Rosser v. Commissioner of Social Security

Filing 19

REPORT AND RECOMMENDATIONS re 2 Complaint. It is RECOMMENDED that the decision of the Commissioner be AFFIRMED and that this action be DISMISSED. Objections to R&R due by 2/21/2014. Signed by Magistrate Judge Norah McCann King on 2/4/2014. (pes)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
GEORGE A. ROSSER,
Plaintiff,
vs.

Civil Action 2:13-cv-674
Judge Watson
Magistrate Judge King

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
REPORT AND RECOMMENDATION
I.

Background
This is an action instituted under the provisions of 42 U.S.C. §

405(g) for review of a final decision of the Commissioner of Social
Security denying plaintiff’s application for a period of disability
and disability insurance benefits.

This matter is now before the

Court on Plaintiff George A. Rosser’s Statement of Specific Errors
(“Statement of Errors”), Doc. No. 9, the Commissioner’s Opposition to
Statement of Errors, Doc. No. 16, and Plaintiff’s Reply, Doc. No. 18.
Plaintiff George A. Rosser filed his application for benefits on
August 10, 2010, alleging that he has been disabled since March 8,
2005.

PAGEID 160.

The application was denied initially and upon

reconsideration, and plaintiff requested a de novo hearing before an
administrative law judge.
An administrative hearing was held on May 17, 2012, at which
plaintiff, represented by counsel, appeared and testified, as did
Robert Hartung, who testified as a vocational expert.

PAGEID 56.

In

a decision dated June 21, 2012, the administrative law judge concluded
that plaintiff was not disabled from March 8, 2005, the alleged
disability onset date, through December 31, 2010, the date plaintiff
was last insured.

PAGEID 121.

That decision became the final

decision of the Commissioner of Social Security when the Appeals
Council declined review on May 30, 2013.

PAGEID 32.

Plaintiff was 46 years of age on the date of the administrative
law judge’s decision.

See PAGEID 121, 160.

Plaintiff has at least a

high school education, is able to communicate in English, and has past
relevant work as a welder fitter and truck driver.

PAGEID 120.

Plaintiff was last insured for disability insurance purposes on
December 31, 2010.

PAGEID 116.

He did not engage in substantial

gainful activity from his alleged onset date of March 8, 2005, through
his date last insured of December 31, 2010.
II.

Id.

Medical Evidence
Plaintiff injured his spine and shoulder in 2003 while working as

a delivery driver.

Plaintiff eventually returned to work on light

duty, but reinjured his neck and back on March 8, 2005 when he slipped
on ice.

See e.g., PAGEID 666, 671.

Plaintiff treated with Jon H. Pearlman, M.D., on December 16,
2004, for pain, weakness, and numbness in his neck, right shoulder,
and arm.

PAGEID 334-35.

Dr. Pearlman diagnosed cervical disc

displacement and right shoulder impingement.

PAGEID 335.

An MRI of the right shoulder on July 19, 2006 revealed
acromioclavicular joint arthritic change and fluid collection anterior

2

to the superior portion of the glenoid labrum, which was interpreted
as suggestive of a paralabral cyst.

PAGEID 340, 345-46.

A January

2007 right shoulder arthrogram was “unremarkable” with no evidence of
rotator cuff tear; an MRI revealed bone spurs that were the “likely
source of rotator cuff impingement” and “abnormal focal signal in the
distal supraspinatous tendon which is likely focal tendinosis.”
PAGEID 330-31.
Dr. Keith A. Hollingsworth, M.D., performed an arthroscopic right
subacromial decompression and acromioplasty, arthroscopic right distal
clavicle resection, and primary limited arthroscopic debridement of
the right shoulder torn rotator cuff on October 24, 2007.
67.

PAGEID 365-

On November 6, 2007, plaintiff had “[m]inimal complaints of pain”

and 5/5 rotator cuff strength.

PAGEID 359.

Plaintiff’s forward

flexion range of motion was 175 degrees; his external rotation range
of motion was 75 degrees.

Id.

Plaintiff twisted his knee while “help[ing] a gentleman with his
vehicle” and, on December 6, 2007, was diagnosed with right knee ACL
tear.

PAGEID 357.

January 14, 2008.

Plaintiff underwent an ACL reconstruction on
PAGEID 362-64.

On January 17 and 29, 2008,

plaintiff reported that his pain was improving.

PAGEID 355-56.

On

April 3, 2008, plaintiff reported “some weakness in his leg” but that
he was “doing well” otherwise.

PAGEID 354.

Upon examination, it was

noted that plaintiff had an inch of atrophy, full range of motion, and
negative Lachman, drawer and pivot shift.

3

PAGEID 354.

Plaintiff treated with Dr. Pearlman on April 28, 2008, for neck
pain and right shoulder pain.

PAGEID 336-37.

Clinical examination

revealed mild tenderness of the lower cervical paraspinal muscles,
full right shoulder range of motion, and moderate shoulder pain with
external and internal rotation.

Id.

