commissioner”), seeking judicial review of the Commissioner’s decision to deny
supplemental security income benefits (“SSI”) and disability insurance benefits (“DIB”). (Doc. 1).
The parties consented to the jurisdiction of the undersigned in accordance with 28 U.S.C. § 636(c)
and Civil Rule 73. (Doc. 13). For the reasons stated below, the Commissioner’s decision is
Plaintiff filed an application for SSI and DIB in December 2012, alleging disability as of
August 2012. (Tr. 212, 216). The claims were denied initially and on reconsideration. (Tr. 132,
141, 152, 159). An administrative law judge (“ALJ”) held a hearing in March 2015. (Tr. 34-68).
Following the hearing, the ALJ issued an unfavorable decision. (Tr. 10). The Appeals Council
denied Plaintiff’s request for review, making the hearing decision the final decision of the
Commissioner. (Tr. 1); 20 C.F.R. §§ 404.955, 404.981, 416.1455, 416.1481. Plaintiff filed the
instant action on March 1, 2016. (Doc. 1).
Personal Background and Testimony
Plaintiff was born January 18, 1967, and was forty-seven years old on the day of the
hearing. (Tr. 70). He has a high school education and past work experience as an industrial truck
operator, material handler, and mixer operator. (Tr. 25)
Plaintiff testified he took a voluntary layoff in 2011 because his back “was hurting.” (Tr.
39). He performed seasonal work at Kmart receiving and unloading trucks in 2012 and 2013. (Tr.
40). Plaintiff lifted “[n]o more than 10 pounds”; his coworkers lifted the heavier objects. (Tr. 4041). Plaintiff began receiving neuro spinal care from Dr. Gupta in October 2012. (Tr. 43). Dr.
Gupta performed nerve block injections, Cortisone injections, nerve burnings, and prescribed
medication. (Tr. 44). Cutting the grass takes an hour to an hour-and-a-half (compared to 20
minutes), because of “back pain and the walking” involved. (Tr. 45). Bending, twisting, and lifting
makes the pain worse; lounging reduces the pain. Id. At home, Plaintiff will “sit for a while”;
“stand up for a while”; then lie down with his TENS unit. (Tr. 45-46). Plaintiff can stand for a half
an hour; other times, fifteen minutes. (Tr. 47). Plaintiff needs to “lie down and recline” for
approximately one hour after sitting or standing. (Tr. 49). It takes Plaintiff “a minute” to stand up
(Tr. 47); sometimes he needs to “brace [himself] on something in order to stand up” (Tr. 47-48).
Other than mow the grass, Plaintiff “tr[ies] to keep up with the dishes” by rinsing them off
and placing them in the dishwasher; does “real light vacuum[ing]”; “pick[s] up  dog hair in the
hallway”; and “sometimes do[es] the laundry.” (Tr. 51). At times, Plaintiff has trouble putting on
his shoes and socks. (Tr. 49-50).
Plaintiff lives with his wife and ten-year-old daughter. (Tr. 50). He can drive for 30 minutes
before he needs to stop and get out to walk around because “[his] back starts hurting and [his] legs
start going numb and tingling.” (Tr. 51-52).
Plaintiff reported to the state agency he vacuums, does his own laundry, loads the
dishwasher (Tr. 265), walks for exercise (“not long distances”), shops with his wife (Tr. 266),
visits with family (Tr. 267), goes out for dinner (Tr. 249), and goes to the local racetrack (Tr. 267).
VE Testimony and ALJ Decision
A VE testified at the ALJ hearing. (Tr. 56-58). The ALJ first asked the VE to consider a
hypothetical individual with Plaintiff’s age, education, and vocational background who could:
perform light work with climbing ramps and stairs frequently, never climbing
ladders, ropes or scaffolds, frequently stooping, occasionally kneeling, crouching,
crawling with the capacity to reach overhead occasionally with the right upper
extremity and who would have to avoid all exposure to hazards defined as industrial
machinery, unprotected heights and similar things.
(Tr. 57). The VE testified such an individual could work as an inspector and hand packager, an
assembler of optical products, or an inspector of electrical equipment. (Tr. 57-58). The ALJ then
asked the VE to again consider the first hypothetical, but added a limitation of overhead reaching.
