Shirley v. Commissioner of Social Security et al
Filing
22
REPORT AND RECOMMENDATION that the decision of the Commissioner be Affirmed. Objections to R&R due by 11/21/2016. Signed by Magistrate Judge Karen L. Litkovitz on 11/3/2016. (art)
UNITED ST ATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
LESLIE ANN SHIRLEY,
Plaintiff,
Case No. 1: 1~-cv-726
Barrett, J.
Litkovitz, M.J.
vs.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
REPORT AND
RECOMMENDATION
Plaintiff Leslie Ann Shirley brings this action pursuant to 42 U.S.C. § 405(g) for judicial
review of the final decision of the Commissioner of Social Security ("Commissioner") denying
plaintiffs application for disability insurance benefits ("DIB"). This matter is before the Court
on plaintiffs statement of errors (Doc. 13), the Commissioner's memorandum in opposition
(Doc. 18), and plaintiffs reply memorandum (Doc. 21 ).
I. Procedural Background
Plaintiff filed her application for DIB in August 2011, alleging disability since February
26, 2007 due to generalized epilepsy disorder, migraines, and depression. The application was
denied initially and upon reconsideration. Plaintiff, through counsel, requested and was granted
a hearing before administrative law judge ("ALJ") Larry A. Temin. Plaintiff, a medical expert,
and a vocational expert ("VE") appeared and testified at the ALJ hearing. On March 26, 2014,
the ALJ issued a decision denying plaintiffs DIB application. Plaintiffs request for review by
the Appeals Council was denied, making the ALJ's decision the final administrative decision of
the Commissioner.
II. Analysis
A. Legal Framework for Disability Determinations
To qualify for disability benefits, a claimant must suffer from 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 12 months. 42 U .S.C. § 423(d)(l )(A).
The impairment must render the claimant unable to engage in the work previously performed or
in any other substantial gainful employment that exists in the national economy. 42 U.S.C. §
423(d)(2).
Regulations promulgated by the Commissioner establish a five-step sequential evaluation
process for disability determinations:
1) If the claimant is doing substantial gainful activity, the claimant is not disabled.
2) If the claimant does not have a severe medically determinable physical or
mental impairment - i. e., an impairment that significantly limits his or her
physical or mental ability to do basic work activities - the claimant is not
disabled.
3) If the claimant has a severe impairment(s) that meets or equals one of the
listings in Appendix I to Subpart P of the regulations and meets the duration
requirement, the claimant is disabled.
4) If the claimant' s impairment does not prevent him or her from doing his or her
past relevant work, the claimant is not disabled.
5) If the claimant can make an adjustment to other work, the claimant is not
disabled. If the claimant cannot make an adjustment to other work, the claimant
is disabled.
Rabbers v. Comm 'r ofSoc. Sec., 582 F.3d 647, 652 (6th Cir. 2009) (citing 20 C.F.R. §§
404. l 520(a)(4)(i)-(v), 404. l 520(b)-(g)). The claimant has the burden of proof at the first four
steps of the sequential evaluation process. Id.; Wilson v. Comm 'r a/Soc. Sec., 378 F.3d 541, 548
(6th Cir. 2004). Once the claimant establishes a prima facie case by showing an inability to
2
perform the relevant previous employment, the burden shifts to the Commissioner to show that
the claimant can. perform other substantial gainful employment and that such employment exists
in the national economy. Rabbers, 582 F.3d at 652; Harmon v. Apfel, 168 F.3d 289, 291 (6th
Cir. 1999).
B. The Administrative Law Judge's Findings
The ALJ applied the sequential evaluation process and made the following findings of
fact and conclusions of law:
1. The [plaintiff] last met the insured status requirements of the Social Security
Act on June 30, 2012.
2. The [plaintiff] did not engage in substantial gainful activity during the period
from her alleged onset date of February 26, 2007 through her date last insured of
June 30, 2012 (20 CFR 404.1571 , et seq.).
3. Through the date last insured, the [plaintiff] had the following severe
impairments: a seizure disorder; obesity; lumbar spine degenerative changes;
degenerative changes of the bilateral patellofemoral joints; and a mood disorder
(20 CFR 404.1520(c)).
4. Through the date last insured, the [plaintiff] did not have an impairment or
combination of impairments that met or medically equaled the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix l (20 CFR
404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the undersigned finds that,
through the date last insured, the [plaintiff] had the residual functional capacity
[("RFC")] to perform light work as defined in 20 CFR 404.1567(b). Specifically,
the [plaintiff] can perform work activity except as follows: The [plaintiff] can
lift/carry/push/pull up to 20 pounds occasionally and 10 pounds frequently. She
can stand and/or walk for 6 hours in an 8-hour workday, and can sit for 6 hours in
an 8-hour workday. The [plaintiff] is limited to no more than occasional
stooping, kneeling, crouching, and climbing of ramps and stairs. She should
never craw, climb ladders/ropes/scaffolds, or work at unprotected heights or
around hazardous machinery. The [plaintiff] is able to perform only simple,
routine, repetitive tasks and is able to remember and carry out only short and
simple instructions. Her job should not require more than superficial and
occasional interaction with the general public, coworkers, or supervisors. She
cannot work at a rapid production-rate pace. Her job should not require more
3
than ordinary and routine changes in work setting or duties. The [plaintiff] is able
to make only simple work-related decisions.
6. Through the date last insured, the [plaintiff] was unable to perfonn any past
relevant work (20 CFR 404.1565). 1
7. The [plaintiff] was born [in] 1973 and was 39 years old, which is defined as a
younger individual age 18-49, on the date last insured (20 CFR 404.1563).
8. The [plaintiff] 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 detennination of disability
because using the Medical-Vocational Rules as a framework supports a finding
that the [plaintiff] is "not disabled," whether or not the [plaintiff] has transferable
job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
l 0. Through the date last insured, considering the [plaintiffs] age, education,
work experience, and residual functional capacity, there were jobs that existed in
significant numbers in the national economy that the [plaintiff] could have
perfonned (20 CFR 404.1569 and 404.1569(a)). 2
11. The [plaintiff] was not under a disability, as defined in the Social Security
Act, at any time from February 26, 2007, the alleged onset date, through June 30,
2012, the date last insured (20 CFR 404.1520(g)).
(Tr. 26-39).
C. Judicial Standard of Review
Judicial review of the Commissioner' s detennination is limited in scope by 42 U.S.C. §
405(g) and involves a twofold inquiry: (1) whether the findings of the ALJ are supported by
substantial evidence, and (2) whether the ALJ applied the correct legal standards. See Blakley v.
