Colvin-Ward v. Commissioner of Social Security

Filing 28

Memorandum Opinion and Order that the decision of the Commissioner denying Colvin-Ward's application for supplemental security income is affirmed. (Related Docs. # 1 , 13 ). Signed by Magistrate Judge William H. Baughman, Jr., on 09/26/2017. (S,MD)

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

TONIA COLVIN-WARD,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

)
)
)
)
)
)
)
)
)
)

CASE NO. 1:16 CV 1199

MAGISTRATE JUDGE
WILLIAM H. BAUGHMAN, JR.

MEMORANDUM OPINION AND
ORDER

Introduction
Before me1 is an action by Tonia Colvin-Ward under 42 U.S.C. § 405(g) for judicial
review of the final decision of the Commissioner of Social Security denying her application
for supplemental security income.2 The Commissioner has answered3 and filed the transcript
of the administrative record.4 Under the initial5 and procedural6 orders, the parties have

1

ECF # 13. The parties have consented to my exercise of jurisdiction.

2

ECF # 1.

3

ECF # 8.

4

ECF # 9.

5

ECF # 6.

6

ECF # 11.

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

Facts
A.

Background facts and decision of the Administrative Law Judge (“ALJ”)
Colvin-Ward, who was 50 years old at the time of the administrative hearing,11

graduated high school and attended college for two years.12

She lives alone in an

apartment.13 Her past relevant employment history includes work as a barbecue cook, tow
motor operator, scrap sorter, and general office clerk.14
The ALJ, whose decision became the final decision of the Commissioner, found that
Colvin-Ward had the following severe impairments: back disorder (degenerative disc disease
of the lumbar spine) and mood disorder (anger management problems, anxiety,
suspiciousness, impulsivity) (20 CFR 416.920(c)).15
7

ECF # 25 (Commissioner’s brief); ECF # 16 (Colvin-Ward’s brief).

8

ECF # 25-1 (Commissioner’s charts); ECF # 17-1 (Colvin-Ward’s charts).

9

ECF # 17-2 (Colvin-Ward’s fact sheet).

10

ECF # 27.

11

ECF # 17-2, at 1.

12

ECF # 9, Transcript (“Tr.”) at 87.

13

Id. at 53.

14

Id. at 34.

15

Id. at 26.
-2-

After concluding that the relevant impairments did not meet or equal a listing, the ALJ
made the following finding regarding Colvin-Ward’s residual functional capacity (“RFC”):
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work as defined
in 20 CFR 416.967(b) except for the following restrictions. The claimant can
lift 20 pounds occasionally and 10 pounds frequently. She can walk, stand,
and sit 6 out of 8 hours. She has no limitations on pushing and pulling. Her
ability to work does not contain any visual limitations or compensate for any
communication disorder. She can occasionally use a foot pedal and can
occasionally use ramps or stairs. She can never use ladders, ropes, or
scaffolds. She can balance frequently and can occasionally stoop, kneel, and
crouch. She must avoid temperature extremes, particularly cold. Her work
must not involve unprotected heights or dangerous moving machinery.
Further, she has no memory limits and can maintain concentration, persistence,
and pace for simple routine work that does not require fast pace or production
quotas. She has no limits on interacting with the general public, coworkers
and supervisors. She is limited to routine type work. Finally, she would
occasionally require the use of a cane for ambulating distances.16
Given that residual functional capacity, the ALJ found Colvin-Ward incapable of performing
her past relevant work as barbecue cook, scrap sorter, tow motor operator, and office general
clerk.17
Based on an answer to a hypothetical question posed to the vocational expert at the
hearing setting forth the residual functional capacity finding quoted above, the ALJ
determined that a significant number of jobs existed locally and nationally that Colvin-Ward
could perform.18 The ALJ, therefore, found Colvin-Ward not under a disability.

16

Id. at 29.

17

Id. at 34.

18

Id. at 35.
-3-

B.

