Clark v. Commissioner of Social Security
Memorandum Opinion and Order finding Commissioner's decision denying SSI is supported by substantial evidence and affirming Commissioner's decision. Magistrate Judge James R. Knepp, II on 2/28/17. (A,P)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
Case No. 3:15 CV 2212
Magistrate Judge James R. Knepp, II
COMMISSIONER OF SOCIAL SECURITY,
MEMORANDUM OPINION AND ORDER
Plaintiff, Denise Clark (“Plaintiff”) filed a Complaint against the Commissioner of Social
Security (“Commissioner”) seeking judicial review of the Commissioner’s decision to deny
supplemental security income (“SSI”). (Doc. 1). The district court has jurisdiction under 42
U.S.C. § 405(g). The parties consented to the undersigned’s exercise of jurisdiction in
accordance with 28 U.S.C. § 636(c) and Civil Rule 73. (Doc. 14). For the reasons stated below,
the undersigned affirms the decision of the Commissioner.
Plaintiff filed for SSI in January 2012, alleging a disability onset date of February 1,
2002.1 (Tr. 67). Her claims were denied initially and upon reconsideration. (Tr. 107, 115).
Plaintiff then requested a hearing before an administrative law judge (“ALJ”). (Tr. 120). Plaintiff
(represented by counsel), and a vocational expert (“VE”) testified at a hearing before the ALJ on
April 30, 2014. (Tr. 14-28). On May 9, 2014, the ALJ found Plaintiff not disabled in a written
decision. (Tr. 35-66). The Appeals Council denied Plaintiff’s request for review, making the
1. Plaintiff later amended her alleged onset date to January 18, 2012. (Tr. 38, 181).
hearing decision the final decision of the Commissioner. (Tr. 1-7); 20 C.F.R. §§ 404.955,
404.981. Plaintiff filed the instant action on October 28, 2015. (Doc. 1).
Personal Background and Testimony
Plaintiff was 50 years old at the time of her amended onset date, making her a person
closely approaching advanced age. (Tr. 26). She had a high school equivalent education, and no
past relevant work experience. Id.2
Plaintiff testified she lived in Toledo with her six children, ages 9, 16, 18, 19, 20, and 21.
(Tr. 39). Plaintiff’s driver’s license had been suspended for tickets or fines, and she had not
renewed it because she had just stopped driving. (Tr. 40-41).
Plaintiff estimated she could sit for fifteen minutes before having sharp back pain,
stiffness in her lower back, and sharp pain from her knee to toes. (Tr. 42). She testified she
would then stand up for five to ten minutes, and then would be able to sit back down. Id. After
five to ten minutes of standing, she would “get a little wobbly” and use her cane to stand. Id.
Plaintiff asked the judge to stand during the hearing (Tr. 45). She estimated she could not walk a
block, but could walk from the hearing room to the elevator, then stand in the elevator, then walk
to the door where her daughter would pick her up. (Tr. 43).
Plaintiff testified she sleeps from three to five hours a night, and dozes off “from the
medication” while watching television sometimes. (Tr. 44). She stated even with sleep and
anxiety medications, she still wakes up “mostly due to the pain in [her] back”. (Tr. 44).
Plaintiff testified Dr. Jones was her treating physician and she had seen him several times
per year. (Tr. 50). Dr. Jones had referred her to other places for testing. (Tr. 50-51). Plaintiff
2. Plaintiff had a limited work history that did not rise to the level of substantial gainful activity,
and the ALJ found Plaintiff had no past relevant work experience. See Tr. 19, 26.
testified that she uses a cane every day and Dr. Jones approves of that use. (Tr. 51). At the
hearing, she had a cane that her daughter gave her, but she stated she has another one at home
that Dr. Jones ordered. Id. She testified that without the cane she “veer[s] to the right or either
the left . . . or hold[s] the wall.” Id. The cane helps for balance on both even and uneven surfaces,
and she is more apt to lose her balance on an uneven surface. (Tr. 52). She cannot walk quickly
on an uneven surface like grass. Id.
Relevant Medical Evidence3
A May 2009 x-ray and CT scan of Plaintiff’s cervical spine following a car accident (Tr.
558) showed mild narrowing of the spinal canal and neural foramina bilaterally at C5-6, and
suggested muscle spasm (Tr. 562-64). A lumbar spine MRI showed disc narrowing and sclerosis,
and was suggestive of inflammatory arthritis. (Tr. 565). Plaintiff was discharged with diagnoses
of cervical strain and lumbar strain/sprain. (Tr. 560).
Plaintiff began treatment with Hudson Jones, M.D., sometime in 2008. (Tr. 315-16). She
saw Dr. Jones three times in late 2010, complaining of abdominal pain, reflux, depression, and
low back pain. (Tr. 500, 502, 504). Dr. Jones diagnosed, among other things, reflux, depressive
disorder, and a lumbar region sprain. (Tr. 501, 503, 505). Dr. Jones noted right sided lower
lumbar tenderness with spasms, and recommended water physical therapy and pain management.
(Tr. 501, 503). Normal gait and station was noted during this time. (Tr. 500, 502). Prescriptions
included Percocet, Prilosec, OxyContin, Wellbutrin, Darvocet, and Flexeril. (Tr. 500, 502, 504).
