Rochester v. Commissioner of the Social Security Administration
Memorandum Opinion and Order that the decision of the Commissioner is reversed and the matter remanded for further proceedings. Signed by Magistrate Judge William H. Baughman, Jr., on 3/31/21. (D,Ky)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
COMMISSIONER OF THE SOCIAL
WILLIAM H. BAUGHMAN, JR.
Before me1 is an action under 42 U.S.C. § 405(g) by Nancy Rochester seeking
judicial review of the 2019 decision of the Commissioner of Social Security that denied
Rochester’s 2015 applications for disability insurance benefits and supplemental security
income.2 The Commissioner has answered3 and filed the transcript of the administrative
The parties have consented to my exercise of jurisdiction and the matter was transferred
to me by United States District Judge John R. Adams. ECF No. 12.
ECF No. 1. Rochester’s applications were initially denied in 2017 but then vacated by
the Appeals Council and remanded. Following the remand, her applications were again
denied in 2018 and the Appeals Council then adopted the findings of the ALJ with some
additional reasoning, issuing its own decision. See, ECF No. 16 at 1-2 (citing record).
ECF No. 8.
proceedings.4 Pursuant to my initial5 and procedural6 orders, the parties have filed briefs7
and supporting charts8 and fact sheets.9 They have met and conferred with the goal of
reducing or clarifying the issues10 and have participated in a telephonic oral argument.11
For the following reasons, the decision of the Commissioner will be reversed and
the matter remanded.
The Appeals Council Decision
The record shows that Rochester was born in 1969, thus being age 50 at the time of
the Appeals Council decision.12 She attended school through the eighth grade and later
received a GED.13 She has a commercial driver’s license14 and has worked in the past as a
paint mixer/clerk, gas station cashier, and counter attendant.15 She is divorced with four
children and lives by herself, with her worker’s compensation benefits as her source of
ECF No. 9.
ECF No. 4.
ECF No. 11.
ECF Nos. 16 (Rochester), 20 (Commissioner).
ECF No. 16, Attachment (Rochester).
ECF Nos. 15 (Rochester), 21 (Commissioner).
ECF No. 22.
ECF No. 24.
Tr. at 384.
Id. at 80.
Id. at 80-81.
Id. at 96.
Id. at 81.
The Appeals Council adopted the ALJ’s findings as to severe impairments, noting
that Rochester has the following severe impairments:
Dysfunction of major joints (complex regional pain syndrome in the right upper
extremity) and hearing loss without cochlear implants but does not have an
impairment or combination of impairments which meets or medically equals [a
The Appeals Council also adopted the ALJ’s RFC which provides:
The claimant retains the ability to perform work at the light level of exertion, except
she can only occasionally operate hand controls, handle, finger and reach overhead
with the right upper extremity; can never climb ladders, ropes, scaffolds; cannot
work in a loud and very loud environment; must avoid concentrated exposure to
extreme cold, extreme heat, and vibration; and must avoid all exposure to hazards
such as unprotected heights, moving machinery and commercial driving.18
After agreeing with the ALJ that Rochester’s alleged symptoms are neither
consistent with nor supported by the record,19 the Appeals Council further concurred with
the ALJ that she was not able to perform her past relevant work.20 Further, the Appeals
Council accepted the determination of the ALJ that there are a significant number of jobs
in the national economy that Rochester is capable of performing.21
That said, the Appeals Council reviewed two issues in the ALJ’s decision. First, the
ALJ did not consider records from the Cleveland Clinic that were submitted late.22 The
Id. at 7.
Id. at 8.
Id. at 4-5.
Id. at 5.
Appeals Council found that “these records do not change the weight of the evidence or
warrant any change in the [ALJ’s] findings.”23 Next, the Appeals Council re-examined the
ALJ’s findings regarding an opinion from Christine Ontko, OTR/L, which the Appeals
Council had found did not adequately explain why the further restrictions in this opinion
were not adopted.24 On review, the Appeals Council agreed with the ALJ’s decision to give
only some weight to this opinion, and concluded that the more restrictive aspects of this
opinion are not supported by the record and do not warrant a finding that Rochester has
additional functional limitations.25
The Appeals Council concluded that Rochester was not disabled.26
Rochester raises three issues:
The ALJ’s finding, adopted by the Appeals Council, that Rochester
does not have a medically determinable impairment of her lower back is not
supported by substantial evidence, and the failure to incorporate limitations
attributable to that condition in the RFC is error.27
The ALJ’s decision, adopted by the Appeals Council, erred in not
properly analyzing the opinion of Dr. Baran Onder, M.D., Rochester’s treating
physician, and the opinion of physical therapist Karin Kleppel.28
ECF No. 16 at 16-19.
