Dicke v. Commissioner of Social Security
Filing
18
Memorandum Opinion and Order that the Commissioner's final decision is AFFIRMED. Magistrate Judge David A. Ruiz on 3/25/2019. (G,CA)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
RYAN M. DICKIE,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Comm’r of Soc. Sec.,
Defendant.
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CASE NO. 3:17-cv-02414
MAGISTRATE JUDGE DAVID A. RUIZ
MEMORANDUM OPINION AND ORDER
Plaintiff, Ryan M. Dickie (hereinafter “Plaintiff”), challenges the final decision of
Defendant Nancy A. Berryhill, Acting Commissioner of Social Security (hereinafter
“Commissioner”), denying his applications for a Period of Disability (“POD”) and Disability
Insurance Benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 416(i), 423 et
seq. (“Act”). This court has jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before the
court pursuant to the consent of the parties. (R. 16). For the reasons set forth below, the
Commissioner’s final decision is AFFIRMED.
I. Procedural History
On April 8, 2014, Plaintiff filed his applications for POD and DIB, alleging a disability
onset date of March 26, 2014. (Transcript (“Tr.”) 210-211). The application was denied initially
and upon reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge
(“ALJ”). (Tr. 97-157). Plaintiff participated in the hearing on September 20, 2016, was
represented by counsel, and testified. (Tr. 51-96). A vocational expert (“VE”) also participated
and testified. Id. On January 13, 2017, the ALJ found Plaintiff not disabled. (Tr. 45). On
September 18, 2017, the Appeals Council denied Plaintiff’s request to review the ALJ’s decision,
and the ALJ’s decision became the Commissioner’s final decision. (Tr. 1-7). On November 17,
2017, Plaintiff filed a complaint challenging the Commissioner’s final decision. (R. 1). The
parties have completed briefing in this case. (R. 13 & 15).
Plaintiff asserts one assignment of error: the ALJ failed to follow the treating physician rule
with respect to several of his treating sources. (R. 13).
II. Evidence
A. Relevant Medical Evidence1
Plaintiff alleged disability beginning on March 26, 2014, due to Chiari Malformation with
surgery in November 2011; headaches; muscle weakness; status-post bilateral knee surgeries;
sleep apnea; and asthma. (Tr. 238).
1. Treatment Records
On March 4, 2014, just prior to the alleged onset date, Marlene C. Bultemeyer, M.D.,
diagnosed migraine, cervicalgia, and myalgia; she noted that Plaintiff should “consider
1
Plaintiff’s brief does not include a statement of relevant facts but states that he “agrees
generally with the summary of medical facts contained in [the] ALJ[‘s] Opinion.” (R. 13,
PageID# 941). The court’s order specifically states that “[a]ny fact in the transcript not referred
to in a party’s Statement of Relevant Facts may be deemed non-essential to the determination of
the issues presented.” (R. 6, PageID# 53). The court’s recitation of the medical record, therefore,
is primarily limited to those treating source opinions that Plaintiff alleges were improperly
rejected.
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counseling;” continued his current medications, and continued his exercise regimen. (Tr. 321).
On March 27, Plaintiff saw Joseph Kuhn, M.D., who opined Plaintiff should be off work
from March 26, 2014 until April 14, 2014, due to neck pain. (Tr. 351).
On April 8, 2014, Plaintiff again saw Dr. Kuhn, stating that he needs a work slip, that he
does not see specialist Dr. Lazoff until May 1, 2014, and that he cannot work due to neck and
occipital pain. (Tr. 349). Plaintiff weighed 300 pounds, but there is no indication Dr. Kuhn
performed a physical examination at that time. (Tr. 349).
On January 28, 2014, after a CT scan, Andrew W. Potter M.D.’s impression was
“[s]uboccipital decompression without evidence of complication. No crowding of the
cervicomedullary junction.” (Tr. 306).