A May 2008 MRI of the cervical

spine revealed mild broad-based disk protrusion at C5-6 and C6-7 and
was unchanged from plaintiff’s October 2007 MRI.

PAGEID 340, 347-48.

On August 19, 2008, plaintiff consulted with surgeon Bradford B.
Mullin, M.D., who suggested an anterior cervical discectomy, fixation
and fusion, to address herniated discs at C5-6 and C6-7.
31.

PAGEID 430-

Plaintiff was informed that the procedure offered an 80 percent

change of relieving a radiculopathy and a 70 percent chance that the
surgery would help plaintiff.

Plaintiff did not proceed with the

Id.

surgery, and Dr. Mullin recommended the surgery again on August 17,
2010.

PAGEID 432-33. Again, plaintiff did not proceed with the

surgery.
On August 25, 2008, Dr. Pearlman noted mild tenderness at the
posterior cervical thoracic junction, full range of motion in the
shoulder, and normal strength and muscle tone bilaterally in the upper
extremities.

PAGEID 338.

Similar findings were made on February 25,

2009, at which time plaintiff also had a negative tinel sign over the
medial nerve at the right wrist.

PAGEID 340-41.

A right upper

extremity EMG/NCS on March 26, 2009 revealed mild right carpal tunnel
neuropathy.

PAGEID 342-43.

On August 1, 2011, plaintiff reported

pain over the prior six months in his right arm and hand associated

4

with numbness in his right third, fourth, and fifth fingers, and pain
radiating into his left shoulder, upper arm, and left hand.
678.

PAGEID

A November 7, 2011 EMG/NCS of the right upper extremity revealed

moderate right carpal tunnel neuropathy.

PAGEID 489, 675.

Plaintiff again saw Dr. Hollingsworth on April 30, 2009 for right
shoulder pain after he had “been doing quite a bit of lifting.”
PAGEID 353.

Upon examination, plaintiff’s right rotator cuff strength

was rated 4/5.

Id.

A June 9, 2009 MRI of the right shoulder revealed

no evidence of rotator cuff tear or of labral tear; it was noted that
moderate hypertrophic osteoarthropathy of the acromioclavicular joint
could contribute to subacromial impingement.

PAGEID 350-51.

On June

16, 2009, Dr. Hollingsworth found right rotator cuff strength of 5/5.
PAGEID 352.
An August 10, 2010 MRI of the cervical spine revealed moderate
degenerative changes at C4-5 through C6-7, with some central canal
stenosis and mild neural foraminal narrowing.

PAGEID 492-93.

Plaintiff treated regularly with Jeffrey Haggenjos, D.O., for
more than 20 years.

See PAGEID 439, 682-711.

On August 30, 2010, Dr.

Haggenjos recommended surgery and opined that plaintiff was “unable to
work.”

PAGEID 435-37.

On November 1, 2010, Dr. Haggenjos commented

that, for more than six years, plaintiff’s ability to do fine and
gross manipulation had been poor.

PAGEID 440.

In 2011, Dr. Haggenjos

again opined that plaintiff required surgery and was “unable to work.”
PAGEID 458-59.

5

On November 24, 2011, Dr. Haggenjos completed a physical capacity
evaluation.

PAGEID 477-80.

In an eight-hour workday, plaintiff could

stand for zero to two hours, zero to one minute at a time; walk for
zero to two hours, zero to one minute at a time; and sit for five to
eight hours, one minute at a time.
11 to 20 pounds only rarely.

Id.

PAGEID 477.

Plaintiff could lift

He could use his hands for

repetitive simple grasping and fine manipulation, but not for pushing
and pulling.

Plaintiff could rarely bend and climb steps and

Id.

could never squat, crawl, climb ladders, or reach above shoulder
level.

PAGEID 478.

According to Dr. Haggenjos, plaintiff’s condition

would likely deteriorate if he were placed under stress and that
plaintiff would likely have partial or full day unscheduled absences
from work occurring five or more days per month.

Id.

On that same date, Dr. Haggenjos also opined that, since at least
March 2005, plaintiff could occasionally lift and carry one to 10
pounds, rarely lift and carry 11 to 20 pounds, and never lift more
than 20 pounds.

PAGEID 479.

Plaintiff could occasionally reach with

his left hand/arm, handle with his left hand, and finger with his left
hand.

PAGEID 479-80.

Plaintiff could rarely reach with his right

hand/arm, handle with his right hand, and finger with his right hand.
Id.
On November 28, 2011, Dr. Haggenjos diagnosed right CTS, C6-7
herniated disc, C5-6 herniated disc, lumbar disc disease, right
rotator cuff tear, right shoulder replacement, depression, and chronic
thoracic sprain. PAGEID 473.

According to Dr. Haggenjos, plaintiff

6

“is permanently disabled for any type of gainful employment, both full
and part time.” Id.
On August 17, 2012, i.e., after the administrative hearing, Dr.
Haggenjos indicated that he had misread the form and had assumed that
the form called for hours of activity rather than minutes of activity.
PAGEID 714.