(Tr. 61). The VE stated that may “[s]omewhat” reduce the light occupational base available to the
In her written decision, the ALJ concluded Plaintiff has not engaged in substantial gainful
activity since his alleged onset date (Tr. 15), and has severe impairments of “lumbar degenerative
disc disease with intervertebral disc protrusion, joint arthropathy, right rotator cuff tear, and
cervical spondylosis” (Tr. 16). She concluded these impairments did not meet or equal the listings
and Plaintiff retained the RFC to perform:
light work as defined in 20 CFR 404.1567(b) and 416.967(b) except that he can
never climb ladders, ropes or scaffolds. He can frequently climb ramps and stairs
and frequently stoop. He can occasionally kneel, crouch and crawl. The claimant is
limited to only occasional overhead reaching with the right upper extremity. He
would need to avoid all exposure to hazards such as industrial machinery and
(Tr. 18). Based on the VE’s testimony, the ALJ concluded Plaintiff could perform jobs in the
national economy and therefore was not disabled. (Tr. 26-27).
Relevant Medical Evidence1
Beginning August 2011, William Damm, M.D., began treating Plaintiff for back pain. (Tr.
299-325). Examinations revealed lumbar spine and SI joint tenderness and pain, pain with range
of motion, decreased range of motion, positive left straight leg raise, decreased sensation, and
spasm. (Tr. 300, 306-07, 310, 312-13). An x-ray revealed “minimal degenerative changes in the
left L5/S1 facet joint”. (Tr. 323-24).
In June 2012, neurosurgeon Domingo Gonzalez, M.D., saw Plaintiff. (Tr. 347-48). Dr.
Gonzalez diagnosed Plaintiff with “Mechanical back pain secondary to mild degenerative changes
lumbar spine”, and recommended physical therapy and an MRI. (Tr. 348). The MRI showed “a
herniated disk at L5 lateralized towards the left side [and] degenerative changes with foraminal
compromise at L4-L5 and L5-S1 bilaterally.” (Tr. 345). Dr. Gonzalez referred Plaintiff to pain
management for L4-L5 and L5-S1 facet injections. Id.
Between September 2012 and February 2014, Plaintiff saw primary care physician Dr.
Damm five times. (Tr. 317-22, 371-72, 435-42). In September, Dr. Damm reviewed Plaintiff’s
MRI results and examined Plaintiff for back pain. (Tr. 317). The examination revealed decreased
range of motion, pain, and spasm, but no tenderness, swelling, or edema. Id. Dr. Damm’s MRI
1. Plaintiff does not challenge the ALJ’s findings with respect to his alleged mental impairments.
Therefore, the discussion of medical evidence is limited to records related to Plaintiff’s physical
impairments. See Kennedy v. Comm’r of Soc. Sec., 87 F. App’x 464, 466 (6th Cir. 2003) (issues
not raised in claimant’s brief waived).
review demonstrated “Disc protrusion eccentric toward the left without effect upon the thecal sac”
and a slight affect on the left S1 nerve root. (Tr. 318). In December, Dr. Damm documented
Plaintiff had lumbar tenderness, bony tenderness, and pain. (Tr. 321). In February 2014, he noted
Plaintiff had tenderness to palpation of the lumbar spine, diminished range of motion with pain,
an abnormal gait and heel walk, and an inability to toe walk. (Tr. 441). Dr. Damm also noted
Plaintiff’s steroid injections did not have a prolonged benefit. Id.
Beginning in September 2012, Plaintiff saw anesthesiologist and pain management
specialist Parshotam Gupta, M.D. (Tr. 702). He performed bilateral facet joint block injections at
L4-L5 and L5-S1. Id. At a follow-up appointment in October 2012, Plaintiff expressed the block
injections had provided “80% to 100%” pain relief. (Tr. 341). Dr. Gupta also noted ibuprofen and
Vicodin helped bring Plaintiff’s pain “down to almost nothing”. Id. Dr. Gupta found there was
some tenderness in the lower part of the lumbar spine; limited and painful rotation; negative
straight leg raises; and the FABER test for back pain was negative on the left and right side. Id.
