Lathan v. Commissioner of Social Security

Filing 18

Memorandum Opinion and Order: The Commissioner's decision is AFFIRMED. Magistrate Judge Kathleen B. Burke on 8/4/2015. (D,I)

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

DANIELLE JOYCE LATHAN,
Plaintiff,
v.

COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant.

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CASE NO. 3:14CV2009

MAGISTRATE JUDGE
KATHLEEN B. BURKE

MEMORANDUM OPINION & ORDER

Plaintiff Danielle Joyce Lathan (“Lathan”) seeks judicial review of the final decision of
Defendant Commissioner of Social Security (“Commissioner”) denying her application for
Disability Insurance Benefits (“DIB”). Doc. 1. This Court has jurisdiction pursuant to 42 U.S.C.
§ 405(g). This case is before the undersigned Magistrate Judge pursuant to the consent of the
parties. Doc. 12.
For the reasons stated below, the Commissioner’s decision is AFFIRMED.
I. Procedural History
Lathan protectively filed an application for DIB on May 27, 2010, alleging a disability
onset date of May 1, 2009. Tr. 19, 145, 164. She alleged disability based on the following:
recurrent migraines, recurring side effects from past chemotherapy, and post low-grade
lymphoma (stage unknown) in remission. Tr. 168. After denials by the state agency initially
(Tr. 64, 74) and on reconsideration (Tr. 65, 82), Lathan requested an administrative hearing. Tr.
89. A hearing was held before Administrative Law Judge (“ALJ”) Melissa Warner on March 7,
2013. Tr. 33-54. In her April 15, 2014, decision (Tr. 19-26), the ALJ decided the case at Step
1

Two of the sequential analysis, determining that Lathan was not disabled because she did not
have an impairment or combination of impairments that has, or is expected to, significantly limit
her ability to perform basic work-related activities for twelve consecutive months. Tr. 26.
Lathan requested review of the ALJ’s decision by the Appeals Council (Tr. 15) and, on July 10,
2014, the Appeals Council denied review, making the ALJ’s decision the final decision of the
Commissioner. Tr. 1-3.
II. Evidence
A. Personal and Vocational Evidence
Lathan was born in 1954 and was 56 years old on the date her application was filed. Tr.
164. She completed twelfth grade. Tr. 169. She previously worked for 23 years as a polisher
and a packager at a glass factory. Tr. 169. She last worked in 2009. Tr. 169.
B. Medical Evidence
Lathan was diagnosed with non-Hodgkin’s lymphoma in 2006. Tr. 256. She kept
working during her chemotherapy treatment despite having some fatigue that began halfway
through the day. Tr. 258. She responded well to treatment and her cancer went into remission.
Tr. 266 (May 2006 treatment note of her oncologist, Dr. Howard L. Ritter, Jr., M.D., that Lathan
“did quite well” with chemotherapy and was feeling “pretty good”); 420 (January 2008 Dr. Ritter
treatment note stating that, two years after her diagnosis, Lathan “continues doing well, fully
active, enjoying good energy and activity levels, and working full time,” after completing
chemotherapy). In April 2008, she reported to Dr. Ritter that she was feeling fine in general but
“a bit tired chronically.” Tr. 421. Based on her blood test and a CT scan, Dr. Ritter suspected
that there was a recurrence of her cancer in her bone marrow. Tr. 421.

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A bone marrow biopsy performed in June 2008 confirmed Dr. Ritter’s suspicions and
Lathan began an eight week course of Rituxan therapy. Tr. 423-424. After three doses of
Rituxan, Lathan reported intermittent lower abdominal pain with nausea and vomiting. Tr. 425.
She then developed diarrhea and headaches; the diarrhea resolved with Imodium and she
reported doing fairly well. Tr. 425-426. The day of her last Rituxan treatment, August 4, 2008,
Lathan reported that throughout her treatment she has been nauseous, “quite fatigable and
unable to work” but, apart from that, doing “quite well.” Tr. 427.
On September 15, 2008, Lathan complained to Dr. Ritter of sores in her mouth, swollen
lips, redness, and rashy spots on her lower legs. Tr. 429. Dr. Ritter prescribed a mouthwash;
Lathan’s mouth had improved by September 18. Tr. 429. She was treated for cellulitis and a
treatment note from September 22 noted improvement and only a small amount of swelling
remaining. Tr. 432. On September 30, her left leg was “getting worse again” and Dr. Ritter
ordered a Doppler ultrasound. Tr. 433. Lathan had begun wearing support hose. Tr. 433. The
ultrasound showed bilateral inguinal lymph node enlargement. Tr. 434. On October 22, Dr.
Ritter noted that Lathan’s problem with her legs seemed to be resolving itself and did not appear
to be due to lymphoma. Tr. 435. On January 20, 2009, Dr. Ritter noted that Lathan has done
quite well since the last visit and that the skin on her legs had cleared up entirely. Tr. 436. She
was “entirely asymptomatic” with only complaints of aching legs when walking long distances.
Tr. 436.
On April 21, 2009, Dr. Ritter noted that Lathan “continues doing very well, working full
time, leading a normal family life, and enjoying freedom from any relapse of her previous and
unexplained swelling in her legs.” Tr. 438. On November 9, 2009, Dr. Ritter remarked that
Lathan was “feeling fine, entirely well, with no symptoms at all.” Tr. 440. On January 25, 2010,

