Luck v. Commissioner of Social Security

Filing 22

Memorandum Opinion and Order the the decision of the Commissioner is affirmed (Related Doc # 1 ). Signed by Magistrate Judge William H. Baughman, Jr. on 4/9/2014. (S,G)

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

KELLY J. LUCK,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

Introduction
A.
B.
C.
D.

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CASE NO. 3:13 CV 687

MAGISTRATE JUDGE
WILLIAM H. BAUGHMAN, JR.

MEMORANDUM OPINION AND
ORDER

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Nature of the case and proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Commissioner’s decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Issues presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Disposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

-2-2-3-5-5-

Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -5A.
Standards of review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -51.
Substantial evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -52.
Treating physician rule and good reasons requirement . . . . . . . . -73.
Credibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -14.
Application of standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -171.
Opinions of acceptable medical sources . . . . . . . . . . . . . . . . . . . -172.
Acceptable medical source opinions/physical impairments not related
to migraines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -183.
Acceptable medical source opinion/emotional/depression . . . . . -204.
Other medical source opinions . . . . . . . . . . . . . . . . . . . . . . . . . . -255.
Acceptable medical source opinions related to migraines . . . . . -276.
Credibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -29Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -31-

Introduction
A.

Nature of the case and proceedings
This is an action by Kelly J. Luck under 42 U.S.C. § 405(g) for judicial review of the

final decision of the Commissioner of Social Security denying her application for disability
insurance benefits (“DIB”).1
The parties have consented to my jurisdiction.2 The Commissioner has answered3 and
filed the transcript of the administrative record.4
Under the requirements of my initial5 and procedural6 orders, the parties have briefed
their positions7 and filed supplemental charts8 and the fact sheet.9 Although the matter was
initially set for a telephonic oral argument, I have determined that it may be adjudicated on
the briefs, charts, and other submissions.

1

ECF # 1.

2

ECF # 10.

3

ECF # 5.

4

ECF # 6.

5

ECF # 3.

6

ECF # 7.

7

ECF # 13 (Luck’s brief), ECF # 19 (Commissioner’s brief).

8

ECF # 16 at 5-11 (Luck’s charts), ECF # 19-1 (Commissioner’s charts).

9

ECF # 16 at 1-4 (Luck’s fact sheet).
-2-

B.

The Commissioner’s decision
Luck, who was 44 years old at the time of the hearing,10 completed two years of

business college11 and now lives with her husband and children.12 Although she has worked
more or less consistently from 1992 to 2007 at various jobs, she was most recently a waitress
from 2001 to 2007.13 She maintains that she injured her back while working as a waitress in
200614 and stopped working completely in 2007 as a consequence of that injury.15
The Administrative Law Judge (“ALJ”) found that Luck had the following severe
impairments: degenerative disc disease, disorders of the back, lumbar disc placement, lumbar
spinal stenosis, migraine headaches, affective disorder, dysthymic disorder, and adjustment
disorder with mixed emotional features.16 After evaluating the impairments, including the
mental impairment, under the applicable listings, the ALJ decided that none of the relevant
impairments nor any combination of impairments met or equaled a listing.17

10

ECF # 6, Transcript of Proceedings (“Tr.”) at 139.

11

Id. at 165, 173.

12

Id. at 44.

13

Id. at 156-57, 179.

14

Id. at 47.

15

Id.

16

Id. at 21.

17

Id. at 22-23.
-3-

The ALJ then made the following finding regarding Luck’s residual functional
capacity:
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) except that she: can engage in postural limitations of
only occasional stooping and crouching, and no climbing of ladders, ropes or
scaffolds. She requires work with only occasional decision making required
and only occasional changes in the work setting.18
Based on that residual functional capacity and on the record as whole, a vocational
expert (“VE”) initially testified that Luck had past relevant work as a restaurant waitress,
which the VE further testified was semi-skilled work done at the light exertional level.19 The
VE then testified that given Luck’s RFC and the nature of Luck’s relevant past work as a
waitress, Luck was capable of performing her past relevant work as a waitress. Thus, the ALJ
then found Luck capable of her past relevant work as a waitress and, therefore, not under a
disability.20
The Appeals Council denied Luck’s request for review of the ALJ’s decision.21 With
this denial, the ALJ’s decision became the final decision of the Commissioner.22

18

Id. at 23.

19

Id. at 31.

20

Id.

21

Id. at 1-5.

22

Johnson v. Comm’r of Soc. Sec., 652 F.3d 646, 648 (6th Cir. 2011); 20 C.F.R.
§ 404.981.
-4-

C.

Issues presented
Luck asks for reversal of the Commissioner’s decision on the ground that it does not

have the support of substantial evidence in the administrative record. Specifically, Luck
presents the following issues for judicial review:
•

•

D.

