Leiby v. Commissioner of Social Security

Filing 19

Memorandum of Opinion and Order For the reasons set forth herein, Plaintiff's Objection (ECF No. 17 ) is overruled. The Report and Recommendation (ECF No. 16 ) is adopted. The decision of the Commissioner is affirmed. Judge Benita Y. Pearson on 9/21/2017. (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
KELLY LEIBY,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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CASE NO. 5:16CV1285

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION AND
ORDER

An Administrative Law Judge (“ALJ”) denied Plaintiff Kelly Leiby’s claim for Disability
Insurance Benefits (“DIB”) benefits after a hearing. That decision became the final
determination of the Commissioner of Social Security when the Appeals Council denied the
request to review the ALJ’s decision. Plaintiff sought judicial review of the Commissioner’s
decision, and the Court referred the case to Magistrate Judge Kathleen B. Burke for preparation
of a Report and Recommendation pursuant to 28 U.S.C. § 636 and Local Rule 72.2(b)(1). After
both parties filed briefs, the magistrate judge submitted a report (ECF No. 16) recommending
that the decision of the Commissioner be affirmed. Plaintiff filed Objections to the Report and
Recommendation. ECF No. 17. Defendant responded. ECF No. 18. For the reasons that
follow, the Court overrules Plaintiff’s Objection and adopts the magistrate judge’s Report and
Recommendation.
I.

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When a magistrate judge submits a Report and Recommendation, the Court is required to
conduct a de novo review of the portions of the Report and Recommendation to which an
appropriate objection has been made. 28 U.S.C. § 636(b). Objections must be specific, not
general, in order to focus the court’s attention upon contentious issues. Howard v. Sec’y of
Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). The primary issue then becomes
whether substantial evidence supports the Commissioner’s decision. The Court’s review of the
Commissioner’s decision is limited to determining whether substantial evidence, viewing the
record as a whole, supports the findings of the ALJ. Hephner v. Mathews, 574 F.2d 359, 362
(6th Cir. 1978); Bartyzel v. Commr of Soc. Sec., 74 F. App’x 515, 522–23 (6th Cir. 2003).
Substantial evidence is more than a mere scintilla of evidence, but less than a preponderance.
Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Besaw v. Sec’y of Health and
Human Servs., 966 F.2d 1028, 1030 (6th Cir. 1992) (per curiam).
If substantial evidence supports the Commissioner’s decision, a reviewing court must
affirm the decision even if it would decide the matter differently. Cutlip v. Secretary of Health
and Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (citing Kinsella v. Schweiker, 708 F.2d
1058, 1059 (6th Cir. 1983) (per curiam)). Moreover, the decision must be affirmed even if
substantial evidence would also support the opposite conclusion. Mullen v. Bowen, 800 F.2d
535, 545 (6th Cir. 1986) (en banc). This “standard allows considerable latitude to administrative
decision makers. It presupposes that there is a zone of choice within which the decision[2

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]makers can decide either way, without interference by the courts. An administrative decision is
not subject to reversal merely because substantial evidence would have supported an opposite
decision.” Id. (quoting Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984)). In determining,
however, whether substantial evidence supports the ALJ’s findings in the instant matter, the
court must examine the record as a whole and take into account what fairly detracts from its
weight. Wyatt v. Sec’y of Health and Human Servs., 974 F.2d 680, 683 (6th Cir. 1992). The
court must also consider whether the Commissioner employed the proper legal standards. Queen
City Home Health Care Co. v. Sullivan, 978 F.2d 236, 243 (6th Cir. 1992).
To establish disability under the Social Security Act, a claimant must show that he is
unable to engage in substantial activity due to the existence of “a medically determinable
physical or mental impairment that can be expected to result in death or that has lasted or can be
expected to last for a continuous period of not less than twelve months.” See 42 U.S.C. §§
423(d)(1)(A), 1382c(a)(3)(A). The claimant’s impairment must prevent him from doing his
previous work, as well as any other work existing in significant numbers in the national
economy. 42 U.S.C. § 423(d)(2)(A).
In order for the Commissioner to find that a claimant suffers from a disability for which
he should receive benefits, the claimant must be unable to engage in any substantial gainful
activity due to the existence of a “medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); Colvin v. Barnhart, 475 F.3d 727,

