Tressler v. Commissioner of Social Security Adminstration
Memorandum Opinion and Order affirming the Commissioner's decision. Magistrate Judge James R. Knepp, II on 2/13/2018. (D,TM)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
Case No. 3:17 CV 397
Magistrate Judge James R. Knepp, II
COMMISSIONER OF SOCIAL SECURITY,
MEMORANDUM OPINION AND ORDER
Plaintiff Karen Tressler (“Plaintiff”) filed a Complaint against the Commissioner of Social
Security (“Commissioner”) seeking judicial review of the Commissioner’s decision to deny
disability insurance benefits (“DIB”). (Doc. 1). The district court has jurisdiction under 42 U.S.C.
§§ 1383(c) and 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. 21). For the reasons stated below,
the undersigned affirms the decision of the Commissioner.
Plaintiff filed for DIB in April 2014 alleging a disability onset date of May 19, 2009. (Tr.
196).1 Her claims were denied initially and upon reconsideration. (Tr. 132, 140). Plaintiff then
requested a hearing before an administrative law judge (“ALJ”). (Tr. 147). Plaintiff (represented
by counsel), and a vocational expert (“VE”) testified at a hearing before the ALJ on October 13,
1. On the date of the hearing, Plaintiff amended her alleged onset date to January 25, 2013. (Tr.
216). Plaintiff had previously filed for DIB in January 2011, and was denied on January 24, 2013.
See Tr. 82-90
2015. (Tr. 27-55). On November 3, 2015, the ALJ found Plaintiff not disabled in a written decision.
(Tr. 11-24). The Appeals Council denied Plaintiff’s request for review, making the hearing
decision the final decision of the Commissioner. (Tr. 1-3); see 20 C.F.R. §§ 404.955, 404.981.
Plaintiff timely filed the instant action on February 27, 2017. (Doc. 1). Plaintiff then filed
her Brief on the Merits (Doc. 14); the Commissioner filed her Brief on the Merits (Doc. 15); and
Plaintiff filed her Reply (Doc. 16). Subsequently, Plaintiff filed a Supporting Memorandum (Doc.
17), which the Commissioner moved to strike (Doc. 18). The undersigned granted to Motion to
Strike (Doc. 20).
Personal Background and Testimony
Plaintiff was born in July 1966, making her 46 years old on her amended alleged onset
date. See Tr. 196. She alleged disability due to her leg condition. (Tr. 197). She had completed
high school. (Tr. 34). Plaintiff was married and lived with her husband and adult children. (Tr. 3233). Plaintiff had previous work as a housekeeper. (Tr. 35).
Plaintiff testified she had last worked the year before for one month doing housekeeping,
but had to stop because her legs would “swell up”, “get really red, and “burn”. (Tr. 35). Plaintiff
stated her leg problems had gotten worse since the prior ALJ’s decision. (Tr. 36). The left was
worse than the right. (Tr. 36). Her knee and foot would swell, and she got “charley horses in the
back of [her] leg.” (Tr. 38).
Plaintiff testified she had discussed a left knee replacement, but that her doctor did not
want to do it until she was older (“between 50 and 55”). (Tr. 40). She also stated that she did not
go through with a recommended partial knee replacement in 2013 because she did not have
insurance. (Tr. 43-44). The provider later stated he did not want to do the partial knee replacement
because Plaintiff would “have to have it redone in five years anyway” and “if he went in and
removed the arthritis it would make it worse.” (Tr. 44). Plaintiff had tried physical therapy, which
“didn’t help either”. (Tr. 37). She also took Mobic and Tramadol, which she testified did not help.
Id. Plaintiff stated she had improvement with Mobic, but it only lasted a month. (Tr. 39). She was,
however, still taking it. Id.
Plaintiff testified she needs to elevate her legs during the day. (Tr. 40). In a normal day,
Plaintiff spends “most of the day” with her legs elevated waist-high. (Tr. 45). After any activity,
Plaintiff needs to elevate her legs. Id. She sits in her recliner, and wraps her knees in an electric
blanket to obtain pain relief. (Tr. 40).