Comm 'r ofSoc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see also Bowen v. Comm 'r ofSoc. Sec.,
478 F.3d 742, 745-46 (6th Cir. 2007).
1
Plaintiffs past relevant work was as a kennel attendant and a nurse assistant, both medium semi-skilled positions;
a night auditor, a sedentary, skilled position; and an administrative clerk, a sedentary, semi-skilled position. (Tr. 38,
98, 242).
2
The ALJ relied on the VE' s testimony to find that plaintiff would be able to perform the requirements of
representative light occupations such as cleaner/housekeeper, with 1,500 jobs regionally and 275,000 nationally; an
assembler of small products, with 6,000 jobs regionally and 675,000 nationally; and an inspector, with 1,600 jobs
regionally and 190,000 nationally. (Tr. 38, 99-100).
4
The Commissioner 's findings must stand if they are supported by " such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales,
402 U.S. 389, 40 1 (1971) (citing Consolidated Edison Co. v. NL. R.B. , 305 U.S. 197, 229
(1938)). Substantial evidence consists of "more than a scintilla of evidence but Jess than a
preponderance. . .. " Rogers v. Comm'r o/Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). In
deciding whether the Commissioner's findings are supported by substantial evidence, the Court
considers the record as a whole. Hephner v. Mathews, 574 F.2d 359 (6th Cir. 1978).
The Court must also determine whether the ALJ applied the correct legal standards in the
disability determination. Even if substantial evidence supports the ALJ's conclusion that the
plaintiff is not disabled, "a decision of the Commissioner will not be upheld where the SSA fails
to follow its own regulations and where that error prejudices a claimant on the merits or deprives
the claimant of a substantial right." Rabbers, 582 F.3d at 651 (quoting Bowen, 478 F.3d at 746).
See also Wilson, 378 F.3d at 545-46 (reversal required even though ALJ' s decision was
otherwise supported by substantial evidence where ALJ failed to give good reasons for not
giving weight to treating physician's opinion, thereby violating the agency's own regulations).
D. Specific Errors
On appeal, plaintiff argues that the ALJ: (I) failed to properly weigh the opinion of
treating psychiatrist Kode Murthy, M.D.; (2) improperly ignored pertinent portions of the
opinion of consultative examining psychologist Andrea Johnson, Psy.D.; (3) failed to properly
evaluate plaintiff's subjective complaints and credibility; (4) failed to consider the impact of
plaintiff's obesity on her ability to work; and (5) failed to properly evaluate plaintiffs RFC. (See
generally Doc. 13).3
3
As they are related , the Court considers ass ignments of error 4 and 5 together.
5
1. Substantial evidence supports the AL.J's assessment o[Dr. Murthy 's opinion.
Plaintiff argues the ALJ failed to give appropriate weight to the opinion of her treating
4
physician Dr. Murthy. (Doc. 13 at 13-18). Plaintiff contends that the opinions of nonexarnining state consultative psychologists do not constitute substantial evidence in support of
the ALJ 's assessment because they rendered their opinions before the agency received plaintiffs
medical records. (Id. at 15). Plaintiff argues the ALJ cherry-picked portions of the record that
supported his findings instead of properly analyzing the entire record. (Id. at 17). Plaintiff
contends the ALJ failed to give good reasons for rejecting Dr. Murthy's opinion. (Id. at 17-1 8).
It is well-established that the findings and opinions of treating physicians are entitled to
substantial weight. "In general, the opinions of treating physicians are accorded greater weight
than those of physicians who examine claimants only once." Walters v. Comm 'r ofSoc. Sec.,
127 F.3d 525, 529-30 (6th Cir. 1997). See also 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 uncontradicted, complete deference."). "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." Barker v. Shala/a, 40 F.3d 789, 794 (6th
Cir. 1994).
"Treating-source opinions must be given ' controlling weight' if two conditions are met:
(I) the opinion 'is well-supported by medically acceptable clinical and laboratory diagnostic
techniques'; and (2) the opinion 'is not inconsistent with the other substantial evidence in (the]
case record."' Gayheart v. Comm 'r ofSoc. Sec., 7 10 F.3d 365, 376 (6th Cir. 2013) (citing20
4
Page citations to plaintiff's briefrefer to the page numbers provided by CM/ECF.
6
C.F.R. § 404.1527(c)(2)). See also Cole v. Astrue, 661F.3d931 , 937 (6th Cir. 2011). If the ALJ
declines to give a treating source ' s opinion controlling weight, the ALJ must balance the factors
set forth in 20 C.F.R. § 404. l 527(c)(2)-(6) in determining what weight to give the opinion. See
Gayheart, 710 F.3d at 376; Wilson , 378 F.3d at 544. These factors include the length, nature and
extent of the treatment relationship and the frequency of examination. 20 C.F.R. §
404. l 527(c)(2)(i)-(ii); Wilson, 378 F.3d at 544. In addition, the ALJ must consider the medical
specialty of the source, how well-supported by evidence the opinion is, how consistent the
opinion is with the record as a whole, and other factors which tend to support or contradict the
opinion. 20 C.F.R. § 404.1527(c)(3)-(6); Gayheart, 710 F.3d at 376; Wilson, 378 F.3d at 544.
" Importantly, the Commissioner imposes on its decision makers a clear duty to ' always
give good reasons in [the] notice of determination or decision for the weight [given a] treating
source' s opinion."' Cole, 661 F.3d at 937 (citation omitted). See also Wilson, 378 F.3d at 544
(ALJ must give "good reasons" for the ultimate weight afforded the treating physician opinion).
Those reasons must be "supported by the evidence in the case record, and must be 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." Cole, 661 F.3d at 937 (citing SSR
96-2p, 1996 WL 374188 at *5 (1996)). This procedural requirement "ensures that the ALJ
applies the treating physician rule and permits meaningful review of the ALJ's application of the
rule." Gayheart, 710 F.3d at 376 (quoting Wilson, 378 F.3d at 544).
The medical record shows that plaintiff first saw Dr. Murthy on June 22, 2012. (Tr. 513).
Plaintiff complained of a history of crying spells, occasional suicidal thoughts, and recent weight
gain. Plaintiff had a good appetite and good sleep, and she was "good with help of meds." (Id.).
On examination, Dr. Murthy found that plaintiff was able to express herself well, was depressed,
and was not anxious. Plaintiff had a good memory, no psychosis, a blunted affect, intact
7
judgment, and superficial insight. Dr. Murthy diagnosed plaintiff with bipolar affective disorder
and assigned her a GAF score of 55. 5 Dr. Murthy increased the dosage of plaintiff's Zoloft from
100 milligrams daily to 200 milligrams daily. (Id).