Dr. Gupta also noted a normal gait and normal strength and reflexes in the upper and lower
extremities. Id. Plaintiff was diagnosed with “[f]acet joint arthropathy L4-5, L5-S1 improved
almost 100% after the block”; “[d]egenerative disk disease of the lumbar spine”; and “[l]umbar
spinal stenosis.” Id.
In October 2012, Dr. Gupta performed right- and left-sided ablations. (Tr. 354, 357). Dr.
Gupta then met with Plaintiff three times over the course of the next three months. (Tr. 335-40).
While Plaintiff complained he still had pain and experienced numbness down his thighs when
sitting for a long time, examination revealed no muscle spasm, well preserved and pain free range
of motion, normal strength and reflexes, and negative straight leg raises. (Tr. 335, 337, 339).
In March 2013, Plaintiff complained of numbness in his thighs due to long sitting and
standing. (Tr. 468). Dr. Gupta’s examination revealed tenderness in the lower part of the spine,
but 1/4 reflexes, normal strength, negative straight leg raises, and no muscle spasm or weakness.
Id. Dr. Gupta prescribed Plaintiff with medication and a cane, and advised Plaintiff use a TENS
unit. Id. A second examination in March revealed tenderness in the left SI joint and 1/4 reflexes.
(Tr. 467). Dr. Gupta recommended a “Left S1 joint block, maybe L3 4-5 medial branches ablation
on the left side”. Id.
In April 2013, Dr. Gupta performed right and left bilateral SI joint blocks. (Tr. 693-97). At
a follow-up appointment, Plaintiff disclosed “[h]e was pain free for about a week or so, then the
pain came back.” (Tr. 466). Dr. Gupta’s examination revealed “tenderness in the lower part of the
lumbar spine in the bilateral SI joint” and limited and painful bilateral rotation, but normal strength,
zero reflexes, and negative straight leg raises. Id.
At a follow-up appointment in June of 2013, Plaintiff disclosed that, while “moving around
and bending  increas[ed] the pain”, radiofrequency “helped to some extent because he [could] do
certain things which he could not do before.” (Tr. 465). Dr. Gupta’s examination revealed
tenderness in the lower part of the lumbar spine, decreased range of motion, mild pain, zero
reflexes, but normal strength and negative straight leg raises. Id. Dr. Gupta diagnosed bilateral SI
joint arthropathy, status post bilateral radiofrequency, lumbar spondylosis, lumbar spinal stenosis
with neural claudication, and chronic pain syndrome. Id.
In July 2013, Plaintiff complained of lower back pain, cramping in his thigh area, and leg
weakness. (Tr. 644). Dr. Gupta examined Plaintiff. Id. He found tenderness in the bilateral
paraspinal area, decreased range of motion, mild to moderate pain, normal strength, zero reflexes,
and negative straight leg raises. Id. He diagnosed Plaintiff with “[f]acet joint arthropathy of the
lumbar spine” and “[b]ilateral SI joint arthropathy”. Id.
Dr. Gupta saw Plaintiff three times between August 2013 and October 2013. (Tr. 636, 638,
641). Plaintiff complained of lower back pain, neck pain, increased pain with sitting, standing, and
long walking. Id. Specifically, Plaintiff said when he walks long distances, both his legs get weak
and he has to “sit or lie down” before he can walk again. (Tr. 638). Examination revealed
tenderness in the bilateral SI joint and the lower part of the lumbar spine, decreased range of
motion, but 1/4 reflexes, normal strength, no muscle spasm, and negative straight leg raises. (Tr.
636, 638, 641).
Plaintiff reported in December 2013 that he was “pain-free”; then, in January 2014, that
sitting and standing increased his pain. (Tr. 631, 633). Examinations revealed mild tenderness in
the lower part of the lumbar spine, restricted and painful range of motion, zero reflexes, but no
muscle spasm, normal strength, and negative straight leg raises. Id.
