Scott v. Commissioner of Social Security

Filing 16

Memorandum Opinion and Order: The decision of the Administrative Law Judge is affirmed; this case is dismissed in its entirety with prejudice (Related document 1 ). Signed by Magistrate Judge George J. Limbert on 1/29/2019. (S,AA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
WILLIE SCOTT, III,

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

CASE NO. 1:17CV2123
MAGISTRATE JUDGE
GEORGE J. LIMBERT
MEMORANDUM OPINION
AND ORDER

Plaintiff Willie Scott, III (“Plaintiff”) requests judicial review of the decision of the
Commissioner of Social Security Administration (“Defendant”) denying his applications for
Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). ECF Dkt. #1.
In his brief on the merits, filed on January 15, 2018, Plaintiff asserts that the decision issued by the
administrative law judge (“ALJ”) is not supported by substantial evidence. ECF Dkt. #13.
Defendant filed a response brief on February 14, 2018. ECF Dkt. #14. Plaintiff did not file a reply
brief.
For the following reasons, the Court AFFIRMS the decision of the ALJ and dismisses the
instant case in its entirety with prejudice.
I.

FACTUAL AND PROCEDURAL HISTORY
Plaintiff filed applications for DIB and SSI alleging a disability onset date of June 18, 2013.

ECF Dkt. #11 (“Tr.”) at 272-79.2 The applications were denied initially and upon reconsideration.
Id. at 210-15, 218-21. Plaintiff then requested a hearing before an ALJ. Id. at 222. A hearing was
held on June 4, 2015, but was continued to allow Plaintiff an opportunity to obtain counsel. Id. at

1

On January 23, 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 the page numbers assigned 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.

61. After Plaintiff obtained counsel, a second hearing was held on January 28, 2016. Id. at 31. On
September 28, 2016, the ALJ issued a decision concluding that Plaintiff was not disabled. Id. at 8.
Subsequently, the Appeals Council denied Plaintiff’s request for review. Id. at 1. Accordingly, the
decision issued by the ALJ on September 28, 2016, stands as the final decision.
The instant suit was filed by Plaintiff on October 9, 2017. ECF Dkt. #1. Plaintiff filed a brief
on the merits on January 15, 2018. ECF Dkt. #13. Defendant filed a response brief on February 14,
2018. ECF Dkt. #14. Plaintiff did not file a reply brief.
II.

RELEVANT PORTIONS OF THE ALJ’S DECISION
On September 28, 2016, the ALJ issued a decision finding that Plaintiff was not disabled.

Tr. at 11. The ALJ found that Plaintiff met the insured status requirements of the Social Security
Act through December 31, 2018. Id. at 13. Continuing, the ALJ stated that Plaintiff had not
engaged in substantial gainful activity since June 18, 2013, the alleged onset date. Id. The ALJ
determined that Plaintiff had the severe impairments of right-knee patellar tendonitis and obesity.
Id. Next, the ALJ stated 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. Part 404,
Subpart P, Appendix 1. Id. at 14.
After consideration of the record, the ALJ found that Plaintiff had the residual functional
capacity (“RFC”) to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) with
the following additional limitations: the opportunity to alternate positions between sitting and
standing at approximately thirty-minute intervals; no operation of foot controls with the right lower
extremity; never climbing ladders, ropes, or scaffolds; never kneel or crawl; occasionally climb
ramps or stairs; occasionally balance, stoop, and crouch; and avoid concentrated exposure to hazards
such as dangerous machinery, unprotected heights, and uneven surfaces. Tr. at 15.
The ALJ then stated that Plaintiff was a younger individual on the alleged disability onset
date, had a high school education, and was able to communicate in English. Tr. at 23. Continuing,
the ALJ indicated that the transferability of job skills was not material to the determination of
disability because the Medical-Vocational rules supported a finding that Plaintiff was not disabled.
Id. Considering Plaintiff age, education, work experience, and RFC, the ALJ determined that jobs
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existed in significant numbers in the national economy that Plaintiff could perform. Id. For these
reasons, the ALJ concluded that Plaintiff had not been under a disability, as defined in the Social
Security Act, from June 18, 2013, through the date of the decision. Id. at 24.
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));

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

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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).
V.

LAW AND ANALYSIS
Plaintiff asserts that the ALJ’s decision is not supported by substantial evidence because the

RFC finding did not provide an accurate assessment of his limitations. ECF Dkt. #13 at 10.
Specifically, Plaintiff states that the ALJ unreasonably found that his severe impairments of right
knee patellar tendonitis and obesity only restricted him to light work. Id. at 11. Plaintiff claims that
the medical opinions of record demonstrate that he is incapable of performing light work activity.
Id. The opinions that Plaintiff claims the ALJ weighed improperly were submitted by Hassan Assaf,
M.D., Elizabeth Das, M.D., Leanne Bertani, M.D., and Shu Que Huang, M.D. Id. at 12-14. Each
opinion will be addressed in the order presented by Plaintiff in his brief on the merits.
A.