Plaintiff testified she did not have any problems taking care of herself, and performed
household chores like vacuuming, cooking, and laundry (“as long as I can sit and fold it”). (Tr.
41). She later testified she sometimes had to sit down when showering, and had to take breaks
while cooking. (Tr. 45). She stated she could not do dishes because she could not “stand there very
long to do them.” (Tr. 41). She played games on her computer, but “[n]ot very often because [her]
legs can’t hang down”. (Tr. 42). She had a driver’s license and drove approximately once per week.
Plaintiff estimated she could walk around the block, before her left knee “kind of catches”.
(Tr. 41). She could stand for “[m]aybe five minutes” and sit “most of the day as long as [her] legs
aren’t hanging down”. Id. She could push and pull with her arms, but not her legs. (Tr. 41-42). She
could reach in all directions with her arms, and handle and finger. (Tr. 42). She could lift about 50
pounds, but could not bend, squat or crawl. Id. She could climb stairs “but it hurts so [she] take[s]
[her] time”. Id.
Relevant Medical Evidence2
In December 2012, before her alleged onset date, Plaintiff saw Michael Koenig, PA-C for
“followup of left knee pain and discomfort” that was “affecting her activities of daily living”. (Tr.
674). Mr. Koenig noted Plaintiff had previously had cortisone injections without improvement,
and that she was having trouble “getting up and down from a seated position.” Id. He opined she
was “[u]nable to be gainful[ly employed secondary to the pain that she [was] experiencing.” Id.
On examination, Plaintiff had crepitus with flexion and extension, an antalgic gait, and tenderness
to the medial joint line. Id. He assessed “[l]eft knee medial end stage osteoarthritis”, and discussed
future surgical intervention. Id.
Plaintiff underwent an MRI of her left knee in March 2013. (Tr. 326). It showed small joint
effusion; tricompartmental osteoarthritis; thinning and degeneration of both menisci with a small
radial tear of the posterior horn of the lateral meniscus suspected; a very small anterior horn medial
meniscus; and mild prepatellar soft tissue edema. Id. Plaintiff had a follow-up appointment with
Mr. Koenig a few days later. (Tr. 392). He noted the MRI results, and that Plaintiff had a previous
arthroscopic surgery on her left knee in 2008 without much improvement. Id. Plaintiff reported a
pain level of 8/10 “with trouble doing activities of daily living and [this] subsequently affects her
quality of life.” Id. On examination, Mr. Koenig noted “[v]arus deformity seen with ambulation”,
an antalgic gait, a tight ACL, and “severe pain with palpation in the medial compartment.” Id. Mr.
Koenig noted “due to the severity of her arthritis and the symptoms that she is experiencing”
Plaintiff was “unable to walk for an extended period of time, nee[ed] to consistently elevate her
2. Plaintiff challenges only the ALJ’s consideration of her knee and leg problems. See Doc. 14.
Issues not raised in a claimant’s opening brief are waived. See Kennedy v. Comm’r of Soc. Sec.,
87 F. App’x 464, 466 (6th Cir. 2003). As such, the undersigned summarizes only the relevant
leg throughout the day for pain control, [and was] unable to kneel, crawl, twist, turn stoop, squat
with her knee.” Id. Additionally, he noted “stairs and ladders are very difficult for her.” Id. He also
indicated “with the nature of her knee, she is unable to be gainfully employed at a function, which
is more than seated work only.” Id. Mr. Koenig discussed with Plaintiff a “unicompartment medial
hemiarthroplasty for pain control” and noted Plaintiff would “contemplate our discussion.” Id.
In April 2014, Plaintiff went to the emergency room reporting swelling, pain and redness
in both legs. (Tr. 421, 430). Examination showed some redness and petechia on both legs. (Tr.
421, 447). She reported it started two weeks prior when she started a new job, increased the longer
she was standing, and decreased with rest and elevation of her legs. (Tr. 421, 430). Plaintiff was
prescribed medication and discharged. (Tr. 428, 431, 450).
