Vaden v. Commissioner of Social Security Administration

Filing 16

Memorandum Opinion and Order: The decision of the Administrative Law Judge is affirmed; plaintiff's complaint is dismissed in its entirety with prejudice (Related document 1 ). Signed by Magistrate Judge George J. Limbert on 8/24/18. (S,AA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
STACEY VADEN,

)
)
Plaintiff,
)
)
v.
)
)
)
NANCY A. BERRYHILL1,
ACTING COMMISSIONER OF SOCIAL )
SECURITY ADMINISTRATION,
)
)
Defendant.
)

CASE NO. 1:17CV1656
MAGISTRATE JUDGE
GEORGE J. LIMBERT
MEMORANDUM OPINION & ORDER

Plaintiff Stacey Vaden (“Plaintiff”) requests judicial review of the final decision of the
Commissioner of Social Security Administration (“Defendant”) denying her applications for Title
II Medicare Only Benefits and Supplemental Security Income (“SSI”). ECF Dkt. #1. In her brief
on the merits, Plaintiff asserts that the administrative law judge (“ALJ”) violated the treating
physician rule and lacked substantial evidence for the RFC that she determined for her. ECF Dkt.
#14. For the following reasons, the Court AFFIRMS the decision of the ALJ and DISMISSES
Plaintiff’s complaint in its entirety WITH PREJUDICE.
I.

FACTUAL AND PROCEDURAL HISTORY
Plaintiff filed applications for Title II Medicare only and SSI in February of 2012 and March

8, 2012, respectively. ECF Dkt. #11 (“Tr.”) at 261-268.2 She alleged disability beginning April 24,
2009 due to knee, back, hand, feet and leg problems, high blood pressure, arthritis, and headaches.
Id. at 261, 263, 289. The Social Security Administration (“SSA”) denied her applications initially
and upon reconsideration. Id. at 186-200. Plaintiff requested a hearing before an ALJ, and the ALJ
began a hearing on December 18, 2013, where Plaintiff was unrepresented. Id. at 30, 88-98. The

1

On January 20, 2017, Nancy A. Berryhill became the acting Commissioner of Social Security,
replacing Carolyn W. Colvin.
2

All citations to the Transcript refer to the page numbers assigned when the Transcript was filed in
the CM/ECF system rather than when the Transcript was compiled. This allows the Court and the parties to
easily reference the Transcript as the page numbers of the .PDF file containing the Transcript correspond to
the page numbers assigned when the Transcript was filed in the CM/ECF system.

ALJ informed Plaintiff of her right to representation and subsequently postponed this hearing and
continued it in order to allow Plaintiff to obtain representation and additional evidence. Id. at 97-98.
On April 9, 2014, Plaintiff and a vocational expert (“VE”) appeared at another hearing before the
ALJ. Id. at 60-85. The ALJ noted that Plaintiff was again without representation, and the ALJ
thoroughly informed Plaintiff of her right to representation at the hearing and inquired as to whether
Plaintiff wished to proceed without representation. Id. at 61-63. Plaintiff affirmed that she wished
to proceed without representation. Id. at 62. The hearing took place, and Plaintiff and the VE
testified. Id. at 63-85.
On July 11, 2014, the ALJ issued a decision denying Plaintiff’s applications for Title II
Medicare Only Benefits and SSI. Tr. at 168-177. Plaintiff appealed that determination to the
Appeals Council and the Appeals Council remanded Plaintiff’s case based upon medical records that
were requested by the ALJ after the hearing and not proffered to Plaintiff. Tr. at 184; ECF Dkt. #14
at 1-2.
On January 4, 2016, the ALJ held another hearing on the basis of the remand, where Plaintiff
again appeared without representation. Tr. at 102. The ALJ again advised Plaintiff of her right to
representation and Plaintiff affirmed that she wished to proceed without representation. Id. at 102104. The ALJ went forward with the hearing, where Plaintiff and a VE testified. Id. at 102-116.
On April 25, 2016, the ALJ issued an unfavorable decision finding that Plaintiff was not
disabled under Social Security regulations and not entitled to Title II Medicare Only Benefits and
SSI. Tr. at 11-21. Plaintiff requested review of the ALJ’s decision to the Appeals Council, but the
Appeals Council denied the request on July 12, 2017. Id. at 1-7.
On August 8, 2017, Plaintiff filed the instant suit seeking review of the ALJ’s decision. ECF
Dkt. #1. She filed a brief on the merits on November 28, 2017 and Defendant filed a merits brief
on December 21, 2017. ECF Dkt. #s 14, 15.
II.

