Auflick v. Commissioner of Social Security

Filing 18

REPORT AND RECOMMENDATIONS: Commissioner of SSA decision be AFFIRMED; Objections to R&R due by 10/12/2012. Signed by Magistrate Judge Mark R. Abel on 9/24/12. (sh1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Marsha D. Auflick,

v.
Michael J. Astrue,
Commissioner of Social Security,
Defendant

Civil Action 2:12-cv-29

:

Plaintiff

:
:

Judge Frost

:

Magistrate Judge Abel

:

REPORT AND RECOMMENDATION
Plaintiff Marsha D. Auflick brings this action under 42 U.S.C. §§405(g) and
1383(c)(3) for review of a final decision of the Commissioner of Social Security denying
her applications for Social Security Disability and Supplemental Security Income
benefits. This matter is before the Magistrate Judge for a report and recommendation
on the administrative record and the parties’ merits briefs.
Summary of Issues. Plaintiff Auflick maintains she became disabled in 2007, at
age 42, byback, hip and knee pain, anxiety, depression, high blood pressure, hepatitis C,
hyperlipidemia, edema and carpel tunnel syndrome. (PageID 233.) Plaintiff argues that
the decision of the Commissioner denying benefits should be reversed because:
• The administrative law judge failed to included obesity among plaintiff’s
“severe” impairments which further compromised her physical residual
functional capacity;
• The administrative law judge failed to accord the disability opinion of
treating primary care physician, Dr. North the weight of rebuttable
presumption, and instead relied on the opinion’s of two State Agency
nonexamining physicians.

Procedural History. Plaintiff Auflick filed her applications for disability
insurance benefits and supplemental security income on September 24, 2009, alleging
that she became disabled on August 30, 2007, at age 42. (PageID 196-99, 200-02.) The
applications were denied initially and upon reconsideration. Plaintiff sought a de novo
hearing before an administrative law judge. On March 9, 2011, an administrative law
judge held a video hearing at which plaintiff, represented by counsel, appeared and
testified. (PageID 86-111.) A vocational expert also testified. (PageID 109-20.) On May
12, 2011, the administrative law judge issued a decision finding that Auflick was not
disabled within the meaning of the Act. (PageID 66-77.) On November 20, 2011, the
Appeals Council denied plaintiff’s request for review and adopted the administrative
law judge’s decision as the final decision of the Commissioner of Social Security.
(PageID 52-55.)
Age, Education, and Work Experience. Auflick was born on August 11, 1965.
(PageID 76, 228). She has a “limited” eleventh grade education. (PageID 240.) Auflick
previously worked as a housekeeper, service coordinator in the home health care
industry and a trainer at a mental health agency. (PageID 234, 262-69.)
Plaintiff’s Testimony. The administrative law judge fairly summarized
Auflick’s testimony as follows:
[T]he claimant testified that even with medications and the use of ice and
heat, pain symptoms never goes away. She said that in the future, she will
require surgery for her hip and that she currently cannot lift more than 10
to 15 pounds and cannot lift such things as her laundry. She testified that
her pain symptoms are brought on by such things as sitting, standing
2

and bending and she is most comfortable when she is lying in bed on her
right side. She also said that she does not want to be around others and
therefore does not like to go out in public and often gets agitated or upset
when she does so. The claimant further stated that she has trouble
sleeping because too many things are going on in her head at one time.
(PageID 72.)
Medical Evidence of Record. The administrative law judge’s decision fairly sets
out the relevant medical evidence of record. This Report and Recommendation will
only briefly summarize that evidence. Although Auflick underwent a consultive
psychological examination, plaintiff’s assignments of error relate entirely to her physical
impairments. Accordingly, the Court will focus its review of the medical evidence on
Auflick’s alleged physical impairments.
O’Bleness Memorial Hospital. Auflick was admitted to the hospital overnight in
March 2008 due to nausea, vomiting and abdominal pain. (PageID 358.) Her past
medical history included chronic pain, obesity, degenerative disc disease and
hypertension. (Id.) Extremity examination showed no significant edema. (Id.)
Auflick presented to the emergency room on December 22, 2008 complaining of a
five day history of vomiting. (PageID 337-53.) Musculoskeletal examination showed
full range of motion in all of Auflick’s extremities, with only some mild trace edema in
her lower extremities, and normal neurological findings with no appreciated weakness.
(PageID 343.) She was admitted overnight and discharged with diagnoses of intractable
nausea and vomiting, chronic back pain and recent urinary tract infections. (PageID
339.)
3

