Elmer v. Commissioner of Social Security Administration

Filing 19

Memorandum of Opinion and Order granting plaintiff's 18 Motion to substitute party and affirming the Commissioner's final decision. Signed by Magistrate Judge Jonathan D. Greenberg on 1/29/2019. (Related document 1 ) (S,S)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
WILLA ELMER
on behalf of Victoria Elmer,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner
of Social Security,

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CASE NO. 1:18CV00308

MAGISTRATE JUDGE
JONATHAN D. GREENBERG

MEMORANDUM OF OPINION
AND ORDER

Defendant.
Willa Elmer, on behalf her deceased daughter Victoria Elmer, challenges the final
decision of Defendant, Nancy A. Berryhill,1 Acting Commissioner of Social Security
(“Commissioner”), denying applications for a Period of Disability (“POD”) and Disability
Insurance Benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 416(i), 423,
and 1381 et seq. (“Act”). This Court has jurisdiction2 pursuant to 42 U.S.C. § 405(g) and the
consent of the parties, pursuant to 28 U.S.C. § 636(c)(2). Currently pending is Plaintiff’s Motion

1

On January 23, 2017, Nancy A. Berryhill became the Acting Commissioner of Social
Security.
2

On December 26, 2018, this matter was stayed due to the lapse of congressional
appropriations funding the federal government. See General Order 2018-15. The stay
was thereafter extended pursuant to General Order 2019-1. As the government shutdown
has ended, the stay imposed by General Orders 2018-15 and 2019-1 is hereby lifted.
1

to Substitute Party. (Doc. No. 18.) For the reasons set forth below, Plaintiff’s Motion is
GRANTED and the Commissioner’s final decision is AFFIRMED.
I.

PROCEDURAL HISTORY

In April 2015, Victoria Elmer (hereinafter “Elmer”) filed an application for POD, DIB,
and SSI3 alleging a disability onset date of March 24, 20134 and claiming she was disabled due a
knee injury status post surgery, carpel tunnel in the left hand, and rotator cuff issues in the left
shoulder. (Transcript (“Tr.”) at 268, 275, 302.) The applications were denied initially and upon
reconsideration, and Elmer requested a hearing before an administrative law judge (“ALJ”). (Tr.
205, 214, 219.)
On January 24, 2017, an ALJ held a hearing, during which Elmer, represented by
counsel, and an impartial vocational expert (“VE”) testified. (Tr. 55.) On May 12, 2017, the
ALJ issued a written decision finding Elmer was not disabled. (Tr. 24-43.) The ALJ’s decision
became final on December 29, 2017, when the Appeals Council declined further review. (Tr. 1.)
On December 30, 2017, Elmer passed away. (Doc. No. 18-1 at 1.) On February 8, 2018,
her mother, Willa Elmer (hereinafter “Plaintiff”) filed a Complaint to challenge the
Commissioner’s final decision. (Doc. No. 1.) The parties have completed briefing in this case.
(Doc. Nos. 13, 15.) Plaintiff asserts the following assignment of error:

3

Plaintiff Willa Elmer concedes the only issue in this appeal is the denial of her
daughter’s applications of POD and DIB because she does not meet the statutory
or regulatory requirements for pursuing an underpayment of SSI benefits. (Doc.
No. 18 at 1, Doc. No. 13 at 3.) See 20 CFR §416.542(b)(4).

4

Elmer later amended her onset date to January 20, 2015. (Tr. 27.)
2

(1)

Whether the ALJ’s assessment of Ms. Elmer’s residual functional capacity
is supported by substantial evidence, including treating physician
evidence.

(Doc. No. 13 at 1.)
II. MOTION TO SUBSTITUTE PARTY
As noted supra, Victoria Elmer died on December 30, 2017, prior to the commencement
of this action. (Doc. No. 18-1 at 1.) Within the Complaint and the Brief on the Merits, Plaintiff
did not provide any documentation of Victoria Elmer’s death or any additional evidence (i.e.
proof of no surviving spouse or children) to certify she had standing to pursue the collection of
her deceased daughter’s benefits. (See Doc. No. 1, 13.) Due to concerns over its jurisdiction,
the Court directed Plaintiff to file supplemental briefing to establish she had standing to pursue
this action. (Doc. No. 17.) Plaintiff thereafter filed a Motion to Substitute Party on December
17, 2018. (Doc. No. 18.) The Commissioner has not filed any objection or response. For the
reasons set forth below, the Court finds Plaintiff has established she has standing to pursue this
matter.
If a claimant dies prior to receiving an underpayment of Title II benefits, certain other
individuals may receive the underpayment under social security regulations. Blanton ex rel.
Blanton v. Astrue, 2011 WL 2637224, at *2 (N.D. Ohio June 20, 2011), report and
recommendation adopted, 2011 WL 2637248 (N.D. Ohio July 6, 2011) (citing 20 C.F.R. §
404.503(b); 42 U.S.C. § 404(d)). A deceased claimant's Title II benefits may be paid, in order of
priority, as follows:
(1) The deceased individual's surviving spouse as defined in section 216(c),
(g), or (h) of the Act who was either:

3

(i) Living in the same household (as defined in § 404.347) with the
deceased individual at the time of such individual's death, or
(ii) Entitled to a monthly benefit on the basis of the same earnings record
as was the deceased individual for the month in which such individual
died.
(2) The child or children of the deceased individual (as defined in section
216(e) or (h) of the Act) entitled to a monthly benefit on the basis of the
same earnings record as was the deceased individual for the month in which
such individual died (if more than one such child, in equal shares to each
such child).
(3) The parent or parents of the deceased individual, entitled to a monthly
benefit on the basis of the same earnings record as was the deceased
individual for the month in which such individual died (if more than one
such parent, in equal shares to each such parent). For this purpose, the
definition of “parent” in § 404.374 includes the parent(s) of any deceased
individual who was entitled to benefits under title II of the Act.
(4) The surviving spouse of the deceased individual (as defined in section
216(c), (g), or (h) of the Act) who does not qualify under paragraph (b)(1) of
this section.
(5) The child or children of the deceased individual (as defined in section
216(e) or (h) of the Act) who do not qualify under paragraph (b)(2) of this
section (if more than one such child, in equal shares to each such child).
(6) The parent or parents of the deceased individual, who do not qualify
under paragraph (b)(3) of this section (if more than one such parent, in equal
shares to each such parent). For this purpose, the definition of “parent” in §
404.374 includes the parent(s) of any deceased individual who was entitled
to benefits under title II of the Act.
(7) The legal representative of the estate of the deceased individual as
defined in paragraph (d) of this section.
20 CFR §404.503(b); see also 42 USC §404(d).
However, an individual listed under this section may only receive such benefits if there
are no preceding eligible individuals in the order of priority. Blanton, 2011 WL 2637224 at *2.
See also Brown v. Berryhill, 2017 WL 5493362, *1 (E.D. Mich. Sept. 8, 2017), report and
4

recommendation adopted by 2017 WL 5898459 (E.D. Mich. Nov. 30, 2017). Thus, in order to
establish standing to pursue a deceased claimant’s benefits, a plaintiff must show “she is the
person highest in priority to receive the claimant’s possible DIB benefits.” Id. at *2. Moreover,
a court cannot infer standing based upon allegations in the pleadings. Rather, the basis of
standing must “affirmatively appear in the record; and naked assertions devoid of further factual
enhancement will not suffice.” Blanton, 2011 WL 2637224 at *2 (citing White v. United States,
601 F.3d 545, 551-552 (6th Cir. 2010)).
Here, Plaintiff has established Victoria Elmer is deceased via death certificate. (Doc. 181 at 1.) She also has shown she is the deceased Elmer’s mother and Elmer was not survived by a
spouse or children. (Doc. No. 18-1 at 1; Tr. 268-269.) Based upon this evidence, the Court is
satisfied Plaintiff meets the eligibility requirements to pursue Elmer’s Title II benefits and there
are no other higher ranking individuals under 20 CFR §404.503(b). Thus, Plaintiff has
demonstrated she has standing to bring this suit and her unopposed Motion to Substitute Party is
GRANTED.
III.
A.