The ALJ assigned the opinion of multiple treating physicians “not
significant” or “little” weight. He gave state agency reviewing sources’
opinions “great weight.” Did the ALJ properly analyze and weigh the
opinions of the various medical sources under the regulations, and do
good reasons support the weight assigned and then does substantial
evidence support the resulting RFC determination?23
The ALJ found Luck’s complaints about the severity of her
impairments and the extent of her limitations credible only to the extent
consistent with his residual functional capacity finding. Does
substantial evidence support this finding?24

Disposition
For the reasons that follow, I conclude that the ALJ’s finding that Luck is not disabled

has the support of substantial evidence. The denial of Luck’s application will be affirmed.

Analysis
A.

Standards of review

1.

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

to decisions of the ALJs in disability cases:

23

ECF # 13 at 7-18.

24

Id. at 18-20.
-5-

Congress has provided for federal court review of Social Security
administrative decisions. 42 U.S.C. § 405(g). However, the scope of review is
limited under 42 U.S.C. § 405(g): “The findings of the Secretary as to any fact,
if supported by substantial evidence, shall be conclusive....” In other words, on
review of the Commissioner’s decision that claimant is not totally disabled
within the meaning of the Social Security Act, the only issue reviewable by
this court is whether the decision is supported by substantial evidence.
Substantial evidence is “ ‘more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.’ ”
The findings of the Commissioner are not subject to reversal merely
because there exists in the record substantial evidence to support a different
conclusion. This is so because there is a “zone of choice” within which the
Commissioner can act, without the fear of court interference.25
Viewed in the context of a jury trial, all that is necessary to affirm is that reasonable minds
could reach different conclusions on the evidence. If such is the case, the Commissioner
survives “a directed verdict” and wins.26 The court may not disturb the Commissioner’s
findings, even if the preponderance of the evidence favors the claimant.27
I will review the findings of the ALJ at issue here consistent with that deferential
standard.

25

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

26

LeMaster v. Sec’y of Health & Human Servs., 802 F.2d 839, 840 (6th Cir. 1986);
Tucker v. Comm’r of Soc. Sec., No. 3:06cv403, 2008 WL 399573, at *6 (S.D. Ohio Feb. 12,
2008).
27

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

2.

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

give more weight to opinions of treating sources than to those of non-treating sources under
appropriate circumstances.
Generally, we give more weight to opinions from your treating sources, since
these sources are likely to be the medical professionals most able to provide
a detailed, longitudinal picture of your medical impairment(s) and may bring
a unique perspective to the medical evidence that cannot be obtained from
objective medical findings alone or from reports of individual examinations,
such as consultative examinations or brief hospitalizations.28
If such opinions are “well-supported by medically acceptable clinical and laboratory
diagnostic techniques” and “not inconsistent with the other substantial evidence in [the] case
record,” then they must receive “controlling” weight.29
The ALJ has the ultimate responsibility for determining whether a claimant is
disabled.30 Conclusory statements by the treating source that the claimant is disabled are not
entitled to deference under the regulation.31
The regulation does cover treating source opinions as to a claimant’s exertional
limitations and work-related capacity in light of those limitations.32 Although the treating

28

20 C.F.R. § 404.1527(d)(2).

29

Id.

30

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

31

Id.

32

Swain v. Comm’r of Soc. Sec., 297 F. Supp. 2d 986, 991 (N.D. Ohio 2003), citing
Green-Younger v. Barnhart, 335 F.3d 99, 106-07 (2nd Cir. 2003).
-7-

source’s report need not contain all the supporting evidence to warrant the assignment of
controlling weight to it,33 nevertheless, it must be “well-supported by medically acceptable
clinical and laboratory diagnostic techniques” to receive such weight.34 In deciding if such
supporting evidence exists, the Court will review the administrative record as a whole and
may rely on evidence not cited by the ALJ.35
In Wilson v. Commissioner of Social Security,36 the Sixth Circuit discussed the treating
source rule in the regulations with particular emphasis on the requirement that the agency
“give good reasons” for not affording controlling weight to a treating physician’s opinion in
the context of a disability determination.37 The court noted that the regulation expressly
contains a “good reasons” requirement.38 The court stated that to meet this obligation to give
good reasons for discounting a treating source’s opinion, the ALJ must do the following:
•

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

•

Identify evidence supporting such finding.

33

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

34

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

35

Id. at 535.

36

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

37

Id. at 544.

38

Id., citing and quoting 20 C.F.R. § 404.1527(d)(2).
-8-

•

Explain the application of the factors listed in 20 C.F.R.
§ 404.1527(d)(2) to determine the weight that should be given to the
treating source’s opinion.39

The court went on to hold that the failure to articulate good reasons for discounting
the treating source’s opinion is not harmless error.40 It drew a distinction between a
regulation that bestows procedural benefits upon a party and one promulgated for the orderly
transaction of the agency’s business.41 The former confers a substantial, procedural right on
the party invoking it that cannot be set aside for harmless error.42 It concluded that the
requirement in § 1527(d)(2) for articulation of good reasons for not giving controlling weight
to a treating physician’s opinion created a substantial right exempt from the harmless error
rule.43
The Sixth Circuit in Gayheart v. Commissioner of Social Security44 recently
emphasized that the regulations require two distinct analyses, applying two separate
standards, in assessing the opinions of treating sources.45 This does not represent a new
interpretation of the treating physician rule. Rather it reinforces and underscores what that

39

Id. at 546.