Doctor’s Hospital - Nelsonville. While seen in the emergency room, A CT scan
was performed on December 20, 2008 due to Auflick’s history of left flank pain. The CT
scan showed bilateral pars defects at L5-S1 with facet hypertrophic changes, but no
evidence of anterior listhesis. (PageID 429.)
In January 2009, Auflick received treatment from Stephen Voto, M.D. for a
closed injury fracture of her right distal fibula. (PageID 470-78.) By April 2009, her
fracture was almost healed. (PageID 470, 478.)
Philip North, M.D. Auflick began treating with Dr. North, a primary care
physician at the Columbus Southern Medical Center, in January 2009. Initially, Auflick
complained of constant aching in her lower back, which was aggravated by activity.
She noted significant relief from medication and rated her pain at 6/10 on an analog
pain scale. Dr. North noted a history of moderate back pain starting several years
earlier that began without injury or obvious cause. He noted Auflick was 5' 7" tall and
weighed 184 lbs. (PageID 375.) The following month, Dr. North found moderate
tenderness in her lumbar paraspinal muscles with mild decreased range of motion, and
moderate tenderness of the left hip with decreased range of motion. (PageID 378.)
Auflick’s weight was recorded at 189 lbs. (Id.) On March 31, 2009, Auflick reported that
her back pain occurred daily and she described the pain as aching. (PageID 383.)
Auflick’s weight was recorded at 193 lbs. (Id.) In April 2009, Auflick complained
primarily of constant left hip pain which she described as aching and aggravated by
movement. She noted that her hip was relieved with medication. (PageID 386.)
4

Musculoskeletal examination revealed moderate tenderness of the lumbar spine
paraspinal muscles, mild decreased range of motion of her lumbar spine, negative
straight leg raise and moderate tenderness of the left hip with range of motion. (Id.)
Auflick’s weight was recorded at 199 lbs. (Id.) By June 2009, Auflick’s weight had
increased to 200 lbs. and her complaints of daily back pain continued. (PageID 391.)
In July and September 2009, Auflick again complained of left hip pain
aggravated by activity, standing and sitting; she reported significant relief with
medication. (PageID 394-98.) During these visits she rated her pain at 3-6/10. (Id.) In
September, Auflick’s weight was recorded at 206 lbs. (PageID 396.)
In August 2009, Dr. North completed a Basic Medical form listing Auflick’s
diagnoses as lumbar disc displacement with radiculopathy, hip pain, high blood
pressure, hyperlipidemia, and weight gain. He reported his findings as moderate
tenderness in the lumbar spine and left hip. He opined that Auflick was limited to
standing/walking less than three hours total in an eight-hour day and less than 20
minutes at one time, and sitting less than 30 minutes total in an eight-hour day and for
less than 30 minutes without interruption. Dr. North also opined that Auflick could
only lift/carry six to ten pounds. He concluded that Auflick was unemployable for 12
months or more. (PageID 372-74.)
Auflick continued to be seen at the Columbus Southern Medical Center
approximately 16 more times for back and hip pain through March 2011. (PageID 51362.) Auflick generally reported her pain was in the 3-7/10 range; she reported that
5

medication and rest provided some relief, while increased activity worsened it. (Id.)
Examination findings throughout 2010 showed a mildly decreased range of motion of
her lumbar spine and negative straight leg raising, with moderate tenderness in her hip
upon range of motion and in her lumbar spine. She exhibited symmetric deep tendon
reflexes. (PageID 518, 525, 527, 533, 536.) In November 2009, Auflick’s weight was
recorded at 213 lbs. (PageID 513.) No focal neurological deficits were noted in June and
July 2010. (PageID 533, 536.) Her diagnoses throughout this period included lumbar
disc displacement, lumbar radiculopathy on the left, back pain, hip pain and weight
gain. (See, PageID 514, 517, 519, 521, 523, 526, 528, 531.) By March 2010, Auflick’s
weight was recorded at 233 lbs. (PageID 525.)
In September and October 2010, an increase in muscle spasm and tenderness was
noted in Auflick’s lumbar spine. (PageID 542, 545.) Auflick had no focal neurological
deficits and deep tendon reflexes were symmetric. (Id.) By November 2010,
musculoskeletal examination revealed moderate pain in her lumbar spine. (PageID 548.)
In March 2011, examined showed decreased range of motion, increased muscle spasm,
and increased tenderness in her hips. Auflick’s weight was recorded at 230 lbs. (PageID
560.)
W. Jerry McCloud, M.D./Dimitri Teague, M.D. On January 5, 2010, Dr.
McCloud, a state agency physician, conducted a physical residual functional capacity
assessment based on Auflick’s medical records. (PageID 503-10.) Dr. McCloud found
that Auflick retained the ability to occasionally lift 20 pounds, frequently lift 10 pounds,
6