RELEVANT PORTIONS OF ALJ’S DECISION
On April 25, 2016, the ALJ issued a decision finding that Plaintiff had not engaged in

substantial gainful activity since April 24, 2009, the alleged onset date, and she found that since that
date, Plaintiff had the severe impairments of osteoarthritis in the right knee, degenerative disc
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disease (“DDD”) in the lumbar spine, obesity, and carpal tunnel syndrome (“CTS”) in the right hand
status post-surgical release in 2007. Tr. at 14. The ALJ determined that Plaintiff did not have an
impairment or combination of impairments that met or medically equaled the severity of one of the
listed impairments in 20 C.F.R. Subpart P, Appendix 1. Id. at 14-15. After considering the record,
the ALJ found that Plaintiff had the RFC to perform light work with the following limitations:
frequent hand controls and fingering in dominant right hand, but no limits on the left; occasional
climbing of stairs and ramps, never climbing ladders, ropes or scaffolds; occasional balancing,
stooping, kneeling, crawling and crouching; and avoidance of hazards such as unprotected heights
and operating machinery; and she requires a cane for ambulation. Id.
Based upon Plaintiff’s age, education, work experience, the RFC, and the VE’s testimony,
the ALJ determined that Plaintiff had no past relevant work, but she could perform jobs existing in
significant numbers in the national economy, such as document specialist, receptionist, and food and
beverage order clerk. Tr. at 20. In conclusion, the ALJ found that Plaintiff had not been under a
disability, as defined in the Social Security Act, and she was not entitled to Title II Medicare only
or SSI from April 24, 2009, through the date of her decision. Id. at 21.
III.

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

social security benefits. These steps are:
1.

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

2.

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

3.

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

4.

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

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5.

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

Hogg v. Sullivan, 987 F.2d 328, 332 (6th Cir. 1992). The claimant has the burden to go forward
with the evidence in the first four steps and the Commissioner has the burden in the fifth step. Moon
v. Sullivan, 923 F.2d 1175, 1181 (6th Cir. 1990).
IV.

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

makes a determination of disability. This Court’s review of such a determination is limited in scope
by §205 of the Act, which states that the “findings of the Commissioner of Social Security as to any
fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. §405(g). Therefore, this
Court’s scope of review is limited to determining whether substantial evidence supports the findings
of the Commissioner and whether the Commissioner applied the correct legal standards. Abbott v.
Sullivan, 905 F.2d 918, 922 (6th Cir. 1990).
The substantial-evidence standard requires the Court to affirm the Commissioner’s findings
if they are supported by “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Cole v. Astrue, 661 F.3d 931, 937, citing Richardson v. Perales, 402 U.S.
389, 401 (1971) (internal citation omitted). Substantial evidence is defined as “more than a scintilla
of evidence but less than a preponderance.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234 (6th Cir.
2007). Accordingly, when substantial evidence supports the ALJ’s denial of benefits, that finding
must be affirmed, even if a preponderance of the evidence exists in the record upon which the ALJ
could have found plaintiff disabled. The substantial evidence standard creates a “‘zone of choice’
within which [an ALJ] can act without the fear of court interference.” Buxton v. Halter, 246 F.3d
762, 773 (6th Cir.2001). However, an ALJ’s failure to follow agency rules and regulations “denotes
a lack of substantial evidence, even where the conclusion of the ALJ may be justified based upon
the record.” Cole, supra, citing Blakely v. Comm’r of Soc. Sec., 581 F.3d 399, 407 (6th Cir.2009)
(internal citations omitted).

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V.

LAW AND ANALYSIS
A.