On September 10, 2014, magnetic resonance imaging (MRI) of the brain “showed
incidental left maxillary sinus retention cyst, changes from posterior occipital/suboccipital
decompressive surgery for treatment of Chiari I malformation with typical postoperative
appearance. Otherwise, the brain was unremarkable.” (R. 539). On the same date, an MRI of the
cervical spine “showed chronic typical postoperative changes at the craniocervical junction
subsequent to posterior occipital/ suboccipital decompressive surgery for treatment of Chiari
malformation. There were chronic mild to minor degenerative changes. There was chronic mild
right frontal stenos secondary to disk protrusion and likely tiny uncovertebral osteophytes
without evidence of nerve root compression. There was mild degree of left paracentral disk
protrusion at C5-6, increased in degree at interval abutting portion of the left side of the anterior
margin of the spinal cord.” (Tr. 539).
On November 3, 2014, x-rays of the hands, feet, and sacroiliac joints were negative. (Tr.
406-408).
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2. Opinions Concerning Plaintiff’s Functional Limitations
On September 11, 2013, approximately six months before the March 20, 2014 alleged
onset date, nurse practitioner Elizabeth Wladecki completed a “Certification of Health Care
Provider for Employee’s Serious Health Condition” form so that Plaintiff could take leave under
the Family and Medical Leave Act. (Tr. 339-342). She checked a box indicating that Plaintiff
would be unable to perform his job functions due to his condition, which she described as “flare
ups” of cervicalgia, migraines, and occipital neuralgia (Tr. 340). She estimated that flare-ups
occur one-to-four times per month and last one-to-two days per episode (Tr. 341). Nearly six
months later, on March 5, 2014, Marlene C. Bultemeyer, M.D., also signed the form. (Tr. 342).
On May 13, 2014, the State Agency provided Dr. Kuhn with a medical questionnaire that
inquired about Plaintiff’s impairments and work limitations. (Tr. 360-362). On May 26, 2014,
Dr. Kuhn returned the form without completing it, noting only that he had first seen Plaintiff in
July of 2004, and last saw him on April 8, 2014. Id.
On June 20, 2014, Dr. Lazoff completed a functional capacity questionnaire noting that he
first saw Plaintiff on May 1, 2014, which was also the last date he saw him. (Tr. 389). He stated
that Plaintiff had cervicalgia, headaches, facet joint syndrome, and myofascial pain syndrome.
(Tr. 389). Plaintiff had difficulty with static neck positions and lifting, but had no limitations in
his activities of daily living. (Tr. 390).
On July 2, 2014, State Agency physician Venkatachala Sreenivas, M.D., completed a
physical RFC assessment. (Tr. 104-106). According to Dr. Sreenivas, Plaintiff could frequently
lift and/or carry 10 pounds and occasionally lift and/or carry 20 pounds (Tr. 104). He could sit
for 6 hours in an 8-hour workday and stand and/or walk for 4 hours in an 8-hour workday (Tr.
104-105). He could occasionally climb ramps and stairs, balance, stoop, kneel and crouch, but
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never climb ladders, ropes and scaffolds or crawl. (Tr. 105). He needed to avoid all exposure to
hazards. (Tr. 106).
On September 17, 2014, Dr. Lazoff completed another functional capacity questionnaire
noting that he first saw Plaintiff four months earlier and last saw him in August of 2014. (Tr.
386). He stated that Plaintiff had cervical radiculopathy, cervicalgia, neck pain, and headaches
since 2010. Id. Dr. Lazoff opined that Plaintiff could not do any of the following: lift more than
one pound; work above shoulder level or below waist level; climb, bend, twist, stoop, or work
above ground or at unprotected heights; and gaze frequently upwards, downwards, or to the
sides. Id. Dr. Lazoff further opined Plaintiff was limited to walking for thirty minutes at a time,
up to two hours per day. (Tr. 387).
On November 3, 2014, State Agency physician Michael Delphia, M.D., also completed an
RFC that mirrored the opinion of Dr. Sreenivas. (Tr. 120-112).
On September 14, 2015, Drs. Tariq, Bachman, and Sherman from the Michigan Head Pain
& Neurological Institute declined to complete forms setting forth Plaintiff’s functional
limitations, noting that it was their impression Plaintiff “is not highly motivated to return to
work.” (Tr. 682).