In November 2010, pain management specialist Ahmed Eltaki, M.D., saw Plaintiff on
referral from Dr. Jones. (Tr. 341-44; 497-99). Plaintiff described chronic constant lower back
3 The undersigned here summarizes only the medical evidence related to the errors Plaintiff
raises. See Kennedy v. Comm’r of Soc. Sec., 87 F. App’x 464, 466 (6th Cir. 2003) (issues not
raised in claimant’s brief waived).
pain radiating down her right leg. (Tr. 497). He noted her “MRI revealed severe degenerative
disk disease at L5-S1 with bilateral neuroforaminal stenosis.” Id. Examination showed right
scoliosis, right lumbar scoliosis, moderate tenderness over the lumbosacral junction, straight leg
raise test positive for leg pain on the right side, and Patrick signs were “severely positive” for
back pain. (Tr. 498). Dr. Eltaki suggested a caudal epidural steroid injection. Id. He noted
“adding morphine”, and suggested a neurosurgical evaluation if that did not work. Id.
Plaintiff returned to Dr. Jones in April 2011 for low back pain, reflux, and depression.
(Tr. 493). Dr. Jones noted lumbar spine tenderness and depressed mood. Id. Dr. Jones noted she
was enrolled in pain management and receiving nerve block. Id. He noted tenderness at her
lumbar spine and depressed mood. Id. She was instructed to continue her medication and follow
up with pain management. (Tr. 494). He continued previous diagnoses of lumbar region sprain,
reflux, and depressive disorder. (Tr. 493).
In May 2011, Dr. Eltaki gave Plaintiff a caudal epidural steroid injection. (Tr. 491-92).
She was instructed to follow up the next week. (Tr. 492).
Plaintiff returned to Dr. Jones twice more in 2011 for problems unrelated to her back and
neck. (Tr. 489-90, 487-88).
In February 2012, Plaintiff told Dr. Jones she had “occasional fluttering of heart on and
off infrequent duration last 6 months and none for last several days.” (Tr. 484). Dr. Jones
continued to diagnose sprain lumbar region, reflux esophagitis, and depressive disorder, among
other things. Id. Dr. Jones referred Plaintiff to cardiology. (Tr. 485).
Plaintiff saw Dr. Jones again in April 2012 for anxiety and reflux. (Tr. 482-83). He
prescribed amitriptyline, Ativan, and Zantac. (Tr. 483). Plaintiff was instructed to continue
medications, and Dr. Jones noted Plaintiff was “ok for aquatic PT and needs MRI lumbar”. Id.
Plaintiff had several images taken in April 2012 after a car accident. A lumbar spine CT
showed “[c]hronic sclerosis involving the vertebral bodies of L5 and S1”, and “[a]nnual bulging .
. . suspected from L3-4 through L5-S1”, but no evidence of acute fracture, subluxation, or central
canal compromise.” (Tr. 472). A cervical spine CT showed “chronic loss of vertebral body
heights involving C5 and C6 is noted an associated with degenerative and hypertrophic changes
involving the C5-6 disk space” and “mild spondylosis . . . at multiple levels.” (Tr. 470). A
cervical spine MRI showed mild to moderate degenerative spondylosis from C3-4 through C6-7,
vertebral body heights within normal limits, severe C5-6 disc space narrowing and diffuse disc
dissection. (Tr. 480).
Dr. Jones again noted during a June 2012 visit that Plaintiff needed a prescription for
aquatic therapy and a lumbar MRI. (Tr. 464). He noted Plaintiff’s lumbar spine was tender, and
continued prior diagnoses and prescriptions. (Tr. 464-65). Plaintiff returned to Dr. Jones in July
2012 with a tender lumbar spine, complaining of tingling in her right leg. (Tr. 462). At that time,
a “normal gait and normal station” was noted. Id. Dr. Jones Plaintiff would “need MRI lumbar
and EMG and NCV lower extremity.” (Tr. 463).
Plaintiff had a physical therapy evaluation in July 2012. (Tr. 523-24). The therapist noted
Plaintiff’s range of motion and strength were limited, and that she had significant tenderness in
her neck, shoulders, and paraspinal muscles. (Tr. 524). She was noted to “ambulate essentially
normally.” Id. Plaintiff reported to the physical therapist that prior to the accident, she had been
able to complete daily activities easily. (Tr. 523). After three visits, the physical therapist noted
Plaintiff “was unable to meet goals . . . and still has high pain levels.” (Tr. 522).
In 2012, Dr. Jones added a diagnosis of “neuropathy in other diseases” and possible
lumbar disc displacement. (Tr. 454, 462). In August 2012, Mark G. Loomus, M.D., reported that
an EMG of Plaintiff’s upper limbs was normal and that he could not “explain the numbness in
the right hand based on this study.” (Tr. 456-61). Dr. Jones acknowledged this finding at a visit
in November 2012 where he noted “EMG and NCV studies wnl [within normal limits]”. (Tr.
452). During that same visit, Dr. Jones noted “MRI lumbar not done.” Id. Plaintiff returned later
in November complaining of tingling in her hands and feet, and needing medications refilled.