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Lathan complained of easily aggravated pain symptoms in both legs, as well as swelling in the
ankles. Tr. 441. Upon examination, Dr. Ritter did not observe swelling or skin abnormalities; he
believed it was “some kind of post cellulitic neuropathic syndrome.” Tr. 441.
On February 2, 2011, Lathan saw Dr. Ritter for a follow-up visit. Tr. 529. She was
“entirely asymptomatic, active, enjoying good energy and stamina” and “appeared entirely well
and in excellent spirits.” Tr. 529. In June 2011, Dr. Ritter referenced Lathan’s complaints of
frequent diarrhea and referred her to a gastroenterologist, Dr. Harsant S. Padda. Tr. 554; 590.
Dr. Padda’s treatment note reported that Lathan has diverticulitis-associated colitis; he advised
her to eat a high-fiber diet and stated that her long-term prognosis is good. Tr. 590. In a visit to
Dr. Ritter on August 22, 2011, Lathan reported “good improvement” with her diarrhea after
getting advice from Dr. Padda. Tr. 563.
During the time she was seeing Dr. Ritter, Lathan also had regular appointments with her
family doctor, Bonaventure Okoro, M.D. On September 29, 2008, Lathan complained of, and
Dr. Okoro noted, left leg swelling. Tr. 466. Otherwise, treatment notes overwhelmingly indicate
normal findings. Tr. 458-492. He prescribed the nasal spray Stadol and Fioricet for Lathan’s
headaches. Tr. 488, 584, 595. On April 30, 2012, Lathan saw Dr. Okoro complaining of chest
pain and a headache described as “constant, pressure, sharp, squeezing, stabbing, tension,
throbbing and worsening.” Tr. 600. On June 29, 2012, Lathan presented with feet and ankle
swelling and hypertension with symptoms including headache, visual disturbance, chest pain,
weakness and edema. Tr. 604. Upon examination, Dr. Okoro noted no edema in her feet or
extremities. Tr. 605. Her blood pressure was 160/90. Tr. 605. On September 24, 2012, Lathan
complained of diarrhea that started three days prior. Tr. 612. Her blood pressure was 180/100.
Tr. 613. On November 2, 2012, she complained of headache, chronic gastritis and abdominal

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discomfort. Tr. 626. On December 31, 2012, she complained of chest pain, leg pain, and
fatigue. Tr. 620-621. She reported that she fell in her kitchen while doing dishes and that her
husband took her blood pressure and it was 70/50. Tr. 621. She did not want to go to the
emergency room. Tr. 621. Dr. Okoro advised her to go to the emergency room for assessment
of her chest pain. Tr. 621. Lathan did as advised. Tr. 638-655.
On January 28, 2013, after the hearing, Lathan underwent an echocardiogram that
showed mild concentric left ventricular hypertrophy and mild to moderate tricuspid
regurgitation. Tr. 631-632.
C. Medical Opinion Evidence
1. Treating Source Opinions
a. Dr. Okoro
On July 8, 2011, Dr. Okoro completed a “Physical Capacities Evaluation.” Tr. 556-557.
Dr. Okoro opined that Lathan was unable to sit, stand, or walk at all during an 8-hour workday
and unable to lift 10 pounds. Tr. 556. She could not use her hands. Tr. 556. He indicated that
she would require complete freedom to rest frequently without limitation, that she would have to
lie down for substantial periods during the day, and that she would likely miss 5 or more days
from work per month due to exacerbation of her condition if she were to return to work. Tr.
556-557.
On December 17, 2012, Dr. Okoro completed a “Post Cancer Treatment Medical Source
Statement.” Tr. 614-617. He listed the following symptoms Lathan experienced as a result of her
cancer or treatment: fatigue, muscle pain, depression, muscle weakness, lower leg swelling,
chronic headaches, anxiety, disturbed sleep, and impaired memory. Tr. 614. Other diagnoses
included tiredness and body weakness. Tr. 614. Dr. Okoro opined that she could sit and