Dr. Haggenjos clarified, “on some occasion, [plaintiff]

is unable to stand or walk due to lack of function and severe pain. On
other occasions [plaintiff] may stand or walk up to an hour without a
break.

The last question should state he is able to sit for an hour

without having to make major adjustments.”

Id.

Dr. Haggenjos further

opined that plaintiff “is unable to do any type of gainful employment
either part or full time.”

Id.

Plaintiff was evaluated by Mark E. Weaver, M.D., on December 9,
2010.

PAGEID 446-55.

Plaintiff reported “constant pain in his neck,

right shoulder and low back area with pain radiating to the right leg
and down his right arm frequently with numbness in the outer right arm
and the outer right lower leg and foot.”

PAGEID 446.

Upon

examination, plaintiff had consistent slight weakness of the
musculature of the right shoulder and upper extremity.

PAGEID 449.

Grip strength testing was consistent and averaged 34 kg in the right
hand and 54 kg in the left hand; grasp, manipulation, pinch, and fine
coordination activities were normal bilaterally.

Id.

Plaintiff

reported paresthesia over the lateral right arm, ulnar right hand,
right little, ring, and middle fingers, and in the L5 dermatome of the
right lower extremity.

Id.

Dr. Weaver diagnosed “[p]robable chronic

7

neck and radicular right upper extremity pain, probable mild broadbased disc protrusions at C5-6 and C6-7 by medical history,”
“[p]robable chronic low back and radicular right lower extremity pain,
etiology unknown,” and “[p]robable chronic right shoulder pain,
etiology unknown.”

PAGEID 550.

Dr. Weaver opined that plaintiff

“would probably be limited in the performance of physical activities
involving sustained sitting, standing, walking, climbing, reaching
with the right upper extremity, lifting and carrying.”

Id.

Plaintiff

would also “probably be capable of performing physical activities
involving handling objects, speaking, hearing, following directions
and travel.”

Id.

W. Jerry McCloud, M.D., reviewed the record for the state agency
on January 21, 2011,

PAGEID 93-95, and opined that plaintiff could

occasionally lift and/or carry 20 pounds, frequently lift and/or carry
10 pounds, stand and/or walk for a total of about six hours in an
eight-hour workday, and sit for a total of about six hours in an
eight-hour workday.

PAGEID 94.

Plaintiff should never climb ladders,

ropes, or scaffolds, could only occasionally stoop, kneel, couch, and
crawl, and would be limited in reaching “[r]ight [o]verhead.”

Id.

William Bolz, M.D., another state agency physician, reviewed the
record on March 18, 2011, and opined that plaintiff had the same
limitations as found by Dr. McCloud.

PAGEID 105-06.

Plaintiff was evaluated by Robin G. Stanko, M.D., on August 9,
2011 in connection with his workers compensation claim.

8

PAGEID 671-

73.

Dr. Stanko opined that plaintiff had a “total combined impairment

of 27% whole person impairment.”

PAGEID 673.

Plaintiff underwent a psychological examination by Marian
Chatterjee, Ph.D., on March 24, 2012.

PAGEID 665-69.

Plaintiff

reported being overwhelmed and unable to find work because of his
physical limitations, low stress tolerance, low self-worth, and
feeling drained.

PAGEID 665.

Plaintiff also reported a poor

appetite, anhedonia, and feeling sad most of the time.

PAGEID 666.

Dr. Chatterjee summarized her findings as follows:
George Rosser was a hard working family man with a history
of performing very physical jobs. After his 7/25/03 injury
to the shoulder and spine, he struggled through the pain
and continued on light duty until March 2005 when he
sustained another injury to the same body parts.
He has
been unable to function vocationally due to severe pain,
and has become demoralized, hopeless, and negative.
He
requires a great deal of medication to manage his condition
and has developed troubling side effects ranging from
kidney stones to constipation/diarrhea.
Mr. Rosser feels
like a failure as a provider. Tolerance for stress is low
and he loses his temper easily.
Formerly very active in
all areas of life, he now spends the majority of his time
in bed, though does not sleep well and does not feel
rested.
Quality of life is poor and he feels like a
spectator.
“Everything is passing me by.”
It is my
opinion that George Rosser has developed Dysthymic Disorder
(DSM-IV: 300.4) as a direct and proximate result of
injuries sustained on 7/25/2003.
Mr. Rosser requires
aggressive
psychotherapy
to
improve
coping
and
pain
management skills.
A psychiatric consultation is also
advised.
His condition is presently temporarily and
totally disabling in and of itself.
PAGEID 668-69.
III. Administrative Decision
The administrative law judge found that plaintiff’s severe
impairments consist of degenerative disc disease of the cervical

9

spine, right shoulder impairment with bone spurs, and right carpal
tunnel syndrome.

PAGEID 116.