On January 4, 2016, Plaintiff underwent a functional capacity examination (FCE)
conducted by physical therapist Maria Zerz. (Tr. 887). During the examination, Plaintiff could sit
for 30 minutes with no difficulty, and stand for 30 minutes and walk for 40 minutes with mild
difficulty. (Tr. 889). She observed that limitations in Plaintiff’s strength and mobility “seem to
be self-limited due to combination of fear of pain and chronic pain condition.” (Tr. 891). He had
visible muscle atrophy. Id. She believed he could safely handle medium exertional weights and
could tolerate static positions for 30 to 60 minutes at a time. Id. She recommended he work 4
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hours or less per day five days a week until his tolerance improves. Id.
III. Disability Standard
A claimant is entitled to receive benefits under the Social Security Act when he establishes
disability within the meaning of the Act. 20 C.F.R. § 404.1505 & 416.905; Kirk v. Sec’y of
Health & Human Servs., 667 F.2d 524 (6th Cir. 1981). A claimant is considered disabled when he
cannot perform “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)
and 416.905(a); 404.1509 and 416.909(a).
The Commissioner determines whether a claimant is disabled by way of a five-stage
process. 20 C.F.R. § 404.1520(a)(4); Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). First,
the claimant must demonstrate that he is not currently engaged in “substantial gainful activity” at
the time he seeks disability benefits. 20 C.F.R. §§ 404.1520(b) and 416.920(b). Second, the
claimant must show that he suffers from a medically determinable “severe impairment” or
combination of impairments in order to warrant a finding of disability. 20 C.F.R. §§ 404.1520(c)
and 416.920(c). A “severe impairment” is one that “significantly limits ... physical or mental
ability to do basic work activities.” Abbott, 905 F.2d at 923. Third, if the claimant is not
performing substantial gainful activity, has a severe impairment (or combination of impairments)
that is expected to last for at least twelve months, and the impairment(s) meets a listed
impairment, the claimant is presumed to be disabled regardless of age, education or work
experience. 20 C.F.R. §§ 404.1520(d) and 416.920(d). Fourth, if the claimant’s impairment(s)
does not prevent him from doing past relevant work, the claimant is not disabled. 20 C.F.R. §§
404.1520(e)-(f) and 416.920(e)-(f). For the fifth and final step, even if the claimant’s
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impairment(s) does prevent him from doing past relevant work, if other work exists in the
national economy that the claimant can perform, the claimant is not disabled. 20 C.F.R. §§
404.1520(g) and 416.920(g), 404.1560(c).
IV. Summary of the ALJ’s Decision
The ALJ made the following findings of fact and conclusions of law:
1.
The claimant meets the insured status requirements of the Social Security
Act through December 31, 2019.
2.
The claimant has not engaged in substantial gainful activity since March
26, 2014, the alleged onset date (20 CFR 404.1571 et seq.).
3.
The claimant has the following severe impairments: status post-Chiari
malformation (November 2011); cervicogenic headaches/migraines;
obesity; cervical degenerative disc disease; status post bilateral knee
surgeries (relocation of the patellae in 2005 with screw removal in 2010);
polyarthralgias/ANA positive; depression/adjustment disorder and
anxiety disorder (20 CFR 404.1520(c)).
4.
The claimant does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525 and 404.1526).
5.
After careful consideration of the entire record, the undersigned finds that
the claimant has the residual functional capacity to perform light work as
defined in 20 C.F.R. § 404.1567(b) in that the claimant can lift, carry,
push, and pull 20 pounds occasionally and 10 pounds frequently. He can
sit for 6 hours out of an 8-hour workday and he can stand and/or walk for
6 hours out of an 8-hour workday. The claimant must have the ability to
alternate between sitting and standing, at his option, every 30 minutes for
1 to 2 minutes, so long as he is not off task or has to leave the vicinity of
the workstation. The claimant can never climb ladders, ropes, or scaffolds,
and he can occasionally climb ramps and stairs, balance, crouch, kneel,
stoop, and crawl. The claimant cannot move his head to the extreme
ranges of motion, but he can move his body to accommodate this activity.
