Harper v. Commissioner of Social Security

Filing 18

Memorandum of Opinion and Order rejecting the Report and Recommendation of the Magistrate Judge and affirming the final decision of the Commissioner of Social Security denying Harper's applications for Disability Insurance. (re 15 ),( 16 Objection to Report and Recommendation). Judge John R. Adams on 8/1/22. (K,C)

Case: 5:21-cv-01078-JRA Doc #: 18 Filed: 08/01/22 1 of 7. PageID #: 833

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
SARAH P. HARPER,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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CASE NO.:

5:21-cv-01078

JUDGE JOHN R. ADAMS

MEMORANDUM OF OPINION AND
ORDER

This matter is before the Court on the Commissioner of Social Security’s (“Commissioner”)
objection to the Magistrate Judge’s Report and Recommendation (“R. & R.”), which
recommended that the Commissioner’s denial of Plaintiff Sarah P. Harper’s (“Harper”)
applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”)
pursuant to Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 416(i), 423, 1381 et seq., be
reversed and remanded for further proceedings. (R. & R. 1, ECF No. 15.) For the following
reasons, the Commissioner’s objection to the R. & R. is well-taken. (See Obj. to R. & R., ECF No.
16.) Accordingly, the Magistrate Judge’s R. & R. is REJECTED, and the final decision of the
Commissioner denying Harper’s applications for DIB and SSI is AFFIRMED.
I.

BACKGROUND
The Magistrate Judge’s R. & R. contains a detailed procedural and factual background,
including a thorough summary of relevant medical evidence and relevant hearing testimony, that
occurred prior to the matter coming before this Court. (R. & R. 1-12, ECF No. 15.) As the parties
have neither objected to nor demonstrated any error contained in that stated background, this Court
will not fully reiterate it herein.

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The issue before this Court stems from information provided by Consultative Examiner Ellen
Offutt, M.D. (“Dr. Offutt”). On October 15, 2018, Dr. Offutt examined Harper and provided the
following:
SUMMARY: The claimant is a 41-year-old female who wants to work, but cannot
work because she has mastocytosis. She has a condition that if her body temperature
goes up at all, she starts to sweat and her mast cell [sic] degranulate and she has an
extreme histamine reaction. . . . She finds that she cannot be in any environment
where the temperature changes, even anxiety causes her to have [a] histamine
reaction. . . . Because of this condition, she would not be able to be in any
environment that had any kind of temperature changes. The problem is that she may
not be able to get to work if it is hot outside, just walking into work may cause her
to have a histamine reaction.
(Tr. 331-334, ECF No. 9 (emphasis added).) Dr. Offutt added that Harper “may find that they treat
her at the Cleveland Clinic and she has better control of her disease, but at this time she would not
be able to be in any work environment that I can think of.” (Id.) Finally, Dr. Offutt provided:
WORK SUMMARY: The claimant’s ability to perform work-related activities
such as bending, stooping, lifting, walking, crawling, squatting, carrying and
traveling as well as pushing and pulling heavy objects is at least severely impaired
due to the stated factors.
(Id. at 335.)
Before the Magistrate Judge, Harper argued that this information from Dr. Offutt is a medical
opinion, as defined by the regulations, such that the ALJ was required by the regulations to
articulate how persuasive she found Dr. Offutt’s opinion when determining Harper’s residual
functional capacity. (See generally Pl.’s Br., ECF No. 11; Pl.’s Reply Br., ECF No. 14.) Harper
argued that the ALJ neglected to specify the persuasiveness of Dr. Offutt’s medical opinion, and
in so doing the ALJ failed to consider all the relevant evidence when determining Harper is not
disabled, thereby reaching a conclusion unsupported by substantial evidence which necessitates
reversal. (See generally Pl.’s Br., ECF No. 11; Pl.’s Reply Br., ECF No. 14.) The Commissioner,
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on the other hand, argued that Dr. Offutt did not provide a medical opinion as defined by the
regulations, but rather provided a general statement such that the ALJ was not required to articulate
the persuasiveness of Dr. Offutt’s statement. (See generally, Def.’s Br., ECF No. 13.) Therefore,
according to the Commissioner, any omitted discussion of Dr. Offutt’s statement by the ALJ was
not error and the ALJ’s determination that Harper is not disabled was supported by substantial
evidence. (Id.) With respect to these arguments, the Magistrate Judge concluded that “Dr. Offutt’s
statements are medical opinions under Agency regulations” such that “the ALJ was required to
articulate their persuasiveness.” (R. & R. 20, ECF No. 15.) The Magistrate Judge ultimately
determined that the ALJ did not articulate how persuasive she found Dr. Offutt’s medical opinion,
leading the Magistrate Judge to conclude that substantial evidence did not support the ALJ’s
determination that Harper is not disabled because the ALJ did not consider all medical opinions in
Harper’s record. (Id. at 15-21.) Given these findings, the Magistrate Judge recommended remand
of the matter for further consideration. (Id.) The Commissioner timely filed an objection to the R.
& R., to which Harper responded. (Obj. to R. & R., ECF No. 16; Resp. to Obj. to R. & R., ECF
No. 17.)
II.

