Mullett v. Commissioner of Social Security

Filing 17

Memorandum Opinion and Order. The Commissioner's final decision is REVERSED and REMANDED for proceedings consistent with this Memorandum Opinion and Order. Magistrate Judge Nancy A. Vecchiarelli on 12/2/2015. (C,LS)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
KEITH MULLETT,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,

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)

CASE NO. 5:15-CV-144

MAGISTRATE JUDGE
VECCHIARELLI

MEMORANDUM OPINION AND
ORDER

Defendant.
Plaintiff, Keith Mullett (“Plaintiff”), challenges the final decision of Defendant,
Carolyn W. Colvin, Acting Commissioner of Social Security (“Commissioner”), denying
his applications for Period of Disability (“POD”) and Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act, 42 U.S.C. §§ 416(i), 423, 1381. (“Act”). This
case is before the undersigned United States Magistrate Judge pursuant to the consent
of the parties entered under the authority of 28 U.S.C. § 636(c)(2). For the reasons set
forth below, the Commissioner’s final decision is REVERSED and REMANDED for
proceedings consistent with this Memorandum Opinion and Order.
I.

PROCEDURAL HISTORY

On June 27, 2011, Plaintiff filed his applications for POD and DIB, alleging a
disability onset date of March 19, 2011. (Transcript (“Tr.”) 27.) The claims were denied
initially and upon reconsideration, and Plaintiff requested a hearing before an
administrative law judge (“ALJ”). (Id.) On July 2, 2013, an ALJ held Plaintiff’s hearing.
(Id.) Plaintiff participated in the hearing, was represented by counsel, and testified.

(Id.) A vocational expert (“VE”) also participated and testified. (Id.) On July 26, 2013,
the ALJ found Plaintiff not disabled. (Tr. 40.) On November 28, 2014, the Appeals
Council declined to review the ALJ’s decision, and the ALJ’s decision becam e the
Commissioner’s final decision. (Tr. 1.)
On January 25, 2015, Plaintiff filed his complaint to challenge the
Commissioner’s final decision. (Doc. No. 1.) The parties have completed briefing in
this case. (Doc. Nos. 12, 15, 16.)
Plaintiff asserts the following assignments of error: (1) The ALJ violated the
treating physician rule; (2) the RFC is not supported by substantial evidence and new
and material evidence warrants remand; and (3) the ALJ’s hypothetical question to the
VE did not accurately portray Plaintiff’s functional limitations.
II.
A.

EVIDENCE

Personal and Vocational Evidence
Plaintiff was born in May 1968 and was 42-years-old on the alleged disability

onset date. (Tr. 38.) He had at least a high school education and was able to
communicate in English. (Id.) He had past relevant work as a welder and a press
operator. (Id.)
B.

Medical Evidence
1.

Medical Reports

In 2004, prior to Plaintiff’s alleged onset date of March 2011, Plaintiff underwent
a vestibular test due to complaints of dizziness. (Tr. 302-03.) Judith White, M.D.,
diagnosed vertigo. (Tr. 303). On January 3, 2005, Plaintiff had an MRI of his cervical

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spine. (Tr. 309.) The image showed mild, diffuse cervical canal stenosis, a disc
osteophyte at C6-7 with sac compression, and no overt cord compression. (Id.)
During March 2011, Plaintiff treated with Douglas Wenger, M.D., and had been
laid off from his job as a welder. (Tr. 315.) Plaintiff felt he could no longer work as a
welder because of back pain. (Id.) Dr. Wenger listed diagnoses of back pain,
fibromyalgia, depression, and vertigo. (Id.)
A treatment note dated March 30, 2012, included Plaintif f’s comment that he was
performing yard work for a friend and cutting grass. (Tr. 384.) A few months later, on
August 15, 2012, Plaintiff presented to Kathleen Scroggins, M.D. (Tr. 444-46.) Plaintiff
denied dizziness and headaches, but complained of all-over body pain that increased
with any activity. (Tr. 444.) He reported a recent increase in low back pain that radiated
down both legs. (Id.) Due to pain, it took Plaintiff three times as long to mow grass. (Id.)
He had spasms in his back at night. (Tr. 454.) Dr. Scroggins assessed benign
hypertension, fibromyalgia, vertigo, and radiating low back pain. (Tr. 446.) She
prescribed medication. (Id.)
After a fall that caused him to hit his chest in September 2012, Plaintiff saw Dr.
Wenger. (Tr. 441.) Plaintiff reported that the fall occurred after he had worked outside
all day, had lit a bonfire, and had some alcoholic beverages. (Id.) Plaintiff reported that
the next thing he remembered after falling was that the police and paramedics were at
his side. (Id.) Plaintiff’s wife had witnessed similar “episodes” in the past. (Id.) Dr.
Wenger ordered tests to examine seizure-like activity. (Tr. 442.)
On October 5, 2012, Plaintiff saw Kimberly Stewart, M.D., for fibromyalgia. (Tr.