He can only occasionally reach overhead with his bilateral upper
extremities. The claimant can frequently handle with the bilateral upper
extremities. He can have only occasional exposure to extreme cold, heat,
and humidity along with dust, fumes, odors, gases, or other pulmonary
irritants. The claimant cannot work around unprotected heights or
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unprotected moving mechanical machinery. The claimant cannot perform
any commercial driving. The claimant can only be exposed to moderate
noise environments as set forth by the Dictionary of Occupational Titles.
He can only be exposed to flashing lights on an occasional basis. The
claimant can understand, remember, and carry out simple, routine tasks,
make judgments on simple work, and respond appropriately to usual work
situations and changes in a routine work setting that is repetitive from day
to day with few and expected changes. The claimant cannot perform work
where the pace of productivity is controlled by an external source over
which he has no control such as a conveyor belt or assembly line.
6.
The claimant is unable to perform any past relevant work (20 CFR
404.1565).
7.
The claimant was born on ***, 1979 and was 34 years old, which is
defined as a younger individual age 18-49, on the alleged disability onset
date (20 CFR 404.1563).
8.
The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564).
9.
Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a framework
supports a finding that the claimant is "not disabled," whether or not the
claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404,
Subpart P, Appendix 2).
10.
Considering the claimant's age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform (20 CFR 404.1569 and
404.1569(a)).
11.
The claimant has not been under a disability, as defined in the Social
Security Act, from March 26, 2014, through the date of this decision (20
CFR 404.1520(g)).
(Tr. 31-45).
V. Law and Analysis
A. Standard of Review
Judicial review of the Commissioner's decision is limited to determining whether it is
supported by substantial evidence and was made pursuant to proper legal standards. Ealy v.
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Comm’r of Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010). Review must be based on the record as a
whole. Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). The court may look
into any evidence in the record to determine if the ALJ's decision is supported by substantial
evidence, regardless of whether it has actually been cited by the ALJ. (Id.) However, the court
does not review the evidence de novo, make credibility determinations, or weigh the evidence.
Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989).
The Commissioner's conclusions must be affirmed absent a determination that the ALJ
failed to apply the correct legal standards or made findings of fact unsupported by substantial
evidence in the record. White v. Comm'r of Soc. Sec., 572 F.3d 272, 281 (6th Cir. 2009).
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.
Brainard, 889 F.2d at 681. A decision supported by substantial evidence will not be overturned
even though substantial evidence supports the opposite conclusion. Ealy, 594 F.3d at 512.
B. Plaintiff’s Assignments of Error
1. Weight Ascribed to Treating Sources
In the first assignment of error, Plaintiff asserts that the ALJ erred by violating the treating
physician rule with respect to the weight assigned to several alleged treating sources—Dr.
Bultemeyer, nurse Wladecki,2 Dr. Kuhn, and Dr. Lazoff. (R. 13, PageID# 942). The
Commissioner counters that the ALJ properly considered these opinions. (R. 15, PageID# 962966).
“Provided that they are based on sufficient medical data, ‘the medical opinions and
2
As explained below, the treating physician rule is inapplicable to nurse practitioners.
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diagnoses of treating physicians are generally accorded substantial deference, and if the opinions
are uncontradicted, complete deference.’” Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 240
(6th Cir. 2002) (quoting Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985)). In other words,
“[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). If an ALJ does not give a treating source’s opinion
controlling weight, then the ALJ must give good reasons for doing so that are “sufficiently
specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating
source’s medical opinion and the reasons for that weight.” See Wilson, 378 F.3d at 544 (quoting
Social Security Ruling (“SSR”) 96-2p, 1996 WL 374188, at *5). The “clear elaboration
requirement” is “imposed explicitly by the regulations,” Bowie v. Comm'r of Soc. Sec., 539 F.3d
395, 400 (6th Cir. 2008), and its purpose is “in part, to let claimants understand the disposition of
their cases, particularly in situations where a claimant knows that [her] physician has deemed
[her] disabled and therefore might be especially bewildered when told by an administrative
bureaucracy that she is not, unless some reason for the agency’s decision is supplied.” Wilson,
378 F.3d at 544 (quoting Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999)); see also Johnson v.
Comm'r of Soc. Sec., 193 F. Supp. 3d 836, 846 (N.D. Ohio 2016) (“The requirement also ensures
that the ALJ applies the treating physician rule and permits meaningful review of the ALJ's
application of the rule.”) (Polster, J.)