40

Id.

41

Id.

42

Id.

43

Id.

44

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

45

Id. at 375-76.
-9-

court had previously said in cases such as Rogers v. Commissioner of Social Security,46
Blakley v. Commissioner of Social Security,47 and Hensley v. Astrue.48
As explained in Gayheart, the ALJ must first consider if the treating source’s opinion
should receive controlling weight.49 The opinion must receive controlling weight if
(1) well-supported by clinical and laboratory diagnostic techniques and (2) not inconsistent
with other substantial evidence in the administrative record.50 These factors are expressly set
out in 20 C.F.R. § 404.1527(d)(2). Only if the ALJ decides not to give the treating source’s
opinion controlling weight will the analysis proceed to what weight the opinion should
receive based on the factors set forth in 20 C.F.R. §§ 404.1527(d)(2)(i)-(ii), (3)-(6).51 The
treating source’s non-controlling status notwithstanding, “there remains a presumption, albeit
a rebuttable one, that the treating physician is entitled to great deference.”52
The court in Gayheart cautioned against collapsing these two distinct analyses into
one.53 The ALJ in Gayheart made no finding as to controlling weight and did not apply the

46

Rogers, 486 F.3d at 242.

47

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

48

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

49

Gayheart, 710 F.3d at 376.

50

Id.

51

Id.

52

Rogers, 486 F.3d at 242.

53

Gayheart, 710 F.3d at 376.
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standards for controlling weight set out in the regulation.54 Rather, the ALJ merely assigned
the opinion of the treating physician little weight and explained that finding by the secondary
criteria set out in §§ 1527(d)(i)-(ii), (3)-(6) of the regulations,55 specifically the frequency of
the psychiatrist’s treatment of the claimant and internal inconsistencies between the opinions
and the treatment reports.56 The court concluded that the ALJ failed to provide “good
reasons” for not giving the treating source’s opinion controlling weight.57
But the ALJ did not provide “good reasons” for why Dr. Onady’s opinions fail
to meet either prong of this test.
To be sure, the ALJ discusses the frequency and nature of Dr. Onady’s
treatment relationship with Gayheart, as well as alleged internal
inconsistencies between the doctor’s opinions and portions of her reports. But
these factors are properly applied only after the ALJ has determined that a
treating-source opinion will not be given controlling weight.58
In a nutshell, the Wilson/Gayheart line of cases interpreting the Commissioner’s
regulations recognizes a rebuttable presumption that a treating source’s opinion should
receive controlling weight.59 The ALJ must assign specific weight to the opinion of each
treating source and, if the weight assigned is not controlling, then give good reasons for not

54

Id.

55

Id.

56

Id.

57

Id.

58

Id.

59

Rogers, 486 F.3d 234 at 242.
-11-

giving those opinions controlling weight.60 In articulating good reasons for assigning weight
other than controlling, the ALJ must do more than state that the opinion of the treating
physician disagrees with the opinion of a non-treating physician61 or that objective medical
evidence does not support that opinion.62
The failure of an ALJ to follow the procedural rules for assigning weight to the
opinions of treating sources and the giving of good reason for the weight assigned denotes
a lack of substantial evidence even if the decision of the ALJ may be justified based on the
record.63 The Commissioner’s post hoc arguments on judicial review are immaterial.64
Given the significant implications of a failure to properly articulate (i.e., remand)
mandated by the Wilson decision, an ALJ should structure the decision to remove any doubt
as to the weight given the treating source’s opinion and the reasons for assigning such
weight. In a single paragraph the ALJ should state what weight he or she assigns to the
treating source’s opinion and then discuss the evidence of record supporting that assignment.
Where the treating source’s opinion does not receive controlling weight, the decision must
justify the assignment given in light of the factors set out in §§ 1527(d)(1)-(6).

60

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

61

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

62

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

63

Blakley, 581 F.3d at 407.

64

Wooten v. Astrue, No. 1:09-cv-981, 2010 WL 184147 (N.D. Ohio Jan. 14, 2010).
-12-

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

the failure to mention and consider the opinion of a treating source,65

•

the rejection or discounting of the weight of a treating source without
assigning weight,66

•

the failure to explain how the opinion of a source properly considered
as a treating source is weighed (i.e., treating v. examining),67

•

the elevation of the opinion of a nonexamining source over that of a
treating source if the nonexamining source has not reviewed the
opinion of the treating source,68

•

the rejection of the opinion of a treating source because it conflicts with
the opinion of another medical source without an explanation of the
reason therefor,69 and

•

the rejection of the opinion of a treating source for inconsistency with
other evidence in the record without an explanation of why “the treating
physician’s conclusion gets the short end of the stick.”70

The Sixth Circuit in Blakley71 expressed skepticism as to the Commissioner’s
argument that the error should be viewed as harmless since substantial evidence exists to

65

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

66

Id. at 408.