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435-37.) Plaintiff also described a 12 year history of syncope and vertigo. (Tr. 435.) He
did not sleep well and experienced fatigue that became worse as the day progressed.
(Id.) Plaintiff complained of headaches, heart palpitations, back and joint pain, sw elling
in his hands, muscle aches, dizziness, and paresthesias in the arms and legs. (Id.)
During an examination, Dr. Stewart found that Plaintiff displayed “a few tender points.”
(Tr. 436.) The doctor diagnosed myalgia, polyarthralgia, syncopal episodes, and
vertigo. (Tr. 437.) Dr. Stewart stated that she would pursue additional testing in light of
mild weakness exhibited on physical examination. (Id.) She opined that Plaintiff
appeared unusually fatigued after the examination and recommended testing for
myasthenia. (Id.) Dr. Stewart also wanted a work up for inflammatory arthritis and
myopathy, as well as an MRI of Plaintiff’s neck due to his history of fainting spells and
vertigo. (Id.)
Plaintiff returned to Dr. Stewart on December 12, 2012. (Tr. 420.) Dr. Stewart
explained that Plaintiff’s most recent MRI was “notable for a disc at C6-7" that was
“moderate sized in nature.” (Id.) Otherwise, tests for myasthenia and rheumatoid
arthritis returned normal. (Id.) Dr. Stewart assessed cervical disc disease and referred
Plaintiff to a neurosurgeon. (Tr. 422.)
On January 4, 2013, Glenn Black, M.D., admitted Plaintiff to Barberton Hospital.
(Tr. 394.) Dr. Black noted that Plaintiff had a recurrent history of syncope and episodes
of dizziness. (Id.) The doctor placed Plaintiff on a halter monitor, which showed periods
of asytole, or failure of the heart’s electrical system. (Id.) On January 7, 2013, Dr. Black
installed a pacemaker. (Id.) The following day, Dr. Black discharged Plaintiff in much

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improved condition. (Id.)
Plaintiff presented to Harvey Vucetic, M.D., on January 14, 2013, for pain in his
cervical and lumbar spine as well as fibromyalgia. (Tr. 494.) Plaintiff described his
cervical spine pain as “constant” and radiating into his arms, hands, and lower back.
(Id.) His low back pain radiated down his back to the top of his feet. (Id.) Plaintiff also
indicated that Dr. Wenger had previously diagnosed fibromyalgia. (Id.) On physical
examination, Plaintiff’s gait, extremity strength, and neurological examination were
normal. (Tr. 497-98.) Plaintiff’s cervical MRI showed a moderately sized C6-7 disc
herniation. (Tr. 498.) Dr. Vucetic diagnosed a herniated cervical disc without
myelopathy, cervical neuralgia, and thoracic or lumbar radiculitis. (Id.) He referred
Plaintiff to physical therapy and recommended a cervical epidural injection as the next
step in care if pain persisted. (Tr. 498-99.) The doctor also diagnosed myalgia and
myositis, commenting that Plaintiff “definitely [was] suffering from fibromyalgia pain.”
(Tr. 499.) Dr. Vucetic instructed Plaintiff that exercise was the best treatment for
fibromyalgia. (Id.)
On February 11, 2013, Plaintiff treated with Dr. Vucetic for lumbar spine pain that
radiated into his right leg. (Tr. 488.) Dr. Vucetic noted that Plaintiff was seeing a
physical therapist for his cervical spine, and physical therapy exercises were helpful but
provided only short-term relief. (Id.) Plaintiff rated his pain as a “6 out of 10.” (Id.) On
physical examination, Dr. Vucetic found reduced sensation around C5-C6, reduction in
cervical range of motion, and normal bilateral upper extremity strength. (Tr. 491.)
Plaintiff’s upper extremity neurovascular examination was normal. (Id.) Dr. Vucetic