EVIDENCE

Personal and Vocational Evidence
Elmer was born in November 1966 and was 51 years-old at the time of her administrative

hearing, making her a “person closely approaching advanced age” under social security
regulations. (Tr. 157.) See 20 C.F.R. §§ 404.1563(d). She has a high school education and is
able to communicate in English. (Tr. 163.) She has past relevant work as an administrative
clerk and an office manager. (Tr. 35.)

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B.

Medical Evidence5

Evidence Prior6 to Date Last Insured
On July 8, 2013, Elmer began a course of aquatic therapy for her right knee pain. (Tr.
410.) Following her first session, she had improved gait quality and pain levels. (Tr. 410, 411.)
Elmer returned to physical therapy on July 10, 2013, reporting her left knee pain was intermittent
and slightly improved since her last visit. (Tr. 413.) Elmer continued to experience pain in her
left knee with weight bearing on July 16, 2013. (Tr. 416.) However, her gait quality had
improved and her pain decreased by the end of her physical therapy session. (Tr. 417.)
Elmer’s last visit of aquatic therapy was on July 18, 2013. (Tr. 419.) Her gait quality
and pain intensity were again noted to be improved. (Tr. 419, 420.) She was discharged from
physical therapy on August 19, 2013, as she had achieved her strength goals. (Tr. 422.)
However, Elmer continued to struggle with high levels of pain. (Id.)
On November 5, 2013, Elmer visited primary care physician Nathan D. Tracey, DO,
regarding her blood pressure and left knee pain. (Tr. 430.) Her blood pressure was controlled
and she denied any chest pain or shortness of breath. (Id.) She indicated she had recently lost 14
pounds, but struggled to exercise due to knee pain. (Id.) Elmer reported her knee pain had been
present since March 2013 and intensified with weight bearing. (Id.) On examination, her left
knee range of motion was normal, with no swelling or tenderness, and normal muscle tone. (Tr.
5

The Court’s recitation of the medical evidence is not intended to be exhaustive
and is limited to the evidence cited in the parties’ Briefs.

6

Elmer’s date last insured (“DLI”) was on December 31, 2015. (Tr. 29.)
Therefore, in order to be entitled to POD and DIB, Elmer must establish a
continuous twelve month period of disability prior to this date. See Mullis v.
Bowen, 861 F.2d 991, 994 (6th Cir. 1988); Henry v. Gardner, 381 F.2d 191, 195
(6th Cir. 1967).
6

431.) Dr. Tracey advised Elmer to continue her home exercises and prescribed Meloxicam. (Tr.
432.)
A January 3, 2014 left knee MRI revealed (1) fraying or a possible small tear along the
inner margin of the lateral meniscal body; (2) patellofemoral osteoarthritis with a chondral flap
of the lateral facet; (3) mild osteoarthritic changes of the femoratibial compartment; (4) no joint
effusion or synovitis; and (5) an intact ACL and MCL. (Tr. 449.)
Elmer visited primary care doctor Thomas Schalcosky, DO, on January 30, 2014, for
continued left knee pain. (Tr. 447.) She indicated she has been wearing a knee brace on an asneeded basis and her medications were helpful. (Id.) On examination, Elmer’s spinal range of
motion was normal and her muscular strength was intact. (Tr. 450.) She had no joint swelling,
deformity, or tenderness. (Id.) Dr. Schalcosky reviewed Elmer’s MRI and referred her to an
orthopedist for a left lateral meniscus tear. (Tr. 449, 450.)
Elmer subsequently received a cortisone injection in her knee on April 9, 2014. (Tr.
458.) She followed up with Dr. Tracey on May 8, 2014, reporting the injection provided no
relief and her pain had worsened since the injection. (Id.) On examination, Elmer had no
swelling or effusion, but there was tenderness in her left knee. (Tr. 459.) Dr. Tracey advised
Elmer to visit an orthopedist and pain management doctor. (Tr. 460.)
On July 15, 2014, Elmer underwent a left knee arthroscopic partial lateral meniscectomy
with orthopedist James S. Williams, MD. (Tr. 571.) Following this operation, Elmer attended
physical therapy. (Tr. 564.) On July 23, 2014, Elmer had constant pain in her knee and deficits
in range of motion, strength, ambulation, and functional mobility. (Tr. 564, 566.) She was

7

ambulating with crutches and her left knee was stiff. (Tr. 565.) Due to swelling, an ultrasound
was ordered to rule out deep vein thrombosis. (Tr. 695, 468.)
Elmer returned to Dr. Tracey on September 19, 2014, reporting she was “doing well” in
physical therapy. (Tr. 468.) On examination, she had trace edema in her right leg. (Id.) Elmer
indicated she had a crutch with her “just in case” but had not been using it regularly. (Id.)
Elmer saw Dr. Tracey on December 5, 2014 for fatigue and left shoulder pain. (Tr. 474.)
On examination, her gait was normal. (Tr. 476.) She had tenderness and decreased strength in
the left shoulder, but a normal range of motion. (Id.) Dr. Tracey ordered blood work and a sleep
study for her fatigue and advised Elmer to visit an orthopedist for her shoulder. (Tr. 475, 476.)
A December 10, 2014 left knee x-ray confirmed mild knee osteoarthritis and osteopenia. (Tr.
692.)
On December 10, 2014, Alan Duignan, PA-C, a physicians’ assistant in Dr. Williams’
office, provided the following statement:
Victoria Elmer was seen in my clinic on December 10, 2014 and had surgery
in July of 2014. She is still struggling with pain and swelling related to the
surgery making work and other activities difficult until more improvement is
noted with the knee.
(Tr. 749.)
On January 9, 2015, Elmer visited primary care physician Lacey Neugebauer, DO. (Tr.
482.) She indicated her fatigue had “greatly improved” after starting an iron supplement. (Id.)
Elmer also reported undergoing multiple injections in her left knee, which she did not find
helpful. (Id.) On examination, she was wearing a knee brace and her gait was normal. (Tr. 482,
485.)

8

Elmer resumed physical therapy in January 2015. On January 22, 2015, her shoulder was
feeling better overall, but her knee continued to bother her with standing and walking. (Tr. 511.)
On February 6, 2015, Elmer indicated her shoulder was improving and rated her knee pain as
2/10 and intermittent in nature. (Tr. 508.) On examination, she had a mildly antalgic gait. (Id.)
On February 20, 2015, Elmer reported “a lot of improvements” in her left shoulder, with some
residual numbness and tingling in her hands. (Tr. 504.) She indicated she had “good and bad
days” in her left knee and a few instances where she had slipped on ice. (Id.) Elmer relayed her
knee pain was worse with weight bearing and she could not walk any distance without intense
pain. (Id.) She indicated she was using a motorized cart at the grocery store and took breaks
when washing dishes. (Id.) On examination, she had minimal edema throughout her knee and
full strength in her hips and knees. (Id.)
On March 5, 2015, Elmer was “feeling better” with no pain in her left shoulder, but had
ongoing pain in her left knee. (Tr. 499.) Her physical therapist noted that while Elmer’s
shoulder had “significantly improved,” her left knee pain continued to limit her. (Tr. 500.)
Elmer visited Alan Duigan, PA-C on March 10, 2015, reporting extreme pain in her left
knee with extended walking and kneeling. (Tr. 497, 498.) On examination, she had crepitus and
pain with flexion. (Tr. 498.) Mr. Duigan administered a cortisone injection. (Id.)
Elmer returned to physical therapy on March 19, 2015. She indicated her knee pain had
improved after her recent injection, but returned after she had slipped. (Tr. 493.) She reported
the pain after slipping was so “intense she almost fainted,” but had been gradually improving.
(Id.) On examination, she had minimal edema throughout the knee and full strength in her hips,
knees, and ankles. (Tr. 494.) Elmer had no appreciable antalgia in her gait and full range of