The administrative law judge also found

that plaintiff’s impairments neither meet nor equal a listed
impairment and leave plaintiff with the residual functional capacity
(“RFC”) to
perform light work as defined in 20 CFR 404.1567(b) with
the following abilities and limitations: (1) able to
occasionally lift and carry 20 pounds, frequently lift and
carry 10 pounds, and push or pull to the same extent using
the lower extremities and the left upper extremity; (2)
able to frequently push or pull using the right upper
extremity; (3) able to occasionally reach with the right
upper extremity with no limitations in reaching with the
left upper extremity; (4) able to stand or walk about 6
hours and sit about 6 hours in an 8 hour workday; (5)
cannot climb ladders, ropes or scaffolds; (6) able to
occasionally stoop, crouch, kneel, and crawl.
PAGEID 118-19.

Although this residual functional capacity would

preclude plaintiff’s past relevant work as a welder, fitter and truck
driver, the administrative law judge relied on the testimony of the
vocational expert to find that plaintiff is nevertheless able to
perform a significant number of jobs in the national economy,
including such jobs as cashier, counter and rental clerk, and retail
sales clerk.

PAGEID 120-21.

Accordingly, the administrative law

judge concluded that plaintiff was not disabled within the meaning of
the Social Security Act from March 8, 2005, his alleged onset date,
through December 31, 2010, the date he was last insured.
IV.

PAGEID 121.

Discussion
Pursuant to 42 U.S.C. § 405(g), judicial review of the

Commissioner’s decision is limited to determining whether the findings

10

of the administrative law judge are supported by substantial evidence
and employed the proper legal standards.

Richardson v. Perales, 402

U.S. 389 (1971); Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595
(6th Cir. 2005).

Substantial evidence is more than a scintilla of

evidence but less than a preponderance; it is such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.
See Buxton v. Haler, 246 F.3d 762, 772 (6th Cir. 2001); Kirk v. Sec’y
of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1981).

This

Court does not try the case de novo, nor does it resolve conflicts in
the evidence or questions of credibility.

See Brainard v. Sec’y of

Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989); Garner v.
Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
In determining the existence of substantial evidence, this
Court must examine the administrative record as a whole.
F.2d at 536.

Kirk, 667

If the Commissioner's decision is supported by

substantial evidence, it must be affirmed even if this Court would
decide the matter differently, see Kinsella v. Schweiker, 708 F.2d
1058, 1059 (6th Cir. 1983), and even if substantial evidence also
supports the opposite conclusion.

Longworth, 402 F.3d at 595.

Plaintiff challenges both the decision of the Appeals Council
as well as the decision of the administrative law judge.

Plaintiff

argues that this action should be remanded under Sentence 4 of 42
U.S.C. § 405(g) because the administrative law judge erred in
plaintiff’s RFC determination and in evaluating the medical opinions
of Dr. Chatterjee and plaintiff’s treating physician Dr. Haggenjos.

11

Plaintiff also argues that the Appeals Council erred when it declined
to review the administrative law judge’s decision because plaintiff
presented new and material evidence to the Appeals Council.

Each

argument will be addressed in turn.
Plaintiff argues that the administrative law judge violated the
treating physician rule in evaluating Dr. Haggenjos’s opinions.
Statement of Errors, pp. 14-17.

The opinion of a treating provider

must be given controlling weight if that opinion is “well-supported by
medically acceptable clinical and laboratory diagnostic techniques”
and is “not inconsistent with the other substantial evidence in [the]
case record.”

20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).

Even if

the opinion of a treating provider is not entitled to controlling
weight, an administrative law judge is nevertheless required to
determine how much weight should be given to the opinion by
considering such factors as the length, nature and extent of the
treatment relationship, the frequency of examination, the medical
specialty of the treating physician, the extent to which the opinion
is supported by the evidence, and the consistency of the opinion with
the record as a whole.

20 C.F.R. § 404.1527(c)(2)-(6); Blakley v.

Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); Wilson v.
Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004).

Moreover, an

administrative law judge must provide “good reasons” for discounting
the opinion of a treating provider, i.e., reasons that are
“‘sufficiently specific to make clear to any subsequent reviewers the
weight the adjudicator gave to the treating source’s medical opinion

12

and the reasons for that weight.’”

Rogers v. Comm’r of Soc. Sec., 486

F.3d 234, 242 (6th Cir. 2007) (quoting SSR 96-2p, 1996 WL 374188, at
*5 (July 2, 1996)).

This special treatment afforded to the opinions

of treating providers recognizes that
“these sources are likely to be the medical professionals
most able to provide a detailed, longitudinal picture of
[the claimant’s] medical impairment(s) and may bring a
unique perspective to the medical evidence that cannot be
obtained from the objective medical findings alone or from
reports of individual examinations, such as consultative
examinations or brief hospitalizations.”
Wilson, 378 F.3d at 544 (quoting 20 C.F.R. § 404.1527(d)(2)).
Plaintiff treated regularly with Dr. Haggenjos for more than 20
years.

See PAGEID 439, 682-711.

Dr. Haggenjos opined on three

occasions that plaintiff is unable to work.
2010), 440 (November 2010), 458-59 (2011).

PAGEID 435-37 (August
On November 1, 2010, Dr.

Haggenjos opined that, for more than six years, plaintiff’s ability to
perform fine and gross manipulation had been poor.