STANDARD OF REVIEW
When a written objection to a Magistrate Judge’s R. & R. is timely submitted, this Court must

review de novo those portions of the R. & R. specifically objected to. 28 U.S.C. § 636(b)(1). A
general objection to the entirety of the Magistrate Judge’s R. & R. is not sufficient to trigger review
by this Court. Howard v. Sec’y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991).
Specific objections to the Magistrate Judge’s R. & R. are necessary in order to focus this Court’s
attention to specific issues for review. Id. Accordingly, the Commissioner’s specific objection is
that the Magistrate Judge erred in concluding that the statement provided by Dr. Offutt was a

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medical opinion according to the regulations. (See Obj. to R. & R., ECF No. 16.) The threshold
issue before this Court, therefore, is whether the statement provided by Dr. Offutt is a medical
opinion as defined by the applicable regulations.
III.

ANALYSIS
According to the regulations, a medical opinion
is a statement from a medical source about what you can still do despite your
impairment(s) and whether you have one or more impairment-related limitations
or restrictions in the following abilities: . . .
(i) Your ability to perform physical demands of work activities, such as sitting,
standing, walking, lifting, carrying, pushing, pulling, or other physical functions
(including manipulative or postural functions, such as reaching, handling, stooping,
or crouching);
. . . and
(iv) Your ability to adapt to environmental conditions, such as temperature
extremes or fumes.

20 C.F.R. § 404.1513(a)(2) (2017) (emphasis added). Given this definition, this Court agrees with
the Commissioner that the information provided by Dr. Offutt is not a medical opinion as defined
by the regulations, primarily because Dr. Offutt’s statement fails to indicate what Harper “can still
do” despite her impairments. The regulation defines that a statement from a medical source is
considered a medical opinion when the statement enumerates “what you can still do despite your
impairment(s).” Id. Although Dr. Offutt hypothesized “at this time [Harper] would not be able to
be in any work environment that I can think of” and Harper’s “ability to perform work-related
activities . . . is at least severely impaired,” neither of these statements articulate what Harper can
still do despite her mastocytosis diagnosis. See Mason v. Comm’r of Soc. Sec., No. 3:20-CV02013-JGC, 2021 U.S. Dist. LEXIS 254338, at *21 (N.D. Ohio Dec. 15, 2021), report and
recommendation adopted, 2022 U.S. Dist. LEXIS 35061 (N.D. Ohio Feb. 28, 2022) (finding a
physician’s statement is not a medical opinion when it “does not state what [Plaintiff] can still do