(Tr. 450). Dr. Jones continued prior diagnoses and medications, and in his examination noted
“spine: a normal exam.” Id. His instruction was “OK for meds refill and patient will need MRI
brain neck and lumbar and she is to [follow up] with NS.” (Tr. 451).
In a September 2012 form for the Lucas County Department of Job and Family Services,
Dr. Jones noted Plaintiff was to see a neurosurgeon for possible back surgery, and was also to
seek mental health services and pain clinic. (Tr. 529).
In December 2012, Plaintiff visited the emergency room for constipation. (Tr. 577). The
initial nursing assessment noted normal gait and ambulation and that Plaintiff “walks without
difficulty”. (Tr. 578). There was no muscular weakness, and a normal lower extremity exam
without tenderness or apparent injury. Id. The emergency room notes stated: “Fall risk – no
ambulatory aid used.” (Tr. 579).
In January 2013, Plaintiff reported to Dr. Jones with gastroenterological problems. (Tr.
In April 2013, Plaintiff returned to Dr. Jones complaining of neck pain and reporting her
colonoscopy found a small polyp. (Tr. 572). Dr. Jones noted cervical spine tenderness
(“minimally and ROM full”). Id. He ordered an x-ray of Plaintiff’s neck and instructed her to
continue her medication. (Tr. 573). In October 2013, Dr. Jones again noted tenderness in
Plaintiff’s lumbar spine, but noted “xrays of neck not done.” (Tr. 574). He ordered a thoracic
spine x-ray and lower spine x-ray and instructed Plaintiff to continue medications and add
lumbar physical therapy. (Tr. 575).
In November 2013, Plaintiff reported to the emergency room with abdominal bloating
and pain. (Tr. 591). As part of the emergency room evaluation, Plaintiff had an abdominal and
pelvic CT scan, in which severe disc narrowing with degenerative endplate sclerosis at L5-S2
was noted. (Tr. 594-95). Plaintiff was prescribed magnesium citrate and discharged. (Tr. 593).
Dr. Jones completed numerous medical source statements for the Lucas County
Department of Job and Family Services during the time he treated Plaintiff. (Tr. 315-16
(November 2008), 323-24 (May 2009), 317-18 (April 2010), 326-27 (October 2010), 336-37
(April 2011), 339-40 (November 2011), 529-30 (September 2012), 446-47 (November 2012),
568-69 (April 2013), 570-71 (October 2013)). Dr. Jones checked the box on each of these forms
indicating Plaintiff was “unemployable” (Tr. 316, 318, 324, 327, 337, 340, 447, 530, 569, 571),
but also checked a box that she was “good/stable with treatment” on many (Tr. 315, 326, 336,
339, 446, 529, 568, 570).4 Dr. Jones noted medical conditions of degenerative disc disease,
lumbar stenosis or lumbar disc displacement, and depression or depressive disorder in each of his
opinions (Tr. 326, 336, 339, 529, 568, 570). He also noted cervical stenosis post back surgery
(Tr. 315, 323), reflux (Tr. 326), neuropathy (Tr. 568, 570), hypertension (Tr. 570), and
osteoarthritis (Tr. 570). In the box for “History of these problems (onset, duration, treatment,
prescribed medications, prognosis, etc.)”, Dr. Jones listed Plaintiff’s medications. (Tr. 326, 336,
339, 446, 529, 568, 570).
4. In May 2009, Dr. Jones checked the box for “poor but stable.” (Tr. 323).
Each time, he opined Plaintiff could stand or walk for one hour in an eight-hour workday,
one-half hour at a time; and sit for one hour in an eight-hour workday, one-half hour at a time.
(Tr. 316, 318, 327, 337, 340, 530, 569, 571). He also frequently opined Plaintiff could only lift or
carry six to ten pounds for 1/3 or 2/3 of an eight-hour work day. (Tr. 316, 318, 327, 337, 340,
569). In September 2012, he noted Plaintiff had recently been in a car accident, and opined
Plaintiff could only lift or carry up to five pounds and was markedly limited in pushing/pulling,
bending, reaching, handling, repetitive foot movements. (Tr. 530). He repeated this assessment in
November 2012, noting Plaintiff was to “see mental health, labs, pain management, PT, [and a]
neurosurgeon – possible back surgery.” (Tr. 447). Before this opinion, and once after, Dr. Jones
checked the “moderately limited” box for pushing/pulling, bending, reaching, and the
“moderately limited” or “not significantly limited” box for handling and repetitive foot
movements.” (Tr. 318, 327, 337, 340, 569).5 He returned to the “markedly limited” opinion in
October 2013. (Tr. 571).
Examining and Consultative Physician
In May 2012, William D. Padamadan, M.D., performed a consultative examination of
Plaintiff at the request of the state agency. (Tr. 380-87). He noted Plaintiff wore a cervical collar,
and when she removed it, she did not move her neck. (Tr. 381). “But spontaneously, she was
able to move quite freely when getting up from the bed to sitting position” and “[s]he had no
atrophy of the neck muscles.” Id. She “showed weakness of the right upper and right lower
extremity even though her ambulation and gait were unaffected” and she had normal range of
motion in shoulders, elbows, wrists, and fingers. Id. Dr. Padamadan noted Plaintiff had difficulty
with movements of the right leg and bending the knee and hip caused exacerbation of low back
5. In May 2009, Dr. Jones opined Plaintiff was markedly limited in pushing/pulling, bending,
reaching, and handling. (Tr. 324).
pain, while extension relieved it. (Tr. 382). He concluded Plaintiff had “[l]ow back pain since
2005 with narcotic dependence and showing Waddell’s signs on examination” and “[n]eck pain,
secondary to motor vehicle accident on April 19th, 2012 with Waddell’s signs on examination.”