Plaintiff had a follow-up appointment two days later with Misty Slater, M.D. (Tr. 605-07).
She reported leg pain and swelling, with an itchy red rash extending up to her knees. (Tr. 605).
Plaintiff reported “that as she stands for more days consecutively for work the rash and pain ascend
up toward her knees.” Id. Dr. Slater noted Plaintiff was “awaiting a left knee replacement, which
she is getting at age 50.” Id. She assessed venous insufficiency and referred Plaintiff to vascular
and cardiology. (Tr. 606).
In June 2014, Plaintiff saw Andrew Seiwert at VeinSolutions. (Tr. 742-46). Plaintiff
reported pain, swelling, and redness in both legs, affecting her ability to work. (Tr. 742-43).
Plaintiff reported she treated this with elevation, compression hose, pain medication, and exercise.
Id. An examination showed no sign of thrombosis. (Tr. 743, 745-46). Plaintiff was noted to have
reflux in her great saphenous vein. (Tr. 745-46).
In July 2014, Plaintiff saw April L. Rock, NP. (Tr. 752-53). Plaintiff reported leg pain
affecting her sleep, and swelling during the day. (Tr. 752). Plaintiff reported “burning” and
“cramping” pain in both legs that was “severe (when they are swelling and with any standing an[d]
any walking).” Id. On examination, Ms. Rock noted a “[v]ery small amount of non-pitting edema
BLE feet to knees.” (Tr. 753). She assessed venous insufficiency, and prescribed knee-high
compression stockings (to be worn all waking hours), and recommended Ibuprofen or Tylenol. Id.
She also noted Plaintiff should elevate her legs “as much as possible” and should follow up with
vascular and Dr. Slater “as scheduled.” Id.
Plaintiff returned to Dr. Seiwert at VeinSolutions in September 2014. (Tr. 779). Dr. Seiwert
noted Plaintiff’s venous duplex scan showed reflux in the left greater saphenous vein, “but only in
the peri-genicuate region” and that this vein “connects to a large . . . cluster of varicosities which
encircle the knee.” Id. He also noted “[t]he deep systems function normally bilaterally.” Id. Dr.
Seiwert prescribed thigh-high compression stockings, and noted that if her symptoms persisted, he
would “likely recommend catheter-directed ablation of the left greater saphenous vein”. Id.
Plaintiff saw Jennifer Weber, M.D. in October 2014 for a physical and medication check
(related to hypertension). (Tr. 795-96). Dr. Weber noted Plaintiff had a history of venous
insufficiency, and “since being switched off Norvasc lower edema has resolved.” (Tr. 795).
Plaintiff reported she “only uses compression stockings because the vascular surgeon . . . [said]
she has a leaky vein in her leg that needs it.” Id. On examination, Dr. Weber specifically noted
“[n]o lower extremity edema bilaterally.” (Tr. 796).
In June 2015, Plaintiff presented to Mr. Koenig with “[l]eft knee pain since 2008” that she
reported was 10/10, burning and sharp, and intermittent. (Tr. 814). The pain would wake her at
night and she treated it with ibuprofen and heat. (Tr. 814-15). Mr. Koenig noted Plaintiff had
previously tried ibuprofen, Kenalog injections, Visco supplementation injections, and physical
therapy without success. Id. Plaintiff also had a brace, “that she wears occasionally”, but reported
“use of the brace makes her pain worse.” Id. On examination, Mr. Koenig noted Plaintiff’s left
knee had “mild varus alignment”, “[m]inimal [k]nee effusion”, an antalgic gait, crepitus with
flexion and extension, and range of motion was “0-125 degrees in extension and flexion”. (Tr.