67

Id.

68

Id. at 409.

69

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

70

Friend, 375 F. App’x at 551-52.

71

Blakley, 581 F.3d 399.
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support the ultimate finding.72 Specifically, Blakley concluded that “even if we were to agree
that substantial evidence supports the ALJ’s weighing of each of these doctors’ opinions,
substantial evidence alone does not excuse non-compliance with 20 C.F.R. § 404.1527(d)(2)
as harmless error.”73
In Cole v. Astrue,74 the Sixth Circuit reemphasized that harmless error sufficient to
excuse the breach of the treating source rule only exists if the opinion it issues is so patently
deficient as to make it incredible, if the Commissioner implicitly adopts the source’s opinion
or makes findings consistent with it, or if the goal of the treating source regulation is satisfied
despite non-compliance.75
3.

Credibility
In articulating reasons for discounting a claimant’s credibility, the ALJ must provide

enough of an assessment to assure the reviewing court that he or she has considered the
relevant evidence and be specific enough to permit the court to trace the path of the ALJ’s
reasoning.76

72

Id. at 409-10.

73

Id. at 410.

74

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

75

Id. at 940.

76

Cross v. Comm’r of Soc. Sec., 373 F. Supp. 2d 724, 733 (N.D. Ohio 2005).
-14-

As the Social Security Administration has recognized in a policy interpretation ruling
on assessing claimant credibility,77 in the absence of objective medical evidence sufficient
to support a finding of disability, the claimant’s statements about the severity of his or her
symptoms or limitations will be considered with other relevant evidence in deciding
disability:
Because symptoms, such as pain, sometimes suggest a greater severity of
impairment than can be shown by objective medical evidence alone, the
adjudicator must carefully consider the individual’s statements about
symptoms with the rest of the relevant evidence in the case record in reaching
a conclusion about the credibility of the individual’s statements if a disability
determination or decision that is fully favorable to the individual cannot be
made solely on the basis of objective medical evidence.78
The regulations also make the same point.
We must always attempt to obtain objective medical evidence and, when it is
obtained, we will consider it in reaching a conclusion as to whether you are
disabled. However, we will not reject your statements about the intensity and
persistence of your pain or other symptoms or about the effect your symptoms
have on your ability to work ... solely because the available objective medical
evidence does not substantiate your statements.79
Under the analytical scheme created by the Social Security regulations for determining
disability, objective medical evidence constitutes the best evidence for gauging a claimant’s
residual functional capacity and the work-related limitations dictated thereby.80

77

Social Security Ruling (SSR) 96-7p, Evaluation of Symptoms in Disability Claims:
Assessing the Credibility of an Individual’s Statements, 61 Fed. Reg. 34483 (July 2, 1996).
78

Id. at 34484.

79

20 C.F.R. § 416.929(c)(2).

80

Swain, 297 F. Supp. 2d at 988-89.
-15-

As a practical matter, in the assessment of credibility, the weight of the objective
medical evidence remains an important consideration. The regulation expressly provides that
“other evidence” of symptoms causing work-related limitations can be considered if
“consistent with the objective medical evidence.”81 Where the objective medical evidence
does not support a finding of disability, at least an informal presumption of “no disability”
arises that must be overcome by such other evidence as the claimant might offer to support
his claim.
The regulations set forth factors that the ALJ should consider in assessing credibility.
These include the claimant’s daily activities; the location, duration, frequency, and intensity
of the pain; precipitating and aggravating factors; the type, dosage, effectiveness, and side
effects of medication; and treatment or measures, other than medication, taken to relieve
pain.82
The specific factors identified by the regulation as relevant to evaluating subjective
complaints of pain are intended to uncover a degree of severity of the underlying impairment
not susceptible to proof by objective medical evidence. When a claimant presents credible
evidence of these factors, such proof may justify the imposition of work-related limitations
beyond those dictated by the objective medical evidence.
The discretion afforded by the courts to the ALJ’s evaluation of such evidence is
extremely broad. The ALJ’s findings as to credibility are entitled to deference because he has
81

20 C.F.R. § 404.1529(c)(3).

82

20 C.F.R. §§ 404.1529(c)(3)(i)-(vii).
-16-

the opportunity to observe the claimant and assess his subjective complaints.83 A court may
not disturb the ALJ’s credibility determination absent compelling reason.84
B.

Application of standards
Luck objects to the weight given to treating sources and to her own credibility,

although the treating sources objection has several aspects that must be addressed separately.
In addition, Luck raises a question about the ALJ assigning greater weight to the opinions
of the consultative examining psychologist over the treating sources.
1.

Opinions of acceptable medical sources
First, Luck argues that the ALJ erred in not assigning controlling weight “to the

uncontradicted opinions of Drs. Hickey, Elgafy, and Bassett.”85 Each of these medical
sources is a physician, which is an acceptable medical source under the regulations. Further,
Drs. Hickey, Elgafy, and Bassett all have an extensive history of treating Luck86 and so
would be treating physicians whose opinions would be entitled to controlling weight unless
good reasons were given for doing otherwise.