TREATING PHYSICIAN OPINION

Plaintiff asserts that the ALJ violated the treating physician rule by failing to provide good
reasons for affording less than controlling weight and only little weight to the opinion of her treating
physician, Dr. Wise. ECF Dkt. #14 at 11-17. For the following reasons, the Court finds that the
ALJ provided good reasons for her treatment of Dr. Wise’s opinion and substantial evidence
supports that determination.
An ALJ must give controlling weight to the opinion of a treating source if the ALJ finds that
the opinion is well-supported by medically acceptable clinical and diagnostic techniques and not
inconsistent with the other substantial evidence in the record. Wilson v. Comm’r of Soc. Sec., 378
F.3d 541, 544 (6th Cir. 2004). If an ALJ decides to discount or reject a treating physician’s opinion,
she must provide “good reasons”3 for doing so. Social Security Rule (“SSR”) 96-2p. The ALJ must
provide reasons that are “sufficiently specific to make clear to any subsequent reviewers the weight
the adjudicator gave to the treating source’s medical opinion and the reasons for that weight.” Id.
This allows a claimant to understand how her case is determined, especially when she knows that
her treating physician has deemed her disabled and she may therefore “be bewildered when told by
an administrative bureaucracy that [s]he is not, unless some reason for the agency’s decision is
supplied.” Wilson, 378 F.3d at 544 (quoting Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999)).
Further, it “ensures that the ALJ applies the treating physician rule and permits meaningful appellate
review of the ALJ’s application of the rule.” Id. If an ALJ fails to explain why he or she rejected
or discounted the opinions and how those reasons affected the weight afforded to the opinions, this
Court must find that substantial evidence is lacking, “even where the conclusion of the ALJ may be
justified based upon the record.” Rogers, 486 F.3d at 243 (citing Wilson, 378 F.3d at 544).
The Sixth Circuit has noted that, “while it is true that a lack of compatibility with other
record evidence is germane to the weight of a treating physician’s opinion, an ALJ cannot simply
3

The Court notes that the SSA has changed the treating physician rule effective March 27, 2017. See 20
C.F.R. § 416.920. The SSA will no longer give any specific evidentiary weight to medical opinions, including affording
controlling weight to medical opinions. Rather, the SSA will consider the persuasiveness of medical opinions using the
factors specified in their rules and will consider the supportability and consistency factors as the most important factors.

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invoke the criteria set forth in the regulations if doing so would not be ‘sufficiently specific’ to meet
the goals of the ‘good reason’ rule.” Friend v. Comm’r of Soc. Sec., No. 09-3889, 2010 WL
1725066, at *8 (6th Cir. 2010). The Sixth Circuit has held that an ALJ’s failure to identify the
reasons for discounting opinions, “and for explaining precisely how those reasons affected the
weight” given “denotes a lack of substantial evidence, even where the conclusion of the ALJ may
be justified based upon the record.” Parks v. Social Sec. Admin., No. 09-6437, 2011 WL 867214,
at *7 (6th Cir. 2011) (quoting Rogers, 486 F.3d at 243 ). However, an ALJ need not discuss every
piece of evidence in the administrative record so long as he or she considers all of a claimant’s
medically determinable impairments and the opinion is supported by substantial evidence. See 20
C.F.R. § 404.1545(a)(2); see also Thacker v. Comm'r of Soc. Sec., 99 Fed. App’x 661, 665 (6th Cir.
2004). Substantial evidence can be “less than a preponderance,” but must be adequate for a
reasonable mind to accept the ALJ’s conclusion. Kyle v. Comm’r of Soc. Sec., 609 F.3d 847, 854
(6th Cir. 2010) (citation omitted).
On July 29, 2011, Plaintiff presented to Dr. Wise, her family physician, to have her complete
Plaintiff’s SSI paperwork. Tr. at 406. Dr. Wise indicated that she began treating Plaintiff five years
prior to the date that she completed the SSI form. Tr. at 423. The record contains a one-page form
which includes only a part “C” of the form for a physical functional capacity assessment. Id. at 414.
Dr. Wise signed the bottom of the one-page form.

Id.