816). Plaintiff had “trouble sitting down and getting up from the chair”. Id. Mr. Koenig noted left
knee x-rays “show[ed] no fracture or dislocation”, soft tissues [were] unremarkable”, [m]oderate
medial knee joint space narrowing”, “[m]inimal periarticular spurs . . . along the medial from
condyle, medial tibia plateau, and . . . minimal spur along the upper pole of patella.” Id. Mr. Koenig
assessed left knee pain and primary osteoarthritis of the left knee. Id. Mr. Koenig noted Plaintiff
had “been doing [an] aggressive conservative treatment course” and might benefit “from repeat
course of physical therapy for her left knee arthritis.” Id. He prescribed anti-inflammatory
Plaintiff returned to Mr. Koenig in July 2015. (Tr. 808-10). She reported left knee pain,
which had “improved with PT and Mobic.” (Tr. 808). Her pain level was 2/10 at rest, and 7/10
“depending on activity.” Id. The pain was aggravated by movement and alleviated at rest. (Tr.
809). Plaintiff had returned to physical therapy, and switched her previous anti-inflammatory
medication to Mobic, and was wearing an over-the-counter knee brace. Id. She “[c]urrently note[d]
a 50% improvement in her current symptoms from last visit.” Id. On examination, Mr. Koenig
noted mild varus alignment, an antalgic gait, knee effusion, tenderness to palpation to the medial
joint line, crepitus on flexion and extension, and a range of motion of 0-120 degrees on extension
and flexion. Id. Mr. Koenig noted that “[a]t this time she has improved” and continued Plaintiff’s
medication “along with a home exercise program from quad strengthening with hamstring
stretches.” Id. He again noted “[u]ltimately as her arthritic changes in her knee changes progress[,]
a total knee arthroplasty may be of appropriate value in her future”. Id.
At Plaintiff’s March 2013 office visit, physician assistant Mr. Koenig opined:
At this time, due to the severity of her arthritis and the symptoms that she is
experiencing: she is unable to walk for an extended period of time, needs to
consistently elevate her leg throughout the day for pain control, unable to kneel,
crawl, twist, turn, stoop, squat with her knee, stairs and ladders are very difficult
for her[.] . . . At this time, with the nature of her knee, she is unable to be gainfully
employed at a function, which is any more than seated work only.
In June 2014, state agency physician William Bolz, M.D. reviewed Plaintiff’s records on
behalf of the state agency. (Tr. 107-09). Dr. Bolz opined Plaintiff was limited to light work, and
could stand or walk for four hours in a workday, and sit for six hours. (Tr. 107). He opined Plaintiff
was limited in her left leg, and could operate left foot controls only “occasionally within tolerance.”
(Tr. 107). He noted these restrictions were due to venous insufficiency. Id. He thought Plaintiff
could occasionally climb ramps or stairs, balance, stoop, or crouch; but could never crawl, kneel,
or climb ladders, ramps or scaffolds. (Tr. 107-08). He noted these restrictions were due to pain and
limited range of motion in her left knee. (Tr. 108). He also noted that due to her antalgic gait,
Plaintiff should avoid all exposure to hazards such as “commercial driving, dangerous, machinery,
and unprotected heights due to risk of fall or injury.” Id.
In July 2014, nurse practitioner Ms. Rock advised Plaintiff to elevate her legs “as much as
possible” due to venous insufficiency and swelling. (Tr. 753).
In October 2014, state agency physician Elaine Lewis, M.D., reviewed Plaintiff’s records
and affirmed Dr. Bolz’s conclusions. (Tr. 121-23).
At Plaintiff’s June 2015 appointment, Mr. Koenig opined:
Due to her subjective complaints of pain I think it would be difficult for her to
ambulate long periods of time where [s]he stand[s] for long periods of time which
would make certain types of employment difficult that are physically demanding.
A physical functional capacity evaluation may be appropriate for work restrictions
in the future if symptoms persist.
A VE appeared and testified at the hearing before the ALJ. (Tr. 48-53). The VE testified
that given the prior ALJ’s RFC, the same jobs he identified in the prior hearing, in the same
numbers, still existed. (Tr. 49-50). The VE also provided testimony in response to other
hypothetical questions that differed from the ALJ’s ultimate RFC determination. (Tr. 50-53). He
testified that if an individual had to elevate her legs waist high, it would preclude both Plaintiff’s
prior work and any other jobs. (Tr. 52).