Issues on judicial review
Colvin-Ward asks for reversal of the Commissioner’s decision on the ground that it

does not have the support of substantial evidence in the administrative record. Specifically,
Colvin-Ward presents the following issues for judicial review:
•

Whether the ALJ’s assessment of mental and physical residual
functional capacity is supported by substantial evidence.19

•

Whether the ALJ failed to properly apply the treating physician rule in
evaluating the opinion of psychiatrist, Dr. Svete and physician Yvette
Phillips.20

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

Analysis
A.

Legal standards

1.

Substantial evidence
The Sixth Circuit in Buxton v. Halter reemphasized the standard of review applicable

to decisions of the ALJs in disability cases:
Congress has provided for federal court review of Social Security
administrative decisions. 42 U.S.C. § 405(g). However, the scope of review is
limited under 42 U.S.C. § 405(g): “The findings of the Secretary as to any fact,
if supported by substantial evidence, shall be conclusive....” In other words, on
review of the Commissioner’s decision that claimant is not totally disabled
within the meaning of the Social Security Act, the only issue reviewable by

19

ECF # 16, at 1.

20

Id.
-4-

this court is whether the decision is supported by substantial evidence.
Substantial evidence is “ ‘more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.’ ”
The findings of the Commissioner are not subject to reversal merely
because there exists in the record substantial evidence to support a different
conclusion. This is so because there is a “zone of choice” within which the
Commissioner can act, without the fear of court interference.21

Viewed in the context of a jury trial, all that is necessary to affirm is that reasonable minds
could reach different conclusions on the evidence. If such is the case, the Commissioner
survives “a directed verdict” and wins.22 The court may not disturb the Commissioner’s
findings, even if the preponderance of the evidence favors the claimant.23
I will review the findings of the ALJ at issue here consistent with that deferential
standard.
2.

Treating physician rule and good reasons requirement
The regulations of the Social Security Administration require the Commissioner to

give more weight to opinions of treating sources than to those of non-treating sources under
appropriate circumstances.
Generally, we give more weight to opinions from your treating sources, since
these sources are likely to be the medical professionals most able to provide
21

Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001) (citations omitted).

22

LeMaster v. Sec’y of Health & Human Servs., 802 F.2d 839, 840 (6th Cir. 1986);
Tucker v. Comm’r of Soc. Sec., No. 3:06CV403, 2008 WL 399573, at *6 (S.D. Ohio Feb. 12,
2008).
23

Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).
-5-

a detailed, longitudinal picture of your medical impairment(s) and may bring
a unique perspective to the medical evidence that cannot be obtained from
objective medical findings alone or from reports of individual examinations,
such as consultative examinations or brief hospitalizations.24
If such opinions are “well-supported by medically acceptable clinical and laboratory
diagnostic techniques” and “not inconsistent with the other substantial evidence in [the] case
record,” then they must receive “controlling” weight.25
The ALJ has the ultimate responsibility for determining whether a claimant is
disabled.26 Conclusory statements by the treating source that the claimant is disabled are not
entitled to deference under the regulation.27
The regulation does cover treating source opinions as to a claimant’s exertional
limitations and work-related capacity in light of those limitations.28 Although the treating
source’s report need not contain all the supporting evidence to warrant the assignment of
controlling weight to it,29 nevertheless, it must be “well-supported by medically acceptable

24

20 C.F.R. § 416.927(d)(2). The companion regulation for disability insurance
benefits applications is § 404.1527(d)(2). [Plaintiff’s last name only] filed only an application
for supplemental security income benefits.
25

Id.

26

Schuler v. Comm’r of Soc. Sec., 109 F. App’x 97, 101 (6th Cir. 2004).

27

Id.