The form asked if Plaintiff’s

standing/walking were affected by her medical conditions, and Dr. Wise checked the “Yes” box.
Id. She indicated that Plaintiff could stand/walk up to 30 minutes in an 8-hour workday and she
could do so for 10 minutes without interruption. Id. Dr. Wise also checked the “Yes” box when
asked if Plaintiff’s medical conditions affected her ability to sit. Id. She indicated that Plaintiff
could sit 1-2 hours per 8-hour workday and could do so for 30-60 minutes without interruption. Id.
Dr. Wise checked the “Yes” box as to whether Plaintiff’s lifting/carrying were affected by her
medical conditions, and she opined that Plaintiff could lift no weight frequently or occasionally. Id.
She further opined that Plaintiff was extremely limited in bending, markedly limited in handling
objects, moderately limited in pushing/pulling, and repetitive foot movements, and not significantly
limited or not limited at all in reaching, seeing, hearing or speaking. Id. When asked to explain her
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limitations and the evidence to support them, Dr. Wise wrote that Plaintiff could not bend at her
wrist or squat. Id. She further wrote “Antalgic gait, cannot walk >50 yards with rest, grip
inconsistent due to CTS - drops things.” Id. She further opined that Plaintiff was unemployable and
Plaintiff’s physical limitations would be expected to last 12 months or more. Id.
In her decision, the ALJ addressed Dr. Wise’s opinion in a short paragraph. Tr. at 19. She
stated that she gave little weight to Dr. Wise’s opinion because recent treatment of Plaintiff at the
Cleveland Clinic did not support the limitations that Dr. Wise opined. Id. The ALJ also reasoned
that objective testing, such as a MRI, showed only minimal DDD at L3-L4. Id. The ALJ further
noted that Dr. Wise indicated in a 2013 treatment note that Plaintiff needed a knee replacement, but
Dr. Berkowitz stated that if Plaintiff’s pain continued in her knee, a second arthroscopy was
necessary, not a knee replacement. Id.
Despite the short paragraph, the Court finds that the ALJ properly applied the treating
physician rule and substantial evidence supports her decision to attribute Dr. Wise’s opinion less
than controlling and only little weight. The ALJ cited to the proper regulations and Social Security
Rulings concerning her review of opinion evidence. Tr. at 15. Further, although she could have
provided a much more thorough explanation in the paragraph specifically reviewing Dr. Wise’s
opinion, this paragraph, combined with the rest of the ALJ’s decision, constitutes substantial
evidence to support her treatment of the opinion.
In the paragraph specifically addressing Dr. Wise’s opinion, the ALJ acknowledged that Dr.
Wise was a treating source. Tr. at 19. She explained that she was attributing little weight to the
opinion because recent treatment records from the Cleveland Clinic did not support Dr. Wise’s
extreme limitations. Id., citing Tr. at 656-698. This constitutes a good reason for discounting Dr.
Wise’s opinion because earlier in her decision, the ALJ reviewed Cleveland Clinic records which
showed in February 2014 that Plaintiff had negative straight leg raising upon physical examination,
palpation along the bilateral paraspinous muscle, right knee crepitus and pain, and decreased range
of motion in the back, but normal and symmetric bilateral extremity strength, no atrophy or tone
abnormalities, and no loss of sensation. Id. at 17, citing Tr. at 659. The ALJ also reviewed March
17, 2014 Cleveland Clinic treatment notes which showed that Plaintiff had pain to palpation along
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the back, but normal range of motion, full and pain-free range of motion in the extremities, no
deformities, edema or skin discoloration, and no atrophy or tone abnormalities. Id. at 18, citing Tr.
at 669.
The ALJ also cited to a February 21, 2014 MRI which she stated showed minimal DDD at
the L3-L4 level. Tr. at 19, citing Tr. at 659-665. Plaintiff contends that the ALJ misstated these
findings because the February 21, 2014 MRI also showed multi-level disc degeneration besides L3L4 and showed an “annular tear resulting in moderate narrowing of the right neural foramen with
posterior deviation of the exiting right L3 nerve root.” ECF Dkt. #14 at 12, citing Tr. at 663.
Plaintiff is correct that the February 21, 2014 MRI showed multi-level disc degeneration and
an “associated annular tear resulting in moderately narrowing of the right neural foramen with
posterior deviation of the exiting right L3 nerve root.” Tr. at 663. However, the Court notes that
the February 21, 2014 MRI that Plaintiff refers to postdates Dr. Wise’s July 29, 2011 opinion and
thus she did not have these findings before her in making her opinion. Tr. at 414, 663. In fact, there
is a September 9, 2010 MRI report in the record which showed a small right-sided protrusion at L5S1 with no clear evidence of gross compression and mild right foraminal narrowing and a mild disc
bulging at L3-L4, with moderate facet hypertrophic change, and very subtle T2 hyperintensity within
the margins of the annulus at L4-L5, which typically represents a small annular tear. Id. at 401.
This MRI was ordered by Dr. Wise. Id. The February 21, 2014 lumbar spine MRI report compared
that MRI with the February 2010 MRI results. Tr. at 663, 692. The February 21, 2014 lumbar MRI
showed mild DDD without significant loss of disc height at L3-4, L4-5, and L5-S1. Id. At the L3L4 level, a bulging disc and facet arthrosis were noted which caused minimal narrowing of the spine
canal with a new right neural foraminal disc protrusion with an annular tear resulting in moderate
narrowing of the right neural foramen with posterior deviations of the exiting right L3 nerve root.
Id. The L4-L5 level showed a bulging disc and facet arthrosis narrowing of the spinal canal and
neural foraminal. Id. The L5-S1 level showed a bulging disc and facet arthrosis with a tiny right
paracentral disc protrusion with annular tear resulting in no narrowing of the spinal canal with
minimal narrowing of the neural foramina. Id. The doctor interpreting the MRI results indicated