PAGEID 440.

In

November 2011, Dr. Haggenjos opined that, in an eight-hour workday,
plaintiff could stand for zero to two hours, zero to one minute at a
time; walk for zero to two hours, zero to one minute at a time; and
sit for five to eight hours, one minute at a time.

PAGEID 477.

Plaintiff could only rarely lift 11 to 20 pounds and could not use his
hands for repetitive pushing and pulling.

Id.

Plaintiff could only

rarely bend and climb steps and could never squat, crawl, climb
ladders, or reach above shoulder level.

PAGEID 478.

On November 24,

2011, Dr. Haggenjos opined that, since at least March 2005, plaintiff
could occasionally reach with his left hand/arm, handle with his left

13

hand, and finger with his left hand.

PAGEID 479-80.

Plaintiff could

rarely reach with his right hand/arm, handle with his right hand, and
finger with his right hand.

Id.

The administrative law judge considered Dr. Haggenjos’s
opinions and assigned them “little weight:”
The claimant’s treating physician, Dr. Jeffrey Haggenjos,
has opined on several occasions that the claimant is
“unable to work,” that the claimant can sit, stand and walk
only 1 minute at a time, and can rarely use his right hand
to handle and finger (Exhibits 12F, 16F, 18F).
However,
the undersigned observed that the claimant was in fact able
to sit for at least 20 minutes without difficulty during
the hearing.
Further, the claimant has been observed by
other physicians to have a normal gait (Exhibit 19F).
Lastly, other physicians have examined the clamant and
found him to have normal strength, grip and range of motion
in both upper extremities (Exhibits 19F, 20F).
Dr.
Haggenjos’s opinion is inconsistent with other objective
medical evidence of record and therefore granted little
weight.
PAGEID 119.

Although succinct, the administrative law judge’s

analysis is sufficiently specific as to the weight given to Dr.
Haggenjos’s opinions and the reasons for assigning that weight.

There

is substantial evidence to support the administrative law judge’s
determination that plaintiff had been observed to have a normal gait
and normal strength, grip, and range of motion in both upper
extremities.

See PAGEID 487 (normal gait; full shoulder range of

motion, bilaterally; and normal upper extremity strength,
bilaterally); 501 (normal gait); 502 (5/5 strength in right and left
grip and in upper extremities).

Under the circumstances, a formulaic

recitation of factors is not required.

See Friend v. Comm’r of Soc.

Sec., 375 F. App’x 543, 551 (6th Cir. 2010) (“If the ALJ’s opinion

14

permits the claimant and a reviewing court a clear understanding of
the reasons for the weight given a treating physician’s opinion,
strict compliance with the rule may sometimes be excused.”).
Referring to the administrative law judge’s rejection of Dr.
Haggenjos’ limitation on plaintiff’s ability to sit, stand and walk
for no more than 1 minute at a time, plaintiff argues that the
administrative law judge should have recognized Dr. Haggenjos’s
mistake and “sever[ed] . . . that portion from consideration of the
remainder of the opinion” because “the one minute duration limitation
did not make sense in relation to all of Dr. Haggenjos’s records and
the other portions of his opinion.”

Statement of Errors, p. 16.

Plaintiff’s argument is not well taken.
As noted supra, this Court’s review of the Commissioner’s
decision is limited to determining whether the findings of the
administrative law judge are supported by substantial evidence and
employed the proper legal standards.

See Longworth, 402 F.3d at 595.

This Court will not remand an action under Sentence 4 of 42 U.S.C. §
405(g) on the basis that evidence submitted after the administrative
law judge’s decision, such as Dr. Haggenjos’s August 2012 letter,
material to the administrative law judge’s decision.

was

See e.g., Cline

v. Comm’r of Soc. Sec., 96 F.3d 146, 148 (6th Cir. 1996).

This Court

may remand an action under Sentence 6 of 42 U.S.C. § 405(g) for
consideration of new and material evidence, but plaintiff has not
sought a Sentence 6 remand on the basis of Dr. Haggenjos’s August 2012
letter.

Furthermore, plaintiff’s proposal, i.e., to require an

15

administrative law judge to disregard a portion of a treating source
opinion if the administrative law judge concludes that the source was
mistaken about his or her medical opinion, would amount to a
substitution of the administrative law judge’s medical opinion for
that of the treating source – a wholly unauthorized result.

See e.g.,

Deskin v. Comm’r of Soc. Sec., 605 F.Supp.2d 908, 912-13 (N.D. Ohio
2008).
It is well-settled that the Commissioner's decision, if
supported by substantial evidence, must be affirmed even if the
plaintiff’s position is also supported by substantial evidence.

See

Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 876 (6th Cir. 2007).
Because the administrative law judge correctly applied the standards
of the treating physician rule to his evaluation of Dr. Haggenjos’s
opinions, and because substantial evidence supports his findings, the
Court finds no error with the Commissioner's decision in this regard.
Plaintiff next argues that the administrative law judge erred
in evaluating the opinion of Dr. Chatterjee and in failing to include
in plaintiff’s RFC assessment the functional limitations opined by Dr.
Chatterjee.