Consultative Examining Physician

Regarding the opinion submitted by Dr. Assaf, a consultative examining physician, Plaintiff
states:

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[The ALJ] gave little weight to Dr. Assaf’s opinion, stating that the examination of
[Plaintiff] showed no evidence that [Plaintiff] needed a cane for standing or balance.
In fact, Dr. Assaf reported that [Plaintiff] walked with a limp; he could not walk on
heels/toes because of right knee pain; squatting was limited to thirty degrees. Dr.
Assaf’s opinion was supported by the clinical examination. The ALJ goes on to state
that [Plaintiff] did not follow treatment advice to attend physical therapy or attend an
orthopedic evaluation. Again, this is an inaccurate statement as the record contains
orthopedic evaluations and physical therapy sessions.
ECF Dkt. #13 at 12.
Defendant contends that the ALJ only gave some weight to the opinion of Dr. Assaf because
it was inconsistent with clinical findings from Plaintiff’s physical examination. ECF Dkt. #14 at 18.
Continuing, Defendant states that Plaintiff’s diagnostic testing resulted in a conservative course of
treatment and substantial evidence supports the ALJ’s findings. Id. Defendant asserts that the ALJ
did not believe that Dr. Assaf’s examination supported the conclusion that Plaintiff needed a cane
and that the ALJ noted that Plaintiff had a normal stance and rose from his chair without difficulty.
Id. Further, Defendant states that the ALJ indicated that Plaintiff: did not need help changing or
getting on and off the examination table; had no redness, heat, swelling, or effusion of his knee; had
full strength and sensation without any evidence of muscle atrophy or spasm; had only a slight
reduction in the range of motion of his knee; and did not consistently use a cane and that none of his
care providers prescribed a cane. Id. at 18-19.
Plaintiff’s argument is without merit and the ALJ’s assignment of “some weight” to the
opinion of Dr. Assaf is supported by substantial evidence. The ALJ stated that despite Dr. Assaf’s
opinion that Plaintiff’s cane was necessary, no physician actually advised Plaintiff to use a cane or
prescribed the cane. Tr. at 18. The ALJ cited notes from Plaintiff’s physical examination with Dr.
Assaf that showed no indication that Plaintiff needed a cane for standing or balance. Id. Further,
the ALJ cited notations in the record indicating that Plaintiff did not attend physical therapy or
orthopedic evaluations as instructed, indicating that his knee pain was not as severe as alleged. Id.
Although Plaintiff cites evidence that he believes contradicts the ALJ’s assignment of “some
weight” to Dr. Assaf’s opinion, 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. See Cole, 661 F.3d at 937; Rogers, 486 F.3d at 234;

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Buxton, 246 F.3d at 773. Here, the ALJ cited substantial evidence in support of the assignment of
only “some weight” to the opinion of Dr. Assaf and, accordingly, the ALJ’s finding must be
affirmed.
B.