Id. Dr. Padamadan did “not see an indication for limitation of physical activities for sitting,
standing, walking, and carrying” and thought Plaintiff “should be able to lift 20-50 pounds
frequently and more than 50 pounds occasionally.” Id. An x-ray performed at Dr. Padamadan’s
examination showed “mild lumbar scoliosis” and “degenerative disc disease L5-S1”. (Tr. 387).
In April 2014, Ryan Lakin, M.D., performed a consultative examination of Plaintiff at
the request of the state agency. (Tr. 532-45). Dr. Lakin noted Plaintiff was “not very compliant
with the exam”, “actively resisted” strength and range of motion testing, said Dr. Lakin “was
tormenting her the whole time” and was “obviously exaggerating her symptoms.” (Tr. 533).
Therefore, Dr. Lakin stated he found “the strength and range of motion testing . . . to be
unreliable.” Id. He also noted she did not show signs of pain and had full range of motion with
her neck and upper extremities when undressing and redressing. Id. He noted her range of
motion of cervical spine and dorsolumbar spine were “limited per the patient.” (Tr. 534). Dr.
Lakin noted Plaintiff’s gait was “abnormal”, but that he considered her claim that she cannot take
any steps without her cane to be unreliable. Id. He also noted she had “[n]o trouble getting on
and off the exam table without my assistance.” Id. Dr. Lakin also noted Plaintiff “claims she is
dependent on a cane full-time for ambulation and standing . . . [and] claims she has difficulties
with [activities of daily living]. Overall, I feel she is exaggerating her symptoms in today’s visit
and the extent of her disability is unclear to me.” (Tr. 534-35).
He concluded she could lift up to 20 pounds continuously more than six hours in an
eight-hour workday, 21-50 pounds occasionally (two hours per day), and greater than 50 pounds
rarely to never. (Tr. 535). He stated she could sit continuously with regular breaks for six hours
in an eight-hour workday, 30 minutes at a time. (Tr. 535, 541). She could and stand and walk
occasionally for two hours in an eight-hour work day, for fifteen minutes at a time. (Tr. 541). He
opined Plaintiff could walk one-half block without her cane, and that the use of the cane was
medically necessary. Id. In support of this finding, he noted “low back and neck pain” and
“difficulty with balance/ambulation long distance.” Id. He concluded Plaintiff had some
limitations in overhead reaching (Tr. 542) and several postural limitations (climbing, balancing,
stooping, kneeling, crouching, and crawling) (Tr. 543).
VE Testimony and ALJ Decision
At the hearing, the ALJ asked a VE to first assume an individual with Plaintiff’s age,
education and work experience with the residual functional capacity for:
Work at the light exertional level with postural limitations of no climbing of
ladders, ropes or scaffolds, occasional climbing of ramps and stairs, occasional
balancing, stooping, kneeling, crouching and crawling, occasional use of the
bilateral lower extremities for operation of foot controls. Manipulative limitation
of occasional use of the bilateral upper extremities for overhead reaching,
frequent use of the bilateral upper extremities for reaching, handling and
fingering. Environmental limitation to avoid all exposure to hazards such as
moving machinery and unprotected heights. Additional environmental limitation
to avoid concentrated exposure to irritants such as fumes, odors, dust, gases and
vibrations. Work limited to simple, routine and repetitive tasks in a work
environment free from fast paced production requirements such as moving
assembly lines and conveyor belts, involving only work related decisions with
few if any work place changes, occasional interaction with the general public,
coworkers and supervisors.
(Tr. 53-54). The VE testified that jobs such as folder, production inspector, and packer would be
available to such an individual. (Tr. 54).
The ALJ then modified the hypothetical, adding two additional limitations: 1) the
individual would be allowed to sit or stand alternatively at will provided they are not off task for
more than 10 percent of the time and 2) the individual use a cane for ambulation. (Tr. 54). The
VE opined that the previous jobs listed would be available, but at reduced numbers, and an
additional job of an assembler would be available. (Tr. 55).
For a third hypothetical, the ALJ asked the VE to keep the previously listed restrictions
and limit the work to sedentary, rather than light exertion. The VE testified that jobs such as
assembler, bench worker, and bonder would be available. Id.
In a fourth hypothetical, the ALJ kept the limitations of the third hypothetical, but the
individual would be able to sit for one hour in an eight-hour work day and stand or walk a
combined total of one hour in an eight-hour work day. (Tr. 55). The VE stated no work would be
available to such an individual. (Tr. 55-56).