When seen on July 13, 2012 for medication management, plaintiff reported her
medications were helping and she did not have any suicidal or homicidal thoughts. (Tr. 514 ).
On July 30, 2012, Dr. Murthy completed a questionnaire for disability purposes. (Tr.
419-2 1, 515-16). Dr. Murthy reported that plaintiff had a depressed mood and blunted affect,
poor concentration, patchy memory, poor frustration tolerance, moderate impairment of daily
activities, and moderate impairment of interests, habits, and behavior. (Tr. 420, 515-16). Dr.
Murthy also found that plaintiff had poor social interactions and a poor ability to tolerate stress.
(Tr. 420-21, 516). Dr. Murthy indicated he had seen plaintiff at only two appointments before
completing the questionnaire. (Tr. 421 , 5 I 6).
Dr. Murthy saw plaintiff at ten additional appointments for medication management
between August 20 I 2 and February 2014, but his treatment notes are largely unremarkable. (See
Tr. 514-1 5). Notably, Dr. Murthy remarked that an increased dosage ofWellbutrin was
"helpful" in September 2012, that plaintiff complained of "feeling more depressed and more
agitated" in October 20 12, and that plaintiff was " doing well with medications" in December
20 12. (See Tr. 514).
5
A GAF score represents "the clinician 's judgment of the individual 's overall level of functioning." American
Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders ("DSM-IV") 32 (4th ed., text rev.
2000). The GAF score is taken from the GAF scale, which " is to be rated with respect only to psychological, social ,
and occupational function ing." Id. The GAF scale ranges from I00 (superior function ing) to I (persistent danger of
severely hmting self or others, persistent inability to maintain minimal personal hygiene, or serious suicidal act with
clear expectation of death). Id. at 34. Individuals with GAF scores of 51 to 60 have "[m]oderate symptoms (e.g.,
flat affect and circumstantial speech, occasional panic attacks), or moderate difficulty in social, occupational, or
school functioning (e.g., few friends, conflicts with peers or co-workers)." Id.
8
In September 2013, Dr. Murthy completed a mental status questionnaire in which he
noted that plaintiffs symptoms included marked diminished interest or pleasure in almost all
activities (except playing with her five-year-old son), appetite disturbance with change in weight,
sleep disturbance characterized by frequent awakening, psychomotor retardation, decreased
energy, feelings of worthlessness, and difficulty concentrating. (Tr. 464, 516). Dr. Murthy
opined that plaintiff had extreme limitations in her ability to: (I) complete a normal workday
and workweek without intenuption from psychological symptoms; (2) understand, remember,
and carry out complex job instructions; and (3) deal with work-related stress on a sustained basis.
(Id. at 465-66; 516-17). Dr. Murthy opined that plaintiff had marked limitations in her ability to:
(1) understand, remember, and carry out detailed, but not complex, job instructions; (2) perform
activities within a schedule; (3) function independently; (4) get along with coworkers or peers;
(5) maintain socially appropriate behavior; (6) be aware of normal hazards and take appropriate
precautions; (7) respond appropriately to workplace changes; (8) perform activities of daily
living; (9) maintain social functioning; and (I 0) maintain concentration, persistence, or pace.
(Id. at 465-66, 517). Further, Dr. Murthy opined that plaintiff had moderate limitations in her
ability to: (I) understand and remember simple instructions; (2) carry out short, simple
instructions; (3) maintain regular attendance and be punctual; (4) work in coordination with or
proximity to coworkers without distraction; (5) accept instructions and criticisms from
supervisors; and (6) make simple work-related decisions. (Tr. 465, 517). In support of his
opinion, Dr. Murthy noted that plaintiff "was on several psychotropic meds before she came to
see me and now she is on from me: I). Zoloft, 2). Abilify, 3). Lithium." (Tr. 466, 517).
The ALJ declined to give controlling weight to Dr. Murthy's September 2013 opinion,
finding that it was not well-supported by medically acceptable clinical and diagnostic laboratory
techniques and was not consistent with the other substantial evidence in the record. (Tr. 37).
9
The ALJ noted that Dr. Murthy's treatment records "are quite brief and do not support the
limitations he gives." (Id.). Further, the ALJ found that the single progress note that predated
plaintiffs date last insured did not support the work-related limitations contained in Dr.
Murthy 's opinion. The ALJ concluded that Dr. Murthy' s assessment of a GAF score of 55 was
indicative of moderate symptomatology and was consistent with the record. The ALJ found that
the limitations that Dr. Murthy identified were not consistent with plaintiff's GAF score or the
record. The ALJ also noted that Dr. Murthy did not cite any support for his opinion and did not
state that the limitations he identified were in effect prior to plaintiffs date last insured. The
ALJ gave Dr. Murthy's opinion little weight, finding that while he was a treating psychiatrist, he
only saw plaintiff once before her date last insured and his progress notes did not support his
conclusions or provide substantive information about plaintiff's functioning. (Id.).
Here, the ALJ gave good reasons for not giving Dr. Murthy's opinion controlling weight
and those reasons are substantially supported by the record. First, substantial evidence supports
the ALJ's determination that Dr. Murthy 's opinion was inconsistent with his treatment notes. At
plaintiff's first appointment with Dr. Murthy in June 2012, she complained of crying spells,
occasional suicidal thoughts, and recent weight gain, and her mental status examination revealed
depression and blunted affect, but Dr. Murthy noted that she was " good with help of meds" and
had good appetite, sleep, and memory. (Tr. 513). At her next appointment in July 2012, Dr.
Murthy noted that plaintiff's medications were helping and she did not have any suicidal or
homicidal thoughts. (Tr. 514). Dr. Murthy reported no abnormal findings at later appointments
except plaintiffs complaint of feeling more depressed and agitated in October 2012. (See Tr.
514-15). Further, Dr. Murthy noted that plaintiff's medications were helping her at appointments
in September and December 2012. (Tr. 514 ). In short, the lack of abnormal findings in Dr.
Murthy' s treatment records is inconsistent with the extensive limitations he identified in his
10
September 2013 opinion. Thus, the ALJ properly discounted the conclusory findings in Dr.
Murthy's opinion concerning the degree of plaintiffs functional limitations. See Buxton v.
Halter, 246 F.3d 762, 773 (6th Cir. 2001) ("[T]he ALJ is not bound by conclusory statements of
doctors, particularly where they are unsupported by detailed objective criteria and
documentation.").