State Agency Non-Examining Physicians

Next, Plaintiff claims that the ALJ improperly found the opinions of the state agency nonexamining physicians, Dr. Das and Dr. Bertani, to be inconsistent with the evidence when assigning
no weight to their opinions. ECF Dkt. #13 at 12. Plaintiff avers that ALJ erroneously stated that
he had significant improvement in functioning and pain levels after undergoing conservative
treatment. Id. at 12-13. Continuing, Plaintiff asserts that the record shows that he was still
exhibiting an antalgic gait after sixteen physical therapy visits and that he walked with a cane. Id.
at 13. Plaintiff further states that when he began a second course of physical therapy in June 2015,
he was experiencing difficulty with activities of daily living and his pain worsened with prolonged
sitting, standing, walking, sleeping, and climbing the stairs. Id.
Defendant asserts that the ALJ properly weighed the opinions submitted by Dr. Das and Dr.
Bertani. ECF Dkt. #14 at 20. Specifically, Defendant states that the ALJ assigned no weight to the
opinions because they were inconsistent with the Plaintiff’s diagnostic test results, the objective
findings from his clinical examinations, and his improvement with conservative treatment. Id.
Defendant avers that although the ALJ indicated that no weight was assigned to the opinions of Dr.
Das and Dr. Bertani, the ALJ was apparently only referring to their conclusions regarding Plaintiff’s
ability to stand and walk. Id. Continuing, Defendant states that the ALJ actually agreed with other
aspects of their opinions regarding foot controls, lifting, postural limitations, and hazards. Id. at 2122. Further, Defendant asserts that even assuming that the ALJ should have adopted the opinions
of Dr. Das and Dr. Bertani, the outcome of the decision would not have been different. Id. at 21.
Defendant states that the questions posed to the vocational expert (“VE”) at the hearing established
that even if Plaintiff’s standing and walking were as limited as opined by Dr. Das and Dr. Bertani,
jobs still existed in significant numbers in the national economy that Plaintiff could perform. Id.
The ALJ’s decision is supported by substantial evidence. In support of the assignment of
no weight to the opinions of Dr. Das and Dr. Bertani, the ALJ indicated that diagnostic testing
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showed minimal degenerative changes and the records showed muscle strength of 5/5. Tr. at 22.
The ALJ also cited medical records from January 2015 in which it was noted that Plaintiff did not
require surgical intervention and that he should instead perform physical therapy seven days a week.
Id. Moreover, even if the ALJ had assigned some degree of weight to the portions of the opinions
of Dr. Das and Dr. Bertani regarding Plaintiff’s ability to stand and walk, the VE testified that jobs
would still exist in significant numbers in the national economy that Plaintiff could perform. As
stated above, 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. See Cole, 661 F.3d at 937; Rogers, 486 F.3d at 234; Buxton, 246 F.3d
at 773. The ALJ explained that the opinions of Dr. Das and Dr. Bertani were not supported by the
record because the opinions were inconsistent with the evidence and then cited medical evidence
in support of this conclusion. Tr. at 22. Accordingly, the ALJ’s assignment of no weight to the
opinions of Dr. Das and Dr. Bertani is supported by substantial evidence.
C.

Treating Physician

Finally, Plaintiff claims that the ALJ improperly discounted the opinion of Dr. Huang, his
treating physician.3 ECF Dkt. #13 at 13. 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, he or she must provide “good reasons” for doing so. Social
Security Rule 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 his case is
determined, especially when he knows that his treating physician has deemed him disabled and he

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Plaintiff does not discuss the treating physician rule despite recognizing Dr. Huang as his treating
physician. See ECF Dkt. #13 at 12-14. Defendant correctly notes that the treating physician rule applies in
this case as the amended regulations for weighing medical opinions apply to claims filed on or after March
27, 2017. ECF Dkt. #14 at 12.

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may therefore “be bewildered when told by an administrative bureaucracy that 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
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., 375 Fed.Appx. 543, 551 (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., 413 Fed.Appx. 856, 864 (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.Appx. 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).
In support of Dr. Huang’s opinion, Plaintiff cites medical records from July 2014 and July
2015 in which Dr. Huang noted mild swelling, tenderness, and a limited range of motion in
Plaintiff’s right knee. Id. Plaintiff also states that the ALJ failed to explain how his minimal daily
activities supported the RFC finding. Id. at 13. Continuing, Plaintiff states that the ALJ was not a
medical expert and improperly substituted his own medical opinion. Id. at 14. Defendant contends
that the ALJ properly observed that Dr. Huang’s opinion was inconsistent with the clinical findings
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of record, including her own treatment notes, and provides a summary of the ALJ’s decision
regarding Dr. Huang’s opinion. ECF Dkt. #14 at 13.
As required by the treating physician rule, the ALJ provided “good reasons” for discounting
Dr. Huang’s opinion and assigning the opinion little weight. The ALJ stated that Plaintiff’s
diagnostic testing showed no evidence of significant degenerative disc disease and that he only
experienced pain with bilateral knee extension at the end of the tested range of motion. Tr. at 21.
Continuing, the ALJ noted that the physical examinations performed by Dr. Huang did not show
significant physical abnormalities in Plaintiff’s right knee and that his “bilateral lower extremities
were 5/5.” Id. The ALJ also noted that an examination of Plaintiff in September 2015 showed 5/5
muscle strength, bilaterally with plantar flexion, dorsiflexion, inversion, and eversion. Id. at 22.
Further, the ALJ stated that the records show that conservative treatment improved Plaintiff’s knee
pain. Id. The ALJ also noted that despite Plaintiff’s knee pain and obesity, he was able to perform
a wide array of physical activities including daily exercise and household chores. Accordingly, the
ALJ explained how Dr. Huang’s opinion was inconsistent with the other evidence of record when
assigning the opinion less than controlling weight and the decision to do so is supported by
substantial evidence. See Wilson, 378 F.3d at 544.
VI.

CONCLUSION
For the foregoing reasons, the Court AFFIRMS the decision of the ALJ and dismisses the

instant case in its entirety with prejudice.

Date: January 29, 2019

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

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