stand or walk about six hours in an eight-hour workday, sit for about six hours in an
eight-hour work day, and push or pull was unlimited. (PageID 504.) He found Auflick
would be limited to occasionally climb ramps and stairs, balance, stoop, kneel, crouch
and crawl, but could never climb ladders, ropes, or scaffolds. (PageID 505.) Dr.
McCloud concluded that Auflick’s symptoms were attributable to a medically
determinable impairment. (PageID 508.) Dr. McCloud found Auflick’s statements were
only partially credible, noting that even though Auflick reported that she could not
stand for a long time, the medical evidence supported that she could be on her feet for a
normal work day. (Id.) Another state agency physician, Dr. Teague affirmed Dr.
McCloud’s assessment in April 2010. (PageID 512.)
Administrative Law Judge’s Findings. The administrative law judge found
that:
1.

The claimant meets the insured status requirements of the Social Security
Act through September 30, 2010.

2.

The claimant has not engaged in substantial gainful activity since August
30, 2007, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).

3.

The claimant has the following severe impairments: chronic back and hip
pain; a depressive disorder; and a generalized anxiety disorder (20 CFR
404,1520(c) and 416.920(c)).

4.

The claimant does not have an impairment or combination of impairments
that meets or medically equals one of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925 and 416.926).

5.

After careful consideration of the entire record, the [administrative law
judge] finds that the claimant has the residual functional capacity to lift and
7

carry 10 pounds frequently, to sit, with normal breaks, for a total of 6 of 8
hours per day, to stand and walk, with normal breaks, for a total of 2 of 8
hours per day and to push and pull within those limitations. The claimant
can never climb ladders, ropes or scaffolds and can only occasionally climb
ramps and stairs, balance, stoop, kneel, crouch and crawl. The claimant is
limited to simple, routine tasks and can have only occasional and superficial
contact with coworkers and supervisors. The claimant can have no
interaction with the public although she can be around the public.
6.

The claimant is unable to perform any past relevant work (20 CFR 404.1565
and 416.965).

7.

The claimant was born on August 11, 1965 and was 42 years old, which is
defined as a younger individual age 18-44, on the alleged disability onset
date. The claimant subsequently changed age category to a younger
individual age 45-49 (20 CFR 404.1563 and 416.963).

8.

The claimant has a limited education and is able to communicate in English
(20 CFR 404.1564 and 416.964).

9.

Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a
finding that the claimant is “not disabled,” whether or not the claimant has
transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P,
Appendix 2).

10.

Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform (20 CFR 404.1569,
404.1569(a), 416.969, and 416.969(a)).

11. The claimant has not been under a disability, as defined in the Social
Security Act, from August 30, 2007, through the date of this decision (20
CFR 404.1520(g) and 416.920(g)).
(PageID 68-77.)
Standard of Review. Under the provisions of 42 U.S.C. §405(g), “[t]he findings
of the Commissioner as to any fact, if supported by substantial evidence, shall be