83

Buxton, 246 F.3d at 773.

84

Smith v. Halter, 307 F.3d 377, 379 (6th Cir. 2001).

85

ECF # 13 at 12.

86

Donald Hickey, M.D. is a family practice physician with treatment records for Luck
from November 2008 to June 2011 (Tr. at 273-79, 448-49, 542, 569-72, 574-75); Hossein
Elgafy, M.D. is an orthopedic surgeon with treatment records for Luck from August 2008
to September 2011 (Tr. at 255, 258, 260-61, 263, 265, 282, 284-85, 289, 594); James
Bassett, M.D. is a pain management specialist with treatment records for Luck from July to
August 2010 and August 2011 (Tr. at 439-42, 591-92).
-17-

In addition, I note that the opinions involved here are all comments on the “nature and
severity” or “prognosis” of Luck’s impairments, rather than statements on what she could
still do despite the impairments – i.e., functional capacity opinions. As such, these “nature
and severity” or “prognosis” opinions are largely contained within various treatment notes
from individual visits and not presented in any single unified evaluation. Accordingly, these
opinions are not static and consistent but manifest changing views over time.
2.

Acceptable medical source opinions/physical impairments not related to migraines
The ALJ here very explicitly discusses the changes over time in the “nature and

severity” opinions of Dr. Elgafy, Dr. Hickey, and Dr. Bassett, with specific notations to
where those changes reflect clear improvements in the “nature and severity” of Luck’s
conditions not related to migraines.87 In particular, the ALJ states that over a month period
in 2009, Dr. Elgafy’s opinion was that the severity of Luck’s symptoms improved, with his
treatment notes recording “‘good results with conservative treatment,” which he then
corroborated with “improved objective findings upon physical examination.”88 Similarly, as
to Dr. Hickey, the ALJ’s opinion states that Dr. Hickey’s treatment notes record
improvement in the severity of Luck’s symptoms between November 2008 and March 2011,
with the final observation that Luck herself reported at the 2011 examination with Dr. Hickey
that she was feeling better.89
87

Tr. at 24-25.

88

Id. at 25 (citing record).

89

Id. (citing record).
-18-

Most significantly, the ALJ extensively discusses the improvement in severity of
symptoms contained in the notes of Dr. Bassett, with particular attention paid to the
“significant improvement” in symptoms Dr. Bassett recorded after three weeks of treatment
following Luck’s 2011 re-occurrence of lower back pain.90 Indeed, the ALJ noted that this
significant improvement subsequent to the August 2011 re-injury meant that although
Dr. Elagafy had recommended another microdiscectomy, Luck’s capacity to function after
that August 2011 event was not more limited. The ALJ supported that functional finding with
objective treatment records from Dr. Bassett on August 17, 2011, which found “full strength
in all muscle groups,”a “normal sensory examination,” no positive straight leg raise, although
Luck still had “some [pain] radiation into her right thigh.”91 Further, the ALJ noted that
Dr. Elgafy’s treatment notes following the August event showed multiple instances where
objective tests disclosed no functional limitations.92
Thus, as demonstrated above, the ALJ’s analysis of these “nature and severity”
opinions of Drs. Elgafy, Hickey, and Bassett not related to migraines is detailed and specific,
with clear citations to those portions of the record supporting the quoted opinion. While the
ALJ’s opinion would have benefitted from stricter conformity with the requirement of
making an explicit statement acknowledging these sources as treating sources and then
performing the analysis proper to such sources before ascribing a given weight to these
90

Id.

91

Id.

92

Id. at 26 (citing record).
-19-

opinions, the error here was harmless since the opinion both makes findings consistent with
those opinions and further satisfies the goal of the regulation by allowing for meaningful
judicial review of the ALJ’s analytic process.
3.

Acceptable medical source opinion/emotional/depression
In addition to the sources dealing with physical impairments, Luck was treated by

psychologist James Buldas, Ed.D. for adjustment disorder with mixed emotional features.
The ALJ noted first that although Dr. Buldas stated that Luck experiences “between
one and two episodes of decompensation of extended duration,”93 and so opined that she had
been totally disabled since 2007,94 there was no clinical record of those decompensations or
of any related hospitalizations.95 Thus, the ALJ concluded that “there have been no episodes
of decompensation of extended duration” such as would enable Luck to meet the adult
mental health listing at 12.00.96
The ALJ again extensively discussed Dr. Buldas later in the ALJ’s opinion.
Specifically, the ALJ took note that Dr. Buldas had provided a statement that Luck was
disabled, and then observed that, although that issue is reserved for the Commissioner, and
so opinions on that question “can never be entitled to controlling weight” because the opinion

93

Tr. at 23.

94

Id. at 618.

95

Id. at 23.