9

motion and strength in her left shoulder. (Tr. 495, 496.) She also had full range of motion and
strength in her knee. (Tr. 496.) At that time, her physical therapist provided Elmer with a home
exercise program and discharged her from therapy, as she had met her therapy goals. (Id.)
On April 14, 2015, Elmer visited Mr. Duigan, reporting she was doing “fairly well,” but
had some increased pain and swelling after a cortisone injection. (Tr. 492.) On examination, she
had tenderness in her knee, but no effusion. (Tr. 493.) Mr. Duigan concluded Elmer strained her
patellar tendon and advised her to rest and ice until it improved. (Id.) He also ordered Elmer
prescription orthopedic shoes. (Tr. 812.)
Elmer followed up with Dr. Williams on June 17, 2015. Dr. Williams noted Elmer had
undergone a Supartz injection in May, but it provided no relief. (Tr. 794.) On examination,
Elmer had discomfort with palpation along her knee. (Id.) Dr. Williams concluded Elmer had
either lost more cartilage or had a stress fracture. (Id.) He advised her to wear her knee brace as
much as possible and ordered an updated MRI. (Id.) The MRI revealed mild osteoarthritic
changes and blunting of the margin of the body and posterior horn of the lateral meniscus. (Tr.
822.)
Elmer visited physical therapy on June 24, 2015, reporting she was still struggling with
knee pain. (Tr. 902.) On examination, she had slightly decreased hip strength, but full knee
strength and normal sensation. (Tr. 903.) Her gait was slow and she did not use any assistive
device for ambulation. (Id.)
On July 2, 2015, Elmer visited pain management physician Samuel Samuel, MD,
reporting left arm and left knee pain. (Tr. 983.) She denied a gait disturbance or any frank
weakness in her left arm. (Id.) On examination, Elmer displayed good motor power in her hand

10

grip, tenderness over her lower lumbar spine, and minimal tenderness over the sacroiliac joint.
(Tr. 984.) Dr. Samuel prescribed Topamax and ordered an EMG and MRI. (Id.)
A July 21, 2015, MRI of the lumbar spine revealed mild degenerative changes in the
facet joints of the lower lumbar spine without any significant canal or foraminal stenosis. (Tr.
826.) An EMG of the upper extremities revealed mild median mononeuropathy (e.g., bilateral
carpal tunnel syndrome), which was worse on the left side. (Tr. 829.) It was negative for
cervical radiculopathy, brachial plexopathy, or other types of neuropathy. (Id.)
Elmer underwent a “well woman” examination with gynecologist Habibeh Gitiforooz,
MD, on July 27, 2015. (Tr. 901.) She had no joint swelling, pain, or stiffness on examination.
(Id.) Dr. Gitiforooz obtained a pap smear and ordered a mammogram. (Tr. 902.)
On July 29, 2015, Elmer visited physicians’ assistant Dalbir Singh, PA, at her pain
management doctor’s office. (Tr. 899.) She reported lower back pain, but denied any radicular
symptoms. (Id.) On examination, Elmer’s bilateral upper and lower extremity strength was
normal and symmetric. (Tr. 900.) Her straight leg raises were negative. (Id.) She had pain with
palpation in her lumbar paraspinal muscles and her gait was antalgic. (Id.) Dalbir Singh
recommended Elmer wear a left wrist brace and continue her home exercise program. (Id.)
Elmer returned to Dr. Williams on August 26, 2015. Dr. Williams observed Elmer’s
back pain was hindering her ability to make a full recovery with her knee. (Tr. 803.) He noted
she had some upcoming treatment for her back and advised her to resume physical therapy once
her back pain improved. (Id.)
On August 28, 2015, Elmer visited Dr. Neugebauer, reporting increased fatigue. (Tr.
890.) As the etiology of her fatigue was unclear, Dr. Neugebauer ordered bloodwork. (Tr. 892.)

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At the time, Elmer requested a shower chair and raised toilet seat. (Tr. 893.) These were
provided to Elmer several weeks later. (Tr. 970.)
Elmer followed up with Dr. Samuel on September 3, 2015 for back, left knee, and left
hand pain. (Tr. 1027.) She reported undergoing several injections and gel shots into her knee,
which provided no relief. (Id.) On examination, Elmer was wearing a left knee brace and her
gait was antalgic. (Tr. 1028.) Her straight leg raises were negative and her sensation was
normal. (Id.) She had pain with palpation over her lumbar paraspinal muscles. (Id.) Dr.
Samuel advised her to continue with physical therapy and wean off of Topamax. (Id.) That
same date, Dr. Samuel prescribed a disability placard with the following restriction: “cannot
walk 200 [feet] without stopping at rest.” (Tr. 806.)
Elmer attended physical therapy on September 3, 2015. She reported the exercises
bothered her back, but her knee brace fit well and was somewhat helpful. (Tr. 888.) The
physical therapist, Matthew Winters, PT, noted Elmer’s range of motion and strength had
improved, but her progress was slow due to back pain. (Tr. 889.) During a September 10, 2015
physical therapy visit, Elmer reported increased pain, rating it as 8/10. (Tr. 885.) She had an
antalgic gait and her knee pain increased with full extension. (Tr. 885, 886.) However, Elmer
also demonstrated increased independence with her exercises and improved range of motion and
strength. (Tr. 886.)
On September 23, 2015, Dr. Neugebauer provided the following statement:
This letter is in regards to the above named patient, Victoria Elmer, Case
#5114177982. Ms. Elmer has a known history of chronic pain secondary to
degenerative changes in her spine and knees as well as carpal tunnel
syndrome for which she follows with pain management and orthopedics.
Ms. Elmer has requested that I disclose these diagnoses to you for

12

clarification as to why she requires assistance and cannot perform full duty
work at this time.
(Tr. 1075.)
On October 7, 2015, Elmer received two wrist splints. (Tr. 963.) On November 30,
2015, Elmer visited orthopedist Steven Maschke, MD, for bilateral hand numbness and tingling.
(Tr. 1045.) She indicated these symptoms had been present for the past six months and she was
using night splints. (Id.) On examination, Elmer had a full range of motion in her cervical spine,
shoulders, and elbows. (Tr. 1046.) She had no atrophy in her hands, but she did have
diminished sensation in several of her fingers. (Id.) Dr. Maschke diagnosed bilateral carpal
tunnel syndrome and injected Elmer’s left hand. (Id.)
Elmer followed up with Dr. Neugebauer on December 15, 2015, reporting her energy
level had improved slightly. (Tr. 1052.) She indicated no relief from her left hand injection and
continued left knee pain. (Id.) On examination, Elmer’s wrists had a normal range of motion
with no tenderness. (Tr. 1055.) Her left knee was tender, but with a normal range of motion, no
swelling, and normal patellar mobility. (Id.)
Post-Date Last Insured Evidence
On January 11, 2016,7 Elmer returned to Dr. Maschke, indicating her left hand injection
had caused excessive swelling. (Tr. 1156.) She continued to experience numbness, tingling, and
pain in her palm. (Id.) Dr. Maschke recommended Elmer enter a wellness program, in order to
begin an anti-inflammatory diet and weight loss program. (Tr. 1157.)