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assessed sciatica due to lumbar disc displacement, radiculitis, and cervical disc
displacement. (Tr. 492.) Because Plaintiff complained of radiating low back pain, Dr.
Vucetic added a low back regimen to his physical therapy plan. (Tr. 488, 492.)
Plaintiff treated with Dr. Wenger on February 14, 2013. (Tr. 416.) Plaintiff
reported that he had improved since receiving a pacemaker and had not experienced
fainting spells. (Id.) Dr. Wenger adjusted Plaintiff’s medication to treat hypertension
and prescribed wrist splints for carpel tunnel syndrome. (Tr. 418.)
On April 22, 2013, Plaintiff treated with Dr. Vucetic for cervical and lumbar spine
pain, as well as some left wrist pain that extended into his thumb and index finger. (Tr.
470.) Dr. Vucetic noted that Plaintiff had been very active lately and painted an entire
barn. (Id.) Plaintiff requested a third epidural injection for lumbar spine pain that had
returned. (Id.) Dr. Vucetic assessed displacement of a lumbar disc, obesity, and carpal
tunnel syndrome. (Tr. 474-75.) The doctor prescribed a lumbar spine epidural injection,
a carpal tunnel splint for the left arm, and an anti-inflammatory. (Id.)
On May 13, 2013, Dr. Wenger recommended that Plaintiff continue using wrist
splints for carpal tunnel and consider wrist injections if neck injections did not provide
relief. (Tr. 415.)
A report from Dr. Vucetic, dated May 22, 2013, indicated that Plaintiff presented
with cervical and lumbar spine pain. (Tr. 459.) Plaintiff stated that as of late, he had
been welding a lot more and woke up with pain starting in his elbow and radiating into
his thumb. (Id.) Plaintiff complained of neck pain radiating down into his arms and
fingers, which he described and burning with numbness and paresthesias. (Id.) Dr.

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Vucetic diagnosed obesity, cervical disc displacement, myalgia and myositis, cervical
radiculopathy, displacement of a lumbar disc, and lateral epicondylitis. (Tr. 464-65.)
2.

Agency Reports

On October 13, 2011, Morgan Koepke, M.D., conducted a physical consultative
examination of Plaintiff. (Tr. 330-32.) Plaintiff complained of all-over body pain,
primarily in the neck and back, and general fatigue due to fibromyalgia. (Tr. 330.)
Plaintiff also complained of vertigo, which could cause a shaking sensation, nausea, or
vomiting. (Id.) His vertigo had improved over the years and no longer occurred on a
daily basis. (Id.) In terms of activities, Plaintiff could drive a car and had difficulty with
stairs due to pain. (Tr. 331.) He was able to sit or stand for 30 minutes, walk half a
block, and lift or carry up to 40 pounds. (Id.) He could perform self-care, cook, and
clean. (Id.)
Upon physical examination, Dr. Koepke found that Plaintiff had a normal range
of motion in his cervical and dorsolumbar spine, and only mild tenderness in the lower
cervical area. (Tr. 331.) His straight leg raising tests were negative. (Id.) Plaintiff had
good grip strength bilaterally and a full range of motion and strength in all extremities.
(Id.) Dr. Koepke noted that Plaintiff tested positive for six out of 18 fibromyalgia tender
points. (Id.) The physician commented that Plaintiff did not say that the points were
tender until she palpated them a second time and told Plaintiff to report what hurt. (Id.)
Plaintiff’s neurological examination was normal. (Tr. 332.)
Dr. Koepke opined that Plaintiff would be able to participate in full work duties
without any restrictions. (Tr. 332) He would be able to stand for up to six hours in an

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eight-hour workday and could lift and carry up to 40 pounds on a regular basis. (Id.) Dr.
Koepke reviewed treatment notes from Plaintiff’s primary care physician and reported
that she could not see where the physician performed tests for fibromyalgia. (Id.) Dr.
Koepke opined that Plaintiff’s examination that day was not consistent with a diagnosis
of fibromyalgia. (Id.)
State agency physician Maureen Gallagher, D.O., conducted a review of the
record on October 27, 2011. (Tr. 132.) Dr. Gallagher opined that Plaintiff could
occasionally lift up to 50 pounds and frequently lift up to 25 pounds. (Tr. 131.) He could
stand, sit, or walk for approximately six hours in an eight-hour workday. (Id.) Plaintiff
needed to avoid all exposure to hazards, such as machinery and heights. (Tr. 132.)
On March 6, 2012, Leigh Thomas, M.D., performed a second review of the
record. (Tr. 149.) Dr. Thomas affirmed Dr. Gallagher’s opinion in total. (Tr. 147-48.)
C.