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his impression as “Mild degenerative changes of the lower lumbar spine with a right neural
foraminal disc herniation at the L3-L4 level.” Id.
The ALJ did cite to the page number of the February 21, 2104 MRI in the paragraph
addressing Dr. Wise’s opinion. Tr. at 19. Whether or not this was erroneous, the ALJ in any event
reviewed the results of both MRIs in her decision, specifically noting the findings of mild DDD at
L3-L4, multi-level disc degeneration, and annular tear from the February 21, 2014 MRI in an earlier
part of her decision. Tr. at 17-18. Plaintiff fails to explain how the multi-level disc degeneration
and annular tear in the February 2014 MRI impact the ALJ’s treatment of Dr. Wise’s opinion or the
RFC that the ALJ provided for her, which included limitations to light work with never climbing
ladders, ropes or scaffolds, occasionally climbing stairs and ramps, occasionally kneeling, crawling,
balancing, stooping and crouching, avoiding hazards, and she required a cane for ambulation. Id.
at 15.
The Court rejects the ALJ’s third reason for affording less than controlling weight and only
little weight to Dr. Wise’s opinion. Tr. at 19. The ALJ appears to discount Dr. Wise’s opinion
because she indicated in a 2011 treatment note that Plaintiff needed a knee replacement when the
orthopedic doctor that Dr. Wise referred Plaintiff to indicated that if her pain continued, Plaintiff
would need a second arthroscopy. Id. Dr. Wise did indicate in a July 29, 2011 treatment note “Knee
osteoarthritis - needs TKR” (total knee replacement). Id. at 408. Dr. Berkowitz, the orthopedic
surgeon to whom Dr. Wise referred Plaintiff, indicated after examination that another arthroscopy
would be indicated for Plaintiff if her pain and disability continued. Id. at 409. This reason is not
a good reason for discounting Dr. Wise’s opinion as it was most likely an error in the notes.
Nevertheless, the Court finds that the ALJ’s other reasons for affording less than controlling
weight and only little weight to Dr. Wise’s opinion constitute good reasons and are supported by
substantial evidence. The ALJ refers to and discusses the Cleveland Clinic notes in her decision,
which do not support Dr. Wise’s extreme limitations for Plaintiff. Morever, the ALJ refers to and
reviews both the 2011 and 2014 MRI results in her decision, which, without a showing by Plaintiff
to the contrary, are also unsupportive of Dr. Wise’s extreme limitations and support the ALJ’s
decision to afford less than controlling weight and only little weight to Dr. Wise’s opinion.
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B.