In February 2014, Plaintiff fell and injured his back. (Tr. 627). Dr. Gupta’s examination
revealed “tenderness of a severe nature in the right SI joint”, decreased range of motion, normal
strength, 1/4 reflexes, and negative straight leg raises. Id. In March 2014, Dr. Gupta performed a
“[r]ight SI joint injection”. (Tr. 681-82).
At a follow-up appointment in April 2014, Plaintiff reported, “[r]ight side pain is much
better after [Dr. Gupta’s] block [injections].”(Tr. 623). Examination revealed tenderness in the left
SI joint and painful right-sided range of motion, but normal reflexes, normal strength, and negative
straight leg raises. Id. An x-ray of the cervical spine revealed a “[c]alcified nodule, likely lymph
node within the subcutaneous lower neck corresponding with the patient’s palpable finding” and
minimal arthritic changes. (Tr. 666-68). During the same month, Plaintiff reported to the Nord
Center he does yardwork. (Tr. 482).
Between October 2014 and February 2015, Plaintiff saw Dr. Gupta five times. (Tr. 79497). In October, Plaintiff disclosed that he was experiencing radiating pain down his leg, but that
his pain improved with the block injections. (Tr. 797).
In February 2015, Plaintiff saw Dr. Damm. (Tr. 794). Plaintiff reported injections were
“significantly beneficial” as, while he had some leg numbness, it “improved since the epidural
injections.” Id. He reported his back brace is helpful and that medication “allow[s] him to function
and do things around the house and chores.” Id.
State Agency Physician Opinions
In May 2013, state agency physician Dimitri Teague, M.D., reviewed the record. (Tr. 7781). Dr. Teague reported Plaintiff could: (1) lift and/or carry 20 pounds occasionally and ten
pounds frequently; stand and/or walk “About 6 hours in an 8-hour workday”; (3) climb
ramps/stairs and stoop frequently; (4) kneel, crouch, and crawl occasionally; (5) never climb
ladders, ropes, or scaffolds; (6) perform right overhead reaching occasionally; and (7) avoid all
exposure to hazards (machinery, heights, etc.). (Tr. 93-95). In August 2013, state agency physician
William Bolz, M.D., reviewed the record. (Tr. 108-11). He made identical findings. Id.
Dr. Gupta’s Opinion
Dr. Gupta filled out two Medical Source Statements in February 2013 and March 2015.
(Tr. 328-29, 810-11). In February 2013, Dr. Gupta noted Plaintiff could perform less than six hours
of sedentary work each day, stand/walk fifteen minutes or less at one time, sit for fifteen minutes
or less at one time, and lift/carry five pounds or less occasionally. (Tr. 328). He found Plaintiff can
finger, handle, and reach occasionally (Id.), and would need to lie down two hours or more during
an eight-hour workday (Tr. 329). Last, he found Plaintiff would likely be absent more than three
days per month and off task more than 33 percent of the time due to pain. Id. He determined
Plaintiff’s complaints were reasonably caused by his conditions, which had lasted for at least
twelve months. Id.
In March 2015, Dr. Gupta made the exact same findings, but in addition noted Plaintiff can
stoop occasionally, balance for fifteen minutes or less, and, Plaintiff will need to elevate his legs
waist high or higher two hours or more. (Tr. 811). Dr. Gupta noted the conditions causing
Plaintiff’s pain include lumbar spondylosis, sacroiliitis, lumbar stenosis, and chronic pain. Id.
STANDARD OF REVIEW
In reviewing the denial of Social Security benefits, the 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.” Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). “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). The Commissioner’s findings “as to any fact
if supported by substantial evidence shall be conclusive.” McClanahan v. Comm’r of Soc. Sec.,
474 F.3d 830, 833 (6th Cir. 2006) (citing 42 U.S.C. § 405(g)). Even if substantial evidence or
indeed a preponderance of the evidence supports a claimant’s position, the Court cannot overturn
“so long as substantial evidence also supports the conclusion reached by the ALJ.” Jones v.
Comm’r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003).