7

While the proceeding treatment notes all occurred following the DLI, the Court
will include them in its recitation of the evidence as the parties cited to them in
their briefs. (See Docs. No. 13, 15.)
13

Elmer attended physical therapy in February 2016. On February 16, 2016, Elmer was
“feeling pretty good” and rated her pain as 2/10. (Tr. 1117.) On February 26, 2016, Elmer had
“improved overall” and was “much happier with her movement and ability to ambulate.” (Tr.
1129.) She was discharged from physical therapy at that time as she had “improved lumbar
motion, decreased pain, and better awareness of the lumbar stabilization, posture, and body
mechanics.” (Tr. 1130.)
On March 15, 2016, Elmer visited Dr. Samuel, reporting improved pain levels. (Tr.
1193.) Her straight leg raise was negative and she had no pain to palpation over her spine. (Tr.
1197.) She had a normal spinal range of motion, her peripheral joint range of motion was full
and pain free, and her gait was normal. (Id.) Her upper and lower extremity strength was
normal and symmetric. (Id.)
Elmer followed up with Dr. Williams on March 18, 2016. (Tr. 1204.) She reported her
back was “a lot better,” but her knee was still bothering her. (Id.) Dr. Williams found no
evidence of a new knee injury, but noted she had “some arthritis” and recommended additional
physical therapy. (Id.) He also advised Elmer to wear her knee brace. (Id.)
On March 24, 2016, Elmer visited Dr. Neugebauer and requested “disability for her
orthopedic concerns.” (Tr. 1208.) She reported that while her back pain had improved, she was
still unable to stand or walk for long periods. (Tr. 1209.) On examination, Elmer had tenderness
in both of her wrists, but a normal range of motion. (Tr. 1211.) Her hand strength was normal
but she displayed positive Tinel’s and Phalen’s signs bilaterally. (Tr. 1212.) Dr. Neugebauer
ordered a physical performance test “due to request for disability.” (Id.)

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Elmer returned to Dr. Maschke on March 28, 2016 for her bilateral hand numbness and
tingling. (Tr. 1335.) She characterized her symptoms as “mild on the left and more severe on
the right.” (Id.) On examination, Elmer had mildly positive Tinel’s signs bilaterally, but no
tenderness in the forearm and no thenar atrophy. (Tr. 1336.) Elmer indicated to Dr. Maschke
she felt her symptoms were “part of a bigger systemic issue as she has vague symptoms
throughout her entire body.” (Id.) She elected to continue “down the holistic wellness route”
and agreed to discuss surgical options if her symptoms persisted. (Id.)
On April 19, 2016, Elmer visited occupational therapist Anne Baldwin, OT, for her hand
symptoms. (Tr. 1558.) She reported she could not cut food and avoided picking up items with
her right hand. (Id.) On examination, Elmer was able to make a complete fist, albeit with pain
on the right side. (Tr. 1559.) She was able to fully extend her fingers. (Id.) Her grip strength
was 46 pounds on the right and 52 pounds on the left. (Id.) Ms. Baldwin provided Elmer with
bilateral wrist braces and exercises. (Tr. 1560.) Elmer did not require any further occupational
therapy. (Id.)
Elmer underwent a functional capacity evaluation on April 26, 2016 with occupational
therapist Lidiya Kanarsky, OTR/L. (Tr. 1371.) Based upon the evaluation, Ms. Kanarsky
concluded Elmer could “perform within the LIGHT Physical Demand Capacity,” with
occasional lifting of 15 pounds, occasionally carrying of 20 pounds, frequent walking, constant
reaching, constant above shoulder reaching, frequent fine motor coordination, occasional gross
motor coordination, occasional pinching, avoid firm grasping, frequent bending and squatting,
and no sustained squatting and kneeling. (Tr. 1372-1373.)

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On May 10, 2016, Elmer resumed physical therapy for her left knee. (Tr. 1496.) On
examination, she had a decreased range of motion in both knees and her left knee strength was
slightly decreased on examination. (Id.) On June 2, 2016, Elmer reported she was “doing well,”
but a recent move had caused a slight increase in pain. (Tr. 1506.) On examination, Elmer
displayed increased strength. (Tr. 1507.) On June 7, 2016, her pain had subsided and she was
doing well. (Tr. 1509.)
On June 23, 2016, Elmer reported visiting the beach a few days prior, which exacerbated
her knee pain. (Tr. 1513.) She was wearing a knee brace and rated her pain as 8/10. (Id.) Her
physical therapist, Matthew Winters, PT, noted while Elmer experienced “significant knee pain
during weight bearing activities [her] pain rarely limit[ed] participation in exercises.” (Tr.
1514.)
Elmer visited orthopedist Mark Hendrickson, MD, on June 27, 2016 for her carpal tunnel
syndrome. (Tr. 1518.) Dr. Hendrickson noted Elmer’s EMG had confirmed mild carpal tunnel
syndrome. (Id.) On examination, she had slight weakness, “very slight right median intrinsic
atrophy,” and bilateral Tinel’s signs. (Id.) Elmer had good intrinsic and extrinsic muscle and
tendon function. (Id.) Following this office visit, Elmer elected to undergo carpal tunnel release
surgery. (Tr. 1535.)
A July 12, 2016 MRI of the left knee revealed (1) a degenerative tear in the body of the
lateral meniscus and (2) lateral and patellofemoral compartment osteoarthritis with areas of full
thickness chondral loss in the lateral compartment. (Tr. 1285.)

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Elmer consulted with rheumatologist Carmen E. Gota, MD, on August 26, 2016. (Tr.
1535.) On examination, Elmer’s joints were not swollen, but she had a positive Tinel’s sign on
the right. (Tr. 1538.) Dr. Gota prescribed Gabapentin and ordered labwork. (Id.)
On September 2, 2016, Dr. Hendrickson provided the following statement:
This is to certify that Victoria Elmer is under my care for bilateral carpal
tunnel syndrome. She has slight right median intrinsic atrophy and slight
weakness. She has [T]inel’s on both sides, positive median compression on
both sides and decreased light touch more right than left.
My medical recommendation is to undergo bilateral carpel tunnel release
surgery. Unfortunately due to other medical conditions she will need to hold
off on our surgery and proceed with a left knee surgery.
At the present time my patient Ms. Elmer is unable to work due to the
severity of her carpal tunnel syndrome.
(Tr. 1300.)
On September 19, 2016, Dr. Williams performed a left knee arthroscopy to repair
Elmer’s left knee lateral meniscus tear. (Tr. 1583.) Elmer began left knee rehabilitation therapy
on October 11, 2016. (Tr. 1256.) At that time, she was ambulating with bilateral crutches and
had a limited range of motion in her left knee. (Tr. 1256, 1257.) The evaluating physical
therapist, Ioanna Simon, PT, determined Elmer had “typical post op pain and swelling” with a
good prognosis. (Tr. 1257.) Elmer did have a significant loss of range of motion, which Ms.
Simon attributed to “how she holds her knee at rest.” (Id.)
Elmer returned to Dr. Gota on December 1, 2016. (Tr. 1602.) Dr. Gota discontinued
Elmer’s Gabapentin and Naproxen and prescribed Tramadol. (Tr. 1606.)

17

On December 14, 2016, Elmer followed up with Dr. Williams. (Tr. 1592.) She reported
continued pain and swelling, which was interfering with her progress in physical therapy. (Id.)
Dr. Williams administered a steroid injection in an attempt to decrease the swelling. (Id.)
C.

State Agency Reports
On July 3, 2015, state agency physician William Bolz, M.D., reviewed Elmer’s medical

records and completed a Physical RFC assessment. (Tr. 161-162.) Dr. Bolz determined Elmer
could occasionally lift and carry 20 pounds and frequently lift and carry 10 pounds; stand and/or
walk for more than 6 hours in an 8-hour workday; and sit for more than 6 hours in an 8-hour
workday. (Id.) He further found Elmer had an unlimited capacity to climb ramps, stairs, ladders,
ropes, and scaffolds. (Tr. 162.) Dr. Bolz determined Elmer could frequently stoop, kneel,
crouch, and crawl. (Id.)
On October 25, 2015, state agency physician Leon D. Hughes, M.D., reviewed Elmer’s
medical records and completed a Physical RFC assessment. (Tr. 185-186.) Dr. Hughes
determined Elmer could occasionally lift and carry 20 pounds and frequently lift and carry 10
pounds; stand and/or walk for 4 hours in an 8-hour workday; and sit for about 6 hours in an 8hour workday. (Tr. 185.) He further found Elmer could frequently climb ramps and stairs,
occasionally climb ladders, ropes, and scaffolds, and occasionally stoop, kneel, crouch, and
crawl. (Tr. 186.) Dr. Bolz determined Elmer had an unlimited capacity to balance. (Id.)
D.