28

Swain v. Comm’r of Soc. Sec., 297 F. Supp. 2d 986, 991 (N.D. Ohio 2003), citing
Green-Younger v. Barnhart, 335 F.3d 99, 106-07 (2nd Cir. 2003).
29

Garner v. Heckler, 745 F.2d 383, 391 (6th Cir. 1984).
-6-

clinical and laboratory diagnostic techniques” to receive such weight.30 In deciding if such
supporting evidence exists, the Court will review the administrative record as a whole and
may rely on evidence not cited by the ALJ.31
In Wilson v. Commissioner of Social Security,32 the Sixth Circuit discussed the treating
source rule in the regulations with particular emphasis on the requirement that the agency
“give good reasons” for not affording controlling weight to a treating physician’s opinion in
the context of a disability determination.33 The court noted that the regulation expressly
contains a “good reasons” requirement.34 The court stated that to meet this obligation to give
good reasons for discounting a treating source’s opinion, the ALJ must do the following:
•

State that the opinion is not supported by medically acceptable clinical
and laboratory techniques or is inconsistent with other evidence in the
case record.

•

Identify evidence supporting such finding.

•

Explain the application of the factors listed in 20 C.F.R.
§ 404.1527(d)(2) to determine the weight that should be given to the
treating source’s opinion.35

30

Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 536 (6th Cir. 2001).

31

Id. at 535.

32

Wilson v. Comm’r of Soc. Sec., 378 F.3d 541 (6th Cir. 2004).

33

Id. at 544.

34

Id., citing and quoting 20 C.F.R. § 404.1527(d)(2).

35

Id. at 546.
-7-

The court went on to hold that the failure to articulate good reasons for discounting
the treating source’s opinion is not harmless error.36 It drew a distinction between a
regulation that bestows procedural benefits upon a party and one promulgated for the orderly
transaction of the agency’s business.37 The former confers a substantial, procedural right on
the party invoking it that cannot be set aside for harmless error.38 It concluded that the
requirement in § 1527(d)(2) for articulation of good reasons for not giving controlling weight
to a treating physician’s opinion created a substantial right exempt from the harmless error
rule.39
The Sixth Circuit in Gayheart v. Commissioner of Social Security40 recently
emphasized that the regulations require two distinct analyses, applying two separate
standards, in assessing the opinions of treating sources.41 This does not represent a new
interpretation of the treating physician rule. Rather it reinforces and underscores what that

36

Id.

37

Id.

38

Id.

39

Id.

40

Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365 (6th Cir. 2013).

41

Id. at 375-76.
-8-

court had previously said in cases such as Rogers v. Commissioner of Social Security,42
Blakley v. Commissioner of Social Security,43 and Hensley v. Astrue.44
As explained in Gayheart, the ALJ must first consider if the treating source’s opinion
should receive controlling weight.45 The opinion must receive controlling weight if
(1) well-supported by clinical and laboratory diagnostic techniques and (2) not inconsistent
with other substantial evidence in the administrative record.46 These factors are expressly set
out in 20 C.F.R. § 416.927(d)(2). Only if the ALJ decides not to give the treating source’s
opinion controlling weight will the analysis proceed to what weight the opinion should
receive based on the factors set forth in 20 C.F.R. §§ 416.927(d)(2)(i)-(ii), (3)-(6).47 The
treating source’s non-controlling status notwithstanding, “there remains a presumption, albeit
a rebuttable one, that the treating physician is entitled to great deference.”48
The court in Gayheart cautioned against collapsing these two distinct analyses into
one.49 The ALJ in Gayheart made no finding as to controlling weight and did not apply the

42

Rogers, 486 F.3d at 242.

43

Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406-07 (6th Cir. 2009).

44

Hensley v. Astrue, 573 F.3d 263, 266 (6th Cir. 2009).

45

Gayheart, 710 F.3d at 376.

46

Id.

47

Id.

48

Rogers, 486 F.3d at 242.

49

Gayheart, 710 F.3d at 376.
-9-

standards for controlling weight set out in the regulation.50 Rather, the ALJ merely assigned
the opinion of the treating physician little weight and explained that finding by the secondary
criteria set out in §§ 1527(d)(i)-(ii), (3)-(6) of the regulations,51 specifically the frequency of
the psychiatrist’s treatment of the claimant and internal inconsistencies between the opinions
and the treatment reports.52 The court concluded that the ALJ failed to provide “good
reasons” for not giving the treating source’s opinion controlling weight.53
But the ALJ did not provide “good reasons” for why Dr. Onady’s opinions fail
to meet either prong of this test.
To be sure, the ALJ discusses the frequency and nature of Dr. Onady’s
treatment relationship with Gayheart, as well as alleged internal
inconsistencies between the doctor’s opinions and portions of her reports. But
these factors are properly applied only after the ALJ has determined that a
treating-source opinion will not be given controlling weight.54
In a nutshell, the Wilson/Gayheart line of cases interpreting the Commissioner’s
regulations recognizes a rebuttable presumption that a treating source’s opinion should
receive controlling weight.55 The ALJ must assign specific weight to the opinion of each
treating source and, if the weight assigned is not controlling, then give good reasons for not