STANDARD FOR DISABILITY
Eligibility for benefits is predicated on the existence of a disability. 42 U.S.C. §§ 423(a),
1382(a). “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.” 20 C.F.R § 416.905(a); see also 42 U.S.C. § 1382c(a)(3)(A). The Commissioner
follows a five-step evaluation process – found at 20 C.F.R. § 404.1520 – to determine if a claimant
1. Was claimant engaged in a substantial gainful activity?
2. Did claimant have a medically determinable impairment, or a combination of
impairments, that is “severe,” which is defined as one which substantially limits an
individual’s ability to perform basic work activities?
3. Does the severe impairment meet one of the listed impairments?
4. What is claimant’s RFC and can claimant perform past relevant work?
5. Can claimant do any other work considering his RFC, age, education, and work
Under this five-step sequential analysis, the claimant has the burden of proof in Steps One
through Four. Walters, 127 F.3d at 529. The burden shifts to the Commissioner at Step Five to
establish whether the claimant has the RFC to perform available work in the national economy. Id.
The court considers the claimant’s RFC, age, education, and past work experience to determine if
the claimant could perform other work. Id. Only if a claimant satisfies each element of the analysis,
including inability to do other work, and meets the duration requirements, is he determined to be
disabled. 20 C.F.R. §§ 404.1520(b)-(f); see also Walters, 127 F.3d at 529.
Plaintiff argues the ALJ failed to properly weigh the opinions of Plaintiff’s treating
physician, Dr. Gutpa, and state agency physicians, Drs. Teague and Bolz. (Doc. 16).
Plaintiff contends the ALJ erred by failing to apply the 20 C.F.R. § 404.1527(c) factors in
her evaluation of Dr. Gupta’s opinions. (Doc. 16, at 18). Specifically, Plaintiff argues, the ALJ, in
evaluating the consistency and supportability of Dr. Gupta’s opinions, considered only whether
the opinions deserved controlling weight. (Doc. 16, at 17-18). Plaintiff also argues, in assigning
Dr. Gupta limited weight, she failed to apply the § 404.1527(c) factors. The undersigned disagrees.
By focusing on the factors of consistency and supportability, the ALJ determined controlling
weight and provided “good reasons” for the weight she assigned Dr. Gupta’s opinions.
Plaintiff’s argument implicates the well-known treating physician rule. Generally, the
medical opinions of treating physicians are afforded greater deference than those of non-treating
physicians. Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007); see also SSR 962p, 1996 WL 374188. “Because treating physicians are ‘the medical professionals most able to
provide a detailed, longitudinal picture of [a claimant’s] medical impairment(s) and may bring a
unique perspective to the medical evidence that cannot be obtained from the objective medical
findings alone,’ their opinions are generally accorded more weight than those of non-treating
physicians.” Rogers, 486 F.3d at 242 (quoting 20 C.F.R. § 416.927(d)(2)).
A treating physician’s opinion is given “controlling weight” if it is supported by “medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other
substantial evidence in the case record.” Id. In contrast, “[a] physician’s opinion based on a
claimant’s subjective allegations, rather than the medical evidence, is not entitled to significant
weight.” Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 391 (6th Cir. 2004). If the ALJ does not
afford a treating source opinion “controlling weight,” she must give “good reasons” why she
refused to do so. Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 377 (6th Cir. 2013).
“Good reasons” are reasons “sufficiently specific to make clear to any subsequent reviewer
the weight the adjudicator gave to the treating source’s medical opinion and the reasons for that
weight.” Rogers, 486 F.3d at 242 (quoting SSR 96-2p, 1996 WL 374188, at *4). These reasons
serve a second purpose, and that is to provide Plaintiff with an explanation for the ALJ’s reasoning
for a finding of not disabled. Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004).
Further, “[i]f the ALJ does not accord the opinion of the treating source controlling weight,
it must apply certain factors” to assign weight to the opinion. Rabbers v. Comm’r of Soc. Sec.
Admin., 582 F.3d 647, 660 (6th Cir. 2009) (citing 20 C.F.R. § 404.1527(d)(2)2). These factors
include the length of the treatment relationship, the frequency of examination, the nature and extent
of the treatment relationship, the supportability of the opinion, the consistency of the opinion with
the record as a whole, and the specialization of the treating source. Id. An ALJ is not required to
enter into an “exhaustive factor-by-factor analysis” to satisfy the “good reasons” requirement.