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730 (6th Cir. 2007). Under 42 U.S.C. § 1381, disabled individuals who meet certain income and
resources requirements are entitled to SSI benefits. 20 C.F.R. §§ 416.1100 and 416.1201.
II.
Plaintiff raises two (2) objections to the magistrate judge’s Report. The objections
largely repeat the arguments made in Plaintiff’s brief on the merits. Compare Plaintiff’s Brief on
the Merits, ECF No. 12 at PageID #: 998-1002 with Plaintiff’s Objections to Report and
Recommendation of the Magistrate Judge, ECF No. 17. First, Plaintiff objects to the magistrate
judge’s finding that the ALJ did not err in assigning “other weight” to the March 9, 2013,
medical opinion of Plaintiff’s treating physician Dr. Miller. See ECF No. 17 at PageID #:
1058-61; ECF No. 16 at PageID #: 1050-54. Second, Plaintiff objects to the magistrate judge’s
recommendation that the Court find that the ALJ did not error by not discussing, in her decision,
the August 4, 2014, statements/opinions of Plaintiff’s treating physician Dr. Donich. See ECF
No. 17 at PageID #: 1062; ECF No. 16 at PageID #: 1054-56. Defendant opposes the objections
on grounds that Plaintiff has failed to raise any issues in her objections that were not adequately
addressed by the Commissioner. ECF No. 18. Defendant also avers that the ALJ’s decision was
supported by substantial evidence and should be affirmed, even if substantial evidence would
support another finding. Id. The Court reviews Plaintiff’s objections de novo.
A. Dr. Miller's Opinion
The magistrate judge recommends that “the Court find no error with respect to the ALJ’s
treatment of Dr. Miller’s March 19, 2013, opinion [(“Dr. Miller’s Opinion”)]” on grounds that,
among other things: (1) evidence obtained after a claimant’s date last insured (“DLI”) has limited
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probative value; (2) the ALJ considered Dr. Miller’s Opinion and assigned weight to that
opinion; (3) the ALJ explained her consideration of Dr. Miller’s Opinion as to whether Plaintiff
is disabled and Plaintiff’s RFC and found that those were issues reserved to the Commissioner;
and, (4) Plaintiff has not demonstrated that the ALJ’s decision is not supported by substantial
evidence. ECF No. 16 at PageID 1053-54. Moreover, the magistrate judge found that the ALJ’s
explanation of her consideration of Dr. Miller’s opinion was sufficiently clear to allow for review
by the Court. Id. at PageID #: 1054.
Plaintiff raises two (2) arguments in her first objection to the magistrate judge’s
recommendation. The Court addresses both arguments below.
1. Plaintiff’s First Argument
First, Plaintiff contends that the magistrate judge and the ALJ erred in rejecting and
assigning “other weight” to Dr. Miller’s Opinion because the judges failed to “recognize a
legitimate retroactive medical opinion which was rendered after the [DLI]” and “analyze that
evidence and how it related back to the condition that existed before the DLI[.]” ECF No. 17 at
PageID #: 1058-59. Plaintiff avers that the ALJ’s sole basis for assigning “other weight” to the
medical opinion of Plaintiff’s treating physician was that the opinion was rendered a year after
the DLI. Id. at 1059. Plaintiff argues that this is contrary to legal authority which allows for the
consideration of relevant medical evidence that “relates back” to a claimant’s limitations prior to
the DLI if the medical evidence: (1) is of a claimant’s limitations, and not impairments or
condition, prior to the DLI; and, (2) illuminates the claimant’s condition prior to the DLI. Id. at
PageID #: 1059-60 (citing cases).
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Plaintiff’s first argument is unavailing. As the Court explained in Walton v. Astrue, 773
F. Supp. 2d 742 (N.D. Ohio 2011) (Pearson, J.):
In assessing the medical evidence provided in support of a claim for
disability benefits, there are certain governing standards or rules that
an ALJ must follow. Among these is the treating physician rule
which requires the ALJ to give a treating source opinion “controlling
weight” if the treating source opinion is “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in the case record.”
20 C.F.R. § 404.1527(d)(2). An ALJ’s decision to grant a treating
physician’s medical opinion less than controlling weight must be
accompanied by “good reasons” that are both: (1) supported by the
evidence in the case record, and (2) 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.
SSR 96-2p[, 1996 WL 374188, at *5 (July 2, 1996)]. The ALJ’s
failure to follow the procedural requirement “of identifying the
reasons for discounting the opinion and for explaining precisely how
those reasons affected the weight accorded the opinions denotes a
lack of substantial evidence, even where the conclusion of the ALJ
may be justified based upon the record.” Rogers v. Comm’r of Soc.
Sec., 486 F.3d 234, 243 (6th Cir. 2007).
Walton, 773 F. Supp. 2d at 748.
The Sixth Circuit has also explained:
If the Commissioner does not give a treating-source opinion
controlling weight, then the opinion is weighed based on the length,
frequency, nature, and extent of the treatment relationship . . . as well
as the treating source’s area of specialty and the degree to which the
opinion is consistent with the record as a whole and is supported by
relevant evidence, id. § 404.1527(c)(2)-(6). . . . This procedural
requirement “ensures that the ALJ applies the treating physician rule
and permits meaningful review of the ALJ’s application of the rule.”
Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004).