Hearing Testimony
1.

Plaintiff’s Hearing Testimony

Plaintiff testified that he stopped working as a welder due to pain in his arms and
back. (Tr. 78.) He experienced pain in his neck and associated num bness in his left
arm and the fingers of his left hand. (Tr. 79.) Plaintiff also described low back pain that
radiated into his legs. (Id.) His ability to hold objects was weaker than it used to be. (Tr.
81-82.) He could stand or sit for a total of 20 minutes. (Tr. 86.) Due to his pacemaker,
Plaintiff needed to stay away from electrical devices. (Tr. 94.) Plaintiff experienced a
small episode of vertigo every week. (Tr. 96.)
During the summer, Plaintiff spent time sitting outside in his backyard in a chair.

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(Id.) He also swam in his heated pool, exercised to help with fibromyalgia, and did yard
work. (Tr. 88.) He used a riding law mower to mow his two lots, but needed to take a
break every 15 minutes while mowing. (Tr. 88, 90.) He occasionally helped his wife
with household chores and cleaning. (Tr. 87.)
2.

Vocational Expert’s Hearing Testimony

Lynn Smith, a vocational expert, testified at Plaintiff’s hearing. The ALJ asked
the VE to assume a hypothetical individual of Plaintiff’s age, education, and work
experience. (Tr. 106.) The individual would be able to perform sedentary work with the
added limitations of being unable to reach overhead with either upper extremity. (Id.)
The individual could not climb ladders, ropes, or scaffolds, but could occasionally climb
ramps and stairs, stoop, kneel, crouch, and crawl. (Tr. 106-07.) The individual could
frequently, but not constantly, perform fine and gross manipulation, fingering, and
handling bilaterally. (Tr. 107.) The individual must avoid close proximity to powerful
electrical fields and avoid all hazards, such as dangerous machinery and unprotected
heights. (Tr. 107, 109) The individual could perform low stress work, defined as work
not subjecting him to strict quotas or fast paced high production demands and work not
requiring negotiation, arbitration, confrontation, directing the work of others, or being
responsible for the safety of others. (Tr. 107.) The individual required a relatively static
workplace, with few changes in work processes and work settings, and could
superficially interact with the public and coworkers. (Id.) The VE testified that the
hypothetical individual would be able to perform such jobs as an addresser, a polisher,
and a document preparer. (Tr. 108.)

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III.

STANDARD FOR DISABILITY

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. § 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. § 416.905(a).
The Commissioner reaches a determination as to whether a claimant is disabled
by way of a five-stage process. 20 C.F.R. §§ 404.1520(a)(4) and 416.920(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 “severe impairment” 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.” Abbot, 905
F.2d at 923. Third, if the claimant is not performing substantial gainful activity, has a
severe impairment that is expected to last for at least twelve months, and the
impairment 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 does not prevent him from doing his
past relevant work, the claimant is not disabled. 20 C.F.R. §§ 404.1520(e)-(f) and

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416.920(e)-(f). For the fifth and final step, even if the claimant’s impairment does
prevent him from doing his 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), 404.1560(c), and 416.920(g).
IV.

SUMMARY OF COMMISSIONER’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 June 30, 2016.

2.

The claimant has not engaged in substantial gainful activity since
March 19, 2011, the alleged onset date.

3.

The claimant has the following severe impairments: cervical and
lumbar degenerative disc disease, bilateral carpal tunnel syndrome,
vertigo, recurrent syncope, obesity, sick sinus node with asystole,
depressive disorder, and anxiety disorder.

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 C.F.R. Part 404, Subpart P, Appendix 1.

5.

After careful consideration of the entire record, I find that the claimant
has the residual functional capacity to perform sedentary work as
defined in 20 C.F.R. 404.1567(a) except he cannot reach overhead
with either upper extremity. He cannot climb ladders, ropes, or
scaffolds, but he can occasionally climb ramps and stairs. He can
occasionally stoop, kneel, crouch, and crawl. He must avoid close
proximity to powerful electric fields. He can frequently but not
constantly perform fine and gross manipulation (fingering and
handling) bilaterally. He must avoid all hazards such as dangerous
machinery and unprotected heights. He can perform low stress work
defined as work not subjecting him to strict quotas or fast-pace high
production demands or work not requiring negotiation, arbitration,
confrontation, directing the work of others or being responsible for the
safety of others. He requires a relatively static work place with few
changes in work process and work settings. He can superficially
interact with the public and coworkers.