8

conclusive. . . .” Substantial evidence is “‘such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’” Richardson v. Perales, 402 U.S. 389,
401 (1971)(quoting Consolidated Edison Company v. NLRB, 305 U.S. 197, 229 (1938)). It is
“‘more than a mere scintilla.’” Id. LeMaster v. Weinberger, 533 F.2d 337, 339 (6th Cir.
1976). The Commissioner’s findings of fact must be based upon the record as a whole.
Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366
(6th Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir. 1984). In determining
whether the Commissioner's decision is supported by substantial evidence, the Court
must “‘take into account whatever in the record fairly detracts from its weight.’” Beavers
v. Secretary of Health, Education and Welfare, 577 F.2d 383, 387 (6th Cir. 1978)(quoting
Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1950)); Wages v. Secretary of Health and
Human Services, 755 F.2d 495, 497 (6th Cir. 1985).
Plaintiff’s Arguments. Auflick argues that the decision of the Commissioner
denying benefits should be reversed because:
• The administrative law judge’s decision failed to include “obesity” among the
“severe” impairments. (Doc. No. 12 at PageID 572.) Auflick contends that she
gained 47 lbs. over a two year period. She attributed this to her inability to
exercise or take prolonged walking. Auflick notes that musculoskeletal
impairments are among those most adversely impacted by obesity in

9

accordance with Social Security Ruling1 (SSR) 02-1p, yet the administrative
law judge’s decision failed to discuss the impact of Auflick’s obesity on her
musculoskeletal impairments and how it would impact her residual functional
capacity. Auflick also contends that the administrative law judge’s failure to
consider the impact of her obesity is not harmless error. (Id. at PageID 573.)
• The administrative law judge failed to accord the disability opinion of
treating primary care physician, Dr. North the weight of rebuttable
presumption, and instead relied on the opinion’s of two State Agency
nonexamining physician. (Id. at PageID 573.) Auflick argues that the
administrative law judge discounted the disability opinion of the treating
physician, discounted the light work residual functional capacity of the atate
agency reviewing physicians, and “split the difference” finding an residual
functional capacity for sedentary work. This amounted to the administrative
law judge not only failing to give the treating physician the weight of a
rebuttable presumption, but in playing doctor to reach an residual functional
capacity found by no one else. (Id. at PageID 575.)
Analysis. Obesity.

1

“Social Security Rulings do not have the force and effect of law, but are ‘binding on all
components of the Social Security Administration’ and represent ‘precedent final opinions and orders and
statements of policy and interpretations’ adopted by the Commissioner.” Ferguson v. Comm’r of Soc.
Sec., 628 F.3d 269, 273, n.1 (6th Cir. 2010) (quoting 20 C.F.R. § 402.35(b)(1)). Social Security Rulings
have been assumed to be binding on the Commissioner in the same way as Social Security Regulations.
See Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 549 (6th Cir. 2004); Ferguson, 628 F.3d at 273, n.1. In
this case, the Court makes the same assumption regarding Social Security Ruling 02-1p.

10

Auflick argues that the administrative law judge improperly evaluated the
impact of her obesity on her other impairments and how it would affect her residual
functional capacity. She argues that the administrative law judge’s decision does not
contain a discussion of her obesity and that the administrative law judge failed to fully
evaluate her obesity in accordance with SSR 02-1p.
Obesity, as defined in SSR 02-1p, “is a complex, chronic disease characterized by
excessive accumulation of body fat.” Social Security Ruling 02-01p, 2000 WL 628049
(Sept. 12, 2002). SSR 02-01p further states that the National Institutes of Health has
established guidelines for classification of overweight and obese adults in its “Clinical
Guidelines on the Identification, Evaluation, and Treatment of Overweight and Obesity
in Adults” (“Clinical Guidelines”). (Id. at *4).
The Clinical Guidelines classify an overweight or obese individual based on that
person’s Body Mass Index (BMI). (Id.) An adult with a BMI of 30.0 or above is
considered “obese.” (Id.) Obesity is further divided by the Clinical Guidelines into
three levels: Level I (BMI of 30.0-34.9); Level II (BMI of 35.0-39.9); and, Level III (BMI
greater than or equal to 40.0). (Id.)
SSR 02-01p provides that at step two of the five step evaluation, obesity may be
considered severe alone or in combination with another medically determinable
impairment. It further provides that the Administration will do “an individualized
assessment of the impact of obesity on an individual’s functioning when deciding
whether the impairment is severe.” SSR 02-01p[6]. SSR 02-01p also explains that a
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claimant’s obesity must be considered not only at step two of the Commissioner’s five
step evaluation process, but also at the subsequent steps. The Ruling provides that:
The effects of obesity may not be obvious. . . . An assessment should also
be made of the effect of obesity has upon the individual’s ability to
perform routine movement and necessary physical activity within the
work environment. Individuals with obesity may have problems with the
ability to sustain a function over time. . . . [O]ur RFC assessments must
consider an individual’s maximum remaining ability to do sustained work
activities in an ordinary work setting on a regular continuing basis . . . . In
cases involving obesity, fatigue may affect the individual’s physical and
mental ability to sustain work activity.
The combined effects of obesity with other impairments may be greater
than might be expected without obesity. For example, someone with
obesity and arthritis affecting a weight-bearing joint may have more pain
and limitation than might be expected from arthritis alone.
SSR 02-01p. See also 20 C.F.R. §404.1523 (explaining that if the Administration finds “a
medically severe combination of impairments, the combined impact of the impairments
will be considered throughout the disability determination process.”) In sum, SSR 0201p “specifies that the administrative law judge must explain how conclusions
regarding a claimant’s obesity were reached.” Fleming v. Barnhart, 284 F.Supp.2d 256,
271 (D. Md. 2003). SSR 02-01p is binding on all components of the Administration. See
20 C.F.R. §402.35(b)(1); Blea v. Barnhart, 466 F.3d 903, 911 (10th Cir. 2006).
An adjudicator must consider the impact of a claimant’s obesity on her residual
functional capacity. At step five of the five step of the sequential analysis, the burden
shifts to the Administration to show that there are other jobs in significant numbers in
the economy that the claimant can perform consistent with her residual functional