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stand/walk less than 2 hours in an 8-hour workday and that she would need to take more than ten
unscheduled breaks for more than 2 hours in a work day due to pain, fatigue, medication side
effects, weakness, leg pain and swelling in her knee and ankle joints, and diarrhea. Tr. 615-616.
Her symptoms would cause her to be off task 25% or more of a workday and she is incapable of
even low stress work. Tr. 616-617.
b. Dr. Ritter
On June 6, 2011, Dr. Ritter wrote a letter stating,
Danielle comes back to talk to me because she believes that the way I filled out a
disability form indicates that she is fully capable of working. I explained to her that I
completed the form only in reference to lymphoma, which is not incapacitating to her.
She perceives that she was treated unfairly by her previous employer in that she was
visiting the bathroom too often while at work, which she had to do because of intractable
diarrhea, which she believes stems from the chemotherapy she originally received for
lymphoma .... I am going to refer her to a gastroenterologist for evaluation. I explained
to Danielle that this is not something that we normally see as a result of chemotherapy,
and that she likely has a remediable cause for her symptoms. I also told her that her
attorney could give me a call if he would like a letter of clarification that I was referring
only to her history of lymphoma when I indicated that she was not disqualified or
disabled for work.
Tr. 554.
2. Consultative Examiner
On December 2, 2010, Lathan saw Sushil M. Sethi, M.D., for a consultative examination.
Tr. 495-497. Lathan reported a history of migraines for “many, many years” and that she takes
medications that keep them “under control.” Tr. 495. She believed that the last chemotherapy
treatment caused “marked weakness and tiredness.” Tr. 495. Upon examination, Dr. Sethi’s
findings were all normal except for mild tenderness in Lathan’s tailbone area and reduced range
of motion in her lumbar spine and both knees. Tr. 495-501. He diagnosed Lathan with a history
of low-grade tumor, cancer of the lymph glands, past history of lumpectomy of the left breast,
status-post chemotherapy; hypertension; stomach ulcer; and migraine headaches. Tr. 497. Dr.
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Sethi wrote, “Based on my objective findings, the claimant’s ability to do work-related physical
activities such as sitting, standing, walking, lifting, carrying and handling objects and traveling
appears to be quite limited due to recurrent treatment with chemotherapy.” Tr. 497.
3. State Agency Reviewers
On February 8, 2011, Elliott Goytia, M.D., a state agency physician, reviewed Lathan’s
file. Tr. 503-508. Dr. Goytia opined that Lathan could perform sedentary work based on her
lymphoma and chronic disease. Tr. 504-505. On February 25, 2011, state agency physician
Ronald Rossman, M.D., reviewed Lathan’s filed and Dr. Goytia’s opinion. Tr. 509. He
questioned whether the records supported a sedentary residual functional capacity (“RFC”)
finding and recommended obtaining current hematology-oncology notes. Tr. 509. Specifically,
Dr. Rossman noted that Dr. Sethi’s opinion found limitations based on his objective findings yet
Dr. Sethi’s objective findings on examination were normal. Tr. 509. He also referenced Dr.
Ritter’s progress notes that Lathan was doing well and stated that these records did not support
the sedentary RFC assessment by Dr. Goytia.
On April 12, 2011, state agency reviewer W. Bolz found that Lathan does not have a
severe impairment. Tr. 548. He referenced Dr. Ritter’s treatment notes and stated that Lathan’s
diarrhea appeared to be treatable. Tr. 548. He opined that Dr. Sethi’s opinion should be entitled
to little weight. Tr. 548.
On September 15, 2011, state agency physician Eli Perencevich, D.O., affirmed Bolz’s
opinion. Tr. 564. He referenced Dr. Ritter’s treatment notes, Lathan’s resolution of her diarrhea
after seeing a gastroenterologist, and normal physical exams. Tr. 564.
D. Testimonial Evidence
1. Lathan’s Testimony