Second, the ALJ properly noted that Dr. Mmthy' s September 2013 opinion was
submitted more than a year after plaintiffs date last insured and failed to indicate whether the
limitations he identified were present before the date last insured. To obtain DIB benefits,
plaintiff must establish that the "onset of disability" was prior to June 30, 2012, the date her
insured status expired, and that her disability lasted for a continuous period of twelve months. 42
U.S.C. § 423(a), (c), (d)(I)(A). See Smith v. Comm 'r ofSoc. Sec., 202 F.3d 270 (6th Cir. 1999)
(citing Moon v. Sullivan, 923 F.2d 1175, 1182 (6th Cir. 1990); Higgs v. Bowen, 880 F.2d 860,
862 (6th Cir. 1988)). Post-insured status evidence of new developments in a claimant's
condition is generally not relevant. Bagby v. Harris, 650 F.2d 836 (6th Cir. 1981). Such
evidence may be examined, however, when it establishes that the impairment existed
continuously and in the same degree from the date plaintiffs insured status terminated. See
Johnson v. Sec 'y ofHE. W. , 679 F.2d 605 (6th Cir. 1982). See also King v. Sec '.Y ofHHS, 896
F.2d 204, 205-06 (6th Cir. 1990) (post-expiration evidence may be considered, but it must relate
back to plaintiffs condition prior to the expiration of date last insured). In his opinion, Dr.
Murthy failed to specify whether the limitations he identified in September 2013 were also
present prior to the expiration of plaintiffs insured status on June 30, 2012, despite being
explicitly asked, "how long (date you were able to support this assessment) the individual has
been impaired by these findings." (Tr. 517). Nor do Dr. Murthy' s treatment notes reflect that
plaintiffs functional limitations in September 2013 were of the same degree as those before her
1l
insured status lapsed. Thus, the ALJ reasonably relied on this deficiency in assessing Dr.
Murthy 's opinion.
For these reasons, the Court determines that the ALJ reasonably declined to give Dr.
Murthy's opinion controlling weight. See Gayheart, 710 F.3d at 376.
Moreover, substantial evidence supports the ALJ's consideration of the regulatory factors
in weighing Dr. Murthy's opinion. See 20 C.F.R. § 404.1527(c)(2)-(6). The ALJ noted that Dr.
Murthy was a specialist in the field of mental health and began treating plaintiff in June 2012.
See 20 C.F.R. § 404.1527(c)(2), (5). However, in affording little weight to Dr. Murthy's
opinion, the ALJ emphasized that Dr. Murthy only saw plaintiff once before her date last insured
of June 30, 2012, and his opinion of September 2013 was not supported by his treatment notes.
See 20 C.F.R. § 404.1527(c)(2)-(3). As explained above, substantial evidence supports these
reasons for discounting Dr. Murthy' s opinion.
The ALJ also considered the consistency of Dr. Murthy' s opinion with the record as a
whole. See 20 C.F.R. § 404.1527(c)(4). Dr. Murthy' s opinion was inconsistent with those of
Drs. Rivera and Lewin, the non-examining state agency psychological consultants, and Dr.
Rogers, the medical expert who testified at the hearing. All three psychologists opined that
plaintiffs mental limitations were not work-prohibitive. Plaintiff takes issue with the ALJ's
decision to give greater weight to the opinions of the state agency psychologists and medical
expert, arguing that none of these psychologists actually examined plaintiff, whereas Dr. Murthy
treated plaintiff for twenty-one months. Plaintiff also contends that Drs. Rivera and Lewin
completed their reports prior to any mental health treatment records being received into the
records.
Plaintiffs focus on the long-standing nature of Dr. Murthy' s treating relationship is
misplaced because, as explained above, Dr. Murthy treated plaintiff on only one occasion prior
12
to the expiration of her insured status and failed to relate the limitations he assessed in September
2013 back to the date he first treated plaintiff. Therefore, the ALJ was not required to give more
weight to Dr. Murthy's opinion on this basis. Nor was the ALJ required to give Dr. Murthy's
opinion more weight based on the treating physician 's area of specialization given that Drs.
Rogers, Rivera, and Lewis likewise specialize in the treatment of mental illness. Cf 20 C.F .R. §
404. l 527(c)(5) ("We generally give more weight to the opinion of a specialist about medical
issues related to his or her area of specialty than to the opinion of a source who is not a
specialist."). The ALJ reasonably noted that plaintiff had received little in the way of mental
health treatment prior to her date last insured and that the opinions of Drs. Rivera and Lewis
were consistent with those sparse treatment records and with the actual examination findings of
Dr. Johnson, the consultative examining psychologist. (Tr. 36). In addition, the ALJ reasonably
considered that Dr. Rogers, the medical expert, had the benefit of examining all the evidence in
the record, as well as plaintiff's hearing testimony, in rendering his opinion on plaintiff's
functional capacity prior to her date last insured. (Tr. 37). See 20 C.F.R. § 404. l 527(c)(6) ("the
amount of understanding of our disability programs and their evidentiary requirements that an
acceptable medical source has, ... and the extent to which an acceptable medical source is
familiar with the other information in your case record are relevant factors that we will consider
in deciding the weight to give to a medical opinion"). Based on the foregoing, substantial
evidence supports the ALJ's assessment of Dr. Murthy's opinion and this assignment of error
should be overruled.
2. Substantial evidence supports the ALJ's assessment o[Dr. Johnson's opinion.
Plaintiff argues the ALJ failed to give appropriate weight to the opinion of consultative
psychologist Dr. Johnson. (Doc. 13 at I 0). Plaintiff contends the ALJ erred by ignoring parts of
Dr. Johnson's opinion that indicated plaintiff would show a pattern of time away from work for
13
mental health reasons and would not respond appropriately to coworkers. Plaintiff argues that
the ALJ improperly discounted Dr. Johnson's opinion for being based on plaintiffs self-reported
symptoms because psychological treatment is dependent on a patient's subjective complaints.
(Id.). Plaintiff contends the ALJ cherry-picked only those portions of Dr. Johnson' s opinion that
supported a finding of non-disability. (Id. at I 0-11 ).
"[O]pinions from nontreating ... sources are never assessed for 'controlling weight."'
Gayheart, 710 F.3d at 376. "The Commissioner instead weighs these opinions based on the
examining relationship (or lack thereof), specialization, consistency, and supportability, but only
if a treating-source opinion is not deemed controlling." Id. (citing 20 C.F.R. § 404.1527(c)).
"Other factors 'which tend to support or contradict the opinion ' may be considered in assessing
any type of medical opinion." Id. (quoting 20 C.F.R. § 404.1527(c)(6)).