Statement of Errors, pp. 6-7, 11-12.

An administrative

law judge is required to evaluate every medical opinion, regardless of
its source.

20 C.F.R. § 404.1527(c). However, not every medical

opinion is treated equally; the Commissioner’s regulations describe
three classifications for acceptable medical opinions: (1)
nonexamining sources; (2) nontreating sources (or examining sources);
and (3) treating sources.

As a one-time consultative psychological

16

examiner, Dr. Chatterjee is properly classified as a nontreating
source.

See 20 C.F.R. § 404.1502 (“Nontreating source means a

physician, psychologist, or other acceptable medical source who has
examined [the claimant] but does not have, or did not have, an ongoing
treatment relationship with [the claimant].”).
As discussed supra, the Social Security Administration accords
the

greatest

weight

to

the

opinions

of

treating

sources;

if

an

administrative law judge does not give “controlling weight” to the
medical opinion of a treating source, he must provide “good reasons”
for discounting that opinion.

See Rogers, 486 F.3d at 242 (quoting

Soc. Sec. Rul. 96-2p, 1996 WL 374188, at *5); Ealy v. Comm’r of Soc.
Sec., 594 F.3d 504, 514 (6th Cir. 2010).
only applies to treating sources.”
Smith,

482

nontreating

F.3d

at

sources

876

(emphasis

such

as

Ealy, 594 F.3d at 514 (citing
in

Dr.

“However, this requirement

original)).

Chatterjee,

With
“the

regard

agency

to

will

simply ̔[g]enerally [] give more weight to the opinion of a source who
has examined [the claimant] than to the opinion of a source who has
not examined’” him.

Id. (quoting 20 C.F.R. § 404.1527(d)(1)).

also Smith, 482 F.3d at 875.
the

opinion

should

of

consider

a

nontreating

such

factors

See

In determining how much weight to give
source,
as

“the

an

administrative

evidence

that

the

law

judge

physician

offered in support of her opinion, how consistent the opinion is with
the record as a whole, and whether the physician was practicing in her
specialty.”

Ealy, 594 F.3d at 514 (citing 20 C.F.R. § 404.1527(d)).

17

Dr. Chatterjee diagnosed a dysthymic disorder and recommended
psychotherapy

and

a

psychiatric

consultation.

She

opined

that

plaintiff’s “condition is presently temporarily and totally disabling
in

and

of

itself.

PAGEID

668-69.

The

administrative

law

judge

expressly considered Dr. Chatterjee’s opinion, but afforded “little
weight” to the opinion because it was “not supported by objective
evidence, not rendered by a source shown to be familiar with this
Agency’s and occupational standards, and is highly dependent upon the
claimant’s reports of symptoms and limitations where the claimant is
found

to

be

limitations.”

not

wholly

reliable

PAGEID 119.

as

a

reporter

of

symptoms

and

The administrative law judge also found

that Dr. Chatterjee rendered the opinion “after not[ing] essentially
no objective abnormalities upon examination.”

Id.

The administrative law judge’s analysis is sufficiently specific
as to the weight given to Dr. Chatterjee’s opinion and the reasons for
providing that weight, and it is clear that the administrative law
judge considered the appropriate factors in evaluating Dr.
Chatterjee’s opinion.

The administrative law judge’s reasons for

assigning “little weight” to the opinion are also supported by
substantial evidence.

Notably, the overwhelming majority of Dr.

Chatterjee’s opinion is a narrative report that simply recites
plaintiff’s self-reported history, symptoms, and limitations.
PAGEID 668-69, with PAGEID 665-67.

Compare

As plaintiff argues, a

psychological evaluation is often dependent on the subjective
presentation of the patient.

See Winning v. Comm’r of Soc. Sec., 661

18

F.Supp.2d 807, 821 (N.D. Ohio 2009).

However, it is not improper for

an administrative law judge to consider whether a medical opinion is
“highly dependent upon the claimant’s reports of symptoms and
limitations,” especially where, as here, the administrative law judge
also finds that the claimant’s reported symptoms and limitations are
not entirely credible.1

See PAGEID 118.

Accordingly, the Court finds

no error in the administrative law judge’s consideration of Dr.
Chatterjee’s opinion.
Plaintiff also argues that the administrative law judge erred in
determining plaintiff’s RFC by “fail[ing] to include functional
limitations related to [plaintiff’s] well-documented carpel tunnel
syndrome.”

Statement of Errors, pp. 6-7.

Specifically, plaintiff

argues that the administrative law judge made no mention of carpel
tunnel syndrome in plaintiff’s RFC determination and “neglected to
describe or consider limitations in [plaintiff’s] ability to handle
and grasp objects despite the identification of right carpel tunnel
syndrome as one of his severe impairments.”

Id. at pp. 7-8.