6.

The claimant is unable to perform any past relevant work.
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7.

The claimant was born on May 17, 1968, and was 42 years old, which
is defined as a younger individual age 18-44, on the alleged disability
onset date.

8.

The claimant has at least a high school education and is able to
communicate in English.

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.

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.

11.

The claimant has not been under a disability, as defined in the Social
Security Act, from March 19, 2011, through the date of this decision.

(Tr. 29-40.)
V.
A.

LAW & ANALYSIS

Standard of Review

Judicial review of the Commissioner’s decision is limited to determining whether
the Commissioner's decision is supported by substantial evidence and was made
pursuant to proper legal standards. Ealy v. 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).
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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.

The Treating Physician Rule

Plaintiff asserts that the ALJ violated the treating physician rule and ought to
have provided good reasons for rejecting Dr. Vucetic’s January 2013 opinion that
Plaintiff suffered from fibromyalgia pain. The Commissioner contends that Dr. Vucetic’s
statement about Plaintiff’s fibromyalgia pain does not constitute a treating physician
opinion because the doctor did not address Plaintif f’s ability to work or his functional
limitations. As a result, the Commissioner contends that the opinion was not protected
by the treating source rule. For the reasons that follow, Plaintiff’s argument is well
taken.
A treating source is defined as “your own physician, psychologist, or other
acceptable medical source who provides you, or has provided you, with medical
treatment or evaluation and who has, or has had, an ongoing treatment relationship
with you.” 20 C.F.R. § 404.1502. Generally, an ongoing treatment relationship exists

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when the patient sees or has seen the treating source with a frequency consistent with
accepted medical practice for the type of evaluation required for the medical condition
at issue. Id. In order for the treating source doctrine to apply, an ongoing treatment
relationship must exist at the time the physician’s opinion is rendered. Kornecky v.
Comm’r of Soc. Sec., 167 F. App’x 496, 506 (6th Cir. 2006). This is because “the
rationale of the treating physician doctrine simply does not apply” where a physician
issues an opinion after a single examination. Barker v. Shalala, 40 F.3d 789, 794 (6th
Cir. 1994). “Classifying a medical source requires us to interpret the definitions in [20
C.F.R.] § 404.1502, a question of law we review de novo.” Smith v. Comm’r of Soc.
Sec., 482 F.3d 873, 876 (6th Cir. 2007). This Court must accord substantial deference
to any factual finding by the ALJ bearing on the question. Id.
“An 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) (quoting 20
C.F.R. § 404.1527(d)(2)) (internal quotes omitted). If an ALJ decides to give a treating
source’s opinion less than controlling weight, he must give “good reasons” for doing so
that are sufficiently specific to make clear to any subsequent reviewers the weight given
to the treating physician’s opinion and the reasons for that weight. See Wilson, 378
F.3d at 544 (quoting S.S.R. 96-2p, 1996 WL 374188, at *5 (S.S.A.)). This “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 to “let claimants

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understand the disposition of their cases” and to allow for “meaningful review” of the
ALJ’s decision, Wilson, 378 F.3d at 544 (internal quotation marks omitted). Where an
ALJ fails to explain his reasons for assigning a treating physician’s opinion less than
controlling weight, the error is not harmless and the appropriate remedy is remand. Id.
In the administrative decision the ALJ addressed fibromyalgia and concluded
that Plaintiff did not have it. (Tr. 29-30.) The ALJ reached this conclusion based on
opinions from one treating physician, Dr. Stewart,1 and a consultative examiner, Dr.
Koepke. (Id.) The ALJ explained that consultative examiner Dr. Koepke performed a
tender point test, which she opined was not consistent with a diagnosis of fibromyalgia.
(Id.) Dr. Koepke also stated that treatment notes from Plaintiff’s other physicians did
not reflect documentation of tender points. (Id.) It is unclear what treatment records Dr.
Koepke had before her when she conducted her review. Dr. Vucetic, however, issued
his opinion regarding fibromyalgia after Dr. Koepke’s examination. As a result, Dr.
Koepke could not have reviewed Dr. Vucetic’s treatment notes.
It is clear that Dr. Vucetic diagnosed fibromyalgia pain. (Tr. 499.) Contrary to the
Commissioner’s argument, a medical diagnosis constitutes a medical opinion subject to
the treating source rule if rendered by a treating physician. See Harris v. Heckler, 756
F.2d 431, 435 (6th Cir. 1985) (“The medical opinions and diagnoses of treating
physicians are generally accorded substantial deference, and if the opinions are
1