It is well-established that administrative law judges may not make medical judgments. See
Meece v. Barnhart, 192 Fed. App’x 456, 465 (6th Cir. 2006) (“But judges, including
administrative law judges of the Social Security Administration, must be careful not to succumb
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to the temptation to play doctor.”) (quoting Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir.
1990)). Although an ALJ may not substitute his or her opinions for that of a physician, “an ALJ
does not improperly assume the role of a medical expert by assessing the medical and nonmedical evidence before rendering a residual functional capacity finding.” Poe v. Comm'r of Soc.
Sec., 342 Fed. App'x 149, 157 (6th Cir. 2009). If fully explained with appropriate citations to the
record, a good reason for discounting a treating physician’s opinion is a finding that it is
“unsupported by sufficient clinical findings and is inconsistent with the rest of the evidence.”
Conner v. Comm'r of Soc. Sec., 658 Fed. App’x 248, 253-254 (6th Cir. 2016) (citing Morr v.
Comm'r of Soc. Sec., 616 Fed. App’x 210, 211 (6th Cir. 2015)); see also Keeler v. Comm'r of Soc.
Sec., 511 Fed. App'x 472, 473 (6th Cir. 2013) (holding that an ALJ properly discounted the
subjective evidence contained in a treating physician’s opinion because it too heavily relied on
the patient’s complaints).
The ALJ addressed the disputed opinions as follows:
In terms of opinion evidence, in March 2014, Elizabeth Wladecki, N.P., and
Marlene Bultemeyer, M.D., opined that as of February 8, 2013, the claimant was
unable to perform any and all job functions when flare-ups of cervicalgia,
migraines and occipital neuralgia occurred (Ex. 6F/23). The flare-ups occurred 1
to 4 times per month, with each flare up lasting 1 to 2 days (Ex. 6F/24). In
addition, the claimant would need to attend follow up appointments for additional
treatment (Ex. 6F/23-24). The record also reflects that in September 2013, Dr.
Bultemeyer prescribed the claimant a handicapped parking placard (Ex. 6F/9).
The undersigned assigned little weight to the opinions of Ms. Wladecki and Dr.
Bultemeyer for several reasons. First, their opinions indicate that the claimant
became disabled more than a year prior to when he stopped working based upon
his own self-reports (Testimony). Second, the determination as to whether the
claimant is disabled is an opinion reserved for the Commissioner (Social Security
Ruling 96-5p ). Third, Ms. Wladecki and Dr. Bultemeyer failed to identify the
Claimant’s functional limitations or restrictions and assess his work-related
abilities on a function-by-function basis (Social Security Ruling 96-8p ).
In April 2014, Joseph Kuhn, D.O., noted that the claimant was off work from
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March 26, 2014 through April 14, 2014 (Ex. 7F/3). Subsequently, Dr. Kuhn noted
that the claimant … would be off work from April 14, 2014 until May 5, 2014,
when he was to see specialist (Ex. 7F/1).
I also assigned little weight to the opinions of Dr. Kuhn. As was the case with
opinions of Ms. Wladecki and Dr. Bultemeyer, Dr. Kuhn’s opinion fails to
identify the claimant's limitations on a function-by-function basis, and it is
conclusory in nature on the ultimate issues of disability, which is reserved for the
commissioner (SSR 96-5p, SSR 96-8p ). In addition, I note that Dr. Kuhn's
opinion only addresses a period of time spanning approximately 2 months and
does not reflect the claimant's level of impairment over a consecutive 12-month
period (Social Security Ruling 82-52).
In addition, the record includes the opinions of Thomas L. Lazoff, D.O., from
August 2014 (Ex. 10F/2-3). According to Dr. Lazoff, the claimant could not lift
more than 1 pound (Ex. l0F/3). The claimant could not perform work above
shoulder level or below waist level, and could not bend, twist, stoop, work above
ground or at unprotected heights (Id.). The claimant … could not perform
frequent gazing upwards, downwards or to the sides (Id.). The claimant could
walk for 30 minutes at a time, up to 2 hours per day (Id.).