Hearing Testimony
During the January 24, 2017 hearing, Elmer testified to the following:
•

She lives with her sister in her sister’s home. (Tr. 63.) Prior to that,
she lived with her mother. (Tr. 64.) She has been using a shower
chair since 2015. (Tr. 66.) She must sit in a chair while washing

18

dishes. (Tr. 74.) Her mother and her sister assist her with her
laundry. (Id.) She is able to drive. (Id.)
•

She used to enjoy crocheting and decorating cakes, but has not
performed these activities since 2014. (Tr. 66.) She last worked as a
staffing administrator for a military contractor. (Tr. 69.) Prior to
that, she worked as an office manager for a government agency. (Tr.
72.)

•

She has carpal tunnel syndrome in her right hand and four of her
fingers are numb. (Tr. 76.) She has shooting pain which radiates
from her hand to midway between her wrist and elbow. (Tr. 76-77.)
She has a burning and tingling sensation in her left hand. (Tr. 77.)
She has difficulty lifting objects, cutting food, and opening jars. (Tr.
84.)

•

Her left knee is often swollen, which has caused her foot to “veer to
the left.” (Tr. 78.) She often loses her balance and uses a crutch.
(Tr. 79.) She has undergone surgery, injections, and physical
therapy for her left knee. (Tr. 79-80.) She also uses a knee brace.
(Tr. 80.)

The VE testified Elmer had past work as an administrative clerk (D.O.T. #219.362-010)
and office manager (D.O.T. #169.167-034). (Tr. 85-86.) The ALJ then posed the following
hypothetical question:
First off, I would like you to consider a person with the same age, education,
and past work as the Claimant, who is able to lift and carry 20 pounds and
frequently lift and carry 10 pounds, is able to stand and walk 4 hours of an 8hour workday, is able to sit for six hours of an 8-hour workday, would have
unlimited push and pull, other than shown for lift and or carry, could
occasionally climb ramps and stairs, could never climb ladders, ropes, or
scaffolds, and could occasionally stoop, kneel, crouch, and crawl.
(Tr. 86.)
The VE testified the hypothetical individual would be able to perform Elmer’s past work
as an administrative clerk and an office manager. (Tr. 87.) The ALJ then added the additional

19

limitation of “frequent handling and fingering bilaterally.” (Id.) The VE testified such an
individual would still be able to perform Elmer’s past work. (Id.)
IV.

STANDARD FOR DISABILITY

In order to establish entitlement to DIB under the Act, a claimant must be insured at the
time of disability and must prove an inability to engage “in substantial gainful activity by reason
of any medically determinable physical or mental impairment,” or combination of impairments,
that can be expected to “result in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months.” 20 C.F.R. §§ 404.130, 404.315 and 404.1505(a).1
A claimant is entitled to a POD only if: (1) she had a disability; (2) she was insured when
she became disabled; and (3) she filed while she was disabled or within twelve months of the
date the disability ended. 42 U.S.C. § 416(i)(2)(E); 20 C.F.R. § 404.320.
The Commissioner reaches a determination as to whether a claimant is disabled by way
of a five-stage process. 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4). See also Ealy v.
Comm’r of Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010); Abbott v. Sullivan, 905 F.2d 918, 923
(6th Cir. 1990). First, the claimant must demonstrate that she is not currently engaged in
“substantial gainful activity” at the time of the disability application. 20 C.F.R. §§ 404.1520(b)
and 416.920(b). Second, the claimant must show that she suffers from a “severe impairment” in
order to warrant a finding of disability. 20 C.F.R. §§ 404.1520(c) and 416.920(c). A “severe
impairment” is one that “significantly limits . . . physical or mental ability to do basic work
activities.” Abbot, 905 F.2d at 923. Third, if the claimant is not performing substantial gainful
activity, has a severe impairment that is expected to last for at least twelve months, and the
impairment, or combination of impairments, meets or medically equals a required listing under

20

20 CFR Part 404, Subpart P, Appendix 1, the claimant is presumed to be disabled regardless of
age, education or work experience. See 20 C.F.R. §§ 404.1520(d) and 416.920(d). Fourth, if the
claimant’s impairment or combination of impairments does not prevent her from doing her past
relevant work, the claimant is not disabled. 20 C.F.R. §§ 404.1520(e)-(f) and 416.920(e)-(f).
For the fifth and final step, even if the claimant’s impairment does prevent her from doing her
past relevant work, if other work exists in the national economy that the claimant can perform,
the claimant is not disabled. 20 C.F.R. §§ 404.1520(g), 404.1560(c), and 416.920(g).
Here, Elmer was insured on her alleged disability onset date, January 20, 2015 and
remained insured through December 31, 2015, her date last insured (“DLI.”) (Tr. 29.)
Therefore, in order to be entitled to POD and DIB, Elmer must establish a continuous twelve
month period of disability commencing between these dates. Any discontinuity in the twelve
month period precludes an entitlement to benefits. See Mullis v. Bowen, 861 F.2d 991, 994 (6th
Cir. 1988); Henry v. Gardner, 381 F.2d 191, 195 (6th Cir. 1967).
V.

SUMMARY OF COMMISSIONER’S DECISION

The ALJ made the following findings of fact and conclusions of law:
1.

The claimant meets the insured status requirements of the Social Security Act
through December 31, 2015.

2.

The claimant has not engaged in substantial gainful activity since January 20,
2015, the amended alleged onset date (20 CFR 404.1571 et seq., and 416.971
et seq.).

3.

The claimant has the following severe impairments: osteoarthritis(knees),
lumbar spondylosis, bilateral carpal tunnel syndrome, and obesity (20 CFR
404.1520(c) and 416.920(c).

4.

The claimant does not have any impairment or combination of impairments
that meets or medically equals the severity of one of the listed impairments

21

in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525,
404.1526, 416.920(d), 416.925 and 416.926).
5.

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 404.1567(b) and 416.967(b) except the claimant is able to stand
and walk for four hours in an eight-hour workday. The claimant can
occasionally stoop, kneel, crouch, crawl, and climb ramps and stairs, but
never climb ladders, ropes, and scaffolds. The claimant can perform frequent
handling and fingering bilaterally.

6.

The claimant is capable of performing past relevant work as an
administrative clerk and office manager. This work does not require the
performance of work-related activities precluded by the claimant’s residual
functional capacity (20 CFR 404.1565 and 416.965).

7.

The claimant has not been under a disability, as defined in the Social Security
Act, from January 20, 2015, through the date of the decision (20 CFR
404.1520(f) and 416.920(f)).

(Tr. 29-36.)