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Lathan was represented by counsel and testified at the administrative hearing. Tr. 35-51.
She lives with her husband in a one-story home; they are both retired. Tr. 38, 39, 45. She
completed twelfth grade. Tr. 39. She worked at Libby Glass after she graduated from high
school until her retirement. Tr. 39-40. She worked repackaging the glass; the heaviest she
regularly lifted was 60 pounds. Tr. 40. After her job packaging glass she worked polishing
molds, which required her to lift at most 70 pounds. Tr. 40. She testified that she can no longer
lift 50 pounds. Tr. 43. She explained that she was not lifting 50 pounds at work after her first
chemo treatment because her employer put her on “blanks,” which were lighter molds. Tr. 44.
Lathan stated that she is limited to walking ¾ of a block because of her legs, which start
throbbing and aching from the knees down, and swelling in her ankles. Tr. 41. These symptoms
started after her last chemotherapy treatment. Tr. 41. She was still working at the time. Tr. 41.
She would take breaks every hour or so to sit down. Tr. 41. Sometimes she would go to the
bathroom so people at work would not see her. Tr. 41. She also stated that she would “take off
maybe 15, 20 minutes within a[n] hour.” Tr. 41. Her employer allowed her to take breaks as
long as she did her job but “they start[ed] having a problem with it.” Tr. 41-42. She stated that
her employer started having a problem with it because her chemo gave her diarrhea and her
employer claimed that she was out of the department more than she was working. Tr. 42. When
asked what changed, she stated that her employer changed how they handled things. Tr. 42.
She testified that she had diarrhea once a day, depending on what she ate or drank. Tr.
42. Sometimes she would have it seven times a day and then she was weak. Tr. 42. This caused
her to rest when she came back from the bathroom at work. Tr. 42. Sometimes her boss was
waiting for her. Tr. 42-43. She stated that her employer told her that something had to be done,
and so she retired when she turned 55 or else they were “going to get rid of me.” Tr. 43.

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Lathan stated that she saw a gastroenterologist who put her on a limited diet and that “it
worked sometimes” but sometimes it did not. Tr. 44. She had diarrhea three times the week of
the hearing. Tr. 44. Since she stopped working, she can stand for about 15 minutes and sit for
about 20 minutes. Tr. 44. She is unable to sit longer than that because her legs start aching from
her knees down. Tr. 45. She explained that her leg problems were caused by her last chemo
treatment from which she developed a cellulite infection. Tr. 45. She is unable to bend and
touch her knees. Tr. 45. She also testified that her arms ache from the chemo treatment and that
she cannot lift her arms above her shoulders. Tr. 45. Her hands also swell up and cramp. Tr.
45.
On a typical day, Lathan gets up and her husband helps her dress. Tr. 46. She sits
around and then runs the sweeper for a bit, then sits down; it takes her about an hour to do one
room. Tr. 46. She has a driver’s license but sometimes has difficulty driving because of her legs
and feet and her medications that cause her to be off balance. Tr. 38. She gets migraine
headaches every day. Tr. 46. When she gets a headache, she takes her medicine, lies down, and
the headache goes away, but it comes back before the end of the day. Tr. 46. She has had
migraines since she was injured at work. Tr. 46. She continued working while having
migraines; she would take her medication then go back to work. Tr. 46-47.
Lathan also testified that her ability to work is affected by anxiety, depression, and sore
muscles. Tr. 47. Her anxiety stems from her frustration at not being able to do what she used to
do and that it takes her longer to do things. Tr. 47. She also described difficulties breathing,
which she has had since her cellulite infection. Tr. 47. She relayed that she had chest pain in
December that caused her to pass out in her kitchen in December 2012. Tr. 48. She felt like she
was having a heart attack. Tr. 48. She was told that she has vascular congestion and “the only