RFC

Plaintiff also asserts that the ALJ erred in determining her RFC because the ALJ assigned
a RFC without relying upon any medical opinions in the record. ECF Dkt. #14 at 17-19. Plaintiff
reasons that because the ALJ attributed little weight to all of the medical opinions in the record,
including treating and agency physician opinions, who all found Plaintiff more limited than the ALJ,
the ALJ must have substituted her opinion for those of the medical professionals. Id.
As explained more fully above, treating physician Dr. Wise opined that Plaintiff was not
employable and could stand/walk up to 30 minutes in an 8-hour workday and she could do so for
10 minutes without interruption. Tr at 414. She also opined that Plaintiff could sit 1-2 hours per
8-hour workday and could do so for 30-60 minutes without interruption. Id. She further opined that
Plaintiff could not lift any weight frequently or occasionally, Plaintiff was extremely limited in
bending, markedly limited in handling objects, moderately limited in pushing/pulling, and repetitive
foot movements, and not significantly limited or not limited at all in reaching, seeing, hearing or
speaking. Id. When asked to explain her limitations and the evidence to support them, Dr. Wise
wrote that Plaintiff could not bend at her wrist or squat. Id. She further wrote “Antalgic gait, cannot
walk >50 years & rest, grip inconsistent due to CTS - drops things.” Id.
Agency physicians Rosenfeld and Freihofner opined that Plaintiff could: lift up to 10 pounds
frequently and up to 20 pounds occasionally; sit up to 6 hours per 8-hour workday; stand/walk only
up to 2 hours per workday; push/pull on a limited basis as to both upper extremities; limited to
frequent hand controls bilaterally due to CTS; limited fingering/fine manipulation as to both
extremities; occasionally climb stairs/ramps; never climb ladders, ropes or scaffold, kneel, or crawl
due to degenerative joint disease and obesity; occasionally balance, stoop and crouch; and avoid all
unprotected heights and heavy machinery. Id. at 134-136, 147-149. The ALJ adopted a number of
the physicians’ limitations, but did not adopt the opinions of Drs. Rosenfeld and Freihofner as to
Plaintiff’s abilities to stand/walk only 2 hours per 8-hour workday, their limitations for both of
Plaintiff’s upper extremities for pushing/pulling, including operating hand controls, their limitation
to frequent hand controls bilaterally due to Plaintiff’s CTS, and their limitations for Plaintiff to never
kneel or crawl. Tr. at 15, 134-136, 147-149.
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A claimant's RFC is an assessment of the most that a claimant “can still do despite [her]
limitations.” 20 C.F.R. §§ 416.945(a)(1). An ALJ must consider all of a claimant’s impairments and
symptoms and the extent to which they are consistent with the objective medical evidence. 20 C.F.R.
§ 416.945(a)(2)(3). The claimant bears the responsibility of providing the evidence used to make
a RFC finding. 20 C.F.R. §§ 416.945(a)(3). However, the RFC determination is one reserved for
the ALJ. 20 C.F.R. § 416.946(c); Poe v. Comm'r of Soc. Sec., 342 Fed.Appx. 149, 157 (6th Cir.
2009) (“The responsibility for determining a claimant's [RFC] rests with the ALJ, not a physician.”);
SSR 96-5p, 1996 WL 374183, at *5. Social Security Ruling (“SSR”) 96-8p provides guidance on
assessing RFC in social security cases. SSR 96-8p. The Ruling states that the RFC assessment must
identify the claimant’s functional limitations and restrictions and assess his or her work-related
abilities on a function-by-function basis. Id. Further, it states that the RFC assessment must be
based on all of the relevant evidence in the record, including medical history, medical signs and lab
findings, the effects of treatment, daily living activity reports, lay evidence, recorded observations,
effects of symptoms, evidence from work attempts, the need for a structured living environment and
work evaluations. Id.
Opinions from agency medical sources are considered opinion evidence. 20 C.F.R. §
416.927(f). The regulations require that “[u]nless the treating physician's opinion is given controlling
weight, the administrative law judge must explain in the decision the weight given to the opinions