Plaintiff points to previous complaints of numbness in his fingers, a
physical examination showing paresthesia over his right arm, hand, and
three fingers, and a grip test performed by Dr. Weaver which evidenced
a lower grip strength in plaintiff’s right hand than in his left, all
as evidence of his functional limitations.

Id. at pp. 9-10. Plaintiff

also refers to Dr. Weaver’s opinion that plaintiff “would ‘probably be

1

Significantly, plaintiff does not challenge the administrative law judge’s
credibility determination.

19

capable of’ handling objects,” and argues that Dr. Weaver did not
“affirmatively state that [plaintiff] actually had the capability to
handle objects.”

Id.

Plaintiff’s arguments are not well taken.

An RFC determination is an indication of an individual's workrelated abilities despite their limitations.
416.945(a).

See 20 C.F.R. §

The RFC is an administrative finding of fact reserved to

the Commissioner.

20 C.F.R. §§ 404.1527(d)(2), (3), 416.927(d)(2),

(3); Edwards v. Comm'r of Soc. Sec., 97 F. App'x 567, 569 (6th Cir.
2004).

It represents the most, not the least, that a claimant can do

despite his impairments.

20 C.F.R. §§ 404.1545(a); Griffeth v. Comm’r

of Soc. Sec., 217 F. App'x 425, 429 (6th Cir. 2007).

In assessing a

claimant's RFC, an administrative law judge must consider all relevant
record evidence, including medical source opinions, on the severity of
a claimant's impairments.

See 20 C.F.R. §§ 404.1527(d), 404.1545(a).

Furthermore, courts have stressed the importance of medical opinions
to support a claimant's RFC, and cautioned administrative law judges
against relying on their own expertise in drawing RFC conclusions from
raw medical data.

See Isaacs v. Astrue, No. 1:08-CV-828, 2009 WL

3672060, at *10 (S.D. Ohio Nov. 4, 2009) (quoting Deskin, 605
F.Supp.2d at 912.
In the case presently before the Court, the administrative law
judge found that plaintiff had the RFC to
perform light work as defined in 20 CFR 404.1567(b) with
the following abilities and limitations: (1) able to
occasionally lift and carry 20 pounds, frequently lift and
carry 10 pounds, and push or pull to the same extent using
the lower extremities and the left upper extremity; (2)

20

able to frequently push or pull using the right upper
extremity; (3) able to occasionally reach with the right
upper extremity with no limitations in reaching with the
left upper extremity; (4) able to stand or walk about 6
hours and sit about 6 hours in an 8 hour workday; (5)
cannot climb ladders, ropes or scaffolds; (6) able to
occasionally stoop, crouch, kneel, and crawl.
PAGEID 118-19.

In making this RFC assessment, the administrative law

judge considered all the opinion evidence, including Dr. Weaver’s
December 2010 opinion that plaintiff “‘would probably be capable of
performing physical activities involving handling objects, speaking,
hearing, following directions and travel.’”
Exhibit 14F).

PAGEID 119 (quoting

The administrative law judge also referred to medical

records containing the diagnosis of carpel tunnel syndrome, but also
noted that “physicians have examined the claimant and found him to
have normal strength, grip and range of motion in both upper
extremities (Exhibits 19F, 20F).”

PAGEID 119.

As discussed supra,

this finding is supported by substantial evidence.

Furthermore,

although grip strength testing performed by Dr. Weaver averaged 34 kg
in the right hand and 54 kg in the left hand, Dr. Weaver also noted
that plaintiff’s “[g]rasp, manipulation, pinch and fine coordination
activities were normal bilaterally.”

PAGEID 449.

The record

demonstrates that plaintiff was diagnosed with carpel tunnel syndrome
and that, at times, he reported and suffered from related symptoms.
See PAGEID 340-43, 489, 678, 675.

The record does not, however,

demonstrate that plaintiff suffered greater limitations than those
found in the administrative law judge’s RFC assessment.

Accordingly,

the Court concludes that the administrative law judge did not err in

21

failing to include a limitation based on handling and grasping in
plaintiff RFC assessment.

This conclusion also belies plaintiff’s

related argument that the administrative law judge erred in relying on
the opinions of Drs. McCloud and Bolz2 in forming plaintiff’s RFC
because their opinions did not consider limitations posed by
plaintiff’s carpal tunnel syndrome.

See Statement of Errors, pp. 16-

17.
In short, the Court concludes that the administrative law judge
applied all proper standards and that his decision is supported by
substantial evidence.
Plaintiff also argues that the Appeals Council erred by failing
to review the administrative law judge’s decision because plaintiff
had submitted new and material evidence to the Appeals Council.
Statement of Errors, pp. 17-20.
On May 30, 2013, the Appeals Council declined to review the
decision of the administrative law judge.

PAGEID 32-34.

When the

Appeals Council denies a claimant's request for review, the decision
of the administrative law judge becomes the final decision of the
Commissioner.

Casey v. Secy. of Health & Human Servs., 987 F.2d 1230,

1233 (6th Cir. 1993) (citing 20 C.F.R. § 404.955).