The ALJ noted Dr. Stewart’s finding that testing did not confirm a
diagnosis of fibromyaliga. (Tr. 30, 420.) The ALJ misread the treatment
note on which he relied for this conclusion. The treatment note indicated
that testing did not confirm rheumatoid arthritis. (Tr. 420.) While Dr.
Stewart did not diagnose fibromyalgia, he listed fibromyalgia under
Plaintiff’s medical history. (Id.)
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uncontradicted, complete deference.”); Tinsley v. Comm’r of Soc. Sec., No. 12-13163,
2013 WL 5476051, at *4 (E.D. Mich. Sept. 30, 2013) (finding that a treating physician’s
diagnoses ought to have been assessed pursuant to the treating physician rule). Of
course a diagnosis is not the same as a physician recommending functional limitations,
but the problem here is that the ALJ never addressed Dr. Vucetic’s opinion regarding
fibromyalgia. As a result, the Court is unable to ascertain whether the ALJ considered
the opinion and rejected it, and if the ALJ rejected the opinion, why he did so. The
ALJ’s discussion of Dr. Vucetic was limited to recounting portions of Dr. Vucetic’s notes
from two treatment sessions. (Tr. 34-35, citing Exhibit 13F.)
The ALJ did not state whether Dr. Vucetic was a “treating source,” and this Court
cannot ascertain from the ALJ’s decision whether the ALJ considered Dr. Vucetic to be
a treating physician. Dr. Vucetic treated Plaintiff for the first time on January 14, 2013,
and diagnosed myalgia and myositis, stating that Plaintiff suffered from fibromyalgia
pain. (Tr. 494, 499.) Plaintiff continued to treat with Dr. Vucetic in February, April, and
May 2013. (Tr. 488, 470, 459.) During May 2013, Dr. Vucetic again opined that Plaintiff
suffered from myalgia and myositis. (Tr. 465.) As Plaintiff had an on-going treatment
relationship, there is substantial evidence from which the ALJ could have concluded
that Dr. Vucetic is a treating source, and it is not clear what evidence, if any, supports a
contrary conclusion.
Accordingly, the case must be remanded for a supported determination by the
ALJ as to whether Dr. Vucetic was a treating source and the weight afforded to the
physician’s opinions, including his diagnosis of fibromyalgia. If Dr. Vucetic is a treating
physician and the ALJ declines to assign the opinion controlling weight, the ALJ should
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provide a detailed explanation, including “good reasons” explaining why he reached that
conclusion. Accordingly, Plaintiff’s case is remanded to the ALJ for a more complete
examination of Dr. Vucetic’s opinion.
2.

The RFC and Remand for New Evidence

3.

The Hypothetical Question

As Plaintiff’s second and third assignments of error are interrelated, this Court
will discuss them together. Plaintiff argues that the ALJ did not adequately account for
his limitations when formulating Plaintiff’s residual functional capacity (RFC) or in the
hypothetical question posed to the VE. Plaintiff contends that the RFC and hypothetical
question ought to have limited Plaintiff to occasional fine and gross manipulation and
provided for two to three unscheduled work breaks, approximately 15 minutes in
duration. In support of these limitations, Plaintiff directs the Court to his testimony that
he experienced numbness and functional limitations in his hands, as well as severe
fatigue. Plaintiff also notes that Dr. Wenger diagnosed bilateral carpal tunnel syndrome
and Dr. Vucetic found that Plaintiff had reduced sensation at C5-C6. Notably, Plaintiff
does not point to any physician recommending the limitations he argues should have
been included in the RFC and hypothetical question. For the reasons that follow,
Plaintiff’s argument is not well taken.
The RFC is an indication of a claimant’s work-related abilities despite his
limitations. See 20 C.F.R. § 404.1545(a). A claimant’s RFC is not a medical opinion,
but an administrative determination reserved to the Commissioner. See 20 C.F.R. §
404.1545(e). As such, the ALJ bears the responsibility for assessing a claimant’s RFC