I assigned some weight to the opinion of Dr. Lazoff, based upon the claimant’s
cervical degenerative disc disease, which is reflected in the residual functional
capacity restrictions regarding light work along with limited overhead reaching
and neck movement (see, e.g., Ex. 1F/1; Ex. 4F/5-8; Ex. 12F/135; Ex. l0F/7).
However, I assigned little weight to the remainder of Dr. Lazoff's opinions, as
these opinions are not supported by the objective medical evidence, and
they are contradicted by the results of the functional capacity examination and the
claimant's recitation of his activities of daily living (Ex. 19F/3-7; Testimony; Ex.
5E/2-5; Ex. 8F/3).
(Tr. 38-39).
Plaintiff’s brief does not identify with any specificity which opinions he believes were
improperly rejected. (R. 13, PageID# 942-945). Rather, Plaintiff makes broad conclusory
statements alleging that the ALJ’s discussion with respect to several physicians was insufficient
and ostensibly failed to provide good reasons. Id. No analysis, however, is provided. Id. The
court cannot take such a broad and undeveloped assertion and transform it into a substantive
argument without improperly becoming an advocate for Plaintiff. It is well established that
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“issues which are ‘adverted to in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived.’” See. e.g., Kennedy v. Commissioner, No. 031276, 2003 WL 23140056, at *1 (6th Cir. Dec. 12, 2003) (citing United States v. Elder, 90 F.3d
1110, 1118 (6th Cir. 1996)) (rejecting perfunctory argument); McPherson v. Kelsey, 125 F.3d
989, 995-996 (6th Cir. 1997), cert. denied, 523 U.S. 1050 (1998) (same); McClellan v. Astrue,
804 F. Supp.2d 678, 688 (E.D. Tenn. 2011) (court under no obligation to scour record for errors
not identified by claimant). The McPherson court aptly stated: “[i]t 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.” McPherson, 125 F.3d at 995-996 (internal citations omitted); accord Paul v. Detroit
Edison Co., 642 Fed. App’x 588, 592 (6th Cir. 2016); Design Basics, LLC v. Forrester Wehrle
Homes, Inc., No. 3:15-cv-666, 2017 U.S. Dist. LEXIS 188005, *8 (N.D. Ohio, Nov. 14, 2017)
(declining to “add flesh to the bones of a party’s skeletal … argument”) (Carr. J.). Although the
court deems any unidentified shortcomings in the ALJ’s analysis of the above referenced
opinions waived, the court finds no general shortcoming in the ALJ’s assessment of the treating
source or other opinions.
Furthermore, nurse Wladecki’s opinions are not entitled to the protections of the treating
physician rule. Pursuant to the regulations in effect at the time the ALJ rendered the opinion on
January 13, 2017, nurse practitioners are not included among the five identified types of
“acceptable medical sources,” but rather are considered “other sources.” Compare former 20
C.F.R. §§ 404.1513(a) & 416.913(a) with former 20 C.F.R. §§ 404.1513(d)(1) & 416.913(d)(1).3
3
While recent revisions to the regulations now include licensed advanced practice registered
nurses among the list of “acceptable medical sources,” the revisions are expressly not retroactive.
See 20 C.F.R. §§ 404.1502(a)(7) & 416.902(a)(7) (“Licensed Advanced Practice Registered
Nurse, or other licensed advanced practice nurse with another title, for impairments within his or
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Nonetheless, information from “other sources” such as nurse practitioners “are important” and
“may provide insight into the severity of the impairment(s) and how it affects the individual’s
ability to function.” SSR 06-03p, 2006 WL 2329939 at * 2-3 (Aug. 9, 2006). A recent decision
from within this district explained the ALJ’s duties in connection with opinions from “other
sources” as follows:
In evaluating the opinions from “other sources,” an ALJ should consider various
factors, “including how long the source has known the individual, how consistent
the opinion is with other evidence, and how well the source explains the opinion.”