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Gayheart v, Comm’r Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013). See also Bowen v. Comm’r of
Soc. Sec., 478 F.3d 742, 747 (6th Cir. 2007) (for additional discussion of the factors the ALJ
must consider under 20 C.F.R. § 404.1527(c)). The Sixth Circuit has further instructed that:
“[a]lthough the regulations instruct an ALJ to consider these factors, they expressly require only
that the ALJ’s decision include ‘good reasons ... for the weight ... given to the treating source’s
opinion’—not an exhaustive factor-by-factor analysis.” Francis v. Comm’r Soc. Sec. Admin.,
414 F. App’x 802, 804 (6th Cir. 2011).
In this case, the ALJ’s decision explained:
The undersigned would note that on March 19, 2013, Dr. Miller
opined that [Plaintiff] was a “candidate for disability”, and “I do not
believe that with her condition, that she would be in the workforce
category that would require anything other than sedentary activities,
and even then, she would have a hard time finding a sitting job as she
is not able to perform a lot of sitting on a prolonged basis” (15F/34).
The undersigned interprets this to mean that Dr. Miller believes that
[Plaintiff] could not perform a range of sedentary work. This opinion
was given one year after [Plaintiff’s] date last insured. However,
given the degenerative nature of [Plaintiff’s] disc disease, it is
presumed that he believed [Plaintiff] had at least this level of
functioning, if not less, prior to her fusion surgery. Consequently, the
undersigned gives other weight to the opinion of Dr. Miller, since it
was given outside of the relevant period and is tantamount to a
disability opinion, a matter reserved to the Commissioner for
determination.
ECF No. 11 at PageID #: 90.
Plaintiff’s first argument focuses solely on the ALJ’s statement regarding the elapse of
time between Plaintiff’s DLI and Dr. Miller’s Opinion, about one year. The Court has previously
recognized the Sixth Circuit’s jurisprudence in this area, which is clear. “Evidence of disability