50

Id.

51

Id.

52

Id.

53

Id.

54

Id.

55

Rogers, 486 F.3d 234 at 242.
-10-

giving those opinions controlling weight.56 In articulating good reasons for assigning weight
other than controlling, the ALJ must do more than state that the opinion of the treating
physician disagrees with the opinion of a non-treating physician57 or that objective medical
evidence does not support that opinion.58
The failure of an ALJ to follow the procedural rules for assigning weight to the
opinions of treating sources and the giving of good reason for the weight assigned denotes
a lack of substantial evidence even if the decision of the ALJ may be justified based on the
record.59 The Commissioner’s post hoc arguments on judicial review are immaterial.60
Given the significant implications of a failure to properly articulate (i.e., remand)
mandated by the Wilson decision, an ALJ should structure the decision to remove any doubt
as to the weight given the treating source’s opinion and the reasons for assigning such
weight. In a single paragraph the ALJ should state what weight he or she assigns to the
treating source’s opinion and then discuss the evidence of record supporting that assignment.
Where the treating source’s opinion does not receive controlling weight, the decision must
justify the assignment given in light of the factors set out in §§ 1527(d)(1)-(6).

56

Blakley, 581 F.3d at 406-07.

57

Hensley, 573 F.3d at 266-67.

58

Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 551-52 (6th Cir. 2010).

59

Blakley, 581 F.3d at 407.

60

Wooten v. Astrue, No. 1:09-cv-981, 2010 WL 184147, at *8 (N.D. Ohio Jan. 14,

2010).
-11-

The Sixth Circuit has identified certain breaches of the Wilson rules as grounds for
reversal and remand:
•

the failure to mention and consider the opinion of a treating source,61

•

the rejection or discounting of the weight of a treating source without
assigning weight,62

•

the failure to explain how the opinion of a source properly considered
as a treating source is weighed (i.e., treating v. examining),63

•

the elevation of the opinion of a nonexamining source over that of a
treating source if the nonexamining source has not reviewed the
opinion of the treating source,64

•

the rejection of the opinion of a treating source because it conflicts with
the opinion of another medical source without an explanation of the
reason therefore,65 and

•

the rejection of the opinion of a treating source for inconsistency with
other evidence in the record without an explanation of why “the treating
physician’s conclusion gets the short end of the stick.”66

The Sixth Circuit in Blakley67 expressed skepticism as to the Commissioner’s
argument that the error should be viewed as harmless since substantial evidence exists to

61

Blakley, 581 F.3d at 407-08.

62

Id. at 408.

63

Id.

64

Id. at 409.

65

Hensley, 573 F.3d at 266-67.

66

Friend, 375 F. App’x at 551-52.

67

Blakley, 581 F.3d 399.
-12-

support the ultimate finding.68 Specifically, Blakley concluded that “even if we were to agree
that substantial evidence supports the ALJ’s weighing of each of these doctors’ opinions,
substantial evidence alone does not excuse non-compliance with 20 C.F.R. § 404.1527(d)(2)
as harmless error.”69
In Cole v. Astrue,70 the Sixth Circuit reemphasized that harmless error sufficient to
excuse the breach of the treating source rule only exists if the opinion it issues is so patently
deficient as to make it incredible, if the Commissioner implicitly adopts the source’s opinion
or makes findings consistent with it, or if the goal of the treating source regulation is satisfied
despite non-compliance.71
B.