96

Id.
-20-

is from a treating source, it must nevertheless be carefully weighed in light of the other
evidence of record to determine any appropriate weight.97
The ALJ declined to accord significant weight to Dr. Buldas’s conclusory opinion.98
Specifically, the ALJ noted that Dr. Buldas’s own reports did not provide clinical support for
his conclusion. He observed that while Dr. Buldas opined that Luck’s depressive syndrome
was marked by sleep disturbance, decreased energy, and difficulty concentrating, his
treatment records show that she was reporting “‘improved sleep patterns’ and ‘moderate
progress’ with using relaxation techniques and improved concentration.”99
He also noted that Dr. Buldas’s conclusion of total disability was inconsistent with the
results of a mental function examination conducted by consultative examining psychologist
Daniel Watkins, Ph.D.100 In some detail, the ALJ reviewed the results of Dr. Watkins’s
examination, concluding that Dr. Watkins’s ultimate assessment of Luck as having a GAF
score of 60 indicated only mild symptoms, not total disability.101
Finally, the ALJ again commented that Dr. Buldas’s “opinion [of total disability] is
quite conclusory, providing very little explanation of the evidence relied on in forming his

97

Id.

98

Id. at 28.

99

Id.

100

Id. at 28-29.

101

Id.
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opinion.”102 The ALJ found that Dr. Buldas’s recitation of various symptoms attributed to
Luck’s anxiety was not accompanied by any documentation in the record, but rather his
“progress notes consistently reflect continued reports of improvement.”103 In that regard, the
ALJ observed that Luck’s own “reported daily and social activities do not corroborate
[Dr. Buldas’s] conclusions.”104
Luck here does not dispute the fact that Dr. Buldas’s treatment notes are as the
ALJ characterizes them. Rather, Luck argues that the ALJ had no right to characterize
Dr. Buldas’s notes at all, since doing so was impermissibly “playing doctor” by substituting
the ALJ’s judgment as what those notes represent for Dr. Buldas’s conclusion.105
In fact, the case authority cited by Luck emphasizes that the ALJ may not substitute
his opinion for that of a medical professional “where the opinion of the treating physician is
supported by the medical evidence”106 and where the ALJ’s judgment does not rely on “other
evidence or authority in the record.”107 Far from being, as Luck seems to argue, a blanket
condemnation of any disagreement by the ALJ with the opinion of a treating source grounded
on that opinion’s lack of support in the treatment record, the case law is clear that an ALJ

102

Id.

103

Id. at 29.

104

Id.

105

ECF # 13 at 13-16.

106

Meece v. Barnhart, 192 F. App’x 456, 465 (6th Cir. 2006).

107

Clifford v. Apfel, 227 F.3d 863, 870 (7th Cir. 2000).
-22-

may justifiably point out, without incurring the criticism of playing doctor, that the medical
opinion has no support in the medical record or that other evidence or authority in the record
provides a basis for the ALJ’s critique.
Here, the ALJ actually rested his analysis of Dr. Buldas’s opinion on four distinct
arguments: (1) there were no findings of “clinical or laboratory abnormalities” in
Dr. Buldas’s record;108 (2) Dr. Buldas’s own treatment notes contradict his conclusion;
(3) Dr. Buldas’s conclusory opinion is contradicted by the opinion of consultative examining
psychologist Dr. Watkins, whose opinion is based on specific results of a mental status
examination; and (4) that opinion is not corroborated by Luck’s own daily and social
activities.109
Even if the second reason – a perceived contradiction between Dr. Buldas’s treatment
notes and his opinion – puts the ALJ at risk of “playing doctor” by substituting his view of
those notes for that of Dr. Buldas, the remaining three reasons have no such risk. It is not
making an impermissible medical judgment to note that there is no evidence whatsoever for
an opinion, nor is it improper to note that the opinion of consultative examining medical
source is better supported in the evidence than that of a treating source and then to ascribe
greater weight to the opinion of the non-treating source. 110

108

Tr. at 18.

109

Id.

110

Gayheart, 710 F.3d at 379-80 (citations omitted).
-23-

Likewise, while the Sixth Circuit teaches that an ALJ may not “focus” on a claimant’s
ability to do certain things as providing a good reason for discounting a treating source’s
opinion,111 the danger to be avoided in that instance is that an “ALJ’s recitation of the
claimant’s daily activities [is] inconsistent with the record” and so cannot establish a proper
basis for assessing the functional opinion at issue.112 But absent the infirmity of a faulty
description of the claimant’s activities, it is well-recognized that an ALJ may consider a
claimant’s daily activities as among the reasons for discounting a treating source’s opinion.113
Further, Luck also appears to argue that Dr. Buldas’s opinion should receive greater
weight because it formed the basis for an award of state workers’ compensation benefits.114
But as the ALJ pointed out, while that state decision is not binding on an ALJ, the ALJ must
consider it and articulate reasons for the lesser weight assigned.115 Here, the ALJ – by the
above-noted discussion as to why the various opinions were weighed as they were – provided
a clear statement of judicially reviewable reasons as to why the Ohio workers’ compensation
award was only accorded “little weight,” since it was based on Dr. Buldas’s opinion that was

111

Cole, 661 F.3d at 939.