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thing they got to look out for is for swelling in my legs and stuff.” Tr. 48. She was prescribed
two medications, including a blood thinner. Tr. 48. She was still experiencing chest pains at the
time of the hearing and her next appointment was scheduled for a month after the hearing date.
Tr. 49. She was told she may get a catheter to determine whether the blood flow to her heart is
normal. Tr. 49.
2. Vocational Expert’s Testimony
Vocational Expert Mr. McBee (“VE”) testified at the hearing as to Lathan’s prior work.
Tr. 53. The ALJ asked the VE if he wished to clarify his vocational summary. Tr. 53. The VE
answered that he did, and stated that the mold polisher job as performed by Lathan would be at
the heavy exertional level. Tr. 53. He also stated that, as performed by Lathan, the job of hand
packager would change to a material handler based on the amount of weight Lathan lifted
continuously or at least frequently. Tr. 53. He described that the job of material handler is
performed at the heavy exertional level. Tr. 53.
III. Standard for Disability
Under the Act, 42 U.S.C. § 423(a), eligibility for benefit payments depends on the
existence of a disability. “Disability” is defined as the “inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which
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.” 42 U.S.C. § 423(d)(1)(A). Furthermore:
[A]n individual shall be determined to be under a disability only if his physical or
mental impairment or impairments are of such severity that he is not only unable
to do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in
the national economy . . . .
42 U.S.C. § 423(d)(2).

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In making a determination as to disability under this definition, an ALJ is required to
follow a five-step sequential analysis set out in agency regulations. The five steps can be
summarized as follows:
1.

If the claimant is doing substantial gainful activity, he is not disabled.

2.

If claimant is not doing substantial gainful activity, his impairment must
be severe before he can be found to be disabled.

3.

If claimant is not doing substantial gainful activity, is suffering from a
severe impairment that has lasted or is expected to last for a continuous
period of at least twelve months, and his impairment meets or equals a
listed impairment, claimant is presumed disabled without further inquiry.

4.

If the impairment does not meet or equal a listed impairment, the ALJ
must assess the claimant’s residual functional capacity and use it to
determine if claimant’s impairment prevents him from doing past relevant
work. If claimant’s impairment does not prevent him from doing his past
relevant work, he is not disabled.

5.

If claimant is unable to perform past relevant work, he is not disabled if,
based on his vocational factors and residual functional capacity, he is
capable of performing other work that exists in significant numbers in the
national economy.

20 C.F.R. §§ 404.1520, 416.920;1 see also Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987).
Under this sequential analysis, the claimant has the burden of proof at Steps One through Four.
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997). The burden shifts to the
Commissioner at Step Five to establish whether the claimant has the vocational factors to
perform work available in the national economy. Id.
IV. The ALJ’s Decision
In her April 15, 2013, decision, the ALJ made the following findings:
1

The DIB and SSI regulations cited herein are generally identical. Accordingly, for convenience, further citations
to the DIB and SSI regulations regarding disability determinations will be made to the DIB regulations found at 20
C.F.R. § 404.1501 et seq. The analogous SSI regulations are found at 20 C.F.R. § 416.901 et seq., corresponding to
the last two digits of the DIB cite (i.e., 20 C.F.R. § 404.1520 corresponds to 20 C.F.R. § 416.920).

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1.

The claimant meets the insured status requirements of the Social Security
Act through December 31, 2014. Tr. 21.

2.

The claimant has not engaged in substantial gainful activity since May 1,
2009, the alleged onset date. Tr. 21.

3.

The claimant had the following medically determinable impairments: a
history of lymphoma status post chemotherapy, recurrence and
chemotherapy in remission—remote and no current duration; obesity;
migraines; and hypertension. Tr. 21.

4.

The claimant does not have an impairment or combination of
impairments that has significantly limited (or is expected to significantly
limit) the ability to perform basic work-related activities for 12
consecutive months; therefore, the claimant does not have a severe
impairment or combination of impairments. Tr. 21.

5.

The claimant has not been under a disability, as defined in the Social
Security Act, from May 1, 2009, through the date of this decision. Tr. 26.