Cruse v. Comm'r of Soc. Sec., 502 F.3d 532, 541 (6th Cir. 2007) (citation omitted);
see SSR 06–03P. The ruling’s explanation of the consideration to be afforded
“other source” opinions provides:
Since there is a requirement to consider all relevant evidence in an
individual’s case record, the case record should reflect the consideration of
opinions from medical sources who are not “acceptable medical sources”
and from “non-medical sources” who have seen the claimant in their
professional capacity. Although there is a distinction between what an
adjudicator must consider and what the adjudicator must explain in the
disability determination or decision, the adjudicator generally should
explain the weight given to opinions from these “other sources,” or
otherwise ensure that the discussion of the evidence in the determination or
decision allows a claimant or subsequent reviewer to follow the
adjudicator's reasoning, when such opinion may have an effect on the
outcome of the case. In addition, when an adjudicator determines that an
opinion from such a source is entitled to greater weight than a medical
opinion from a treating source, the adjudicator must explain the reasons in
the notice of decision in hearing cases and in the notice of determination
(that is, in the personalized disability notice) at the initial and
reconsideration levels, if the determination is less than fully favorable.
SSR 06–03P, 2006 WL 2329939, at *6 (emphasis added).
Given this guidance, “it will rarely be enough for the commissioner to silently
‘consider’ the above-mentioned factors in deciding how much weight to give to
her licensed scope of practice (only with respect to claims filed (see § 416.325) on or after
March 27, 2017) (emphasis added)); see also Walters v. Comm'r of Social Sec., 127 F.3d 525,
530 (6th Cir. 1997) (finding the ALJ has the discretion to determine the appropriate weight to
accord the opinion from an “other source” such as a chiropractor).
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an ‘other source’ who has seen the claimant in the source’s professional
capacity.” Estep v. Comm'r of Soc. Sec., Case No. 15cv10329, 2016 WL 1242360,
at *3 (E.D. Mich. Mar. 30, 2016); see Hill v. Comm'r of Soc. Sec., 560 F. App'x
547, 550 (6th Cir. 2014) (“An ALJ must consider other-source opinions and
‘generally should explain the weight given to opinions for these ‘other
sources[.]’”) (alteration in original) (quoting SSR 06–03P). Rather, “[t]he Sixth
Circuit has repeatedly recognized that the commissioner must make an adequate
record of the commissioner’s consideration of an ‘other source’ who has seen the
claimant in the source’s professional capacity.” Estep, 2016 WL 1242360, at *3
(collecting cases); Hatfield v. Astrue, No. 3:07–cv–242, 2008 WL 2437673, at *3
(E.D. Tenn. June 13, 2008) (noting that “[t]he Sixth Circuit...appears to interpret
the phrase ‘should explain’ as indicative of strongly suggesting that the ALJ
explain the weight [given to an ‘other source’ opinions], as opposed to leaving the
decision whether to explain to the ALJ’s discretion”) (citing Cruse, 502 F.3d at
541). Still, “[s]o long as the ALJ addresses the opinion [from an ‘other
source’] and gives reasons for crediting or not crediting the opinion, the ALJ
has complied with the regulations.” Drain v. Comm'r of Soc. Sec., No.
14cv12036, 2015 WL 4603038, at *4 (E.D. Mich. July 30, 2015) (citing Cole v.
Astrue, 661 F.3d 931, 939 (6th Cir. 2011)).
Hirko v. Colvin, No. 1:15cv580, 2016 WL 4486852 at *3 (N.D. Ohio Aug. 26, 2016) (Lioi, J.)
(emphasis added).
Here the ALJ clearly complied with the ruling as it did not ignore nurse Wladecki’s
opinion, nor did the ALJ consider it in silence. Her opinion indeed does not set forth any
functional limitations or restrictions, as expressly noted by the ALJ, and it predates the alleged
onset date. (Tr. 39). To the extent nurse Wladecki opines that Plaintiff is disabled or unable to
work, such an opinion is not entitled to any weight as that is an issue reserved for the
Commissioner. “Indeed, 20 C.F.R. § 404.1527(d)(1) and (3) now provide explicitly that no
special significance will be given to the source of an opinion—such as whether a claimant is
disabled or unable to work—reserved to the Commissioner of Social Security.” Quisenberry v.