Francis v. Comm’r of Soc. Sec. Admin., 414 F. App’x 802, 804-05 (6th Cir. 2011).
Plaintiff concedes the ALJ considered the factors of supportability and consistency, but
avers the ALJ “expressly spoke only to… the test for determining controlling weight.” (Id. at 21).
Plaintiff fails to acknowledge, however, supportability and consistency are also two of the six
factors under which an ALJ may discount a treating physician’s opinion. See 20 C.F.R. §
404.1527(c)(3)-(4); see Winningham v. Colvin, 2014 WL 2920011, at *19 (M.D. Tenn.) (affirming
ALJ’s explanation provided “good reasons” where ALJ focused on the factors of supportability
2. Effective March 26, 2012, 20 C.F.R. § 404.1527(d) became § 404.1527(c).
and substantial evidence supports her decision); Stafford v. Astrue, 2011 WL 4481016, at *13
(M.D. Tenn), report and recommendation adopted, 2011 WL 4479840 (M.D. Tenn.) (similar
Dr. Gupta filled out two Medical Source Statements. (Tr. 328-29, 810-11). The latter added
three new categories: Plaintiff’s ability to stoop and balance; and, in an eight-hour workday,
Plaintiff’s need to elevate his legs waist high or higher for two hours or more. (Tr. 811). Dr.
Gupta’s findings were otherwise identical. (Tr. 328-29, 810-11). Dr. Gupta limited Plaintiff to less
than six hours of sedentary work each day, standing or walking fifteen minutes or less at one time,
sitting for fifteen minutes or less at one time, and lifting or carrying five pounds or less
occasionally; fingering, handling, and reaching occasionally; needing to lie down two hours or
more during an eight-hour workday; being absent more than three days per month; off task more
than 33 percent of the time due to pain; stooping occasionally; balancing for fifteen minutes or
less; and elevating his legs at least waist high for two hours or more. Id. The ALJ gave Dr. Gupta’s
opinions limited weight because Dr. Gupta’s objective findings, Plaintiff’s own activities, and the
objective record do not support such extreme limitations. (Tr. 23-24).
First, Plaintiff takes issue with the fact that the ALJ did not explain why the MRI findings
of “a herniated lumbar disc affecting the left S1 nerve root” did not support Dr. Gupta’s limitations.
(Doc. 16, at 19). He contends “[i]t was the MRI findings that caused his primary care physician to
send him to pain management under Dr. Gupta.” Id. However, the ALJ has no duty to explain all
that he has considered; he is only required to consider the evidence as a whole. McGrew v. Comm’r
of Soc. Sec., 343 F. App’x 26, 32 (6th Cir. 2009). Additionally, “an ALJ’s failure to cite specific
evidence does not indicate that it was not considered.” Simons v. Barnhart, 114 F. App’x 727, 733
(6th Cir. 2004) (internal citation omitted). Further, as the Commissioner correctly points out, (Doc.
19, at 11), “the mere diagnosis . . . says nothing about the severity of the condition.” Higgs v.
Bowen, 880 F.2d 860, 863 (6th Cir. 1988); see also Young v. Sec’y of Health & Human Servs., 964
F.2d 146, 151 (6th Cir. 1990). In determining a claimant’s RFC, an ALJ considers all relevant
evidence, including subjective complaints and statements regarding limitations, medical records,
and observations of treating physicians and others in the record. 20 C.F.R. §
404.1545(a).Ultimately, it is the ALJ’s responsibility to “make factual and legal determinations,
and for weighing the record evidence, and resolving conflicts therein.” Wochner v. Colvin, No.
1:16CV347, 2016 WL 4917105, at *5 (N.D. Ohio 2016).
Second, Dr. Gupta’s objective record reflects Plaintiff consistently had well-preserved and
pain-free range of motion, no muscle spasm or weakness, normal strength, negative straight leg
raises, no swelling, and no edema. (Tr. 317, 335, 337, 339, 465-66, 468, 623, 631, 633, 636, 638,
641, 644). Further, Dr. Gupta’s record reflects Plaintiff’s symptoms improved with treatment. (Tr.