V. Parties’ Arguments
Lathan objects to the ALJ’s determination at Step Two that she does not have a severe
impairment and argues that the ALJ’s decision is not supported by substantial evidence. Doc.
14, p. 8. She asserts that the ALJ failed to give controlling or great weight to the opinion of her
treating physician, Dr. Okoro, misinterpreted the opinion of her treating oncologist, Dr. Ritter,
and that the ALJ’s treatment of those opinions was inconsistent with the ALJ’s finding that
Lathan was credible. Doc. 14, pp. 9-14. In response, the Commissioner submits that the ALJ
reasonably found that Lathan’s impairments did not cause significant work-related limitations
and were, therefore, not severe. Doc. 16, pp. 4-9.
VI. Law & Analysis
A reviewing court must affirm the Commissioner’s conclusions absent a determination
that the Commissioner has failed to apply the correct legal standards or has made findings of fact
unsupported by substantial evidence in the record. 42 U.S.C. § 405(g); Wright v. Massanari, 321
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F.3d 611, 614 (6th Cir. 2003). “Substantial evidence is more than a scintilla of evidence but less
than a preponderance and is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Besaw v. Sec’y of Health & Human Servs., 966 F.2d 1028,
1030 (6th Cir. 1992) (quoting Brainard v. Sec’y of Health and Human Servs., 889 F.2d 679, 681
(6th Cir. 1989) (per curiam) (citations omitted)). A court “may not try the case de novo, nor
resolve conflicts in evidence, nor decide questions of credibility.” Garner v. Heckler, 745 F.2d
383, 387 (6th Cir. 1984).
At Step Two, a claimant must show that she suffers from a severe medically determinable
physical or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). It is Lathan’s burden to show
the severity of her impairments. Foster v. Sec’y of Health & Human Servs., 899 F.2d 1221, *2
(6th Cir. 1990) (unpublished) (citing Murphy v. Sec’y of Health & Human Servs., 801 F.2d 182,
185 (6th Cir. 1986)). An impairment is not considered severe when it does not significantly limit
the claimant’s physical or mental ability to do basic work activities (without considering the
claimant’s age, education, or work experience).2 Long v. Apfel, 1 Fed. App’x 326, 330-332 (6th
Cir. 2001); 20 C.F.R § 404.1521(a).
A claimant’s burden at Step Two is de minimis. Higgs v. Bowen, 880 F.2d 860, 862 (6th
Cir. 1988). “An impairment can be considered not severe only if it is a slight abnormality that
minimally affects work ability regardless of age, education, and experience.” The Higgs court
observed that “this lenient interpretation of the severity requirement in part represents the courts’
response to the Secretary’s questionable practice in the early 1980s of using the step two
regulation to deny meritorious claims without proper vocational analysis.” Id. But the court also
2

Basic work activities are defined by the regulations as “the abilities and aptitudes necessary to do most jobs.” 20
C.F.R. § 404.1521(b). Examples, include: (1) physical functions such as walking, standing, sitting, lifting, pushing,
pulling, reaching, carrying, or handling; (2) the capacity to see, hear and speak; (3) the ability to understand, carry
out, and remember simple instructions; (4) use of judgment; (5) ability to respond appropriately to supervision, coworkers, and usual work situations; and (6) the ability to deal with changes in a routine work setting. Id.
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recognized that “Congress has approved the threshold dismissal of claims obviously lacking
medical merit . . . .” Id. That is, “the severity requirement may still be employed as an
administrative convenience to screen out claims that are ‘totally groundless’ solely from a
medical standpoint.” Id. at 863 (affirming dismissal because the record contained no objective
medical evidence to support the claimant’s allegations of severe impairment).
Although Lathan generally asserts that the ALJ erred in her Step Two determination,
Doc. 14, pp. 8-9, she specifically argues that the ALJ erred in her treatment of the opinions of her
treating physicians, Drs. Okoro and Ritter, and that her treatment of these doctors’ opinions was
inconsistent with the ALJ’s finding that Lathan was credible. Doc. 14, p. 9-14.
A. The ALJ did not err when assigning weight to the medical opinions and
substantial evidence supports her decision
Lathan argues that the ALJ erred because she failed to give her treating physician, Dr.
Okoro, controlling or great weight. Doc. 14, p. 9. Under the treating physician rule, “[a]n ALJ
must give the opinion of a treating source controlling weight if he finds the opinion well
supported by medically acceptable clinical and laboratory diagnostic techniques and not
inconsistent with the other substantial evidence in the case record.” Wilson v. Comm’r of Soc.
Sec., 378 F.3d 541, 544 (6th Cir. 2004); 20 C.F.R. § 404.1527(c)(2). If an ALJ decides to
give a treating source’s opinion less than controlling weight, she must give “good reasons” for
doing so that are sufficiently specific to make clear to any subsequent reviewers the weight given
to the treating physician’s opinion and the reasons for that weight. Wilson, 378 F.3d at 544. In
deciding the weight given, the ALJ must consider factors such as the length, nature, and extent of
the treatment relationship; specialization of the physician; the supportability of the opinion; and
the consistency of the opinion with the record as a whole. See 20 C.F.R. § 416.927(a)-(d);
Bowen v. Comm’r of Soc Sec., 478 F.3d 742, 747 (6th Cir. 2007).
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With respect to Dr. Okoro’s opinion, the ALJ explained,
The claimant’s primary care physician, Bonaventure Okoro, M.D., also filled out two
medical source statements on the claimant’s behalf in which he concluded that the
claimant could only lift up to six pounds and could sit and stand no more than an hour
each in an eight hour work day. Additionally, he stated that the claimant would have to
take more than 10 unscheduled breaks during a work day and would have to rest more
than two hours before having to return to work. The representative argued at the hearing
th[at] Dr. Okoro’s opinions should be given more weight since he sees the claimant more
than Dr. Ritter does. Although this may be true, the undersigned cannot give great
weight to a doctor’s opinion that contrasts with the remainder of the record to include the
claimant’s continual statements that she is doing well and the fact that she continued to
work despite any limitations she has alleged. Dr. Okoro’s own records from June 2010
state that the claimant was doing well and none of the records support continuing reports
of such severity that would justify a claimant having to lie down most of the day as his
opinions would suggest. The undersigned therefore gives Dr. Okoro’s opinions little
weight in this matter.
Tr. 25.
The ALJ gave “good reasons” for assigning little weight to Dr. Okoro’s opinion. See
Wilson, 378 F.3d at 544. She commented on the established treatment relationship between
Lathan and Dr. Okoro, but observed that Dr. Okoro’s opinion is not supported by his own
records and is inconsistent with the record as a whole, including documentation that Lathan was
doing well and continued to work. See 20 C.F.R. § 416.927(a)-(d).
Lathan claims that Dr. Okoro’s opinion is supported by Dr. Sethi’s opinion. Doc. 14, p.
10. However, the ALJ considered Dr. Sethi’s opinion and concluded that Dr. Sethi’s finding that
Lathan has severe restrictions as a result of her recurrent chemotherapy treatment was not based
upon Dr. Sethi’s own physical examination, which contained primarily normal findings, but
instead based on Lathan’s subjective reports. Tr. 25, 496-497. The ALJ also explained that Dr.
Sethi’s opinion conflicts with longitudinal treatment records and reports in the record that Lathan
had been doing well. Tr. 25. Specifically, the ALJ referenced treatment notes from Lathan’s

