Miller v. Commissioner of Social Security

Filing 17

REPORT AND RECOMMENDATIONS re 3 Complaint filed by Heidi Jo Miller. It is RECOMMENDED that the decision of the Commissioner be AFFIRMED and that this action be DISMISSED. Objections to R&R due by 1/5/2015. Signed by Magistrate Judge Norah McCann King on 12/17/2014. (pes1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
HEIDI JO MILLER,
Plaintiff,
vs.

Civil Action 2:14-cv-422
Judge Marbley
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 applications for a period of disability,
disability insurance benefits, and supplemental security income.

This

matter is before the Court on Plaintiff Heidi Jo Miller’s Statement of
Errors (“Statement of Errors”), Doc. No. 11, and Defendant’s
Memorandum in Opposition, Doc. No. 16.

Plaintiff has not filed a

reply.
Plaintiff Heidi Jo Miller filed her applications for benefits on
July 8, 2009, alleging that she has been disabled since May 7, 2009.1
PAGEID 77, 334-42.

The claims were denied initially and upon

reconsideration, and plaintiff requested a de novo hearing before an
1

At the first administrative hearing, plaintiff amended her alleged onset
date to October 3, 2007. PAGEID 143-45. However, the administrative law
judge concluded, in his January 17, 2013 decision after the second
administrative hearing, that plaintiff was not disabled from May 7, 2009
through the date of that decision. PAGEID 77-93. Plaintiff has not
challenged the administrative decision in that regard.

administrative law judge.
An administrative hearing was held on May 19, 2011, at which
plaintiff, represented by counsel, appeared and testified, as did
Michael Klein, who testified as a vocational expert.

PAGEID 138.

In

a decision dated June 17, 2011, the administrative law judge concluded
that plaintiff was not disabled.

PAGEID 204-17.

However, on

September 25, 2012, the Appeals Council vacated that decision and
remanded the matter to the administrative law judge for further
consideration.

PAGEID 224-25.

A second administrative hearing was held on January 11, 2013, at
which plaintiff, represented by counsel, appeared and testified, as
did Mary Harris, who testified as a vocational expert.

PAGEID 101.

In a decision dated January 17, 2013, the administrative law judge
concluded that plaintiff was not disabled from May 7, 2009, through
the date of the administrative decision.

PAGEID 77-93.

That decision

became the final decision of the Commissioner of Social Security when
the Appeals Council declined review on March 27, 2014.

PAGEID 55-58.

Plaintiff was 42 years of age on the date of the administrative
law judge’s January 17, 2013 decision.

See PAGEID 93, 334.

She has a

limited education, is able to communicate in English, and has past
relevant work as a cashier.

PAGEID 173.

Plaintiff was last insured

for disability insurance purposes on June 30, 2010.

PAGEID 80.

She

has not engaged in substantial gainful activity since May 7, 2009.
Id.

2

II.

Evidence of Record2
Plaintiff began treatment with Katherine Balturshot, M.D., on

July 10, 2006.

PAGEID 527.

and weighed 204.9 pounds.

At the time, plaintiff was 5’ 5-1/4” tall
PAGEID 570.

Plaintiff reported pain in her

lower abdomen, back, neck, and shoulders that extended into her lower
back and legs.

Id.

Plaintiff saw Dr. Balturshot approximately once

per month through at least January 2008.
39, 835-57.

PAGEID 532-71, 587-604, 622-

Plaintiff regularly reported pain in her back and legs

during this time and Dr. Balturshot provided pain medication
management.

Id.

On October 23, 2006, Dr. Balturshot noted that plaintiff had no
urinary or fecal incontinence, normal gait, and 5/5 strength in her
bilateral lower extremities.

PAGEID 558.

On April 2, 2007, plaintiff

had 5/5 strength in the bilateral lower extremities, there was pain in
the hip flexors on extension, and 4+/5 strength in the bilateral feet
on dorsiflexion.
an antalgic gait.

PAGEID 546.
PAGEID 544.

On April 25, 2007, Dr. Balturshot noted
On May 21, 2007, plaintiff’s bilateral

upper extremity grip strength was 4+/5 and her biceps and triceps were
5/5.

PAGEID 542.

On July 23, 2007, plaintiff reported that she had

fallen down the steps three times and that she had not participated in
physical therapy since her falls.

PAGEID 536.

Dr. Balturshot noted

an antalgic gait and 5/5 strength in the bilateral upper and lower
extremities and complaints of pain with hip extension and dorsiflexion
of the feet.