465, 465-68, 636, 794, 796-800). The regulations identify medication and other pain-reliving
treatment as factors to consider in evaluating a social security plaintiff’s allegations of disability.
See 20 C.F.R. §§ 404.1529(c)(3)(iv), (v).
Third, Dr. Gupta’s restricted findings are inconsistent with Plaintiff’s own activities and
statements. Plaintiff reported to the Social Security Administration he does his own laundry, loads
the dishwasher, shops with his wife, goes out for dinner, goes to the racetrack, and walks for
exercise. (Tr. 247, 249, 265-67). He testified he mows the lawn, vacuums, and picks up dog hair.
(Tr. 45, 51). Plaintiff also reported to the Nord Center he does yardwork. (Tr. 482). Last, the ALJ
noted Dr. Gupta’s opinion “Plaintiff was limited to standing no more than fifteen minutes and
lifting less than five pounds” was inconsistent with Plaintiff’s contemporaneous reports he was
“working lifting up to 10 pounds and standing for more than 15 minutes”. (See Tr. 40).
Fourth, Plaintiff argues Dr. Gupta’s limitation that Plaintiff would need to lie down for two
hours or more in an eight-hour workday is not inconsistent with Plaintiff’s own testimony he needs
to lie down for an hour at a time. (Doc. 16, at 19, 21). The undersigned agrees. The record reflects
How soon is it, let’s say you started nine o’clock in the morning and you
started sitting, standing how long is it before you need to lie down and
Approximately an hour.
(Tr. 49). As the Commissioner correctly points out, the ALJ mischaracterized the Plaintiff’s
testimony as Plaintiff lies down for an hour at a time, however, the ALJ also noted the objective
record did not support a need to lie down for two hours or more a day. (Tr. 24). The ALJ stated
that the objective record does not support a need for Plaintiff to lie down during an eight-hour
workday. (Tr. 24). The Court agrees. The objective record shows Plaintiff experienced relief with
medication, block injections, steroid injections, and with the use of a TENS unit (Tr. 46, 438, 46570, 615, 619, 621, 623, 627, 631, 633, 636, 638, 641, 644, 646, 648, 650, 652, 655, 657, 659, 661,
710, 790, 795-800), and was able to do chores around the house, yardwork, and walk for exercise
(Tr. 265-66, 482).
Therefore, the ALJ provided “good reasons” for not assigning Dr. Gupta’s opinions
controlling weight, speaking to the factors of consistency and supportability. (Tr. 23-24). The same
explanation also provided adequate reasons for assigning the opinions “little weight” and “some
weight”. Id. See Wilson, 378 F.3d at 544 (an ALJ’s “good reasons” 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”).
Dr. Gupta’s objective record, Plaintiff’s own activities and statements, and the record
evidence as a whole, do not support Dr. Gupta’s extreme limitations. (Tr. 23-24); see 20 C.F.R. §
404.1527(c)(3)-(4). The undersigned, therefore, finds the ALJ provided “good reasons” for the
weight assigned to Dr. Gupta’s opinions, and substantial evidence in the record supports her
determination. Importantly, even if substantial evidence or indeed a preponderance of the evidence
supports Plaintiff’s position, the court cannot overturn “so long as substantial evidence also
supports the conclusion reached by the ALJ.” See Jones, 336 F.3d at 477.
Drs. Teague and Bolz
Non-examining sources are physicians, psychologists, or other acceptable medical sources
that have not examined the claimant, but review medical evidence and provide an opinion. 20
C.F.R. § 416.902. The ALJ will consider the findings of these non-examining sources as opinion
evidence, except as to the ultimate determination about whether Plaintiff is disabled. § 416.927.
“[T]he opinions of non-examining state agency medical consultants have some value and can,
under some circumstances, be given significant weight.” Douglas v. Comm’r of Soc. Sec., 832 F.