of a State agency medical or psychological consultant or other program physician or psychologist
as the administrative law judge must do for any opinions from treating sources, nontreating sources,
and other nonexamining sources who do work for us.” 20 C.F.R. § 416.927(f)(2)(ii). More weight
is generally attributed to examining medical source opinions than on non-examining medical source
opinions. See 20 C.F.R. § 416.927(d)(1). The Sixth Circuit has held that the social security
regulation requiring an ALJ to provide good reasons for the weight given a treating physician's
opinion does not apply to an ALJ's failure to explain his favoring of one examining physician's
opinion over another. See Kornecky v. Comm'r of Soc. Sec., 167 Fed.Appx. 496, 508 (6th Cir. 2006).
Moreover, while an ALJ is not required to discuss each and every piece of evidence in the
record to justify his or her determination, see, e.g., Thacker v. Comm'r of Soc. Sec., 99 Fed.Appx.
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661, 665 (6th Cir. 2004), when the opinion of a medical source contradicts the ALJ’s limitations in
the claimant’s RFC, the ALJ “‘must give some indication of the evidence upon which he is relying,
and he may not ignore evidence that does not support his decision, especially when that evidence,
if accepted, would change his analysis.’” Wolfe v. Colvin, No. 4:15CV1819, 2016 WL 2736179,
quoting Fleischer v. Astrue, 774 F.Supp.2d 875, 881 (N.D. Ohio 2011). Social Security Ruling
96-8p provides, “[t]he RFC assessment must always consider and address medical source opinions.
If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain
why the opinion was not adopted.” SSR 96-8p, 1996 WL 374184, *7 (July 2, 1996).
As explained above, the Court finds that the ALJ adequately explained and provided
sufficiently good reasons for attributing less than controlling weight and little weight to Dr. Wise’s
opinion. The ALJ was therefore not required to adopt all of Dr. Wise’s limitations. She did adopt
Dr. Wise’s moderate pushing/pulling and handling limitations by restricting Plaintiff to frequent
hand controls with her dominant right hand and frequent fingering in her dominant right hand. Tr.
at 15, 414. The ALJ also partially adopted Dr. Wise’s limitations as to Plaintiff’s antalgic gait by
indicating in her RFC that Plaintiff required a cane for ambulation. Id.
As to the opinions of the agency consulting physicians Drs. Rosenfeld and Freihofner, the
ALJ was not required to provide good reasons for rejecting those opinions. Kornecky, 167
Fed.Appx. at 508. However, SSR 96-8p provides that, when determining the RFC assessment, an
ALJ “must always consider and address medical source opinions [and] [i]f the RFC assessment
conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was
not adopted.” SSR 96–8p, 1996 WL 374184 at *7. The ALJ specifically addressed the agency
physicians’ opinions in this case and explained why she did not adopt their opinions in full. She
adopted Drs. Rosenfeld and Freihofner’s limitations regarding Plaintiff’s abilities to lift up to 10
pounds frequently and up to 20 pounds occasionally, and their opinions that Plaintiff could sit up
to 6 hours per 8-hour workday, and their limitations of Plaintiff to occasional climbing of
stairs/ramps, never climbing ladders, ropes or scaffolds, and occasionally balancing, stooping and
crouching, as well as the avoidance of all unprotected heights and heavy machinery. Id. at 134-136,
147-149.
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However, the ALJ did not adopt the opinions of Drs. Rosenfeld and Freihofner concerning
Plaintiff’s abilities to stand/walk only 2 hours per 8-hour workday, their limitations for both of
Plaintiff’s upper extremities for pushing/pulling, including operating hand controls, their limitation
to frequent hand controls bilaterally due to Plaintiff’s CTS, and their limitations for Plaintiff to never
kneeling or crawling. Tr. at 15, 134-136, 147-149. In deciding to attribute little weight to this part
of the agency physicians’ opinions, the ALJ cited to the medical evidence and her discounting of
Plaintiff’s credibility in support of her decision.