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treating oncologist, Dr. Ritter, that Lathan reported she was doing well, and Dr. Ritter’s opinion
that Lathan’s lymphoma was not interfering with her ability to work.3 Tr. 24-25.
Lathan points out that state reviewing physician Elliott Goytia opined that Lathan can
perform work at the sedentary level. Doc. 14, p. 10. The ALJ considered Dr. Goytia’s opinion.
Tr. 26. She accurately described how, after more records were received, a different state agency
reviewer concluded that Lathan’s impairments were not severe, and that she gave great weight to
the later reviewer’s opinion. Tr. 26.
Lathan argues that the ALJ found her credible and, therefore, committed error when she
did not find Lathan’s impairments severe after Lathan testified that she has fatigue, can only
walk ¾ of a block because of pain, and that, after walking ¾ of a block, her legs ache and her
ankles swell. Doc. 14, p. 12. The ALJ noted that she found Lathan’s hearing presentation
“generally credible” (Tr. 24); however, she specifically stated that she found Lathan’s statements
concerning the intensity, persistence and limiting effects of her symptoms not entirely credible
(Tr. 23).
Lathan appears to assert that Dr. Ritter’s observation that “diarrhea is not something we
normally see as a result of chemotherapy” is incorrect and cites to websites purportedly
indicating that diarrhea can be a side effect of chemotherapy. Doc. 14, p. 13. The Court does
not try the case de novo or resolve conflicts in evidence. See Garner, 745 F.2d at 387.
Moreover, the ALJ explained that Lathan had reported good improvement in her diarrhea after
consulting the gastroenterologist, indicating that the condition is not one that lasts longer than 12
months or is as severe as alleged. Tr. 26; see also Tr. 25 (ALJ’s commenting that Lathan’s
reports of diarrhea in the record are not as severe as she alleged at the hearing and that there is
3

Lathan argues that the ALJ did not appreciate that Dr. Ritter’s opinion that Lathan is not disabled was based only
on her Lymphoma and not based on a consideration of her other problems. Doc. 14, p. 13. However, the ALJ
explicitly stated that Dr. Ritter’s opinion only considered the disabling effect of her lymphoma. Tr. 25.
16