Id. at 19-21.
The Appeals Council erred in weighing the opinion of occupational
therapist Christine Ontko, OTR/L.29
The Commissioner’s position
The Commissioner essentially argues first that objective medical evidence shows
no problems with Rochester’s lumbar spine and nerve roots.30 Further, he notes that the
state agency reviewing physician opined in 2015 that Rochester could perform light work
with some additional limitations.31
He also then argues, as to the opinion of Karin Kleppel, that she was not a treating
source within the meaning of the regulations and so was not entitled to presumption of
controlling weight and that the ALJ properly gave this opinion little weight by explaining
it was inconsistent with the other evidence previously analyzed.32 Similarly, the
Commissioner contends that Christine Ontko was not a treating source; her opinion was
not entitled to a presumption of controlling weight; and the explanation offered for the
weight given to her opinion was sufficient.33
Finally, he asserts that the Appeals Council gave “good reasons” for assigning little
weight to the opinion of Dr. Onder.34 In particular, the Commissioner cites to the
inconsistency between Dr. Onder’s opinion that Rochester is completely unable to sit, stand
Id. at 21-24.
ECF No. 20 at 6.
Id. at 7.
Id. at 7-11.
Id. at 11-13.
Id. at 14.
and walk while noting, before and after than opinion, that she has full range of motion in
both extremities, normal strength and normal gait.35 He further observes that both state
agency reviewers opined, contrary to Dr. Onder, that Rochester could perform light work
with additional limitations.36
Rochester’s claims are analyzed under the well-known substantial evidence
standard, which need not be restated here. Further, because her claims were filed before
March 27, 2017, the treating source issues here are analyzed under the former rule requiring
the ALJ to accord a presumption of controlling weight to the opinion of a treating source
and not pursuant to the new regulations.37
Lower back impairment
As to whether substantial evidence supports the conclusion that Rochester does not
have a severe lower back impairment, an alleged failure of the ALJ or Appeals Council to
find, at Step Two, that a claimed condition is not a severe impairment is not reversible error
if the ALJ or Appeals Council addresses the condition in the remaining analytical steps.38
Rochester contends that the ALJ was imprecise, or more accurately unintelligible,
when he stated that her lower back pain was not severe and imposed no long-term
Id. at 14-15.
Id. at 15.
See, Jones v. Berryhill, 392 F.Supp.3d 831, 839 (M.D. Tenn. 2019) (citations omitted).
Fiske v. Astrue, 253 Fed. Appx. 580, 583-84 (6th Cir. 2007) (internal quotation and
functional limitations.39 To that point, she notes initially that while the Appeals Council
found Dr. Onder’s functional opinion as to the effects of her lower back condition to be
“extreme” and inconsistent with the record, the objective medical evidence is that she has
a left L5-S1 radiculopathy.40 Further, four medical opinions rendered after 201541 found,
inter alia, reduced range of motion and tenderness of the lumbar musculature, lumbar
paraspinal tenderness, decreased sensation in the left calf and left lower leg, and absent left
ankle reflexes.42 Moreover, she observes that the portions of the record cited by the ALJ to
support the conclusion that any lower back pain was not severe are “impossible to
decipher” since they refer to various treatments for lower back pain but do not deal with
In response, the Commissioner points out that the portions of the record cited by the
ALJ show mostly normal gait (March and November 2015), x-rays from September 2015
that show only mild degenerative changes with normal disc height and alignment, and notes
from aquatherapy indicating that Rochester could perform the therapy with few or no
increased symptoms.44 Further, the Commissioner points to the 2015 opinion of Dr. Lynne
ECF No. 16 at 16-17 (quoting tr. at 57).