In his written decision, the ALJ first found Plaintiff last met the insured status requirements
of the Social Security Act on September 30, 2014, and had not engaged in substantial gainful
activity from her amended alleged onset date of January 25, 2013, through her date last insured.
(Tr. 14). He concluded Plaintiff had severe impairments of osteoarthritis/degenerative joint disease
of the bilateral knees and obesity, but that these impairments did not meet or medically equal one
of the listed impairments. (Tr. 14-15). The ALJ then concluded Plaintiff:
had the residual functional capacity to perform light work as defined in 20 CFR
404.1567(b) except: she could never climb ladders, ropes, or scaffolds; she could
frequently climb ramps and stairs; and she could occasionally kneel, crouch, and
(Tr. 15). In so finding, the ALJ explained that he was bound by a prior ALJ’s January 2013 decision
because Plaintiff had not shown a material change in his condition. (Tr. 18). The ALJ then found
Plaintiff was capable of performing past relevant work as a housekeeper (Tr. 18), and was therefore
not disabled through her date last insured (Tr. 19).
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. § 404.1505(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 activities?
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 ALJ 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 a single assignment of error for review:
The ALJ failed to adequately consider the opinions and evidence of medical experts
that Plaintiff’s legs must be constantly elevated, and in failing to do this, failed to
properly evaluate Plaintiff’s Residual Functional Capacity (RFC) at step three of
the sequential evaluation.
(Doc. 14, at 2, 10).3 That is, Plaintiff only challenges the ALJ’s decision not to include leg elevation
in the RFC determination.4 Within this argument, Plaintiff challenges the ALJ’s treatment of Mr.
Koenig and Ms. Rock’s opinions about elevating Plaintiff’s legs. The Commissioner responds that
the ALJ’s decision is supported by substantial evidence and should be affirmed. Specifically, the
Commissioner contends the ALJ properly determined Plaintiff had failed to present new and
material evidence, and thus, the prior RFC determination was binding. For the reasons discussed
below, the undersigned finds the ALJ’s decision supported by substantial evidence and therefore
affirms that decision.
Although Plaintiff does not frame her argument in the context of the Drummond ruling, it
is relevant here as the ALJ found he was bound by a previous ALJ’s RFC determination. See Tr.
18 (“The undersigned is bound by the previous residual functional capacity because new evidence
does not show a material change in the claimant’s condition or changed circumstances.”). Prior
decisions of the Commissioner which are not appealed are binding on a claimant and the
Commissioner. Drummond v. Comm’r of Soc. Sec., 126 F.3d 837, 841 (6th Cir. 1997). In
Drummond, the Sixth Circuit held that the Commissioner is bound by its prior findings with regard
to a claimant’s RFC unless new evidence or changed circumstances require a different finding. Id.
at 842. Social Security Ruling 98–4(6) therefore mandates:
When adjudicating a subsequent disability claim with an unadjudicated period
arising under the same title of the Act as the prior claim, adjudicators must adopt
3. As the undersigned noted in a previous order, in her conclusion, Plaintiff requests remand both
pursuant to sentence four and sentence six of 42 U.S.C. § 405(g). See Doc. 20, at 2 (citing Doc.
14, at 13). However, as previously noted, Plaintiff points to no “new” evidence in support of a
sentence six remand. Id. As such, the undersigned only considers Plaintiff’s arguments for a
sentence four remand.
4. By extension, therefore, Plaintiff contends she is disabled, because the VE testified that a need
to elevate the legs waist high would preclude all jobs. See Tr. 52.
such a finding from the final decision by an ALJ or the Appeals Council on the
prior claim in determining whether the claimant is disabled with respect to the
unadjudicated period unless there is new and material evidence relating to such a
finding or there has been a change in the law, regulations or rulings affecting the
finding or the method for arriving at the finding.
SSR 98–4(6), 1998 WL 283902, at *3.