Application of standards
The two issues raised by Colvin-Ward are related, and may be considered and

resolved together. Essentially she argues that because the ALJ failed to properly analyze and
weigh the opinions of two treating sources,72 the RFC is not supported by substantial
evidence.73

68

Id. at 409-10.

69

Id. at 410.

70

Cole v. Astrue, 661 F.3d 931 (6th Cir. 2011).

71

Id. at 940.

72

ECF # 16 at 18-21.

73

Id. at 12-18.
-13-

1.

Treating source analysis
Colvin-Ward maintains that the ALJ failed to correctly analyze the functional opinion

of Dr. Thomas Svete, M.D., Colvin-Ward’s treating psychiatrist by not strictly following the
two-step analytical review set out in Gayheart and then by giving Dr. Svete’s opinion only
“some” weight, a term that Colvin-Ward asserts is unclear.74 She also maintains that the ALJ
failed to fully utilize a full Gayheart analysis in deciding to accord “little weight” to the
opinion of Dr. Lovette Phillips, D.O., a treating source who saw Colvin-Ward several times
in 2012 and 2013.75
In both situations, I note initially, as I have in prior opinions, that the Sixth Circuit has
recently been construing Gayheart as not requiring a distinct factor-by-factor analysis as part
of two clearly different stages of analysis. Rather, that court has found that the treating
source weight analysis mandated by Gayheart is deemed met when the ALJ states
sufficiently specific good reasons for the weight assigned, reflecting consideration of the
relevant Gayheart factors.76

74

Id. at 19-20.

75

Id. at 20.

76

Kutsick v. Commissioner of Social Security, No. 1:15 CV 2339, 2017 WL 413995,
at * 3 (N.D. Ohio Jan. 31, 2017)(citation omitted).
-14-

a.

Dr. Svete
In the case of Dr. Svete, the ALJ initially noted that Dr. Svete provided a single

functional opinion in January 2014.77 She then recited some of the elements of that opinion,
and concluded by discussing Dr. Svete’s observation that Colvin-Ward could only
occasionally maintain her appearance, relate predictably, manage funds or leave home
alone.78 The ALJ noted that Dr. Svete had not suggested that there were any mental tasks
that Colvin-Ward could perform only rarely, and further observed that Dr. Svete’s
explanation for the identified behavior issues - “moderate to sever mood swings, anger
management problems, anxiety, suspiciousness and impulsivity” - was undermined by his
own treatment notes that documented that “these problems are controlled with prescribed
medications, when [Colvin-Ward ] chooses to pursue the treatment.”79
Colvin-Ward contends that the ALJ was incorrect in finding that she is frequently
non-compliant in taking her prescribed psychiatric medications, and is further incorrect in
finding that her mental functioning is fine when taking that medication.80 In that regard she
points to a treatment note of April 28, 2017 where Colvin-Ward reports continuing, if
occasional, auditory and visual hallucinations, and further reports having trouble sleeping,

77

Tr. at 33.

78

Id. at 34.

79

Id.

80

ECF # 16 at 19.
-15-

especially “with running out of meds.”81 She asserts that this treatment note does not support
the conclusions that she was currently non-compliant with her medication nor that even with
medication her mental condition was improving, an assertion she contends is not supported
by worsening mental status examinations in April and June of 2013.82
But, the Commissioner responds by pointing to treatment notes that show that with
medication adjustments Colvin-Ward’s mood improved, she had fewer hallucinations, was
less guarded and had normal speech.83 Further, the Commissioner also cites to a January 27,
2017 statement from Colvin-Ward that her psychotropic medication [Seroquel] was helping
her.84 This statement was likewise cited by the ALJ, who then further detailed that statement
as saying that Colvin-Ward “felt that her insight and judgment were going well and desired
no change in her treatment.”85 The ALJ also noted that when Colvin-Ward’s mental
condition required hospitalization in 2014, that was when she was not taking her medication,
and her condition immediately improved when she resumed.86
On this record, and under the relevant standard of review, the ALJ here stated
sufficiently good reasons for the weight assigned to the opinions of Dr. Svete, and further

81

Tr. at 951.