Dr. Johnson, a clinical psychologist, examined plaintiff in April 2012 for disability
purposes. (Tr. 3 74-79). Plaintiff reported that she socializes with a group of girlfriends, her
husband, her best friend, and her son. (Tr. 375). Her level of social functioning had not declined
recently and she reported participation in several hobbies and social activities, including dinner
with friends, walks in the park, parties, and taking her son to playdates with her friends ' children.
Plaintiff endorsed a history of undiagnosed learning difficulties, including "a problem retaining
information." (Id.) . Plaintiff reported that she had a history of seizures and took psychiatric
medications prescribed by her neurologist and primary care physician to help manage symptoms
but she continued to experience difficulties. Specifically, plaintiff reported that she was taking
Topamax (antiepileptic), Klonopin (a benzodiazepine used to prevent and treat seizures), and
Zoloft (antidepressant). (Id.). Plaintiff reported a history of anger/rage issues but was not
currently receiving mental health treatment. (Tr. 376).
14
Plaintiff reported that she was terminated from a job at a nursing home in 2007 for "anger
issues." (Id.). She reported difficulty interacting with other staff members, a "significant"
history of interpersonal problems with supervisors and coworkers, and "some" history of
difficulty in maintaining adequate pace at past jobs. Dr. Johnson noted that based on plaintiff' s
reported history of anger problems "(s]he is likely to have some difficulties with job related
tasks." (Id.). Plaintiff reported doing all activities of daily living necessary to care for her son,
her home, and herself. (Id.).
On mental status examination, plaintiff was "marginally cooperative" and volunteered
information and details readily. (Id.). Plaintiff's mood was irritable with congruent affect and
she was tearful during the evaluation. (Tr. 377). Dr. Johnson noted no manifestations of
anxiety, but plaintiff endorsed subjective anxiety. Plaintiff's attention and concentration were
fair, her ability to abstract was adequate, her cognitive functioning was estimated to be in the low
average range of functioning, and she was able to understand and follow directions. Dr. Johnson
noted that plaintiff demonstrated no difficulties with her memory during the evaluation but also
noted that she performed below average on memory/recall tasks. Plaintiff had fair insight, good
motivation, and appeared psychologically capable ofliving independently, making decisions
about her future, and seeking appropriate community services. (Id.).
Dr. Johnson diagnosed plaintiff with a mood disorder and personality disorder and
assigned a GAF score of 60. {Tr. 378). Dr. Johnson opined that plaintiff would have some
difficulties with job-related tasks due to mental health problems. Dr. Johnson noted that plaintiff
was able to understand and follow directions and seemed capable of applying instructions that
required low average intellectual functioning. Dr. Johnson opined that plaintiff was able to
concentrate on tasks and would show work pace similar to her work peers. However, Dr.
Johnson opined that plaintiff was "likely to show a pattern of periods of time away from work
15
for mental health reasons." (Id.). Dr. Johnson noted that plaintiffs interaction during the
evaluation was marginally adequate, but opined that plaintiff was unlikely to respond
appropriately to coworkers in a work setting due to a reported history of significant interpersonal
problems with supervisors and coworkers. (Tr. 379). Dr. Johnson opined that based on
plaintiffs self-reported history, she was unable to respond appropriately to work stress.
However, Dr. Johnson opined that plaintiff was currently experiencing some stressors and had
adequate social supports in place to effectively cope with additional stressors. (Id.).
The ALJ gave only some weight to Dr. Johnson' s opinion because he found her opinion
to be internally inconsistent. (Tr. 36). Substantial evidence supports the ALJ's assessment of
Dr. Johnson 's opinion. While the ALJ's decision could have been clearer in addressing the
regulatory factors, his analysis of Dr. Johnson' s opinion "reache[d] several of the factors that an
ALJ must consider." Allen v. Comm 'r ofSoc. Sec., 561 F.3d 646, 651 (6th Cir. 2009). For
example, the ALJ noted that Dr. Johnson was a psychologist and consultative examiner. See 20
C.F.R. § 404.1527(c)(l) and (5). The ALJ also noted internal inconsistencies in Dr. Johnson's
opinion and found that many of her conclusions were supported only by plaintiffs self-reported
symptoms. See 20 C.F.R. § 404.1527(c)(3)-(4). The ALJ reasonably found that the GAF score
of 60, which indicates only moderate symptoms, was not consistent with the more significant
functional limitations contained in Dr. Johnson' s narrative. (Tr. 36). In addition, the ALJ found
those more significant functional limitations to be inconsistent with plaintiffs functionality. For
example, while Dr. Johnson noted a low/average level of intellectual functioning, the ALJ found
this to be inconsistent with the fact that plaintiff earned an associate's degree, held skilled and
semiskilled jobs, and was on the Dean's list in a medical billing program with a 4.0 GPA. (Tr.
36, 52-53, 306, 481). Further, the ALJ reasonably concluded that Dr. Johnson's opinion that
plaintiff would have significant interpersonal problems was inconsistent with plaintiffs full
16
social life and regular interaction with friends. (Tr. 36, 375). Finally, the ALJ reasonably found
that Dr. Johnson ' s conclusion that plaintiff would show a pattern of time away from work for
mental health reasons and respond inappropriately to coworkers was not supported by Dr.
Johnson' s examination and was based primarily on plaintiffs self-report. (Tr. 36).
Plaintiff contends the ALJ improperly discounted Dr. Johnson's opinion for being based
on plaintiffs self-reported symptoms because psychological treatment is dependent on a
plaintiff's subjective complaints. (Doc. 13 at 10, citing Winning v. Comm 'r ofSoc. Sec. , 661 F.
Supp.2d 807 (N.D. Ohio 2009)). In Winning, a treating psychologist rendered an opinion after
seeing the claimant on 42 separate occasions. Winning, 661 F. Supp.2d at 820. The ALJ
rejected the treating psychologist's opinion on the basis that it relied "substantially on the
subjective presentation and statements of the claimant, who is not found to be entirely credible."
Id. at 821. The court found "this conclusory comment, without any elaboration or detail"
insufficient to satisfy the procedural requirements for rejecting a treating physician ' s opinion.
Id. The court determined that the ALJ's reasoning was "illogical" because "psychology and
psychiatry are, by definition, dependent on subjective presentations by the patient." Id. The
court concluded that "[t]aken to its logical extreme, the ALJ's rationale for rejecting [the treating
psychologist' s] conclusions would justify the rejection of opinions by all mental health
professionals, in every case." Id.