In a written decision dated May 9, 2014, the ALJ found Plaintiff had not engaged in
substantial gainful activity since the application date. (Tr. 16). He found she had severe
impairments of degenerative disc disease, with back and leg pain; status post motor vehicle
accident (MVA); neuropathy; upper extremity weakness; depression disorder/dysthymia; anxiety
and post-traumatic stress disorder (PTSD); alcohol and cannabis use disorder; and narcotic
dependence. Id. He concluded Plaintiff’s impairments did not meet or medically equal the
severity of a listed impairment. (Tr. 17) He concluded Plaintiff had the residual functional
Perform light work . . . except: no climbing of ladders, ropes, or scaffolds.
Occasional climbing of ramps and stairs. Occasional balancing, stooping,
kneeling, crouching and crawling. Occasional use of the bilateral lower
extremities for operation of food controls. Uses a cane for ambulation. Able to sit
and/or stand at will at the workstation, provided not off task for more than ten
percent of the workday. Manipulative limitation of occasional use of bilateral
upper extremities for overhead reaching. Frequent use of the bilateral upper
extremities for reaching, handling, and fingering. Environmental limitation to
avoid all exposure to hazards, such as moving machinery and unprotected heights.
Additional environmental limitation to avoid concentrated exposure to irritants
such as fumes, odors, dust, gases, and vibrations. Work limited to simple, routine,
and repetitive tasks in a work environment free from fast paced production
requirements, such as moving assembly lines and conveyor belts, involving only
work related decisions, with few if any work place changes. Occasional
interaction with the general public, coworkers, and supervisors.
(Tr. 19). The ALJ found Plaintiff: had no past relevant work; was a younger individual at the
time the application was filed, and an individual closely approaching advanced age at the time of
the decision; and had a high school education. (Tr. 26). He concluded that given Plaintiff’s age,
education, work capacity, and RFC, jobs exist in significant numbers in the national economy
that Plaintiff can perform, and therefore, she was not disabled. (Tr. 26-27).
STANDARD OF REVIEW
In reviewing the denial of Social Security benefits, the 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.” Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). “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). The Commissioner’s findings
“as to any fact if supported by substantial evidence shall be conclusive.” McClanahan v. Comm’r
of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006) (citing 42 U.S.C. § 405(g)). Even if substantial
evidence or indeed a preponderance of the evidence supports a claimant’s position, the court
cannot overturn “so long as substantial evidence also supports the conclusion reached by the
ALJ.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003).
STANDARD FOR DISABILITY
Eligibility for benefits is predicated on the existence of a disability. 42 U.S.C. §§ 423(a),
1382(a). “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.” 20 C.F.R. § 416.905(a); see also 42 U.S.C. § 1382c(a)(3)(A). The
Commissioner follows a five-step evaluation process—found at 20 C.F.R. § 404.1520—to
determine if a claimant is disabled:
Was claimant engaged in a substantial gainful activity?
Did claimant have a medically determinable impairment, or a combination
of impairments, that is “severe,” which is defined as one which
substantially limits an individual’s ability to perform basic work
Does the severe impairment meet one of the listed impairments?
What is claimant’s residual functional capacity and can claimant perform
past relevant work?
Can claimant do any other work considering her residual functional
capacity, age, education, and work experience?
Under this five-step sequential analysis, the claimant has the burden of proof in Steps
One through Four. Walters, 127 F.3d at 529. The burden shifts to the Commissioner at Step Five
to establish whether the claimant has the residual functional capacity to perform available work
in the national economy. Id. The court considers the claimant’s residual functional capacity, age,
education, and past work experience to determine if the claimant could perform other work. Id.
Only if a claimant satisfies each element of the analysis, including inability to do other work, and
meets the duration requirements, is she determined to be disabled. 20 C.F.R. §§ 404.1520(b)-(f);
see also Walters, 127 F.3d at 529.
Plaintiff raises two objections to the ALJ’s decision: 1) the ALJ failed to provide good
reasons for the weight given to the opinion of treating physician, Dr. Jones; and 2) the ALJ failed
to explain why he did not include the restriction by consultative examiner, Dr. Lakin, that
Plaintiff required a cane while standing.
Plaintiff’s first argument implicates the well-known treating physician rule. Generally,
the medical opinions of treating physicians are afforded greater deference than those of nontreating physicians. Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007); see also
SSR 96-2p, 1996 WL 374188. “Because treating physicians are ‘the medical professionals most
able to provide a detailed, longitudinal picture of [a plaintiff’s] medical impairment(s) and may
bring a unique perspective to the medical evidence that cannot be obtained from the objective
medical findings alone,’ their opinions are generally accorded more weight than those of nontreating physicians.” Rogers, 486 F.3d at 242 (quoting 20 C.F.R. § 416.927(d)(2)).
A treating physician’s opinion is given “controlling weight” if it is supported by (1)
medically acceptable clinical and laboratory diagnostic techniques; and (2) is not inconsistent
with other substantial evidence in the case record. Wilson v. Comm’r of Soc. Sec., 378 F.3d 541,
544 (6th Cir. 2004). The requirement to give controlling weight to a treating source is
presumptive; if the ALJ decides not to do so, he must provide evidentiary support for such a
finding. Id. at 546; Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376-77 (6th Cir. 2013).
When the physician’s medical opinion is not granted controlling weight, the ALJ must give
“good reasons” for the weight given to the opinion. Rogers, 486 F.3d at 242 (quoting 20 C.F.R. §
416.927(d)(2)). “Good reasons” are reasons “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.