82

ECF # 16 at 13 (citing record).

83

ECF # 25 at 13(citing record).

84

Id. (citing record).

85

Tr. at 34 (citing record).

86

Id. at 32.
-16-

find that the ALJ built an accurate and logical bridge between the evidence in the record and
her conclusions.
b.

Dr. Phillips
Here, Colvin-Ward again raises the argument that the ALJ’s failure in this instance

begins with her failure to fully follow the Gayheart rubric and so to articulate on all the
factors relevant to weight.87 As noted above, however, I will consider the ALJ reasons and
articulation in accord with the Gayheart standard as it has subsequently been understood by
the Sixth Circuit.
In that regard, the ALJ provides a detailed discussion of Dr. Phillip’s opinion, and of
the reasons why it is accorded only little weight:
Dr. Philips provided an opinion dated April 4, 2013, that the claimant can lift
15 pounds occasionally and 10 pounds frequently, can stand/walk for 2 hours;
can sit for 5 hours; can rarely climb, stoop, crouch, kneel and crawl; can
occasionally balance; and cannot work an 8-hour day. However, the doctor's
own reports fail to reveal the type of significant clinical and laboratory
abnormalities one would expect if the claimant were in fact disabled, and the
doctor did not specifically address this weakness. Dr. Philips reported that the
limitations were due to degenerative joint disease in the claimant's bilateral
knees, hips back, hands, elbows, shoulder, and feet. However, the doctors own
treatment notes do not actually document these objective findings. There is no
evidence of objective abnormality to account for the doctor's opinion of upper
extremity limitations. There also is no evidence of acute abnormalities that
would support her being unable to sustain an 8 hour day or having
absenteeism. The doctor reports specific limitations like elevating the
claimant's legs due to edema; however, as explained earlier her examinations
are negative for edema. Given the lack of objective evidence and support in
the treatment record,the opinion appears to rely quite heavily on the subjective
report of symptoms and limitations provided by the claimant, and seemed to

87

ECF # 16 at 20.
-17-

uncritically accept as true most, if not all, of what the claimant reported. Yet,
as explained elsewhere in this decision, there existed good reasons for
questioning the reliability of the claimant's subjective complaints.
Accordingly, the undersigned places little weight on this opinion (Exhibit
B8F).88
Accordingly, and under the relevant standard of review, I find no error in the ALJ’s
analysis of Dr. Philip’s opinion, nor in the articulation of reasons as to why the weight
assigned was given.
2.

RFC
As noted, the issue concerning whether the RFC is supported by substantial evidence

is related to the prior question as to the treatment of the opinions of treating sources. Having
resolved that question I proceed to the RFC itself in light of that determination.
a.

Mental
Colvin-Ward contends that her mental RFC should be more restrictive, arguing that

the ALJ’s RFC is contradicted by all the opinion evidence in the record.89 She asserts that
the ALJ erred in finding that she has only mild limitations in areas of social functioning and
activities of daily living, and further argues in that regard that Dr. Svete, as the one in best
position to know, found significantly greater limitations in these areas than did the ALJ.90
In fact, she alleges that there were no conflicting opinions at all as to these areas, but states

88

Tr. at 33.

89

ECF # 16 at 12.

90

Id. at 15.
-18-

that both state agency psychologists agreed with Dr. Svete in finding there were greater than
mild limitations in these areas.91
The Commissioner, however, notes that the evidence as cited above does not show
deterioration in Colvin-Ward’s mental condition, but rather documents that her medication
is helping her. Moreover, the ALJ observed that the state agency reviewers’s opinion as to
moderate limitations on social functioning was not consistent with evidence at the hearing
that documented Colvin-Ward’s level of social interaction with her friends, boyfriend and
family, nor with Colvin-Ward’s own appearance at the hearing.92
On this record, and given the prior finding on the weight given to medical source
opinions, I find that substantial evidence supports the RFC as to mental limitations.
B.