Id. at 17 (citing record).
May 2016 by Dr. Berg (tr. at 2258), June 2016 by Dr. Abraham (tr. at 2037), and Dr.
Craciun in February 2017 (tr. at 2202-04) and 2018 (tr. at 2569).
ECF No. 16 at 18 (citing record).
Id. at 18-19 (citing record).
ECF No. 20 at 7 (citing and quoting record).
Torello, M.D., a state agency reviewer, that found Rochester able to perform light work
with limitations, and which the ALJ assigned great weight.45
I’m troubled that the evidence cited by the Commissioner, including EMG’s from
2012 and then June and November of 2015,46 all date from 2015 or earlier. The four
medical opinions mentioned above and cited by Rochester are, by contrast, dated from May
of 2016 through 2018 and document lower back pain accompanied by decreased sensations
in the left leg and a positive straight leg-raising test on the left.47
The Appeals Council apparently considered these newer records, particularly as
they are from Dr. Craciun, Rochester’s neurologist at the Cleveland Clinic, and concluded
that the “examination findings were unremarkable, or at least unchanged from prior
examinations.”48 The ALJ, in turn, dealt with Dr. Carciun in a short section where his
opinion that Rochester was “unable to sustain physical activity” but as not permanently
disabled was given little weight because it was conclusory and not accompanied by specific
vocational limitations explained by medical data points.49
Accordingly, because the evidence relied on by the Commissioner is from 2015 or
before, particularly the state agency reviewer opinions, and because the decisions of the
ALJ and the Appeals Council do not clearly or adequately address or explain the evidence
Id. at 6.
ECF No. 16 at 18 (citing record).
Tr. at 5.
Id. at 62.
from after 2015, a situation not helped by state agency opinions that only consider evidence
from 2015 and earlier, I cannot find that a logical bridge was built between the evidence
and the decision.50 Thus, the decision is not supported by substantial evidence and must be
reversed and remanded.
Opinion of Dr. Onder
As Rochester points out, the ALJ dealt with the opinion of Dr. Onder, a treating
source, without acknowledging him as a treating source and by giving his opinion little
weight for the reason that it is “inconsistent” with unspecified medical evidence “discussed
above.”51 Similarly, the Appeals Council agreed with the ALJ’s treatment of Dr. Onder,
adding only that “gross” and “obvious” inconsistency exists between Dr. Onder’s opinion
as to no sitting, standing or walking whatsoever and “the rest of the record” contained at
pages six and seven of the ALJ’s decision.52
While it would have been better to begin the review of Dr. Onder’s opinion with an
acknowledgment of his status as a treating source and to specify how the opinion is
contradicted by some specific evidence, it is clear that any error in formulating good
reasons for the weight given to a treating source opinion will be considered harmless if the
opinion is so patently deficient that the Commissioner could not possibly credit it.53 Here,
the opinion that Rochester is essentially immobile is patently deficient in light of the other
Fleischer v. Astrue, 774 F.Supp.2d 875, 877 (N.D. Ohio 2011) (citation omitted).
Tr. at 62.
Id. at 6.
Cole v. Astrue, 661 F.3d 931, 940 (6th Cir. 2011).
evidence, including Rochester’s self-reported activities of daily living. Accordingly, I find
only harmless error in how the ALJ and the Appeals Council addressed the opinion of Dr.
Opinions of Karin Kleppel and Christine Ontko
Neither Kleppel nor Ontko are acceptable medical sources under the relevant
regulation.54 As such, the ALJ and the Appeals Council are only required to generally
consider the opinion and explain the reasons for the weight given.55 I find that the ALJ,
whose decision was adopted by the Appeals Council, did not error in considering these
opinions and explaining the reasons for the weight given.
For the reasons stated, the decision of the Commissioner is reversed and the matter
remanded for further proceedings consistent with this opinion.
IT IS SO ORDERED.
Dated: March 31, 2021
s/William H. Baughman Jr.
United States Magistrate Judge
See, ECF No. 20 at 9 (citing regulations).
Mincy v. Berryhill, 2019 WL 1639804, at *10 (N.D. Ohio April 16, 2019).
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