VI. STANDARD OF REVIEW
“The Social Security Act authorizes narrow judicial review of the final decision of the
Social Security Administration (SSA).” Reynolds v. Comm’r of Soc. Sec., 2011 WL 1228165 at
*2 (6th Cir. April 1, 2011). Specifically, this Court’s review is limited to determining whether
the Commissioner’s decision is supported by substantial evidence and was made pursuant to
proper legal standards. See Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010);
White v. Comm’r of Soc. Sec., 572 F.3d 272, 281 (6th Cir. 2009). Substantial evidence has been
defined as “‘more than a scintilla of evidence but less than a preponderance; it is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’” Rogers v.
Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (quoting Cutlip v. Sec’y of Health and
Human Servs., 25 F.3d 284, 286 (6th Cir. 1994)). In determining whether an ALJ’s findings are
22

supported by substantial evidence, the Court does not review the evidence de novo, make
credibility determinations, or weigh the evidence. Brainard v. Sec’y of Health & Human Servs.,
889 F.2d 679, 681 (6th Cir. 1989).
Review of the Commissioner’s decision must be based on the record as a whole. Heston
v. Comm’r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). The findings of the Commissioner
are not subject to reversal, however, merely because there exists in the record substantial
evidence to support a different conclusion. Buxton v. Halter, 246 F.3d 762, 772-3 (6th Cir.
2001) (citing Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)); see also Her v. Comm’r of
Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999)(“Even if the evidence could also support another
conclusion, the decision of the Administrative Law Judge must stand if the evidence could
reasonably support the conclusion reached.”) This is so because there is a “zone of choice”
within which the Commissioner can act, without the fear of court interference. Mullen, 800 F.2d
at 545 (citing Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984)).
In addition to considering whether the Commissioner’s decision was supported by
substantial evidence, the Court must determine whether proper legal standards were applied.
Failure of the Commissioner to apply the correct legal standards as promulgated by the
regulations is grounds for reversal. See, e.g.,White v. Comm’r of Soc. Sec., 572 F.3d 272, 281
(6th Cir. 2009); Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2006) (“Even if
supported by substantial evidence, however, a decision of the Commissioner will not be upheld
where the SSA fails to follow its own regulations and where that error prejudices a claimant on
the merits or deprives the claimant of a substantial right.”).

23

Finally, a district court cannot uphold an ALJ’s decision, even if there “is enough
evidence in the record to support the decision, [where] the reasons given by the trier of fact do
not build an accurate and logical bridge between the evidence and the result.” Fleischer v.
Astrue, 774 F. Supp. 2d 875, 877 (N.D. Ohio 2011) (quoting Sarchet v. Chater, 78 F.3d 305, 307
(7th Cir.1996); accord Shrader v. Astrue, 2012 WL 5383120 (E.D. Mich. Nov. 1, 2012) (“If
relevant evidence is not mentioned, the Court cannot determine if it was discounted or merely
overlooked.”); McHugh v. Astrue, 2011 WL 6130824 (S.D. Ohio Nov. 15, 2011); Gilliam v.
Astrue, 2010 WL 2837260 (E.D. Tenn. July 19, 2010); Hook v. Astrue, 2010 WL 2929562 (N.D.
Ohio July 9, 2010).
VII.

ANALYSIS

In her sole assignment of error,8 Plaintiff asserts the ALJ “erred in giving little weight to
the treating physicians’ opinions of Dr. Neugebauer and Dr. Hendrickson.” (Doc. No. 13 at 9.)
She contends the ALJ’s basis for rejecting these opinions was “not legally sufficient, nor
supported by the evidence of record.” (Id.) Plaintiff maintains “there is strong support, and
consistency, between the medical opinions and the other medical evidence of record,” thus
supporting Drs. Neugebauer and Hendrickson’s conclusion she could not work. (Id. at 11, 13.)
She asserts “the ALJ erred in assessing the treating source opinions by failing to recognize the
8

The Court notes Plaintiff, in her assignment of error, summarily asserts “Elmer’s
residual functional capacity is not supported by substantial evidence.” (Doc. No.
13 at 9.) However, within her brief, Plaintiff only presents arguments regarding
two treating physician opinions and does not advance a separate RFC argument.
(Id. at 9-14.) While the Commissioner argues the RFC is supported by substantial
evidence, and provides a detailed argument as to why, she acknowledges
Plaintiff’s “only challenge of the ALJ’s evaluation of the evidence” is regarding
the treating source opinions. (Doc. No. 15 at 13, 18.) Thus, the Court will not
conduct a separate analysis of the RFC and will limit its discussion to the
arguments set forth in Plaintiff’s brief.
24

supportability and consistency of the treating physicians’ opinions with the evidence of record.”
(Id. at 13.) Plaintiff argues the ALJ “committed further error by failing to continue with an
evaluation of the treating physicians’ opinions” through the additional regulatory factors. (Id. at
13.) She maintains the consideration of these additional factors was crucial since Elmer received
all of her treatment “through Cleveland Clinic providers who worked in conjunction to treat her
multiple impairments.” (Id.)
The Commissioner maintains “the ALJ properly discredited the doctors’ conclusory and
unsupported opinions that [Victoria Elmer] could not work.” (Doc. No. 15 at 18.) The
Commissioner asserts the ALJ disregarded these opinions not only “because it involves the
ultimate issue of disability,” but also because “they provided no functional limitations that could
be included in the RFC finding and, most importantly, they were inconsistent with the medical
evidence.” (Id. at 18, 19.) The Commissioner contends the ALJ was not required to discuss
every regulatory factor in the opinion and properly “indicated the factors that he found relevant –
consistency and supportibility.” (Id. at 20.)
A treating source opinion must be given “controlling weight” if such opinion (1) “is
well-supported by medically acceptable clinical and laboratory diagnostic techniques” and (2)
“is not inconsistent with the other substantial evidence in [the] case record.” Gayheart v.
Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013); 20 C.F.R. § 404.1527(c)(2).9 However,
“a finding that a treating source medical opinion . . . is inconsistent with the other substantial
evidence in the case record means only that the opinion is not entitled to ‘controlling weight,’
not that the opinion should be rejected.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399 (6th Cir.
9

Revised versions of these regulations took effect on March 27, 2017 and apply to
disability claims filed on or after that date. See 82 Fed. Reg. 5844 (March 27, 2017).
25

2009) (quoting SSR 96-2p, 1996 WL 374188 at *4 (SSA July 2, 1996)).10 Indeed, “[t]reating
source medical opinions are still entitled to deference and must be weighed using all of the
factors provided in 20 C.F.R. § 404.1527 and 416.927.” Blakley, 581 F.3d at 408.11 See also
Gayheart, 710 F.3d at 376 (“If the Commissioner does not give a treating-source opinion
controlling weight, then the opinion is weighed based on the length, frequency, nature, and
extent of the treatment relationship, id., as well as the treating source's area of specialty and the
degree to which the opinion is consistent with the record as a whole and is supported by relevant
evidence, id. § 404.1527(c)(2)-(6).”)
If the ALJ determines a treating source opinion is not entitled to controlling weight, “the
ALJ must provide ‘good reasons’ for discounting [the opinion], 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.’” Rogers v. Comm’r of Soc. Sec., 486
F.3d 234, 242 (6th Cir. 2007) (quoting SSR 96-2p, 1996 WL 374188 at *5). See also Gayheart,
710 F.3d at 376. The purpose of this requirement is two-fold. First, a sufficiently clear
explanation “‘let[s] claimants understand the disposition of their cases,’ particularly where a
claimant knows that his physician has deemed him disabled and therefore ‘might be bewildered

10

SSR 96-2p has been rescinded. This rescission is effective for claims filed on or after
March 27, 2017. See SSR 96-2p, 2017 WL 3928298 at *1.
11