It is the Plaintiff’s burden to show that circumstances have changed since the prior ALJ’s
decision “by presenting new and material evidence of deterioration.” Jones v. Comm’r of Soc. Sec.,
2015 WL 4394423, at *5 (N.D. Ohio) (quoting Drogowski v. Comm’r of Soc. Sec., 2011 WL
4502988, at *8 (E.D. Mich.), report and recommendation adopted, 2011 WL 4502955). Such
evidence is new only if it was “not in existence or available to the claimant at the time of the [prior]
administrative proceeding.” Sullivan v. Finkelstein, 496 U.S. 617, 626 (1990). Such evidence is
“material” only if there is “a reasonable probability that the [Commissioner] would have reached
a different disposition of the disability claim if presented with the new evidence.” Sizemore v.
Sec’y of Health & Human Servs., 865 F.2d 709, 711 (6th Cir. 1988). Plaintiff argues about the
ALJ’s failure to include leg elevation in the RFC, seemingly arguing this is new and material
evidence of a change in her condition.
Residual Functional Capacity
A claimant’s RFC is an assessment of “the most [she] can still do despite [her] limitations.”
20 C.F.R. § 404.1545(a)(1). An ALJ must consider all symptoms and the extent to which those
symptoms are consistent with the objective medical evidence Id. § 404.1529. An ALJ considers
numerous factors in constructing a claimant’s RFC, including the medical evidence, non-medical
evidence, and the claimant’s credibility. See SSR 96-5p, 1996 WL 374183, at *3; SSR 96–8p,
1996 WL 374184, at *5; Hickey-Haynes v. Barnhart, 116 F. App’x 718, 726-27 (6th Cir. 2004).
While an ALJ must consider and weigh medical opinions, the RFC determination is expressly
reserved to the Commissioner. Ford v. Comm’r of Soc. Sec., 114 F. App’x 194, 198 (6th Cir. 2004);
20 C.F.R. §§ 404.1527(e)(2), 404.1546. And, it is worth reiterating that the Court must affirm “so
long as substantial evidence also supports the conclusion reached by the ALJ” even if substantial
evidence or indeed a preponderance of the evidence also supports a claimant’s position. Jones,
336 F.3d at 477.
Preliminarily, Plaintiff appears to argue the ALJ violated the treating physician rule by not
mentioning Mr. Koenig’s opinion regarding Plaintiff need to elevate her legs. See Doc. 14, at 12
(“the ALJ did not mention, nor gave substantial deference to the medical opinion of Plaintiff’s
treating physician in regards to the medical orders to elevate her legs throughout the day”).
Under the regulations, a treating physician’s opinion is entitled to controlling weight if it
is supported by “medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with other substantial evidence in the case record.” Rogers v. Comm’r of Soc. Sec.,
486 F.3d 234, 242 (6th Cir.2007). The ALJ must give “good reasons” for the weight given to a
treating physician’s opinion. Id. This rule, however, applies only to treating physicians. Only
“acceptable medical sources” can be considered a treating source whose medical opinion could be
entitled to controlling weight under the treating physician rule. SSR 06-03p, 2006 WL 2329939,
at *1; Hill v. Comm’r of Soc. Sec., 560 F. App’x 547, 550 (6th Cir. 2014). A physician’s assistant
is not an “acceptable medical source” under the regulations. See 20 C.F.R. §§ 404.1513(a), (d).
Therefore, an opinion from a physician’s assistant is not entitled to the same deference due a
treating physician’s opinion. See, e.g., Morales v. Comm’r of Soc. Sec., 2013 WL 4780263, at *3
(W.D. Mich) (“There is no ‘treating physician’s assistant rule’ and the opinion of a physician’s
assistant is not entitled to any particular weight.”). An opinion of a physician’s assistant falls within
the category of information provided by “other sources”. SSR 06-03p, 2006 WL 2329939, at *2.