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despite her headaches, nor does it offer an opinion on the functional limitations posed by
[Plaintiff’s] headaches”). See also Gabel v. Kijakazi, No. 1:20-CV-334-DCP, 2022 U.S. Dist.
LEXIS 115067, at *21-22 (E.D. Tenn. June 29, 2022) (concluding a physician’s statement that
“Plaintiff ‘will have permanent limitations in terms of what he can and can not do’” is not a medical
opinion because the vague statement “fails to adequately indicate what Plaintiff ‘can still do’
despite his impairments” and “provide[s] no insight as to how Plaintiff would be able to perform
the physical demands of any specific work activities”).
The Magistrate Judge concluded that “Dr. Offutt’s statements regarding Ms. Harper’s
limitations appear to satisfy the Agency’s requirements to be considered a medical opinion, as they
describe limitations in environmental exposure . . . and Ms. Harper’s limitations in her ability to
perform the physical demands of work activities.” (R. & R. 20, ECF No. 15.) This Court disagrees
with the Magistrate Judge’s conclusion. Dr. Offutt’s statements are vague and generalized.
Submitting that Harper “would not be able to be in any work environment that I can think of” and
Harper’s “ability to perform work-related activities . . . is at least severely impaired” does not
actually articulate limitations or restrictions such that this Court has insight regarding Harper’s
ability to perform any specific work activity. Rather, Dr. Offutt’s statements are painted in broad
strokes. To borrow words from the ALJ, Dr. Offutt “did not offer a function-by-function analysis
of [Harper’s] work-related abilities.” (Tr. 31, ECF No. 9.) Although Dr. Offutt generalized that
Harper is limited in her ability to adapt to environmental changes and her ability to perform
physical demands of work activities, Dr. Offutt “declined to link these relevant findings to specific
conclusions about [Harper’s] functioning.” (Id. at 32.) Instead, Dr. Offutt “has left it up to the
reader to reach specific conclusions about [Harper’s] functioning based on the information [s]he
provided.” (Id.) Dr. Offutt’s failure to specify any work activity Harper could still do despite her

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impairments is reason enough to conclude that the information provided by Dr. Offutt is not a
medical opinion according to the applicable regulations.
For above enumerated reasons, this Court finds that the information submitted by Dr. Offutt is
not a medical opinion as defined by the regulations. Given this conclusion, the ALJ was not
required to specifically articulate how persuasive she found Dr. Offutt’s statement. Any omission
by the ALJ of the persuasiveness of Dr. Offutt’s statements is not error. In the interest of finality,
this Court will note that the ALJ thoroughly summarized Harper’s entire record, including
Harper’s visit with Dr. Offutt, and concluded that Harper’s own “statements concerning the
intensity, persistence and limiting effects of [her] symptoms are not entirely consistent with the
medical evidence and other evidence in the record,” especially considering Harper’s “treatment
providers and the consultative examiners did not report profuse sweating or apparent discomfort
in clinical settings.” (Tr. 30, ECF No. 9.) The ALJ explicitly affirmed she had “fully considered
the medical opinions and prior administrative medical findings” and found them to be “partially
persuasive.” (Id. at 31.) Although this Court need not reach the issue of whether the ALJ met the
regulatory standards for considering Dr. Offutt’s statement because it is not a medical opinion, it
is this Court’s view that the ALJ explained that she found Dr. Offutt’s statement, to the extent it
need be considered, to be only partially persuasive and thoroughly explained why. Therefore, the
ALJ’s determination that Harper is not disabled is properly supported by substantial evidence as
the ALJ considered all medical opinions in Harper’s record as required by the regulations.
IV.

CONCLUSION
For the foregoing reasons, the Commissioner’s objection to the Magistrate Judge’s Report and

Recommendation is well-taken. Therefore, the Magistrate Judge’s Report and Recommendation is

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REJECTED, and the final decision of the Commissioner of Social Security denying Harper’s
applications for Disability Insurance Benefits and Supplemental Security Income is AFFIRMED.
IT IS SO ORDERED.
DATE: August 1, 2022

/s/ John R. Adams
Judge John R. Adams
UNITED STATES DISTRICT COURT

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