Physical
Similarly, Colvin-Ward argues that the RFC’s physical restrictions are based on a

“factual analysis of the evidence that is just wrong and ignores long-standing and substantial
impairments and that relies on outdated opinions issued without reviewing MRI evidence and
another year’s worth of clinical exam findings showing significant functional limitations.”93
The ALJ began a discussion of Colvin-Ward’s physical condition by noting at Step
Two that she does have the severe impairment of a back disorder caused by degenerative

91

Id. at 15-16.

92

Tr. at 33.

93

ECF # 16 at 18.
-19-

disc disease of the lumbar spine.94 The ALJ then observed that while this condition could
be reasonably expected to produce disabling symptoms, Colvin-Ward was not entirely
credible in her claims regarding the intensity, persistence and limiting effects of these
symptoms.95
Addressing the degenerative disc disease, the ALJ stated:
Regarding the claimant's degenerative disc disease, as explained in the prior
decision, while the claimant's lumbar MRI shows abnormalities, the examining
doctor Dr. Lee, did not opine that the abnormalities were disabling. Her
physical examinations have been generally unremarkable showing full range
of motion, normal strength, normal gait, and negative straight leg raise testing
(Exhibit Bl A/8-9). The new evidence shows no particular worsening in her
back disorder. She has L5-Sl right disc herniation with moderate right-sided
neural foraminal narrowing (Exhibits Bl l F/3; Bl 7F/25; B19F/ 15). Again, a
doctor, this time Dr. Al-Amin A. Khalil, explained that the findings on the
claimant's MRI are not consistent with her current symptoms (Exhibit Bl l
F/3).96
In addition, the ALJ observed:
Additionally, her physical examinations have shown some tenderness at times,
but no evidence of other sever ongoing musculoskeletal or neurological
abnormality (Exhibits BlF/7; B4F/5; B9F/ 10; B13F/ l7; Bl 7F/2 Bl9F/40;
B27F/20; B30F/ 16). For example, her May 2013 examination showed normal
range of motion, no edema, no tenderness, no weakness, no gait abnormality,
and no neurological abnormality (Exhibit B9F/12, 26). Similarly, athorough
December 2013 examination, showed a normal neuromuscular exam, including
strength, reflexes, sensation; no instability; normal sacral, sacroiliac joint ,
coccyx, pelvix, and clavical examination; ane entirely normal upper and lower
extremity examination other than some mild right shoulder tenderness (Exhibit
Bl6F/21-22). She did have a mild antalgic gait and more recent MRI evidence
94

Tr. at 26.

95

Id. at 30.

96

Id.
-20-

supporting that she may occasionally need a cane; however, as indicated
above, there is no evidence of frequent or long term gait abnormality or
weakness. For example, in July 2014 she presented to treatment wearing
sandals, and was active without the use of a cane or brace (Exhibits B22F/36;
B24F/ l). Thus, the record does not support more frequent use of a cane or
walker or further limitation in her ability to stand and walk (Exhibit Bl6F/20;
see also Exhibits Bl8F; B30F/5-7).97
Further, the ALJ found:
The claimant is obese. However, compared to the prior ALJ decision, the
claimant's obesity has improved. She previously weighed 204 pounds and had
a BMI of about 37.49. Whereas, the claimant now weighs about 175-180
pounds with a BMI of about 32-33 (Exhibits B9F/ l l; B26F/2).
As explained earlier in this decision, while the claimant alleges ongoing
seizures and symptoms of lupus, her complaints are not supported by the
record (See, e.g., Exhibit B6F/ 17, 23). There is no evidence of lupus, active
synovitis, or an autoimmune or connective tissue disease (See, e.g., Exhibit
B30F/ 17).98
The ALJ discussed Colvin-Ward’s activities of daily living as follows:
The claimant has provided inconsistent information regarding daily activities.
For example, she reports having problems leaving the house and interacting
with others, but she reported on multiple occasions during treatment that she
had a lot of good friends, was going out partying with friends, was doing drug
running for her boyfriend, and was spending much time with her children and
grandchildren (Exhibits B12F/ 1; B19F/74; B22F/28). Her explanation for her
drug use also demonstrates that she retains social skills to interact with
others; she has friends, and she leaves the house for social reasons (Hearing
Testimony). The claimant also alleges attention problems, but her treatment
records document no clinical evidence of attention deficit (See, e.g., Exhibit
B3F/3). Despite her allegation of having poor attention to complete tasks, she
provided inconsistent information during treatment, describing how she was

97

Id. at 31.