The regulations recognize that information from other sources—such as physician’s
assistants—“may be based on special knowledge of the individual and may provide insight into
the severity of the impairment and how it affects the ability to function.” Id. Therefore, opinions
from these sources “are important and should be evaluated on key issues such as impairment
severity and functional effects, along with the other relevant evidence in the file.” Id. at *3. The
same factors applied to acceptable medical sources apply to opinions form these other sources. Id.
at *4 (citing 20 C.F.R. § 404.1527(d)) (listing factors of length and extent of treatment relationship,
consistency, supportability, how well explained an opinion is, area of specialty, and “[a]ny other
factors that tend to support or refute the opinion.”). Id. at *4-5. “[T]he Commissioner has broad
discretion in weighing such an opinion” from a non-acceptable medical source. Brown v. Comm’r
of Soc. Sec., 591 F. App’x 449, 451 (6th Cir. 2015).
Notwithstanding Plaintiff’s arguments to the contrary, the ALJ’s evaluation of Mr.
Koenig’s opinion here complied with the regulations and is supported by substantial evidence. The
ALJ specifically acknowledged Mr. Koenig’s March 2013 opinion, and stated the opinion was
given “little weight” because:
His conclusions appear to be in excess of the findings on the diagnostic testing. The
MRI of the left knee showed only moderate tricompartmental osteoarthritis [citing
Tr. 326]. Although the claimant had an antalgic gait, she was still able to ambulate
despite not taking any pain medications. Further, the claimant had very few
complaints of knee pain for almost a year following this assessment.
(Tr. 16). Later in the decision—at the end of his analysis of the opinion evidence and Plaintiff’s
testimony—the ALJ stated:
The continued conservative approach to treatment supports the conclusion that
there has not been significant worsening. The record also fails to support the
claimant’s allegation of a need to elevate her feet throughout the day.
An ALJ is not required to discuss every piece of evidence in the record. See Kornecky v.
Comm’r of Soc. Sec., 167 F. App’x 496, 507-08 (6th Cir. 2010). And the ALJ’s reasons here for
assigning little weight to Mr. Koenig’s opinion are supported by the record. First, the ALJ
discussed the objective findings in the record, noting that a contemporaneous MRI showed “only
moderate tricompartmental osteoarthritis”. (Tr. 16) (citing Tr. 326). Consideration of consistency
of an opinion with the remainder of the evidence of record is an appropriate consideration. See
SSR 06-03p, 2006 WL 2329939, at *4 (citing 20 C.F.R. § 404.1527(d)).
Second, the ALJ noted that although Plaintiff had an antalgic gait, “she was still able to
ambulate despite not taking any pain medications”. (Tr. 16). Again, this reason goes to the
consistency of the opinion with the remainder of the evidence, as well as the supportability of the
opinion, both appropriate considerations. See id.
Third, the ALJ noted Plaintiff “had very few complaints of knee pain for almost a year
following this assessment.” (Tr. 16). This, again is supported by the record. See Tr. 392 (March
2013 visit to Mr. Koenig) and Tr. 421 (next evidence of record from April 2014 emergency room
visit). Failure to seek treatment, and overall conservative treatment are valid reasons for
discounting Mr. Koenig’s opinion that Plaintiff was more limited than the ALJ found. See Kepke
v. Comm’r of Soc. Sec., 636 F. App’x 625, 631 (6th Cir. 2016) (“The ALJ noted that the records
indicate Kepke received only conservative treatment for her ailments, a fact which constitutes a
‘good reason’ for discounting a treating source opinion”); Lester v. Comm’r of Soc. Sec., 596 F.
App’x 387, 389 (6th Cir. 2015) (finding ALJ reasonably discounted a doctor’s proposed limitations
because, among other things, the claimant was receiving conservative treatment); Francis v.