Pursuant to 20 C.F.R. § 404.1527(c)(2), when not assigning controlling weight to a
treating physician’s opinion, the Commissioner should consider the length of the
relationship and frequency of examination, the nature and extent of the treatment
relationship, how well-supported the opinion is by medical signs and laboratory findings,
its consistency with the record as a whole, the treating source’s specialization, the
source’s familiarity with the Social Security program and understanding of its evidentiary
requirements, and the extent to which the source is familiar with other information in the
case record relevant to the decision.
26

when told by an administrative bureaucracy that she is not, unless some reason for the agency’s
decision is supplied.’” Id. (quoting Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir.
2004)). Second, the explanation “ensures that the ALJ applies the treating physician rule and
permits meaningful appellate review of the ALJ’s application of the rule.” Wilson, 378 F.3d at
544. Because of the significance of this requirement, the Sixth Circuit has held that the failure to
articulate “good reasons” for discounting a treating physician’s opinion “denotes a lack of
substantial evidence, even where the conclusion of the ALJ may be justified based upon the
record.” Rogers, 486 F.3d at 243.
Nevertheless, the opinion of a treating physician must be based on sufficient medical
data, and upon detailed clinical and diagnostic test evidence. See Harris v. Heckler, 756 F.2d
431, 435 (6th Cir. 1985); Bogle v. Sullivan, 998 F.2d 342, 347-48 (6th Cir. 1993); Blakley, 581
F.3d at 406. The ALJ is not bound by conclusory statements of a treating physician that a
claimant is disabled, but may reject such determinations when good reasons are identified for not
accepting them. See King v. Heckler, 742 F.2d 968, 973 (6th Cir. 1984); Duncan v. Secretary of
Health & Human Servs., 801 F.2d 847, 855 (6th Cir. 1986); Garner v. Heckler, 745 F.2d 383,
391 (6th Cir. 1984). According to 20 C.F.R. § 404.1527(d)(1), the Social Security
Commissioner makes the determination whether a claimant meets the statutory definition of
disability. This necessarily includes a review of all the medical findings and other evidence that
support a medical source’s statement that one is disabled. “A statement by a medical source that
you are ‘disabled’ or ‘unable to work’ does not mean that we will determine that you are
disabled.” Id. It is the Commissioner who must make the final decision on the ultimate issue of

27

disability. Duncan, 801 F.2d at 855; Harris, 756 F.2d at 435; Watkins v. Schweiker, 667 F.2d
954, 958 n. 1 (11th Cir. 1982).
As noted supra, two of Elmer’s treating physicians provided statements regarding her
ability to work. On September 23, 2015, Dr. Neugebauer concluded the following:
This letter is in regards to the above named patient, Victoria Elmer, Case
#5114177982. Ms. Elmer has a known history of chronic pain secondary to
degenerative changes in her spine and knees as well as carpal tunnel
syndrome for which she follows with pain management and orthopedics.
Ms. Elmer has requested that I disclose these diagnoses to you for
clarification as to why she requires assistance and cannot perform full duty
work at this time.
(Tr. 1075.) On September 2, 2016, nearly a year after Elmer’s DLI had expired, Dr.
Hendrickson provided the following statement:
This is to certify that Victoria Elmer is under my care for bilateral carpal
tunnel syndrome. She has slight right median intrinsic atrophy and slight
weakness. She has [T]inel’s on both sides, positive median compression on
both sides and decreased light touch more right than left.
My medical recommendation is to undergo bilateral carpel tunnel release
surgery. Unfortunately due to other medical conditions she will need to hold
off on our surgery and proceed with a left knee surgery.
At the present time my patient Ms. Elmer is unable to work due to the
severity of her carpal tunnel syndrome.
(Tr. 1300.)
The ALJ accorded these opinions “little weight,” as follows:
The undersigned has also considered the opinions of the claimant’s treating
physicians. Her primary care physician, Lacey Nagerbauer, D.O., submitted
a medical source statement dated September 23, 2015, indicating that due to
chronic pain secondary to the claimant’s degenerative disease; she would be
unable to perform full work duty (Exhibit 14F). Similarly, the claimant’s
treating orthopedic surgeon, Mark Hendrickson, M.D., noted on September
2, 2016, that the claimant was unable to work (Exhibit 22F/4). While the
undersigned noted that an opinion on whether an individual is disabled goes
28

to an issue reserved to the Commissioner and therefore cannot be given
special significance, such opinion should still be considered in the
assessment of the claimant’s residual functional capacity (20 CFR
404.1527(e) and 416.927(e)).
These opinions are given little weight. First, they are not stated in terms of
specific functional limitations. In addition, these opinions are inconsistent
with the medical records discussed above. As noted above, objective
imaging and electrodiagnostic testing revealed only mild abnormalities
(Exhibit 8F). Likewise, the claimant’s treatment records indicate significant
improvement with physical therapy (Exhibit 26F/43, 46). In addition, in an
appointment on June 28, 2016, the claimant reported that she was feeling
much better (Exhibit 26F/89). Nonetheless, the record indicates that the
claimant is still recovering from knee surgery and is awaiting carpal tunnel
release surgery (Exhibit 29F, 30F). As such, the undersigned finds
significant functional limitations consistent with light exertion. In addition,
the undersigned has further reduced the claimant’s functional capacity in
terms of walking and standing.
(Tr. 34-35).
The Court finds the ALJ properly considered the conclusions of Drs. Neugebauer and
Hendrickson. Both of these statements were findings Elmer was “unable to work,” and offered
no specific12 functional limitations. Thus, these conclusions are not opinions of a medical
condition entitled to controlling weight. See 20 C.F.R. § § 404.1527(d)(3); 416.927(d)(3) (“We
will not give any special significance to the source of an opinion on issues reserved to the
Commissioner described in paragraphs (d)(1) and (d)(2) of this section.”); see also Amir v.
Comm'r of Soc. Sec., 705 F. App'x 443, 448 (6th Cir. 2017) ( "[A] determination concerning
whether a claimant is able to work is not a medical opinion . . ."); Andres v. Comm’r of Soc. Sec.,

12

While Plaintiff suggests Dr. Hendrickson’s opinion was Elmer had no “use of her
hands,” this is not an accurate reading of the opinion. (Doc. No. 13 at 10.)
Indeed, Dr. Hendrickson opined Elmer was unable to work due to her carpal
tunnel syndrome. (Tr. 1300.) He did not specify the degree to which Elmer was
limited by her carpal tunnel syndrome, i.e. frequent or occasional manipulative
limitations, nor did he find she was completely precluded from using her hands.
29

733 Fed. App’x 241, 244 (6th Cir. Apr. 30, 2018). Rather, they were opinions on an issue
reserved for the Commissioner and entitled to no special significance or deference. See Turner
v. Comm’r of Soc. Sec., 381 Fed. App’x 488, 493 (6th Cir. June 7, 2010), Bass v. McMahon, 499
F.3d 506, 511 (6th Cir. 2008) (“[C]ontrolling weight will not be provided to a treating
physician’s opinion on an issue reserved to the Commissioner.”).
However, as noted by Plaintiff, a treating physician’s opinion on an issue reserved for the
Commissioner cannot be ignored. (See Doc. No. 13 at 10.) Rather, the ALJ still must “explain
the consideration given to the treating source's opinion.” SSR 96-5p13 (S.S.A.), 1996 WL
374183, *6 (July 2, 1996); Bass, 499 F.3d at 511. Here, the ALJ acknowledged the existence of
Drs. Neugebauer and Hendrickson’s conclusions Elmer was unable to work. (Tr. 34-35.) The
ALJ rejected these conclusions on the basis they were (1) reaching a conclusion reserved for the
Commissioner; (2) not stated in terms of specific functional limitations; and (3) inconsistent with
the treatment records and diagnostic testing. (Id.) The ALJ then cited, with specificity, the
treatment notes and diagnostic testing he considered to be inconsistent with the conclusion Elmer
was unable to work. (Tr. 35.) After this thoughtful discussion, the ALJ recognized Elmer did
have some restrictions due to her recent knee surgery and carpal tunnel syndrome and accounted
for them in the RFC. (Id.) This is an adequate explanation for the ALJ’s rejection of Drs.
Neugebauer and Hendrickson’s conclusions. The ALJ was not required to defer to the doctors’
statements regarding Elmer’s disability. See Morr v. Colvin, 2015 WL 350384, *5 (N.D. Ohio

13

SSR 96-5p has been rescinded. This recision is effective for claims filed on or
after March 27, 2017. See SSR 96-2p, 2017 WL 3928298 at *1 (March 27,
2017). However, Elmer filed her claim in April 2015. (Tr. 268.)
30