98

Id. at 31-32.
-21-

writing and then had completed writing 6 different books (Hearing Testimony;
Exhibit B12F/2).99
The ALJ then addressed the details of the functional opinion of Dr. Philips, which
opinion was given little weight in an analysis that was more thoroughly evaluated above:
Dr. Philips provided an opinion dated April 4, 2013, that the claimant can lift
15 pounds occasionally and 10 pounds frequently, can stand/walk for 2 hours;
can sit for 5 hours; can rarely climb, stoop, crouch, kneel and crawl; can
occasionally balance; and cannot work an 8-hour day. However, the doctor's
own reports fail to reveal the type of significant clinical and laboratory
abnormalities one would expect if the claimant were in fact disabled, and the
doctor did not specifically address this weakness. Dr. Philips reported that the
limitations were due to degenerative joint disease in the claimant's bilateral
knees, hips back, hands, elbows, shoulder, and feet. However, the doctors own
treatment notes do not actually document these objective findings. There is no
evidence of objective abnormality to account for the doctor's opinion of upper
extremity limitations. There also is no evidence of acute abnormalities that
would support her being unable to sustain an 8 hour day or having
absenteeism. The doctor reports specific limitations like elevating the
claimant's legs due to edema; however, as explained earlier her examinations
are negative for edema. Given the lack of objective evidence and support in
the treatment record, the opinion appears to rely quite heavily on the subjective
report of symptoms and limitations provided by the claimant, and seemed to
uncritically accept as true most, if not all, of what the claimant reported. Yet,
as explained elsewhere in this decision, there existed good reasons for
questioning the reliability of the claimant's subjective complaints.
Accordingly, the undersigned places little weight on this opinion (Exhibit
B8F)100
As is evident in the extended and detailed review of the evidence set forth above, and
also evident in the multiple statements of reasons as to the conclusions drawn from that
evidence, I find it difficult to credit Colvin-Ward’s stark and sweeping allegations that the

99

Id. at 33.

100

Id.
-22-

ALJ’s treatment of the evidence was “just wrong” and “ignore[d] long-standing and
substantial impairments.” More specifically, Colvin-Ward now claims that the ALJ’s
analysis is flawed because it relies on “outdated” opinions and because it does not take into
account newer evidence101 - in particular a December 2013 MRI that allegedly shows
“significant progression” of her disc disease.102 She also claims that the earlier evidence,
extending back to October 2011, provides evidence of the extent of her back impairment.103
In considering the claims related to the December 2013 MRI, the ALJ, as noted,
discussed the physical examination of this date in some detail, and further noting that “more
recent MRI evidence” supports the need for occasional use of a cane, but does not support
a finding of frequent or long-term gait abnormality.104 The ALJ further observed that in July
2104 - or after what is now claimed to be the decisive December 2013 proof of a worsened
disc disease - that Colvin-Ward “presented to treatment wearing sandals, and was active
without the use of a can or brace.”105
In sum, and after reviewing the evidence cited by the ALJ, considering her reasons
for the conclusions drawn from that evidence under the relevant standard, and exploring the
allegations raised by Colvin-Ward with reference to the ALJ’s opinion as a whole, I find that

101

ECF # 16 at 18.

102

Id. at 17.

103

Id. at 16.

104

Tr. at 31.

105

Id. (citing record).
-23-

substantial evidence supports the ALJ’s assessment of Colvin-Ward’s mental and physical
functional limitations. I then further find that the RFC here is supported by substantial
evidence for the reasons stated.

Conclusion
For the reasons stated, I find that the decision of the Commissioner to deny benefits
to Tonia L. Colvin-Ward is supported by substantial evidence, and that decision is hereby
affirmed.
IT IS SO ORDERED.

Dated: September 26, 2017

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

-24-