When determining weight and articulating good reasons, the ALJ “must apply certain
factors” to the opinion. Rabbers v. Comm’r Soc. Sec. Admin., 582 F.3d 647, 660 (6th Cir. 2009)
(citing 20 C.F.R. § 404.1527(d)(2)). These factors include the length of treatment relationship,
the frequency of examination, the nature and extent of the treatment relationship, the
supportability of the opinion, the consistency of the opinion with the record as a whole, and the
specialization of the treating source. Id. While an ALJ is required to delineate good reasons, he is
not required to enter into an in-depth or “exhaustive factor-by-factor analysis” to satisfy the
requirement. See Francis v. Comm’r of Soc. Sec. Admin., 414 F. App’x 802, 804-05 (6th Cir.
2011); Allen v. Comm’r of Soc. Sec., 561 F.3d 646, 651 (6th Cir. 2009). The Sixth Circuit has
held that an ALJ may also give “good reasons” by challenging the supportability and consistency
of the treating physician’s opinion in an “indirect but clear way”, Brock v. Comm’r of Soc. Sec.,
368 F. App’x 622, 625 (6th Cir. 2010), or “implicitly provid[ing] sufficient reasons for not
giving those opinions controlling weight, and indeed for giving them little to no weight overall”,
Nelson v. Comm’r of Soc. Sec., 195 F. App’x 462, 472 (6th Cir. 2006); see also Dutkiewicz v.
Comm’r, -- F. App’x --, 2016 WL 6068912, *1 (6th Cir.) (“[T]he ALJ’s failure to explicitly
consider [a treating physician’s] opinion was, at most, harmless error because the ALJ indirectly
rejected the conclusion that [plaintiff] was unable to work by reasonably explaining that the
majority of medical evidence, the nature of [plaintiff’s] treatment, and the other medical opinions
in the record showed that [plaintiff] had the capacity to perform a limited range of sedentary
Here, the ALJ recognized Dr. Jones was a treating physician6 and explained:
Dr. Jones has consistently noted the claimant as “unemployable,” often indicating
carrying limitations at ten pounds, and standing/walking to one hour, with sitting
limited to two hours during an eight-hour work day. These “reports” consist
primarily of checking off a box on a pre-printed form. A check box is marked to
indicate that the claimant is “unemployable for periods ranging for several months
to one year at a time. These same reports have also indicated that the claimant’s
status was “good/stable with treatment.” Little weight is accorded to these
“opinions” provided by Dr. Jones. The ultimate issue of disability is a medicalvocational determination reserved for the Commissioner (SSR 96-5p). . . .
[T]reating source opinions are to be given controlling weight if well supported by
medically acceptable clinical and laboratory diagnostic techniques and not
inconsistent with other substantial evidence. While objective evidence in the form
of x-rays and MRIs supports a degree of some limitation due to back pain, it does
not support a finding to preclude all working ability.
(Tr. 21) (internal citations omitted).
The undersigned finds substantial evidence supports the ALJ’s decision regarding Dr.
Jones’s opinion and rejects Plaintiff’s claim of error. First, the ALJ correctly disregarded Dr.
Jones’s opinion that Plaintiff was “unemployable” because the regulations reserve the ultimate
decision regarding disability to the Commissioner. 20 C.F.R. § 404.1527(e)(1); see also 20
C.F.R. § 404.1527(e)(3) (no “special significance” given to opinions about disability, even those
by treating physician); Brock, 368 F. App’x at 625.
Second, an ALJ may properly cite, as a reason for giving an opinion less weight, the
“check-box” nature of that opinion. See Ellars v. Comm’r of Soc. Sec., 647 F. App’x 563, 566
(6th Cir. 2016) (“Many courts have cast doubt on the usefulness of these forms and agree that
administrative law judges may properly give little weight to a treating physician’s ‘check-off
6. Plaintiff correctly points out that the ALJ mis-identified Dr. Jones as “a physician with Lucas
County Job and Family Services” at one point. See Tr. 21. The citation provided by the ALJ is to
a form Dr. Jones filled out for Lucas County Job and Family Services, he is not an employee.
However, the remainder of the opinion makes clear that this error was not harmful, as the ALJ
correctly identifies Dr. Jones as a treating physician. See Tr. 21 (noting, while addressing Dr.
Jones’s opinions: “[w]hile treating source opinions are to be given controlling weight if . . . . “).
form’ of functional limitations that ‘did not cite clinical test results, observations, or other
objective findings . . . .’”) (quoting Teague v. Astrue, 638 F.3d 611, 616 (8th Cir. 2011); Price v.
Comm’r of Soc. Sec., 342 F. App’x 172, 176 (6th Cir. 2009) (“Because [the treating physician]
failed to identify objective medical findings to support his opinion [on a questionnaire] regarding
[the claimant’s] impairments, the ALJ did not err in discounting his opinion.”); see also Hyson v.