12

capacity, age, education, and work experience. See Wilson v. Commissioner of Social
Security, 378 F.3d 541, 548(6th Cir. 2004); 20 C.F.R. §404.1520 (a)(4)(v). When the
claimant is obese, the administrative law judge must consider this in his assessment.
SSR 02-01p; Young v. Barnhart, 282 F.Supp.2d 890, 897-898 (N.D. Ill. 2003).
The administrative law judge’s opinion did not assess Auflick’s obesity in the
manner contemplated by SSR 02-01p. The administrative law judge’s decision is devoid
of any discussion regarding the severity of Auflick’s obesity. The administrative law
judge also failed to consider the impact her obesity had in combination with her other
severe impairments. Specifically, the administrative law judge failed to consider the
extent to which plaintiff’s musculoskeletal impairments were exacerbated by her
obesity.
During the hearing, Auflick testified that she was told to lose weight and that it
would help her knees. (PageID 106.) She also testified that she had actually gained
weight and did not know why she had not lost weight, but attributed it to not being
able to exercise because she cannot walk very far. (Id.) Dr. North or a physician’s
assistant at Columbus Southern Medical Center recorded Auflick’s weight between 183
pounds and 233 pounds. See PageID 375-96, 513-60. Auflick was listed as obese when
seen in the hospital in March 2008. (PageID 358.)
Nowhere in the administrative law judge’s decision were any of the
aforementioned weights noted. The Commissioner argues that there is no diagnosis of
obesity and that no physician ever prescribed weight loss to relieve her muskuloskeletal
13

pain. However, by March 2010 Auflick, who is 5' 7" tall, weighed over 230 pounds.
Because the administrative law judge never mentioned Auflick’s obesity and its impact,
if any, on her ability to perform sedentary work, it is impossible to determine whether
the administrative law judge actually followed SSR 02-01p when considering plaintiff’s
obesity in the sequential evaluation process.
At step three of the sequential process, therefore, the administrative law judge
erred by failing to perform “an individualized assessment of the impact of obesity” on
Auflick’s functioning, and deciding whether her obesity is severe. See SSR 02-1p at *12.
Although the mere failure of an administrative law judge to consider a claimant’s
medically determinable impairment as nonsevere, instead of severe, may be found to be
“legally irrelevant,” see Simpson v. Comm’r of Soc. Sec., 344 Fed. Appx. 181, 190-91 (6th
Cir. 2009), such is not the case here because there is no indication the administrative law
judge even considered Auflick’s obesity as an impairment – severe or nonsevere – nor
that he considered her obesity at any step in the sequential analysis. Simpson explains
the regulatory basis for this error:
Pursuant to 20 C.F.R. §[] 404.1523...: “In determining whether your
physical or mental impairment or impairments are of a sufficient medical
severity ... we will consider the combined effect of all your impairments
without regard to whether any such impairment, if considered separately,
would be of sufficient severity. If we do find a medically severe
combination of impairments, the combined impact of the impairments
will be considered throughout the disability determination process.”
Pursuant to 20 C.F.R. §[] 404.1545(a)(2)...: “If you have more than one
impairment. We will consider all of your medically determinable
impairments of which we are aware, including your medically
14