Unlike the treating psychologist in Winning, who saw the claimant 42 times over a two
year period, here Dr. Johnson examined plaintiff on only one occasion and did not review any
prior mental health treatment records. Nor was Dr. Johnson's opinion subject to the greater
scrutiny afforded a treating physician 's opinion. Thus, Winning is distinguishable from the
instant case.
17
The ALJ properly considered the extent to which Dr. Johnson's opinion was supported by
the objective and clinical evidence, as opposed to plaintiffs subjective allegations alone. See 20
C.F.R. § 404. l 527(c)(3) ("The more a medical source presents relevant evidence to support an
opinion, particularly medical signs and laboratory findings, the more weight we will give that
opinion.") Objective evidence in the psychiatric/psychological context includes " medical signs,"
20 C.F.R. § 404. l 5 l 2(b)( I), which are defined as "psychological abnormalities which can be
observed, apart fi·o m your statements (symptoms) .... Psychiatric signs are medically
demonstrable phenomena that indicate specific psychological abnormalities, e.g., abnormalities
of behavior, mood, thought, memory, orientation, development, or perception. They must also
be shown by observable facts that can be medically described and evaluated." 20 C.F.R. §
404. l 528(b) (emphasis added). The ALJ reasonably determined that Dr. Johnson based her
opinion regarding plaintiffs work absences and inability to appropriately respond to coworkers
on plaintiffs self-reported symptoms. By relying on plaintiffs self-reports as opposed to
objective findings or observations, Dr. Johnson "[e]ssentially ... made a credibility finding
which is at odds with that of the ALJ." Staymate v. Colvin, No. 2: 15-cv-2744, 20 16 WL
1317992, at *5 (S.D. Ohio Apr. 5, 20 16) (Report and Recommendation) (Kemp, M.J.), adopled,
20 16 WL 3355454 (S.D. Ohio Jun. 17, 201 6) (Marbley, J.). See also Ferguson v. Comm 'r of
Soc. Sec., 628 F.3 d 269, 274 (6th Cir. 2010) (explaining that a plaintiffs self-reported history
and subjective complaints of psychological symptoms, which were the bases for a medical
opinion, "were insufficient to persuade the ALJ that [the plaintiff] was disabled," an issue
reserved to the ALJ). In light of the ALJ's finding that plaintiff was not fully credible, which is
supported by substantial evidence as explained below, the ALJ was justified in discounting Dr.
Johnson' s opinion on the ground she relied largely on plaintiffs self-reported symptoms.
Contrary to plaintiffs argument, the ALJ did not "ignore" Dr. Johnson' s findings that plaintiff
18
would show a pattern of time away from work and not respond appropriately to coworkers.
Rather, the ALJ rejected those findings as lacking support. As substantial evidence supports the
ALJ ' s decision to reject these specific findings, plaintiffs assignment of error should be
overruled.
3. Substantial evidence supports the ALi's evaluation o(plainli(f's credibility.
Plaintiff argues the ALJ erred in evaluating her credibility. (Doc. 13 at 12-13). Plaintiff
contends that nothing in the record "would effectively refute [her] testimony ... as to intensity,
persistence and limiting effects of [her] symptoms." (Id. at 12). Plaintiff argues her subjective
complaints must be fully credited because "her testimony was consistent with the reports of both
the examining consultants and her own treating sources." (Id. at 13).
In light of the ALJ's opportunity to observe the individual' s demeanor at the hearing, the
ALJ's credibility finding is entitled to deference and should not be discarded lightly. Buxton,
246 F.3d at 773; Kirkv. Sec'yofH.H.S., 667 F.2d 524, 538 (6th Cir. 1981). "Ifan ALJ rejects a
claimant's testimony as incredible, he must clearly state his reasons for doing so." Felisky v.
Bowen, 35 F.3d 1027, 1036 (6th Cir. 1994). The ALJ 's articulation ofreasons for crediting or
rejecting a claimant' s testimony must be explicit and "is absolutely essential for meaningful
appellate review." Hurst v. Sec'y ofHHS., 753 F.2d 517, 519 (6th Cir. 1985) (citing Zblewski
v. Schweiker, 732 F.2d 75, 78 (7th Cir. I 984)).
At a hearing before the ALJ, plaintiff testified that she had four to five grand mal seizures
a year and small generalized seizures or petit mal seizures several times a month. (Tr. 58). She
stated she had five grand mal seizures in 2012 and five or six in 2013. (Tr. 62). Plaintiff
testified that she suffered from bipolar disorder and depression, which resulted in anger
management issues and suicidal and homicidal thoughts. (Tr. 69). She reported having trouble
sleeping, very low energy, poor self-esteem, concentration difficulties, and bad short-term
19
memory. (Tr. 71). Plaintiff believed her medications helped to some extent, but stated she still
had bad days where she was unable to control her anger or homicidal thoughts. (Tr. 73).
Plaintiff reported that she did not get along well with others and was unable to maintain
relationships. (Tr. 73-74).
The ALJ found that plaintiffs impairments could reasonably be expected to cause her
alleged symptoms but that her "statements concerning the intensity, persistence and limiting
effects of these symptoms are not entirely credible." (Tr. 33). Specifically, as to plaintiffs
seizure disorder, the ALJ found that her seizures were "relatively well-controlled" prior to May
2011. (Id.). The ALJ noted plaintiff did not see a neurologist between February 2010 and
February 2011, which "suggests that her seizures were relatively well-controlled during that
period, or at least not at a level as severe as alleged." (Id.). The ALJ also noted that plaintiff
completed a form in March 2012 in which she stated that that her epilepsy "has been under
control with meds for many years." (Id.).
As to plaintiffs allegations concerning her mental health, the ALJ found that the record
did not support the alleged severity prior to her date last insured. (Tr. 35). The ALJ noted that
plaintiff " was apparently found to be stable enough to adopt a child in 2008." (Id.). Further,
plaintiffs treating neurologist, Dr. Guo, "opined that [she] had an appropriate mood and affect
and her memory was appropriate" in September and November 2011 and January 2012. (Id.).
Here, substantial evidence supports the ALJ 's finding that plaintiffs allegations
concerning the severity of her symptoms were not entirely credible. As to plaintiffs allegations
concerning her seizures, neurologist Marvin Rorick, M.D., noted in February 2009 that plaintiff
had been well over the past year with no generalized tonic clonic activity and only "several small
episodes in which she ' phases out."' (Tr. 479). In May 2009, plaintiff reported "good seizure
control" and "feeling much more normal. " (Tr. 475). In November 2009, Dr. Rorick noted that
20
plaintiff's seizures were "well controlled on current medication" and approved plaintiff to begin
driving again as she did "not appear to be representing any road hazard at this time." (Tr. 474).