Comm’r of Soc. Sec., 2013 WL 2456378, *14 (N.D. Ohio) (listing cases rejecting conclusory, or
check box, opinions). The ALJ also relied on an internal inconsistency within Dr. Jones’s check
box forms—although he opined Plaintiff was “unemployable” and had extremely limited
abilities to sit, stand, walk, and lift/carry, on most of these forms, he checked a box noting
Plaintiff was “good/stable with treatment.” (Tr. 21); see also Tr. 315, 326, 336, 339, 529, 568,
Third, a review of the ALJ’s decision as a whole indicates he gave Dr. Jones’s opinion
less than controlling weight because he found it to be inconsistent with and not supported by the
record as a whole, as well as inconsistent with Dr. Jones’s own records. The ALJ expressly
assigned weight to the opinion as required by the regulations. See Tr. 21 (“Little weight is
accorded to these ‘opinions’ provided by Dr. Jones.”); 20 C.F.R. § 404.1527. The ALJ credited
the “objective evidence in the form of x-rays and MRIs” to support “a degree of some limitation
due to back pain,” but concluded it “does not support a finding to preclude all working ability.”
(Tr. 21). Elsewhere in his opinion, the ALJ discussed the imaging studies regarding Plaintiff’s
back pain. See Tr. 22 (“Upon evaluation of an MRI scan with no evidence of central canal
stenosis or cord compromise, Patrick W. McCormick, M.D., indicated that the ‘etiology of the
subjective parasthesias was uncertain.’”) (citing Tr. 409); Tr. 22 (“A CT of the cervical spine
indicated mild spondylosis at multiple levels, and chronic changes identified without evidence of
acute fracture or subluxation. A CT of the dorsolumbar spine indicated some chronic changes,
including possible annular bulging from L3-4 through L5-S1; and chronic sclerosis at L5 and
S1.”) (citing Tr. 472); Tr. 22 (“Examination [in December 2012] indicated intact range of motion
for all extremities. Normal gait and ambulation was indicated in the treatment record.”) (citing
Tr. 578); Tr. 22 (“Minimal tenderness at the cervical spine was indicated, with the ability for a
full range of motion [in April 2013 to Dr. Jones]) (citing Tr. 572); Tr. 22 (“There were similar
findings in October 2013, with tenderness at the lumbar spine indicated.”) (citing Tr. 574).
Moreover, the ALJ discussed the inconsistencies between evidence of Plaintiff’s reported
activities with her claims of total disability. See Tr. 20 (“The undersigned notes that this seems to
imply she was previously cooking and driving, contrary to her earlier disability reports.”); Tr. 21
(“The claimant indicated to Job and Family Services that she was ‘required to care for a disabled
family member’ to be excused from job training requirements.”) (citing inter alia, Tr. 251, 258,
267, 274); Tr. 21 (“This travel to Hawaii in the fall of 2012, for vacation, seems inconsistent
with both the claims of her own disability as well as her need to care for a disabled member of
her household. The flight to Hawaii itself requires many hours of sitting on an airplane, which is
inconsistent with the degree of neck and back pains she purports, and tends to support the
observations of the consultative medical examiners, discussed below.”) (citing Tr. 611) (“She
states that in Sept. and Oct. she as on an extended vacation in Hawaii”.); Tr. 22 (“The
undersigned notes some inconsistency between this report of ability to perform activities of daily
living [“easily”] prior to the MVA in April 2012, and the claimant’s earlier disability reports.”)
(citing Tr. 194-202 (March 2012 function report); Tr. 203-07 (April 2012 pain questionnaire)).
These inconsistencies identified by the ALJ are another reason—albeit indirect—for discounting
Dr. Jones’s opinions of total disability spanning the time period from November 2008 through
Plaintiff contends the ALJ failed to recognize Dr. Jones’s long treating relationship with
Plaintiff. While the ALJ did not expressly state he considered the treating relationship, a review
of the decision indicates he was certainly aware of it. He cited Dr. Jones’s treatment notes,
diagnoses, and prescriptions from 2010 onwards in his summary of the medical evidence. (Tr.
Finally, Plaintiff contends the ALJ merely analyzed whether Dr. Jones’s opinion should
be given controlling weight, but then did not do the appropriate analysis of factors to determine
if the treating source should still be afforded deference. Plaintiff appears to argue that the ALJ
must first determine whether the opinion is due controlling weight, and then perform a
substantially similar analysis again when determining how much weight. When an ALJ
determines a treating physician’s opinion is not entitled to controlling weight, he must provide
support to refute either the opinion’s objective basis or its consistency with other record
evidence. Gayheart, 710 F.3d at 376-77. The ALJ here focused on the second prong—
consistency with the other record evidence. In the page prior to the ALJ’s discussion of Dr.
Jones’s opinions, and in four pages following, the ALJ summarized the record evidence,
specifically mentioning Dr. Jones’s records, and noting the inconsistencies between Plaintiff’s
claims of disability and other evidence of record as discussed above. No more was required for
the decision not to give the opinion controlling weight, nor to justify the weight given to the
opinion. See, e.g., Aiello-Zak v. Comm’r of Soc. Sec., 47 F. Supp. 3d 550, 558 (N.D. Ohio 2014)
(“[W]here the ALJ carefully summarized the results of the claimant’s objective medical records,
as well as noting the daily activities of the claimant, and then showed why the opinion of the
treating source was inconsistent with these facts, the decision to accord the opinion of the
treating source ‘not much weight’ was supported by substantial evidence and not violative of
Gayheart.”) (citing Dyer v. Soc. Sec. Admin, 568 F. App’x 422, 426 (6th Cir. 2014)).