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obtained after the expiration of insured status is generally of little probative value.” See Walton,
773 F. Supp. 2d at 750 (quoting Strong v. Soc. Sec. Admin., 88 F. App’x 841, 845 (6th Cir.
2004)). The Court explained further:
A claimant must provide medical evidence of his impairments
“during the time you say that he is disabled.” 20 C.F.R. §
404.1512(c). The crucial date in a social security case is the “date
that claimant’s insured status expired.” Barnett v. Sec’y of Health &
Human Servs., No. 86-3111, 1987 WL 36614, at *3 (6th Cir. 1987).
Medical evidence dated after a claimant’s expiration of insured status
is only relevant to a disability determination where the evidence
“relates back” to the claimant’s limitations prior to the date last
insured. Id. The related back evidence is relevant only if it is
reflective of a claimant’s limitations prior to the date last insured,
rather than merely his impairments or condition prior to this date. See
20 C.F.R. § 416.945(a)(1) (“Your impairment(s), and any related
symptoms, such as pain, may cause physical and mental limitations
that affect what you can do in a work setting. Your residual functional
capacity is the most you can still do despite your limitations.”).
Id.
Plaintiff contends that the ALJ failed to discuss whether Dr. Miller’s Opinion “relates
back” to Plaintiff’s limitations prior to the DLI. ECF No. 17 at PageID #: 1049. It is pretty clear,
however, that the ALJ did just that. Plaintiff fails to acknowledge that, as cited above, the ALJ
discussed Plaintiff’s treatment history with Dr. Miller and interpreted Dr. Miller’s Opinion to
mean Dr. Miller believed “the claimant could not perform a range of sedentary work.” ECF No.
11 at PageID #: 90. The ALJ went on to explain that “given the degenerative nature of
[Plaintiff’s] disc disease, it is presumed that [Dr. Miller] believed [Plaintiff] had at least this level
of functioning, if not less, prior to her fusion surgery.” Id (emphasis added). A fair reading of
this confirms that the ALJ interpreted Dr. Miller’s statement as medical evidence that “relates
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back” to Plaintiff’s limitations prior to the DLI and, certainly, prior to her surgery. The ALJ did
not end her consideration of Dr. Miller’s opinion there, however. Dr. Miller’s Opinion states, in
pertinent part:
She has disability with regards to overall mobilization. . . .
I wholeheartedly agree that she is a candidate for disability
application as I do not believe that with her condition, that she would
be in the workforce category that would require anything other than
sedentary activities, and even then, she would have a hard time
finding a sitting job as she is not able to perform a lot of sitting on a
prolonged basis.
Id. at PageID #: 699.
The ALJ found that, because Dr. Miller’s Opinion “opined that [Plaintiff] was a
‘candidate for disability,’” the opinion “is tantamount to a disability opinion, a matter reserved to
the Commissioner for determination.” Id. at PageID #: 90. The Court agrees with the magistrate
judges finding that Dr. Miller did, in fact, opine that Plaintiff was disabled or, at best, should
apply for disability benefits because Plaintiff “had the [Residual Functional Capacity (“RFC”)]
to perform less than sedentary work.” ECF No. 16 at PageID #: 1053-54. The opinions that a
claimant is disabled or an opinion as to a claimant’s RFC are issues ultimately reserved to the
Commissioner. 20 C.F.R. § 404.1527(d). Moreover,
[A] treating physician’s opinion is only entitled to [controlling weight
and deference] when it is a medical opinion. If the treating physician
instead submits an opinion on an issue reserved to the
Commissioner—such as whether the claimant is disabled, unable to
work, the claimant’s RFC, or the application of vocational
factors—[teh ALJ’s] decision need only explain the consideration
given to the treating source’s opinion. The opinion, however, is not
entitled to any particular weight.
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Johnson v. Comm’r of Soc. Sec., 535 F. App’x 498, 505-06 (6th Cir. 2013) (quotations and
citations omitted).
Accordingly, the Court agrees with the magistrate judge’s finding that pursuant to 20
C.F.R. § 404.1527(c), the ALJ provided good reason for the weight that she assigned to Dr.
Miller’s Opinion. The Court also finds that the reason was supported by the evidence in the case
record and was sufficiently specific to make clear to the Court the weight the adjudicator gave to
the treating source’s medical opinion and the reasons for that weight. The ALJ considered the
nature and extent of Plaintiff’s treatment relationship with Dr. Miller, including but not limited to
the fact that Dr. Miller’s Opinion was given one year after the Plaintiff’s DLI (see ECF No. 11 at
PageID #: 89-90). See Bowen, 478 F.3d at 747. As discussed, infra, the ALJ also found that the
Dr. Miller’s Opinion likely “relates back” to Plaintiff’s pre-DLI impairments. In addition, the
ALJ considered whether Dr. Miller’s Opinion was a medical source opinion on issues reserved to
the Commissioner (see ECF No. 11 at PageID #: 90) and found that it was. See 20 C.F.R. §
404.1527(d).
The Court finds that the ALJ did not fail to follow the procedural requirement “of
identifying the reasons for discounting the opinion and for explaining precisely how those
reasons affected the weight accorded the opinions.” See Rogers, 486 F.3d at 243. See also
Johnson, F. App’x at 505-06 (affirming ALJ’s assignment of non-controlling weight to a treating
physician whose opinions were rendered after the DLI and who rendered opinions on an issue

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reserved to the Commissioner). Furthermore, the Court agrees with the magistrate judge’s
finding that the ALJ’s decision is supported by substantial evidence.
Accordingly, Plaintiff’s objections on these grounds are overruled.
2. Plaintiff’s Second Argument
Plaintiff’s second argument was not raised in her brief on the merits. In this argument,
Plaintiff contends that, in violation of the treating physician rule, the ALJ applied greater
scrutiny. Plaintiff deduces this because, in contrast to “some weight” assigned to Dr. Miller’s
Opinion, the ALJ assigned more weight to the opinions of state agency physicians that were also
provided after the DLI. ECF No. 17 at PageID #: 1060. Plaintiff avers that Dr. Miller had
longitudinal knowledge because he “treated []Plaintiff during, before, and after the DLI” and
personally examined Plaintiff, unlike the state agency physicians. Id. at PageID #: 1061-62.
Plaintiff’s second argument is not properly before the Court because it was not presented
to the magistrate judge. However, assuming arguendo that Plaintiff’s second argument is
properly before the Court, the Court finds the comparison drawn unavailing. Having discussed,
infra, the ALJ’s bases for assigning “other weight” to Dr. Miller’s Opinion, it is clear that the
timing of Dr. Miller’s Opinion was not the only factor taken into consideration by the ALJ.
Therefore, this point alone does not help Plaintiff’s objection survive the day.
Accordingly, Plaintiff’s second argument in objection to the magistrate judge’s
recommendation is overruled.