In February 2010, plaintiff reported to Aring Neurology that her seizures were "currently
controlled on medications." (Tr. 346). In February 2011, neurologist Tamer Abou-Elsaad,
M.D. , noted that plaintiff had not had a generalized tonic clonic seizure in six months. (Tr. 342).
Dr. Abou-Elsaad concluded that plaintiff's epilepsy seemed to be controlled with medication.
(Tr. 344).
In May 2011, plaintiff began treating with neurologist Z. George Guo, M.D. (Tr. 34041 ). Plaintiff complained of "zoning spacing type" seizures several times a month and grand ma!
seizures once every several months. (Tr. 340). Dr. Guo concluded that plaintiff was
experiencing epileptic seizures mostly compatible with complex partial seizures and that her
medication needed to be further adjusted. (Tr. 341 ). In September 2011, plaintiff reported three
to four spells per week and one trip to the emergency room for a seizure episode. (Tr. 358). In
November 2011, plaintiff reported seizure activity on a weekly basis. (Tr. 360). Dr. Guo
adjusted plaintiff's seizure medications. (Tr. 359, 361 ). In January 20 12, plaintiff reported no
seizure activity for the past month. (Tr. 362).
In March 2012, plaintiff reported to primary care physician Barry Rubin, D.O., that her
seizure disorder was controlled and that she had not had a seizure in "a long time." (Tr. 407). In
June 201 2, Dr. Rubin noted that plaintiff's seizure disorder was controlled. (Tr. 397). In July
2012, F. Clifford Valentin, M.D., a specialist in physical medicine and rehabilitation, noted that
plaintiff's seizure disorder was well controlled. (Tr. 392).
This medical history constitutes substantial support for the ALJ's credibility
determination as to plaintiff's seizure allegations. Specifically, from her alleged onset date
through her date last insured, plaintiff's providers regularly noted that her seizure disorder was
21
well controlled with medication, except for a six-month period from May through November
2011. (See Tr. 340-41, 358-61). Thus, plaintiffs medical history does not support her
allegations of four to five grand mal seizures a year and small generalized seizures or petit mal
seizures several times a month, and the ALJ properly discounted plaintiffs credibility
concerning the severity of her seizures. (See Tr. 58).
As to plaintiffs allegations concerning her mental health, on February 2, 2009, Dr.
Rorick noted that plaintiff continued to have mild symptoms of depression for which she took
Celexa. (Tr. 479). Plaintiff complained of an increased number of mood swings. (Id.). On
February 26, 2009, plaintiff reported feeling somewhat suicidal. (Tr. 477). Dr. Rorick ordered
plaintiff to immediately discontinue taking Keppra for her seizure disorder. (Id.). In May 2009,
plaintiff reported that her psychological symptoms were much better after Keppra was
discontinued. (See Tr. 475). In November 2009, Dr. Rorick noted that plaintiffs depression was
stable on Celexa. (Tr. 473).
In February 2010, plaintiff reported to Aring Neurology that Celexa was not working for
her depression anymore. (Tr. 346). The neurologist at Aring noted that plaintiff scored a 16 on
the Neurological Disorder Depression Inventory for Epilepsy ("NDDI-E") and needed to address
her depression with her primary care physician. 6 In August 2010, plaintiff saw Dr. Rubin about
getting an antidepressant. (Tr. 354). Dr. Rubin prescribed Wellbutrin. (Id.). In January 2011
plaintiff reported that her mood and nerves were " doing pretty well" on Wellbutrin. (Tr. 35354). In June 2011 , Dr. Rubin discontinued Wellbutrin and prescribed Zoloft. (Tr. 351-52). In
6
The NDDI-E " is a 6-item questionnaire validated to screen for depression in people with epilepsy." David E.
Friedman, M.D., et al., " Systematic Screening in a Busy Clinical Setting Improves Identification of Depression in
People with Epilepsy," available at https://www.bcm.edu/neurology/pdf/poster_ cecsc_DepressionEpilepsy.pdf.
NDDI-E scores greater than 16 are considered positive for depression. Id.
22
July 2011 , plaintiff reported that her medical issues were generally controlled but that her Zoloft
dosage was "not quite enough." (Tr. 350).
In September and November 2011 and January 2012, plaintiff reported mood swings and
memory loss to Dr. Guo. (Tr. 358, 360, 362). On examination, Dr. Guo noted that plaintiff's
recent remote memory, mood, and affect were all appropriate. (Tr. 359, 361, 363).
Plaintiff reported to Dr. Johnson in April 20 12 that she was taking Zoloft for depression.
(Tr. 375). Plaintiff also reported a history of anger/rage issues but she was not receiving mental
health treatment. (Tr. 376). On examination, plaintiff's mood was irritable and she was tearful.
(Tr. 377). Dr. Johnson concluded that plaintiff had fair insight, good motivation, and appeared
psychologically capable of living independently, making decisions about her future, and seeking
appropriate community services. (Id.).
At two appointments with Dr. Rubin in June 2012, plaintiff did not complain of any
psychological concerns. (See Tr. 396-401 ). Plaintiff remained on Zoloft. (Id.).
On June 22, 20 12, plaintiff first saw Dr. Murthy for her psychological symptoms. (Tr.
513 ). Plaintiff complained of a history of crying spell s, occasional suicidal thoughts, and recent
weight gain. Plaintiff had a good appetite and good sleep, and she was " good with help of
meds." (Id.). On examination, Dr. Murthy found that plaintiff was able to express herself well,
was depressed, and was not anxious. Plaintiff had a good memory, no psychosis, a blunted
affect, intact judgment, and superficial insight. Dr. Murthy diagnosed plaintiff with bipolar
affective disorder and assigned her a GAF score of 55. Dr. Murthy increased the dosage of
plaintiff's Zoloft from 100 milligrams daily to 200 milligrams daily. (Id.).
This medical history constitutes substantial support for the ALJ's credibility
determination as to plaintiff's mental health allegations. Specifically, from her alleged onset
date through her date last insured, plaintiff' s providers regularly noted that her mental health
23
symptoms were "mild" or stable/controlled with medication. (See, e.g., Tr. 353-54, 473, 475,
479, 513 ). Fmiher, plaintiff did not seek specialized psychological treatment or counseling
during the relevant period until one week before the expiration of her insured status. See White
v. Comm 'r ofSoc. Sec., 572 F.3d 272, 283-84 (6th Cir. 2009) (holding that while " [fJor some
mental disorders, the very failure to seek treatment is simply another symptom of the disorder
itself," the lack of any evidence in the record explaining the failure to seek treatment might cause
a "reasonable mind" to find that a plaintiffs mental symptoms were less severe when treatment
was not being sought). Additionally, the GAF scores in the record were indicative of only
moderate symptomatology. See Miller v. Comm 'r ofSoc. Sec., 811 F.3d 825, 835 (6th Cir. 2016)
(finding that a GAF score "may assist an ALJ in assessing a claimant's mental RFC"). Thus,
substantial evidence supports the ALJ 's determination that plaintiff was not entirely credible
concerning the severity of her psychological condition.