Substantial evidence supports the ALJ’s

determinations.
The ALJ sufficiency explained that she did not adopt the fingering limitations of Drs.
Rosenfeld and Freihofner for both of Plaintiff’s hands because they had based these limitations on
CTS, which was only found present in Plaintiff’s right upper extremity. Tr. at 19. The ALJ cited
to Dr. Berkowitz’s carpal tunnel release performed in 2007 only on Plaintiff’s right hand and she
cited to Dr. Wise’s treatment notes indicating that Plaintiff was status post CTS in the right upper
extremity only. Id. at 17, citing Tr. at 406. The ALJ did limit Plaintiff’s abilities in her right hand
based upon the 2007 surgery. Id. at 15. Substantial evidence supports the ALJ’s decision to
attribute only little weight to the left upper extremity limitations opined by Drs. Rosenfeld and
Freihofner.
As to the standing/walking limitation to 2 hours, the ALJ found that Plaintiff could perform
the 6-hour standing/walking requirement for light work. Tr. at 16-19. In rejecting the 2-hour
standing/walking limitation of Drs. Rosenfeld and Freihofner, the ALJ merely stated that the doctors
limited Plaintiff to 2 hours “when the claimant only has a torn meniscus.” Id. at 19. This statement
does not suffice to afford little weight to this portion of the agency doctors’ opinions or the ALJ’s
standing/walking limitation for Plaintiff.
However, in the same part of her RFC finding, the ALJ relied in part on medical evidence
and on the discounting of Plaintiff’s credibility, both of which provide substantial evidence to
support her findings concerning the standing/walking limitation that the ALJ assigned to Plaintiff
and her decision to attribute little weight to the extreme limitation offered by the agency doctors..

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The ALJ cited to a March 26, 2014 physical therapy evaluation in which the notes indicate that
Plaintiff had “major” and “moderate” limitations in lumbar range of motion and very limited knee
range of motion, with back pain limiting her left knee range of motion, and knee pain limiting her
right knee range of motion. Tr. at 19, citing Tr. at 677. The ALJ noted that despite these medical
findings, Plaintiff did not present as so limited in the examinations at her pain management clinic
in the same month and year and one month prior to the March 2014 physical therapy evaluation.
Id. at 19. The ALJ cited to pain management treatment notes dated February 10, 2014 in which
Plaintiff’s straight leg raising was negative, her bilateral upper and lower extremities were normal
and asymmetric, and there were no signs of atrophy or tone abnormalities, although she had
decreased range of motion to extension in her back and right knee crepitus. Id. at 19, citing Tr. at
659. The ALJ also cited to a March 17, 2014 pain clinic treatment note where Plaintiff reported low
back and knee pain, but she indicated that lidocaine ointment, a TENS unit and Percocet were
helping. Id. at 19, citing Tr. at 666. The ALJ also noted that upon physical examination on March
17, 2014, Plaintiff had normal range of motion without pain reproduction, full and pain-free range
of motion in her extremities, and no atrophy or tone abnormalities. Id. at 19, citing Tr. at 669.
The ALJ also cited to Plaintiff’s testimony and reports to her doctors, which tended to
discount her credibility as to disabling pain and severe limitations. The ALJ noted that Plaintiff
reported at her physical therapy evaluation that “people” made her lower back pain worse. Tr. at
19, citing Tr. at 676. She also cited to Plaintiff’s response to a nurse who was interviewing her in
order to obtain a TENS unit. Tr. at 18, citing Tr. at 661. The nurse noted that “[d]uring the
interview patient continues to text on her phone, hesitant to answer questions. States ‘I have been
to pain management clinic before, I know how this works.’” Id. The nurse further noted that
Plaintiff did not answer when she was asked what she did for work, if she was not working, when
the last time she worked was, and whether she was receiving disability benefits. Id. at 662. The
ALJ found this behavior to be inconsistent with complaints of disabling pain. Id. at 18. The ALJ
also pointed out that Plaintiff’s onset date of disability was based upon when she was laid off from
her job, rather than on a beginning date of a medical condition or the exacerbation of a medical
condition. Id. at 16. The ALJ further noted that Plaintiff had always worked only on a part-time
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basis Id. These findings, that Plaintiff lacked interest in answering questions concerning a device
that helps her pain, Plaintiff’s onset date was based upon an end of work date rather than a date
corresponding to her medical conditions, and Plaintiff having never before worked on a full-time
basis, support the ALJ’s decision to discount Plaintiff’s credibility of disabling pain and limitations.

For these reasons, the Court finds that substantial evidence supports the ALJ’s decision to
attributed little weight to portions of the opinions of the agency doctors and supports the ALJ’s RFC
for Plaintiff.
VI.

CONCLUSION
For the following reasons, the Court AFFIRMS the decision of the ALJ and DISMISSES

Plaintiff’s complaint in its entirety WITH PREJUDICE.

Date: August 24, 2018

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

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