Comm'r of Soc. Sec., No. 17-2408, 2018 WL 6264566, at *7 (6th Cir. Nov. 29, 2018) (citing Bass
v. McMahon, 499 F.3d 506, 511 (6th Cir. 2007) (recognizing same in an earlier version of the
applicable regulations)). In addition, the court is skeptical that Dr. Bultemeyer’s signature nearly
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six months later on a form completed by nurse Wladecki transforms the opinions therein into that
of the physician. Nevertheless, assuming arguendo the opinions therein can be fairly attributed to
Dr. Bultemeyer, the ALJ’s analysis remains sufficient. Even a statement from an acceptable
medical source that an individual is unable to work is not a “medical opinion” under the above
cited regulation, and, as such, cannot be ascribed any special significance.
The ALJ’s discussion of Dr. Kuhn’s opinions is similarly sufficient to the extent they
opine that Plaintiff is disabled or unable to work. Moreover, as the ALJ recognized, Dr. Kuhn did
not indicate that Plaintiff was permanently unable to work or could not do so for a twelve-month
period. (Tr. 39). The ALJ also accurately points out that Dr. Kuhn did not assess any functional
limitations or restrictions. Id. Plaintiff has pointed to no evidence that this finding was
inaccurate, and fails to identify any specific limitation from Dr. Kuhn that the ALJ rejected.
Finally, unlike the above sources, Dr. Lazoff did assess some functional limitations.
However, Dr. Lazoff’s opinion from June 20, 2014, cannot be construed as coming from a
“treating source”. (Tr. 388-390). The opinion plainly indicates that he had seen Plaintiff on only
one occasion—May 1, 2014. (Tr. 389). The Sixth Circuit has rejected the notion that a treating
physician relationship can arise from a single visit:
The treating physician doctrine is based on the assumption that a medical
professional who has dealt with a claimant and his maladies over a long period of
time will have a deeper insight into the medical condition of the claimant than
will a person who has examined a claimant but once, or who has only seen the
claimant's medical records. Bowman v. Heckler, 706 F.2d 564, 568 (5th Cir.
1983). Dr. Ruff examined Mr. Barker on only one occasion, and the rationale of
the treating physician doctrine simply does not apply here. Dr. Ruff's report was
entitled to no special degree of deference. Atterberry v. Secretary of Health &
Human Servs., 871 F.2d 567, 572 (6th Cir. 1989).
Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994). There is no ongoing treatment relationship
as contemplated by the regulations when a doctor examines a claimant only once and writes a
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physical capacity evaluation. Smith v. Commissioner, 482 F.3d 873, 876 (6th Cir. 2007) (citing
Daniels v. Apfel, No. 00-5009, 2000 WL 1761087, at *2 (10th Cir. 2000)). It follows, therefore,
that an ALJ’s decision need not satisfy the treating physician rule and provide “good reasons”
when rejecting the opinions from a one-time examining physician. Smith, 482 F.3d at 876;
Kornecky v. Commissioner, No. 04-2171, 2006 WL 305648, at *9-*10 (6th Cir. Feb. 9, 2006).
Dr. Lazoff’s second opinion from September 17, 2014, indicates that he had seen Plaintiff
at least one more time. (Tr. 385-387). Assuming arguendo that a treating relationship had
developed by the time of this second opinion, the court finds the ALJ gave good reasons for
assigning it some weight and ascribing little weight to significant portions of the opinion. The
ALJ identifies three reasons, supported by record citations, for rejecting the more extreme
limitations: (1) lack of objective medical evidence, (2) the results of the FCE contradict the
opinion, and (3) the opinion is contradicted by the claimant’s recitation of his activities of daily
living. (Tr. 39). In order to find these identified reasons fail to constitute good reasons, it is
incumbent on Plaintiff to point to evidence of record that undermines the ALJ’s conclusions.
Plaintiff has not done so here and has not met his burden of showing the ALJ’s decision is not
supported by substantial evidence.
IV. Conclusion
For the foregoing reasons, the Commissioner’s final decision is AFFIRMED.
IT IS SO ORDERED.
s/ David A. Ruiz
David A. Ruiz
United States Magistrate Judge
Date: March 25, 2019
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