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based on all of the relevant evidence, 20 C.F.R. § 404.1545(a), and must consider all of
a claimant’s medically determinable impairments, both individually and in combination,
S.S.R. 96-8p. While the RFC is for the ALJ to determine, it is well established that the
claimant bears the burden of establishing the impairments that determine his RFC. See
Her v. Comm’r of Soc. Sec., 203 F.3d 388, 391 (6th Cir. 1999) (“The determination of a
claimant’s Residual Functional Capacity is a determination based upon the severity of
his medical and mental impairments. This determination is usually made at stages one
through four [of the sequential process for determining whether a claimant is disabled],
when the claimant is proving the extent of his impairments.”)
Here, Plaintiff points to his testimony to support the need for further RFC
restrictions. The ALJ, however, found that Plaintiff’s statements concerning his
limitations were not entirely credible as they were inconsistent with his activities, other
statements Plaintiff made concerning his condition, and the medical evidence detailed
in the ALJ’s opinion. For example, the ALJ explained:
•

Despite having pain, Plaintiff was able to perform a significant amount of
physical activity. The evidence indicated that in April 2013, Plaintiff
painted his entire barn, which suggested that he was not as limited in his
functioning as he alleged. In May 2013 a treatment note indicated that
Plaintiff performed welding work, which was inconsistent with his
testimony. Plaintiff mowed two yards, which took five to six hours to
complete. Additionally, Plaintiff performed household chores and drove to
his appointments and the store. (Tr. 35.)

•

During a March 2011 physical examination, Plaintiff exhibited a normal
range of motion in the cervical, dorsolumbar, and lumbar spine. He had
negative straight leg-raising tests and only mild paraspinal tenderness in
the lower cervical spine. His grip strength in both hands was good and he
had 5/5 muscle strength in his upper and lower extremities. (Tr. 34-35.)

•

In August 2012, a physical examination showed 4/5 muscle strength in
Plaintiff’s quadriceps, but otherwise normal muscle strength throughout.
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Plaintiff’s sensation to light touch was normal in all extremities. (Tr. 34.)
The ALJ provided reasonable grounds for discounting Plaintiff’s credibility and
the accuracy of his statements describing his symptoms and limitations. The ALJ was
required to incorporate Plaintiff’s subjective complaints into the RFC and hypothetical
question only to the extent that he found them to be credible. See Griffeth v. Comm’r of
Soc. Sec., 217 F. App’x 425, 429 (6th Cir. 2007) (“An ALJ is not required to accept a
claimant’s subjective complaints, and can present a hypothetical to the VE on the basis
of his own assessment if he reasonably deems the claimant’s testimony to be
inaccurate.”). The ALJ did not entirely reject Plaintiff’s complaints, but instead found
that Plaintiff was limited in his ability due to dizziness combined with neck, back, and
hand pain, and accounted for such in the RFC. (Tr. 35, 38.)
Plaintiff also argues that findings and diagnoses from his physicians demonstrate
the need for manipulative limitations and workday breaks. It is well established,
however, that the “mere diagnosis” of a condition “says nothing” about its severity or its
effect on a claimant’s ability to perform work. Higgs v. Bowen, 880 F.2d 860, 863 (6th
Cir. 1988). Thus, the fact that a physician diagnosed Plaintiff with carpal tunnel
syndrome did not, alone, require the ALJ to include limitations specifically related to the
diagnosis in Plaintiff’s RFC. Significantly, Plaintiff has not come forward with evidence
of any physician suggesting manipulation restrictions or work breaks. Accordingly,
Plaintiff has failed to show that the RFC or hypothetical question were flawed such that
remand is appropriate.
As part of his second allegation of error, Plaintiff also contends that new

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evidence warrants remand for further proceedings pursuant to 42 U.S.C. § 405(g).
Because remand is necessary for the ALJ to evaluate Dr. Vucetic’s opinion, the issue of
new evidence is moot. If appropriate, Plaintiff can submit the new evidence to the ALJ
upon remand.

VI.

CONCLUSION

For the foregoing reasons, the Commissioner’s final decision is REVERSED and
REMANDED for proceedings consistent with this Memorandum Opinion and Order.
IT IS SO ORDERED.
s/ Nancy A. Vecchiarelli
U.S. Magistrate Judge

Date: December 2, 2015

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