112

Engebrecht v. Colvin, No. 12-11342, 2013 WL 4604597, at *22 (E.D. Mich.
Aug. 29, 2013) (citing Cole, 661 F.3d at 939).
113

Id. at *21 (citing Helm v. Comm’r of Soc. Sec., 405 F. App’x 997, 1002 (6th Cir.
2011); Kidd v. Comm’r of Soc. Sec., 283 F. App’x 336, 342 (6th Cir. 2008)).
114

ECF # 13 at 14.

115

Tr. at 29 (citing Rothgeb v. Comm’r of Soc. Sec., 626 F. Supp. 2d 797, 809
(S.D. Ohio 2009) (citation omitted)).
-24-

not given significant weight, and was inconsistent with the other opinions that were afforded
more weight for the reasons stated.
4.

Other medical source opinions
In addition to the above approved medical sources, Luck was treated by Mickey

Frame, a chiropractor. Frame gave an opinion one week before the hearing that set
restrictions on Luck’s ability to sit and stand, and further offered the opinion that Luck was
totally, permanently disabled from work.116 While Luck accepts that Frame, as a chiropractor,
is not an accepted medical source, she argues that he is “nevertheless competent to describe
what [Luck] can and can’t do,” and so his RFC finding that Luck was limited to sedentary
work should be given more than the “little weight” it was given by the ALJ.117
The ALJ here noted first that under Social Security regulations a chiropractor’s
opinion is not a treating source opinion and can never be entitled to controlling weight. He
further observed that Frame’s RFC opinion restricting Luck to sedentary work was not
“substantiated by the objective medical evidence or his own progress notes.”118
The objective medical evidence relied on by the ALJ is extensively discussed
throughout this opinion. Frame’s progress notes referenced here by the ALJ were earlier
discussed briefly by the ALJ, who noted that Luck reported a continuing improvement of her

116

Id. at 621.

117

ECF # 13 at 12.

118

Tr. at 29.
-25-

low back pain with Frame.119 Indeed, an examination of those treatment records shows that
Luck’s self-reported pain improved from an 8 out of 10 to a 6 out of 10 in treatment with
Frame.120 Further, even at her worst point of an 8 level of pain, when Frame noted that
“patient’s response to treatment is slow,”121 Luck informed Frame that she was unable to
make an appointment for the next week because she would be gone on “a pre-planned
vacation with husband.”122 Plainly, not objective evidence in support of a finding that Luck
was totally and permanently disabled from work by disabling lower back pain.
In sum, the ALJ here was not required to analyze Frame’s opinion under the rules for
treating sources but “has the discretion to determine the appropriate weight to accord a
chiropractor’s opinion based on all the evidence in the record since a chiropractor is not a
medical source.”123 As the Sixth Circuit noted in Walters v. Commissioner of Social Security,
if a claimant offers the opinion of a chiropractor, the ALJ is not required to do more than
consider it and weigh it along with all the other evidence in the record in making an
evaluation of the claimant’s condition.124

119

Id. at 25 (citing record).

120

See, id. at 471 (8 level at 8/24/11); at 599 (6 level at 9/28/11 – “getting
improvement with treatment).
121

Id. at 472.

122

Id.

123

Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 530 (6th Cir. 1997) (citations

omitted).
124

See, id. at 530-31.
-26-

Thus, the ALJ’s treatment of Frame’s opinions is in accord with the applicable
standard and provides no basis for remand.
5.

Acceptable medical source opinions related to migraines
As part of the argument that the ALJ failed to accord controlling weight to the

opinions of treating physicians, Luck asserts that the ALJ failed to properly credit
Dr. Hickey’s opinions regarding her migraine headaches.125
Although the ALJ took notice of Luck’s migraine headaches, and her assertion that
these headaches occur three to four times a month for “up to a day or two” causing her to be
“out,”126 he then made no evaluation of those specific reported symptoms, either in light of
any medical opinion or as part of an examination of Luck’s credibility. To be sure, the ALJ
discussed issues of pain and medication for pain management as they arose in the context of
the physical lower back condition described above127 and further discussed the functional
limitations connected with depression and stress,128 but the only reference to migraines is a
comment, without citation to the record, that Luck “does use Imitrex for her migraines.”129
As Luck’s brief acknowledges, Dr. Hickey’s treatment notes show both complaints
about migraine headaches and accompanying nausea, as well as statements that the

125

See, ECF # 13 at 11-12.

126

Tr. at 24.

127

Id. at 25, 27.

128

Id. at 26-27.