Supp. 2d 813, 823-24 (S.D. Ohio 2011). This is because the Commissioner views such medical
sources “as highly qualified physicians and psychologists who are experts in the evaluation of the
medical issues in disability claims under the [Social Security] Act.” Id.; § 416.927(c), (d); SSR
96–6p, 1996 WL 374180, at *2–3. “Consequently, opinions of one-time examining physicians and
record-reviewing physicians are weighed under the same factors as treating physicians including
supportability, consistency, and specialization.” Douglas, 832 F. Supp. 2d at 823-24.
Plaintiff argues the ALJ erred by “fail[ing] to apply [the § 404.1527(c)] factors” to the
opinions of Drs. Teague and Bolz3. (Doc. 16, at 24). Drs. Teague and Bolz made the same findings.
3. Of note, Plaintiff refers to the opinions of state agency “psychologists”. (Doc. 16, at 24). It is
likely this reference was in error and Plaintiff instead challenges the ALJ’s reliance on the opinions
of the state agency physicians reviewing Plaintiff’s physical impairments. Further, Plaintiff’s reply
brief refers to the opinions of state agency physicians only. (Doc. 20, at 2-3). Even if it was not an
error, Plaintiff waives argument regarding the state agency reviewing psychologists’ opinions. See
They both limited Plaintiff to occasional stooping, kneeling, crawling, right overhead reaching;
frequent stooping and climbing ramps or stairs; unlimited balancing; and never climbing ladders,
ropes, or scaffolds. (Tr. 78-83, 108-09). The ALJ gave these opinions great weight:
As for the State agency medical consultants’ physical assessment, the undersigned
gives the assessments great weight. In addition to other limitations, Dimitri Teague,
M.D, and William Bolz, MD, opined the claimant was limited to light work with
right overhead reaching limited to occasionally. (Ex. 1A; 3A; 5A; 7A). The treating
physician’s objective findings support these opinions including findings of
tenderness, muscle spasms, occasional decreased range of motion and right rotator
cuff tear. The claimant reports sufficient relief of pain with medication and other
conservative treatment, therefore Dr. Teague and Dr. Bolz’s opinions are given
(Tr. 25). The ALJ supported his explanation by focusing on the factors of consistency and
supportability. See 20 C.F.R. § 404.1527(c)(3)-(4).
First, as the ALJ explained, Dr. Gupta’s objective findings and Plaintiff’s testimony are
consistent with, and support, such limitations. Dr. Gupta reported Plaintiff experiences sufficient
pain relief with treatment such as medication, block injections, steroid injections, and with the use
of a TENS unit. (Tr. 46, 438, 465-70, 615, 619, 621, 623, 627, 631, 633, 636, 638, 641, 644, 646,
648, 650, 652, 655, 657, 659, 661, 710, 790, 795-800). Further, the findings of right rotator cuff
tear support Drs. Teague and Bolz’s limitation of limited overhead reaching. (Tr. 467).
Moreover, Plaintiff’s own activities and statements support Drs. Teague and Bolz’s
limitations. Plaintiff reported he does his own laundry, loads the dishwasher, vacuums, picks up
dog hair, shops with his wife, goes out for dinner, goes to the racetrack, and walks for exercise.
(Tr. 249, 265-67). Plaintiff also reported to the Nord Center he does yardwork. (Tr. 482). Further,
the ALJ noted Dr. Gupta’s opinion “Plaintiff was limited to standing no more than fifteen minutes
Thomas v. United States, 2017 WL 727152, at *6 (6th Cir. 2017) (“A party waives issues that he
adverts to in a perfunctory manner, unaccompanied by some effort at developed argumentation.”).
and lifting less than five pounds” was inconsistent with Plaintiff’s contemporaneous reports he
was “working lifting up to 10 pounds and standing for more than 15 minutes”. (Tr. 40).
The ALJ’s explanation for giving great weight to the state agency reviewers’ opinions
focuses on the factors of supportability and consistency, (Tr. 25), and is supported by substantial
evidence. The undersigned, therefore, finds the ALJ’s explanation adequate to support her
Following review of the arguments presented, the record, and applicable law, the Court
finds the ALJ’s decision is supported by substantial evidence. Therefore, the Commissioner’s
decision denying benefits is affirmed.
IT IS SO ORDERED.
s/James R. Knepp II
United States Magistrate Judge
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