determinable impairments that are not ‘severe,’ as explained in §§
404.1520(c), 404.1521, and 404.1523, when we assess your residual
functional capacity.”
See Simpson, 344 Fed. Appx. at 191, n.1.
At step three of the sequential process, when looking at the listings, the
administrative law judge simply looked at the medical findings to determine whether
the listing was met. He did not consider whether Auflick’s obesity had an impact on
the severity of the particular listing. See PageID 70.
Similarly, when assessing Auflick’s residual functional capacity, the
administrative law judge simply states that he reduced Auflick’s capacity to sedentary
work without considering whether Auflick’s obesity in combination with her chronic
back and hip pain could reasonably result in further work restrictions. The Magistrate
Judge finds that the administrative law judge has failed to comply with the guidelines
for evaluating obesity as set forth in SSR 02-01p and has therefore failed to satisfy his
obligation of evaluating the severity and functional limitations resulting from Auflick’s
obesity.
Treating physician. Auflick next maintains that the administrative law judge
erred in rejecting the opinions of Dr. North, her treating physician, who had assessed
Auflick’s residual functional capacity. Within this contention of error, Auflick also
indicates that in reaching his decision, the administrative law judge substituted his own
medical judgment in place of not only Dr. North’s opinion, but also that of the state
agency reviewing physicians, Drs. McCloud and Teague.
15

The treating physician rule, when applicable, requires the administrative law
judge to place controlling weight on a treating physician’s or treating psychologist’s
opinion rather than favoring the opinion of a nonexamining medical advisor or a onetime examining physician or psychologist or a medical advisor who testified before the
administrative law judge. Blakley v. Comm’r. of Social Security, 581 F.3d 399, 406 (6th Cir.
2009); See Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). A treating
physician’s opinion is given controlling weight only if it is both well supported by
medically acceptable data and if it is not inconsistent with other substantial evidence of
record. (Id.)
Furthermore, the Commissioner’s regulations provide that he will generally
“give more weight to the opinion of a source who has examined you than to the
opinion of a source who has not examined you.” 20 C.F.R. § 404.1527(d)(1). When a
treating source's opinion “is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in your case record, we will give it controlling weight.” 20 C.F.R. §
404.1527(d)(2). In determining the weight to assign a treating source's opinion, the
Commissioner considers the length of the relationship and frequency of
examination; nature and extent of the treatment relationship; how well-supported
the opinion is by medical signs and laboratory findings; its consistency with the
record as a whole; the treating source’s specialization; the source’s familiarity with
the Social Security program and understanding of its evidentiary requirements; and
16

the extent to which the source is familiar with other information in the case record
relevant to decision. (Id.)
There is a rebuttable presumption that a treating physician’s opinion is entitled
to great deference. Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007).
However, for the treating physician’s opinion to have controlling weight it must have
“sufficient data to support the diagnosis.” Kirk v. Secretary of Health and Human Services,
667 F.2d 524, 536, 538 (6th Cir. 1981); Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985).
The Commissioner may reject the treating doctor’s opinions when “good reasons are
identified for not accepting them.” Hall v. Bowen, 837 F.2d 272, 276 (6th Cir. 1988); 20
C.F.R. § 404.1527(d)(2)(“We will always give good reasons in our notice of
determination or decision for the weight we give your treating source’s opinion”);
Wilson, 378 F.3d at 544 (6th Cir. 2004).
The administrative law judge gave “very little weight” to the opinion of treating
physician, Dr. North, finding that Dr. North provided no documentation or reasoning
for his assessment that Auflick is limited to less than 20 minutes of standing and
walking at one time and less than 30 minutes of sitting at one time. (PageID 75.) The
administrative law judge also rejected Dr. North’s assessment on the basis that the
ultimate issue of whether an individual is disabled or unemployable is reserved for the
Commissioner of the Social Security Administration. (Id.)
In formulating Auflick’s residual functional capacity, the administrative law
judge assigned “great” weight to the assessments of the state agency physicians, Drs.
17