Thus, the undersigned concludes the ALJ appropriately gave “good reasons” for his
decision to give Dr. Jones’s opinions “little weight.” He discussed the checkbox nature of the
opinions, their supportability, and their consistency with the record as a whole. A review of the
ALJ’s decision as a whole provides reasons “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. This is so even if such reasons are not included directly in the
paragraph discussing those opinions. See Brock, 368 F. App’x at 625; Nelson, 195 F. App’x at
472; Dutkiewicz v. Comm’r, -- F. App’x --, 2016 WL 6068912, at *1.
RFC Determination / Dr. Lakin
Plaintiff’s second argument is the ALJ failed to include a restriction for use of a cane
while standing in his RFC, despite giving the opinion Dr. Lakin—who expressed such a
limitation was necessary—the moderate weight. The Commissioner responds that the ALJ’s
determination was supported by substantial evidence. As discussed below, the undersigned
agrees with the Commissioner.
In his consultative examination report, Dr. Lakin opined Plaintiff could “stand and walk
occasionally with the use of her cane”. (Tr. 535). Plaintiff contends the ALJ erred by failing to
acknowledge or explain his rejection of this limitation, despite assigning Dr. Lakin’s opinion
“moderate weight”. Defendant responds that the ALJ was not required to adopt or discuss the
entirety of Dr. Lakin’s opinion, nor is such a limitation supported by the record.
An ALJ is not required to adopt all limitations in a particular opinion, even one to which
he assigns “great weight”. See, e.g., Smith v. Colvin, 2013 WL 6504681, at *11 (N.D. Ohio)
(finding an ALJ who attributes “great weight” to state-reviewing psychologist opinions not
required to include in claimant’s RFC all limitations assessed by them); Hericks v. Astrue, 2012
WL 161105, *7 (S.D. Ohio) (“The fact that the ALJ did not entirely adopt either of the RFC
opinions offered by treating and consulting physicians is not contrary to the Sixth Circuit’s
opinion in Hensley, because the ALJ’s analysis explains the basis for his opinions.”) The final
responsibility for determining a claimant’s RFC “rests with the ALJ, not a physician.” Poe v.
Comm’r of Soc. Sec., 342 F. App’x. 149, 157 (6th Cir. 2009) (citing 20 C.F.R. §§ 404.1546(c),
416.946(c)); see also SSR 96-5p, 1996 WL 374183, *4 (“Even though the adjudicator’s RFC
assessment may adopt the opinions in a medical source statement, they are not the same thing.”).
First, although the ALJ here stated he was giving the “moderate weight” to Dr. Lakin’s
opinion, he did not state he was adopting that opinion in toto. (Tr. 25). Second, in his summary
of Dr. Lakin’s opinions, the ALJ noted Dr. Lakin’s observations indicating he believed Plaintiff
to be exaggerating her symptoms. (Tr. 23-24). He also noted he did not adopt Dr. Lakin’s
opinion in its entirety because he found the evidence as a whole: 1) supported greater restrictions
regarding the overall exertional level—limiting Plaintiff to light, rather than medium work; and
2) supported lesser restrictions regarding postural movements. Id. Although he did not
specifically mention rejecting the restriction regarding a cane Plaintiff now raises, it is clear that
the ALJ did not somehow miss this this restriction Dr. Lakin expressed, because on the previous
page of his decision, he specifically noted it in summarizing Dr. Lakin’s opinion. See Tr. 24
(“Dr. Lakin indicated the claimant would be able to . . . stand and walk occasionally with the use
of a cane.”).
The undersigned agrees with the Commissioner that, when read as a whole, Dr. Lakin’s
opinion in its entirety does not strongly support a restriction requiring the use of a cane for
standing. See Tr. 533 (noting Plaintiff was “not very compliant with the exam” and was
“obviously exaggerating her symptoms”); 534 (noting Plaintiff had “[n]o trouble getting on and
off the exam table without my assistance”); 534-35 (noting Plaintiff “claims she is dependent on
a cane full-time for ambulation and standing” and “claims she has difficulties with [activities of
daily living]. Overall, I feel she is exaggerating her symptoms in today’s visit and the extent of
her disability is unclear to me”). Nor is there any other evidence in the record showing a medical
prescription for a cane, or suggesting Plaintiff needs a cane for standing. Moreover, there was
evidence in the record to the contrary cited by the ALJ elsewhere in his opinion. See Tr. 23
(“[a]lthough the claimant indicated weakness in her right lower and upper extremities, her
ambulation and gate were not affected.”) (citing Tr. 381) (Dr. Padamadan’s May 2012
evaluation); Tr. 22 (“Normal gait and ambulation was indicated in the treatment record.”) (citing
Tr. 577-79) (December 2012 emergency room records noting “[p]atient walks without difficulty”
and “[n]ormal gait/ambulation”). Therefore, it was not error for the ALJ to not include such a
limitation in his final RFC.
Following review of the arguments presented, the record, and the applicable law, the
undersigned finds the Commissioner’s decision denying SSI is supported by substantial
evidence, and therefore affirms the Commissioner’s decision.
s/James R. Knepp II
United States Magistrate Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?