Under such

circumstances, a court called upon to review the final decision of the
Commissioner of Social Security is confined to a review of the
administrative law judge’s decision and the evidence presented to the
2

Drs. McCloud and Bolz are “nonexamining sources” because they are physicians
who provided a medical opinion in plaintiff’s case without examining
plaintiff. See 20 C.F.R. §§ 404.1502, 416.902.

22

administrative law judge.

See Jones v. Comm’r of Soc. Sec., 336 F.3d

469, 477 (6th Cir. 2003) (citing Wyatt v. Sec’y of Health & Human
Servs., 974 F.2d 680, 685 (6th Cir. 1992)).

This Court has no

authority to review the decision of the Appeals Council.

See Cline,

96 F.3d at 148 (“[T]he district court cannot consider that new
evidence in deciding whether to uphold, modify, or reverse the ALJ's
decision.”).
A district court may, under certain circumstances, remand a case
under Sentence 6 of 42 U.S.C. § 405(g) for further administrative
proceedings in light of new and material evidence.

Id.

The court . . . may at any time order additional evidence
to be taken before the Commissioner of Social Security, but
only upon a showing that there is new evidence which is
material and that there is good cause for the failure to
incorporate such evidence into the record in a prior
proceeding[.]
42 U.S.C. § 405(g).

A plaintiff has the burden under this provision

to demonstrate that the additional evidence presented is both “new”
and “material” and that there is “good cause” for the failure to
present this evidence to the administrative law judge.

See Hollon ex

rel. Hollon v. Comm’r of Soc. Sec., 447 F.3d 477, 483 (6th Cir. 2006).
Evidence is “new,” for purposes of this provision, only if it was
“not in existence or available to the claimant at the time of the
administrative proceeding.”
626 (1990).

Sullivan v. Finkelstein, 496 U.S. 617,

Evidence is “material” only if there is “a reasonable

probability that the [Commissioner] would have reached a different
disposition of the disability claim if presented with the new

23

evidence.”

Sizemore v. Sec’y of Health & Human Servs., 865 F.2d 709,

711 (6th Cir. 1988).

See also Faucher v. Sec’y of Health & Human

Servs., 17 F.3d 171, 174 (6th Cir. 1994).

A plaintiff may establish

“good cause” by demonstrating a reasonable justification for the
failure to acquire and present the evidence at the administrative
hearing.

Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001).

This

standard applies to evidence submitted for the first time to the
Appeals Council.

Id.; Cline, 96 F.3d at 148.

Plaintiff submitted to the Appeals Council for the first time a
May 8, 2012 psychological evaluation by Douglas Pawlarczyk, Ph.D.
PAGEID 715-50.

Dr. Pawlarczyk diagnosed dysthymic disorder and opined

that plaintiff’s “depression is work prohibitive.

In this regard,

[plaintiff’s] low energy would make it difficult for him to perform
work-like tasks at a competitive rate.”

PAGEID 723-724.

Dr.

Pawlarczyk further opined that plaintiff’s “reduced interest in
activities and irritability in social situations would also make it
difficult for him to relate to coworkers, supervisors, and the general
public.

Given these difficulties, he would be unable to engage in any

competitive employment at this time.”

PAGEID 724.

Even assuming that plaintiff actually seeks a Sentence 6 order of
remand, see Statement of Errors, p. 1 (“Plaintiff moves for . . .
remand of this claim pursuant to Sentence 4 of 42 U.S.C. Section
405(g) . . . .”), plaintiff has not met his burden of establishing
that such an order of remand is appropriate.

Dr. Pawlarczyk’s opinion

was generated long after December 31, 2010 – i.e., the date that

24

plaintiff’s insured status expired; plaintiff has not established that
Dr. Pawlarczyk’s opinion is material even if it establishes a
deterioration in plaintiff’s condition since the lapse of his insured
status.

See Smith v. Comm’r of Soc. Sec., 473 F. App’x 443, 445-46

(6th Cir. 2012) (citing Ferguson v. Comm’r of Soc. Sec., 628 F.3d 269,
277-78 (6th Cir. 2010)).

See also Oliver v. Sec. of Health & Human

Servs., 804 F.2d 964, 966 (6th Cir. 1986).

The Court also finds that

there is not a reasonable probability that the Commissioner would have
reached a different result had Dr. Pawlarczyk’s opinion been presented
to the administrative law judge.

Significantly, Dr. Pawlarczyk noted

that plaintiff reported “no previous mental health treatment” and that
plaintiff “did indicate a high suspicion for a malingering tendency on
one of the test instruments that was administered to him.”
723.

PAGEID

Remand is therefore not warranted under even Sentence 6 of 42

U.S.C. § 405(g).
Having carefully considered the entire record in this action,
the Court concludes that the decision of the Commissioner is supported
by substantial evidence.

It is therefore RECOMMENDED that the

decision of the Commissioner be AFFIRMED and that this action be
DISMISSED.
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.

25

28

U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

Fed. R. Civ. P. 72(b).

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 of the right to appeal the
decision of the District Court adopting the Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of
Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).

February 4, 2014

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

26