McCloud and Teague. (PageID 75.) However, the administrative law judge found that
although Dr. McCloud opined that Auflick is capable of light work, he reduced the
residual functional capacity to sedentary exertion. The administrative law judge also
opined that the portion of Dr. McCloud’s assessment limiting Auflick to only
occasionally climb ramps and stairs, balance, stoop, kneel, crouch and crawl and never
climb ladders, ropes or scaffolds was consistent with the other medical evidence. (Id.)
The administrative law judge did not adopt all the exertional limitations described by
Dr. McCloud, but chose to adopt only some of those limitations. He provided no
explanation for his decision to reduce Auflick’s residual functional capacity from light
as found by Dr. McCloud down to sedentary. Auflick asserts that where the
administrative law judge “split the difference” between the treating physician and
another doctor, but failed to give treating physician either controlling weight or the
most weight in the record, such finding constitutes reversible error.
The Sixth Circuit has found that to be entitled to substantial deference an
administrative law judge’s non-disability finding must clearly articulate the rationale
underlying the decision. See Hurst v. Secretary of Health & Human Servs., 753 F.2d 517,
519 (6th Cir. 1985). In Hurst, the court discussed the articulation necessary to support
an administrative law judge’s decision regarding disability benefits. The Court stated:
“[i]t is more than merely ‘helpful’ for the administrative law judge to articulate reasons
... for crediting or rejecting particular sources of evidence. It is absolutely essential for

18

meaningful appellate review.” Hurst, 753 F.2d at 519 (quoting Zblewski v. Schweiker, 732
F.2d 75, 78 (7th Cir.1984)).
Thus, an administrative law judge’s decision must articulate with specificity
reasons for the findings and conclusions that he or she makes. Similarly, Social Security
Ruling (“SSR”) 82-62, provides that the “rationale for a disability decision must be
written so that a clear picture of the case can be obtained.” SSR 82-62 at *4. The
administrative law judge’s decision must “follow an orderly pattern and show clearly
how specific evidence leads to a conclusion.” Id.; See also Morris v. Secretary of Health &
Human Servs., No. 86-5875, 1988 WL 34109, at * (6th Cir. Apr. 18, 1988) (per curiam)
(noting, in reliance upon Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981), that, when an
administrative law judge fails to mention relevant evidence in his or her decision, “the
reviewing court cannot tell if significant probative evidence was not credited or simply
ignored”). An administrative law judge may not ignore evidence favorable to plaintiff.
Rather, he must articulate the evidence accepted or rejected when making a disability
finding to enable the reviewing court to engage in meaningful judicial review. See Hurst
v. Secretary of H.H.S., 753 F.2d 517, 519 (1985). See also Bailey v. Commissioner of Social
Sec., 173 F.3d 428 (6th Cir. 1999)(unpublished), 1999 W.L. 96920.
Since Dr. North’s office notes record only mild limitations in range of motion,
moderate tenderness in the lumbar spine, no neurological deficits, and a good response
to medication, there is evidence supporting the administrative law judge’s decision to
discount his opinion about Auflick’s residual functional capacity. However, the
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administrative law judge’s decision does not reflect the rigorous analysis required by
the Commissioner’s regulations. On remand the administrative law judge should
consider both the impact of Auflick’s obesity on her muskuloskeletal pain and what
weight to give Dr. North’s opinion about her residual functional capacity.
Conclusions. For the reasons set forth above, it is RECOMMENDED that the
decision of the Commissioner of Social Security be REMANDED to properly evaluate
the medical source opinions of Dr. North and the state agency physicians under the
legal criteria set forth in the Commissioner’s Regulations and Rulings, and as required
by case law and properly consider plaintiff’s obesity in light of SSR 02-01p.
If any party objects to this Report and Recommendation, that party may, within
fourteen (14) days, file and serve on all parties a motion for reconsideration by the
Court, specifically designating this Report and Recommendation, and the part thereof
in question, as well as the basis for objection thereto. 28 U.S.C. §636(b)(1)(B); Rule 72(b),
Fed. R. Civ. P.
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District
Judge and waiver of the right to appeal the judgment of the District Court. Thomas v.
Arn, 474 U.S. 140, 150-52 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). See
also, Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989).
s/Mark R. Abel
United States Magistrate Judge

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