129

Id. at 27.
-27-

headaches and nausea were gone.130 But, Luck contends, a fair reading of Dr. Hickey’s
“nature and severity” opinions indicates that throughout the treatment relationship, the
migraines continued to be a problem.131
The Commissioner in her brief does not contend that the ALJ actually addressed the
issue of any disabling effects from the migraines but argues that “the record does not contain
any evidence that her migraines created functional limitations severe enough to warrant a
reduction in the RFC finding.”132 In fact, the issue here is not whether a de novo search of the
record will reveal any proof of additional functional limitations that could further restrict the
RFC. Rather, the question is whether the RFC as actually found is supported by substantial
evidence.
In that regard, the ALJ’s analysis of Luck’s complaint of disabling migraines is not
highly developed nor easily reviewed. While it seems to infer that Luck’s use of Imitrex is
sufficient to manage any severe disabling symptoms from her migraines, the opinion does
not say so. However, while Dr. Hickey’s notes establish that Luck was being treated for
migraines, nothing in his notes – nor in the notes of any other medical source – establishes
their severity. Thus, Luck’s very specific allegations of having disabling migraines up to four
times a month during which she cannot leave the house for one or two days133 are, in the end,

130

ECF # 13 at 10.

131

Id. at 10-11.

132

ECF # 19 at 16.

133

ECF # 13 at 11, 16 (citing record).
-28-

an issue going to her credibility. As such, that question, which is considered below, is for the
ALJ to determine under the applicable standard and not one that can be resolved by an
opinion from a medical source.
6.

Credibility
As stated above in the rubrics for assessing credibility, an ALJ may consider a

claimant’s daily activities as part of making a finding about a claimant’s credibility.134
Moreover, a claimant’s credibility may be discounted when it is contradicted by the medical
evidence and other evidence of record.135 Stated differently, where there is substantial
evidence to support an ALJ’s functional capacity finding, there is substantial evidence to
support a finding that the claimant – who argued for a more restrictive RFC – was not
credible.136
Here, Luck essentially argues that her allegations of disabling pain are supported by
different portions of the record than was cited by the ALJ,137 whose reliance on her daily
activities as being inconsistent with her pain allegation is undermined by his failure to
describe with particularity what daily activities were inconsistent with the pain allegations.138

134

See, Felisky v. Bowen, 35 F.3d 1027, 1037-38 (6th Cir. 1994).

135

Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 392 (6th Cir. 2004).

136

See, White v. Comm’r of Soc. Sec., 572 F.3d 272, 287 (6th Cir. 2009).

137

ECF # 13 at 20. (In finding her claims of pain not credible, “the administrative law
judge pointed to various isolated treatment notations” of her treating sources.)
138

ECF # 13 at 20 (“The administrative law judge gave no consideration to the totality
of medical resources Ms. Luck sought to relieve her pain and its stressful results.”)
-29-

For the reasons already documented above in the discussion concerning the lesser
weight given to Luck’s treating sources, the ALJ clearly set forth the reasons why those
sources did not merit greater weight. It follows that if those sources are properly afforded
only limited or no weight, that those sources then cannot be support for Luck’s subjective
complaints. To argue, as does Luck, that the mere fact that she kept returning to various
sources for treatment necessarily proves that her complaints of pain were credible,139 misses
the point that while she may well have had continuous symptoms – a fact acknowledged by
the ALJ

140

– the fact that she sought relief from those symptoms does not necessarily

establish that they were severe enough to be disabling.
Further, it is incorrect to claim that the ALJ made no mention of the daily activities
that he concluded were at variance with Luck’s assertion of disabling pain.141 The ALJ
explicitly found that although Luck contended that she was unable to drive, she testified that
she drove herself to the hearing.142 Further, the ALJ found:
She also reported to Dr. Frame that she was able to walk and drive without
assistance. She reported [being able] to perform a full range of daily activities,
including going on walks and going to church and the library. She is able to
run errands and complete daily chores, including cooking, washing dishes,

139

Id.

140

See, Tr. at 26.

141

ECF # 13 at 20 (“Nor did the ALJ describe what activities of daily living were
inconsistent with Ms. Luck’s experience of pain.”).
142

Tr. at 27.
-30-

dusting, sweeping, and doing the laundry, which indicates are (sic) greater
ability to sit, lift, pull, walk, push, carry, and stand.143
In addition to this lengthy list of daily activities explicitly cited by the ALJ as
contradicting a claim of disabling pain, the ALJ also noted that Luck’s use of medication, as
well as of more holistic treatment for pain, “suggests that her symptoms, including her pain,
were not especially troublesome or as serious as she alleged.”144
In sum, rather than supporting Luck’s view that the ALJ’s analysis of her pain
allegation was “in error as a matter of law,”145 the ALJ’s opinion reflects conformity to the
applicable law and is more than adequately supported by substantial evidence.146

Conclusion
For the reasons stated, substantial evidence supports the finding of the Commissioner
that Luck had no disability. Accordingly, the decision of the Commissioner denying Luck
disability insurance benefits is affirmed.
IT IS SO ORDERED.

Dated: April 9, 2014

143

Id.

144

Id.

145

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

ECF # 13 at 20.

146

I also note that the ALJ here, despite finding Luck’s complaints of disabling pain
not credible, nevertheless fashioned a more restrictive RFC so as to “giv[e] the claimant
every benefit of the doubt regarding her allegations of pain.” Tr. at 28.
-31-