Comm’r Soc. Sec. Admin., 414 F. App’x 802, 806 (6th Cir. 2011) (“the ALJ reasonably viewed
Francis’s limited treatment as inconsistent with Dr. Wakham’s opinion”). Moreover, the
undersigned notes that Mr. Koenig’s later records do not mention leg elevation and consist of
continued conservative treatment with anti-inflammatories and physical therapy. See Tr. 808-10,
814-16; see also Tr. 17 (“The continued conservative approach to treatment supports the
conclusion that there has not been significant worsening.”). The undersigned therefore finds no
error in the ALJ’s decision to discount Mr. Koenig’s opinion. This is so even though the ALJ did
not specifically mention Mr. Koenig’s opinion about leg elevation because the ALJ gave reasons
supported by the record to discount Mr. Koenig’s opinion overall, and later explicitly declined to
impose a leg elevation requirement, relying in part on an analysis of Plaintiff’s credibility.5 See Tr.
17 (“The continued conservative approach to treatment supports the conclusion that there has not
been significant worsening. The record also fails to support the claimant’s allegation of a need to
elevate her feet throughout the day.”).
The undersigned finds no error even though Plaintiff points to additional evidence in the
record in support of her conclusion, namely advice from nurse practitioner April Rock in July 2014
that Plaintiff should elevate her legs. See Tr. 752-3. The ALJ noted Ms. Rock’s assessment of
venous insufficiency, and recommendation over-the-counter medication (ibuprofen or Tylenol),
noting again that “[t]he conservative treatment approach suggests that her condition was not as
limiting as alleged.” (Tr. 17). Ms. Rock is, similar to Mr. Koenig, not an acceptable medical source,
nor a treating physician entitled to deference under the regulations. See 20 C.F.R. §§ 404.1513(a),
(d); SSR 06-03p, 2006 WL 2329939, at *1; Morales, 2013 WL 4780263, at *3.
And, a claimant’s conservative treatment may provide a reason to undermine claims of
disability or to discount opinion evidence. Kepke, 636 F. App’x at 631; Lester, 596 F. App’x at
5. Plaintiff does not challenge the ALJ’s assessment of her credibility, and has thus waived the
issue. See Kennedy, 87 F. App’x at 466.
389; Francis, 414 F. App’x at 806. Again, the Court must affirm “so long as substantial evidence
also supports the conclusion reached by the ALJ” even if substantial evidence or indeed a
preponderance of the evidence also supports a claimant’s position. Jones, 336 F.3d at 477.
Finally, Plaintiff contends in reply that “the VE expert testimony during Plaintiff’s . . .
hearing supports the argument that the Plaintiff’s RFC requires her to keep her legs elevated”
because “the VE opined that an individual that was instructed to elevate their legs throughout the
work day at waist high . . . would have all possible employment eliminated.” (Doc. 16, at 5) (citing
Tr. 52). Plaintiff then states that “[t]his was the RFC applied by the VE, and thus, should have then
[sic] RFC applied by the ALJ in his decision.” Id. This argument misunderstands the role of the
VE at an ALJ hearing. The ALJ, not the VE, determines Plaintiff’s RFC. Although Plaintiff is
correct regarding the VE’s testimony regarding leg elevation being work-preclusive, the ALJ
ultimately did not adopt that restriction in Plaintiff’s RFC, and therefore (if the RFC is supported)
the VE’s testimony on that point is not relevant. The VE testified that if an individual were limited
in the way in which the ALJ ultimately found, she would be capable of past work as well as other
jobs in significant numbers in the national economy. (Tr. 50). The ALJ is only required to adopt
in the RFC those restrictions he finds credible and supported by the record, Casey v. Sec’y of
Health & Human Servs., 987 F.2d 1230, 1235 (6th Cir. 1993), and—if the RFC comports with a
hypothetical question to the VE—the VE’s testimony provides substantial evidence for the ALJ’s
Step Five finding, Varley v. Sec’y of Health & Human Servs., 820 F.2d 777, 779 (6th Cir. 1987).
Thus, because the undersigned finds the ALJ’s RFC determination supported by substantial
evidence—as discussed above—the ALJ did not err in relying on the VE testimony.
Following review of the arguments presented, the record, and the applicable law, the
undersigned finds the Commissioner’s decision denying DIB supported by substantial evidence
and affirms that decision.
s/James R. Knepp II
United States Magistrate Judge
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