Based on the foregoing, substantial evidence supports the ALJ's credibility determination
and this assignment of error should be overruled.
4. Substantial evidence supports the ALJ's RFC determination. including his
consideration ofthe impact ofplainti[f's obesity.
Plaintiff argues the ALJ erred by failing to consider the impact of plaintiff's obesity on
her ability to work. (Doc. 13 at 18-19). Plaintiff also contends the ALJ erred by failing to
include in the RFC the limitations identified in Dr. Johnson and Dr. Murthy's opinions. (Id at
20). Further, plaintiff argues the ALJ erred by failing to properly consider the effect of
plaintiff's seizure disorder and chronic fatigue. (Id. at 20-21).
In formulating plaintiff's RFC, the ALJ found that because plaintiff's seizures "were
relatively well-controlled," no RFC restrictions attributable to plaintiff's seizures were warranted
"aside from the environmental and climbing restrictions included in the [RFC]." (Tr. 33). The
24
ALJ explicitly considered plaintiff's obesity in conjunction with her complaints of
musculoskeletal symptoms. (Tr. 34). The ALJ concluded that even considering these conditions
in combination, "the clinical signs continue[ d] to support functionality of at least a light
exertional level." (Id.). Thus, the ALJ found that considering "the compounding effect of
obesity, a light-level exertional capacity with occasional postural restrictions[] is sufficient to
fully accommodate her combined musculoskeletal impairments." (Id.). Finally, the ALJ rejected
the majority of the functional limitations identified in Dr. Johnson and Dr. Murthy' s opinions.
(Tr. 36-37). After reviewing plaintiff's mental health records, the ALJ concluded that plaintiff
was able to perform only simple, routine, repetitive tasks, was able to remember and carry out
only short and simple instructions, and was able to make only simple work-related decisions.
Further, the ALJ limited plaintiff to no more than superficial and occasional interaction with the
general public, coworkers, or supervisors; no rapid pace work; and no more than ordinary and
routine changes in work setting or duties. (Tr. 32, 35-37).
Here, substantial evidence supports the ALJ's RFC formulation. First, as explained
above, substantial evidence supported the ALJ's assessment of Dr. Johnson and Dr. Murthy's
opinions. Plaintiff has failed to identify additional psychological evidence that would support
mental RFC restrictions beyond those included in her RFC. See Her v. Comm 'r ofSoc. Sec. , 203
F.3d 388, 391 (6th Cir. 1999) (holding that plaintiff bears the burden of proving RFC
limitations). Thus, as to the ALJ's assessment of mental limitations in the RFC, plaintiff's
assignment of error should be overruled.
Further, as explained above in considering plaintiff's assignment of error concerning the
credibility of her subjective complaints, substantial evidence supports the ALJ's assessment of
plaintiff's seizure disorder. To reiterate, from plaintiff's alleged onset date through her date last
insured, her providers regularly noted that her seizure disorder was well controlled with
25
medication, except for a six-month period from May through November 2011. (See Tr. 340-41 ,
358-61). Thus, plaintiff s medical history does not support any limitations attributable to her
seizure disorder in excess of those limitations included in the RFC.
Finally, substantial evidence supports the ALJ's assessment of plaintiffs obesity and
musculoskeletal conditions as the objective and clinical findings of record do not support
restrictions greater than those identified by the ALJ in the RFC finding. For example, in
February 2011 , Dr. Abou-Elsaad noted 515 muscle strength in all extremities; normal muscle
tone, bulk, and range of motion; 2+ reflexes in all extremities; and normal gait and station. (Tr.
344). In July 2011, Dr. Rubin noted no musculoskeletal abnormalities, adequate range of
motion, no loss of motor strength or sensation, and normal gait. (Tr. 350). Dr. Guo noted
similar findings in September and November 2011 and January 2012. (Tr. 359, 361, 363). In
April 2012, consultative examiner Jennifer Wischer Bailey, M.D. , noted that plaintiffs
musculoskeletal examination was "entirely unremarkable." (Tr. 387). While Dr. Bailey noted
that plaintiff was obese, she opined that plaintiff seemed capable of performing at least a mild
amount of sitting, standing, ambulating, and bending. However, Dr. Bailey concluded that
plaintiffs weight and knee pain would preclude prolonged kneeling. (Id.).
Knee X-rays in January 2012 revealed mild degenerative changes of the patellofemoral
joint, but no other significant abnormalities. (Tr. 389). In April 2012, plaintiff was diagnosed
with right plantar fasciitis and right insertional Achilles tendinitis. (Tr. 391 ). In July 2012,
spinal X-rays revealed mild disc space narrowing of the lumbar spine with mild facet
arthropathy. (Tr. 393). Plaintiff was prescribed prednisone and physical therapy. (Id.).
Based on this medical history, substantial evidence supports the ALJ's RFC formulation
as to plaintiff's obesity and musculoskeletal conditions. Specifically, the restrictions in
plaintiffs RFC were consistent with the limitations identified by Dr. Bailey after her consultative
26
examination. (See Tr. 31-32, 37-38, 387). Plaintiff has not provided any medical evidence of
functional limitations related to these conditions in excess of the limitations identified by Dr.
Bailey. Thus, she has failed to meet her burden of proof. See Her, 203 F.3d at 391.
Based on the foregoing, substantial evidence supports the ALJ's RFC fommlation,
including his consideration of the impact of plaintiffs obesity, and these assignments of error
should be overruled.
IT IS THEREFORE RECOMMENDED THAT:
The decision of the Commissioner be AFFIRMED.
Date:
// /
~Lt:_~---¥Karen L. Litkovitz
~/;&
~-'-~f----+1--'--'"°-~~~~1
United States Magistrate Judge
27
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
LESLIE ANN SHIRLEY,
Plaintiff,
Case No. 1: 15-cv-726
Barrett, J.
Litkovitz, M.J.
vs.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
NOTICE TO THE PARTIES REGARDING THE FILING OF OBJECTIONS TO R&R
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party's objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
28
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?