Jan. 26, 2015)(“To give controlling weight to a physician's statements that a claimant is disabled
or unable to work . . . ‘would be an abdication of the Commissioner's statutory responsibility to
determine whether an individual is disabled.’”)(quoting SSR 95-6p) affirmed by Morr v. Comm’r
of Soc. Sec., 616 Fed. App’x 210 (Mem), 211-212 (6th Cir. Oct. 9, 2015).
Furthermore, the ALJ’s rejection of the doctors’ opinions is supported by substantial
evidence. Despite Dr. Hendrickson’s conclusion that Elmer was “unable to work” due to carpal
tunnel syndrome, the findings surrounding this impairment have been mild. A July 2015 EMG
confirmed bilateral carpal tunnel syndrome, which Dr. Hendrickson interpreted as mild. (Tr.
829, 1518.) On examination, Dr. Hendrickson found Elmer to have slight weakness and “very
slight right median intrinsic atrophy,” and Tinel’s signs on both sides. (Id.) She had good
intrinsic and extrinsic muscle and tendon function. (Id.) During a functional capacity
evaluation, Elmer was found to be capable of working “within the LIGHT Physical Demand
Capacity,” with occasional lifting of 15 pounds, occasionally carrying of 20 pounds, frequent
walking, constant reaching, constant above shoulder reaching, frequent fine motor coordination,
occasional gross motor coordination, occasional pinching, avoid firm grasping, frequent bending
and squatting, and no sustained squatting and kneeling. (Tr. 1372-1373.) The ALJ appropriately
reflected some of these findings in the RFC by limiting Elmer to “frequent handling and
fingering bilaterally.” (Tr. 31.)
Elmer also underwent two left knee operations, in 2014 and 2016. (Tr. 571, 1583.)
However, as noted by the ALJ, Elmer displayed improvement in gait and strength during the
time between the two operations. After a July 2013 course of aquatic therapy, Elmer attained all
her strength goals with improved gait quality. (Tr. 417, 422.) In November 2013, she had a full
31

range of motion in her left knee, with no swelling or tenderness. (Tr. 431.) After the July 2014
operation, Elmer underwent additional physical therapy and reported she was “doing well” and
no longer needed a crutch to ambulate. (Tr.468.) In December 2014, Elmer’s gait was normal
and her x-rays indicated mild knee osteoarthritis. (Tr. 692.)
While Elmer continue to report constant pain in her left knee, her physical therapists
noted full strength in her hips and knees. (Tr. 504, 493, 494.) In March 2015, she had a full
range of motion and strength in her knee, and no appreciable antalgia in her gait. (Tr. 495, 496.)
Elmer continued to report left knee pain in 2015 and 2016 and injections provided no relief. (Tr.
1027.) She had an antalgic gait during physical therapy in September 2015, but again displayed
improvement in her range of motion and strength. (Tr. 885, 886.)
Elmer developed left shoulder pain in late 2014 and 2015, but this resolved within a few
months with physical therapy. (Tr. 474, 508, 499.) Elmer reported back pain in 2015, but her
lumbar MRI indicated only mild degenerative changes, without any significant stenosis. (Tr.
826.) By February 2016, her back pain had improved with therapy, though she continued to
struggle with knee pain, and eventually required an additional operation in September 2016. (Tr.
1129, 1204, 1583.) While it is clear Elmer had significant problems due to her knee, the ALJ
acknowledged this and drastically limited her ability to stand and walk. (Tr. 31, 35.)
Plaintiff directs this Court’s attention to several parts of the record which she believes
supports Drs. Neugebauer and Hendrickson’s conclusion Elmer was unable to work. (Doc. No.
13 at 11-13.) While Plaintiff cites evidence from the record she believes supports a finding of
disability, the findings of the ALJ "are not subject to reversal merely because there exists in the
record substantial evidence to support a different conclusion." Buxton v. Halter, 246 F.3d 762,
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772-73 (6th Cir. 2001). Indeed, the Sixth Circuit has made clear an ALJ's decision "cannot be
overturned if substantial evidence supports the claimant's position, so long as substantial
evidence also supports the conclusion reached by the ALJ." Jones v. Comm'r of Soc. Sec., 336
F.3d 469, 477 (6th Cir. 2003). In this matter, the ALJ clearly articulated her reasons for
discounting the conclusions of Drs. Neugebauer and Hendrickson and those reasons are
supported by substantial evidence.
Plaintiff also argues the ALJ erred by “failing to recognize the supportibility and
consistency of the treating physicians’ opinions with the evidence of record.” (Doc. No. 13 at
13.) It is true a medical opinion must receive controlling weight if it is (1) well-supported by
clinical and laboratory diagnostic techniques and (2) not inconsistent with other substantial
evidence in the administrative record. Gayheart, 710 F.3d at 376. However, this level of
deference is reserved for medical opinions. As discussed supra, the doctors’ conclusions Elmer
is unable to work are not medical opinions entitled to controlling weight. See 20 CFR
§404.1527(d).
Plaintiff further argues the ALJ erred “by failing to continue with an evaluation of the
treating physicians’ opinions through the factors14 set forth” in 20 CFR §404.1527(c)(1)-(6).
14

Plaintiff asserts the consideration of these factors was crucial because all of
Elmer’s treatment providers “worked in conjunction to treat her multiple
impairments.” (Doc. No. 13 at 13.) She argues when the treatment records are
“viewed in total, the factors under the regulations confirm that the opinions of
Plaintiff’s treating physicians’ deserve great weight.” (Id. at 14.) However,
Plaintiff does not explain why the fact Elmer’s treatment providers were
coordinating care supports the conclusion Elmer was “unable to work.”
Moreover, the functional capacity evaluation, which was ordered by Dr.
Neugebauer, concluded Elmer was able to perform at the light physical demand
capacity, with occasional lifting of 15 pounds and occasionally carrying of 20
pounds. (Tr. 1212, 1372-1373.) This functional capacity evaluation does not
33

(Doc. No. 13 at 13.) The Court disagrees. The ALJ specifically noted the treating source status
Drs. Neugebauer and Hendrickson, the lack of explanation and detail provided with their
conclusions, and the consistency of their opinions with the treatment notes, three of the factors
listed at 20 CFR §404.1527. (See Tr. 34-35.) While the ALJ is charged with considering the
factors set forth at 20 CFR §404.1527 when evaluating medical opinion evidence, the ALJ is not
required to articulate specific findings as to each of these factors. Indeed, neither the regulations
or Sixth Circuit case law requires an “exhaustive factor-by-factor analysis.” Francis v. Comm’r
of Soc. Sec., 414 Fed. App’x 802, 804 (6th Cir. Mar. 16, 2011). Furthermore, these factors apply
to an ALJ’s evaluation of medical opinions. The Court again notes the conclusions Elmer was
unable to work were not medical opinions under the regulations. See 20 CFR §404.1527(d).
In sum, an ALJ is not bound by conclusory statements of a treating physician that a
claimant is disabled. See King, 742 F.2d at 973; Duncan, 801 F.2d at 855; Garner, 745 F.2d at
391. See also 20 C.F.R. § 404.1527(d)(1) (“A statement by a medical source that you are
‘disabled’ or ‘unable to work’ does not mean that we will determine that you are disabled.”)
Rather, it is the Commissioner (and not a treating physician) who must make the final decision
on the ultimate issue of disability. See Duncan, 801 F.2d at 855; Harris, 756 F.2d at 435. Thus,
the ALJ did not err in rejecting Drs. Neugebauer and Hendrickson’s broad conclusions Elmer
was “unable to work.”
Accordingly, Plaintiff’s assignment of error is without merit and does not provide a basis
for remand.

support the conclusions of Drs. Neugebauer and Hendrickson, and provides
further support for the ALJ’s decision to reject their opinions.
34

VIII.

CONCLUSION

For the foregoing reasons, the Commissioner’s final decision is AFFIRMED.

IT IS SO ORDERED.

s/Jonathan D. Greenberg
Jonathan D. Greenberg
United States Magistrate Judge
Date: January 29, 2019

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