“very little mention of the diarrhea in the record except in early 2011”). With respect to Lathan’s
headaches, the ALJ noted that Lathan had suffered from headaches for years and yet they did not
preclude her from working. Tr. 23. She observed that Lathan’s headaches are controlled by
medication. Tr. 24. Regarding Lathan’s leg swelling, the ALJ explained that in September 2008
she complained of leg swelling but that Doppler testing showed no deep vein thrombosis and
Lathan continued working until May 2009. Tr. 24. Physical exams were largely normal and
Lathan primarily visited her doctor for medication refills. Tr. 24 (citing Dr. Okoro’s records).
In sum, although framed as an attack on the ALJ’s treatment of the opinion evidence,
Lathan is essentially urging the Court to reweigh the evidence, which the Court cannot do. See
Garner, 745 F.2d at 387. As described above, the ALJ’s decision is supported by substantial
evidence and, therefore, must be affirmed. See Higgs, 880 F.2d at 862-863 (lack of objective
medical evidence showing that claimant is significantly affected by impairment properly decided
at Step Two); Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003) (The
Commissioner’s decision cannot be overturned so long as substantial evidence supports the
ALJ’s conclusion).
B. Lathan waived any purported argument regarding her alleged cardiac issues
In her opening brief, in the statement of facts section, Lathan asserts that, at the time of
the hearing, she was “still having occasional symptoms” regarding her “cardiac issues,” but that
her “cardiac work up had not yet been completed.” Doc. 14, p. 7. Later, in her section arguing
that the ALJ’s step two finding is erroneous because her doctors found that she does have a
severe impairment, Lathan states,
In this case, the ALJ found some specific impairments including the lymphoma in
remission, obesity, migraines, and hypertension. Tr. 21. The ALJ did not consider any
cardiac impairment including mild concentric left ventricular hypertrophy and mild to
moderate tricuspid regurgitation. (The ALJ did appear to state at the hearing that the
17

cardiac problems disabled her as of December 2012 Tr. 50) The Judge did not consider
any mental impairments including Ms. Lathan’s depression and anxiety. The ALJ
specifically found Ms. Lathan’s hearing presentation “generally credible”. Tr. 24; 50. Ms.
Lathan testified that she can stand for 15 minutes at a time, Tr. 44, because of her leg
pain and aching; that is more than a slight or minimal limitation. Being off balance
because of medication side effects, Tr. 38, is more than a slight or minimal limitation.
The consultative examination of Dr. Sethi found significant restrictions from basic
work related activates such as sitting, standing, walking, lifting, carrying and handling,
Tr. 497. This is consistent with her complaints noted by Dr. Okoro and is certainly more
than a slight or minimal limitation.
The ALJ erred in denying the claim at Step Two, and therefore a reversal or
remand is necessary.
Doc. 14, p. 9.
Aside from the above-cited passage, Lathan does not discuss her cardiac condition in her
brief or assert that the ALJ committed an error with respect to her cardiac condition.4 Defendant,
in her brief, contends that Lathan did not present an argument with respect to her cardiac
condition and that, therefore, such an argument is waived. Doc. 16, p. 5 (citing McPherson v.
Kelsey, 125 F.3d 989, 995-996 (6th Cir. 1997) (“Issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed waived. It is not
sufficient for a party to mention a possible argument in the most skeletal way, leaving the court
to put flesh on its bones.”)) In her reply brief, Lathan asserts that the ALJ’s “failure to keep the
record open and develop this cardiac evidence is error and a remand is required.” Doc. 17, p. 2.
The Court finds that any purported argument Lathan may have intended to make with respect to
the ALJ’s findings regarding her alleged cardiac condition have been waived because she failed
to make any effort to develop such an argument. See McPherson, 125 F.3d at 995-996. Her
belated argument that the ALJ failed to develop the record regarding her alleged cardiac
condition is also waived, as it was asserted for the first time in her reply brief. See Scottsdale

4

Lathan does not identify evidence in the record wherein a doctor found that she had a severe cardiac impairment.
18

Ins. Co. v. Flowers, 513 F.3d 546, 553 (6th Cir. 2008) (issues raised for the first time in a reply
brief are deemed waived and need not be considered by the court).5
VII. Conclusion
For the reasons set forth herein, the Commissioner’s decision is AFFIRMED.

Dated: August 4, 2015
Kathleen B. Burke
United States Magistrate Judge

5

Lathan states in similar conclusory fashion, “The Judge did not consider any mental impairments including Ms.
Lathan’s depression and anxiety.” Doc. 14, p. 9. Lathan did not seek treatment for anxiety or depression and makes
no argument that these alleged conditions were severe.
19