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B. Dr. Donich’s Opinion
The magistrate judge recommends that “the Court find that the ALJ did not err by not
discussing Dr. Donich’s August 4, 2014, statements/opinions [(“Dr. Donich’s Opinions”)] in her
decision” on grounds that Dr. Donich’s Opinions: (1) “did not set or quantify limitations caused
by [Plaintiff’s] condition[;]” and, (2) “did not relate back to [Plaintiff’s] date last insured.” ECF
No. 16 at PageID #: 1056. In cursory fashion, Plaintiff objects to the magistrate judge’s
recommendation. Plaintiff contends that the ALJ’s omission of Dr. Donich’s Opinion from her
decision was in error because, even though Dr. Donich’s Opinion was rendered two (2) years
after Plaintiff’s DLI, his questionnaire responses relate back to Plaintiff’s “pre-surgery disabling
condition as well as the end result of [Plaintiff’s] surgery after the DLI.” ECF No. 17 at PageID
#: 1062. Plaintiff’s arguments are without merit.
The Court has already discussed at length that which is required for a medical opinion
rendered post-DLI to be relevant to a disability determination. Here, the record reflects that, at
the hearing before the ALJ, the ALJ inquired as to whether Dr. Donich’s Opinion relates back to
Plaintiff’s impairment before Plaintiff’s DLI. See ECF No. 11 at PageID #: 102-03. To address
this outstanding issue, the ALJ suggested that counsel for Plaintiff consider having Dr. Donich
testify or submit interrogatories to confirm whether his opinion relates back to Plaintiff’s
impairment pre-DLI. Id. at PageId #: 103. After the hearing, Counsel for Plaintiff sent two (2)
written questions to Dr. Donich to which Dr. Donich responded as follows:
1. Your notes of 6/30/14 indicate a non-union at the surgical site
where surgery was performed in May 2012. Would you please
provide your opinion with regard to when the non-union began, i.e.,
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does it relate all the way back to the surgery or has it occurred at
some point between the surgery and the present time?
Surgery normally heals over one year but fusion did not mature as
expected
2. Your same notes indicate the necessity of surgery. Is the surgery
to correct or revise what was done in the May 2012 surgery?
Yes
Id. at PageID #: 991 (Dr. Donich’s responses in italics). The questions and response were
submitted to the ALJ on August 5, 2014 (see id. at PageID #: 989) and are included in the
administrative record. Id.
Plaintiff concedes that she began seeing Dr. Donich just before the hearing before the
ALJ, i.e., post-DLI. ECF No. 12 at PageID #: 1001 (citing ECF No. 11 at PageID #: 981-88).
Therefore, to be relevant to Plaintiff’s disability determination, Dr. Donich’s Opinion must
“relate back” to Plaintiff’s limitations prior to the DLI. Plaintiff concedes that “Dr. Donich’s
response does not set or quantify limitations.” Id. Moreover, Plaintiff’s surgery occurred on
May 23, 2012—after Plaintiff’s DLI, March 31, 2012. When asked if his opinion relates back to
Plaintiff’s pre-DLI limitations, Dr. Donich’s provided a general assertion of typical healing time
and indicated that Plaintiff’s fusion did not occur as expected. Dr. Donich also confirmed that
his opinion relates to a surgery conducted post-DLI. The Court finds that Plaintiff has failed to
demonstrate that Dr. Donich’s Opinion “relates back” to Plaintiff’s pre-DLI limitations.
Therefore, the Court agrees with the magistrate judge’s finding that Dr. Donich’s Opinion is not
relevant to Plaintiff’s disability determination because the opinion does not “relate back” to the

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Plaintiff’s limitations prior to the date last insured. See Walton, 773 F. Supp. 2d at 750.
Accordingly, the ALJ did not err by not including Dr. Donich’s Opinion in her decision, the
ALJ’s decision to exclude Dr. Donich’s Opinion is supported by substantial evidence, and
Plaintiff’s second objection is overruled.
III.
For the reasons discussed above, Plaintiff’s Objection (ECF No. 17) is overruled. The
Report and Recommendation (ECF No. 16) is adopted. The decision of the Commissioner is
affirmed.

IT IS SO ORDERED.

September 21, 2017
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

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