PAGEID 536.

On August 27, 2007, plaintiff reported that

2

The Court’s discussion of the evidence of record is limited to the issues
presented in plaintiff’s Statement of Errors.

3

her medication was adequate, that another doctor intended to
administer lumbar blocks, and that she was “[a]ble to do what she
needs to do.”

PAGEID 534.

Dr. Balturshot again noted 5/5 strength in

the bilateral upper and lower extremities, but 4/5 on dorsiflexion of
the bilateral feet.

Id.

On September 26, 2007, plaintiff reported

pain in her back, ankles, legs, shoulders, and hands.

PAGEID 596.

A

TENS unit had helped with pain and plaintiff was attending physical
therapy.

Id.

Dr. Balturshot questioned whether plaintiff may have

fibromyalgia.

Id.

Dr. Balturshot ordered several tests in connection with
plaintiff’s back and leg pain.

A July 21, 2006 CT of the lumbar spine

revealed a congenitally narrow spinal canal and spondylostenosis.
PAGEID 569.

Plaintiff’s right hip was unremarkable, with minimal left

acetabular roof osteophyte formation and subchondral cysts;
degenerative changes were seen in the lower lumbar spine and SI
joints.

PAGEID 562.

A November 20, 2006 MRI of the lumbar spine

revealed multilevel mild to moderate spinal stenosis, mild disk bulges
at L3-4 and L4-5, developmental canal narrowing, mild facet and
ligament hypertrophy, and a focal signal abnormality in the S1
vertebral body.

PAGEID 557.

In May 2007, straightening of the normal

cervical canal was seen, along with multilevel degenerative disc
disease and vertebral arthrosis, and narrowing of the interior
cervical canal.

PAGEID 541.

A July 5, 2007 MRI of the cervical spine

revealed degenerative changes and multilevel spinal stenosis, moderate
at the C5-6 level and severe at the C6-7 level.

4

PAGEID 538-39.

Dr. Balturshot completed a physical capacities evaluation on
October 3, 2007, in which he opined that plaintiff could sit or walk
up to 20 minutes without moving.

PAGEID 529.

Plaintiff could never

lift up to 10 pounds but could occasionally carry up to 10 pounds.
Id.

Plaintiff could not use her hands for pushing or pulling nor

could she bend, squat, crawl, or climb.
reach above shoulder level.

Id.

Id.

She could occasionally

Plaintiff should not engage in

activities involving unprotected heights, exposure to marked changes
in temperature and humidity, or driving automotive equipment.

Id.

She would have mild restrictions on activities involving being around
moving machinery and exposure to dust, fumes, and gases.

Id.

Plaintiff was diagnosed with fibromyalgia on December 28, 2007 by
April Marquardt, M.D., upon referral from Dr. Balturshot.
82.

PAGEID 581-

Dr. Marquardt found that plaintiff was positive for weight gain,

cold sensitivity, vision changes, intermittent mouth sores, numbness
and tingling, and weakness.

PAGEID 581.

On January 18 and March 28,

2008, plaintiff tested positive in 11 of 18 tender points.
579, 583.

Straight leg raising was positive on the left.

PAGEID
PAGEID 579.

Plaintiff reported that aquatic therapy helped, but she complained of
numbness and tingling in her left leg and right arm.

Id.

Plaintiff began treating with Rupal S. Oza, M.D., on August 22,
2008. PAGEID 619.

Plaintiff reported no side effects from her

medications; she rode her bike 10 to 15 minutes three to four times
per week.

Id.

Her gait was stable.

Id.

Dr. Oza diagnosed “neck

pain – stable” and “neuropathy – stable, continue exercise and

5

increase as tolerated.”

PAGEID 619-20.

On September 11, 2008,

plaintiff reported that she was still exercising, but that her pain
had been “on and off getting worse” over the prior few months.
617.

PAGEID

Dr. Oza diagnosed thoracic or lumbosacral neuritis or

radiculitis, unspecified.

Id.

On October 9, 2008, plaintiff reported

that she was “doing well” and that her pain medication was helping and
allowed her to stay physically active.

PAGEID 613-14.

reported exercising daily; she had a normal gait.

Plaintiff

PAGEID 614.

On November 7, 2008, plaintiff again had a normal gait. Findings
included a normal left knee exam, moderate diffuse tenderness in the
spine with no spinous tenderness, and 5/5 motor strength in the
bilateral lower extremities with mild decreased sensation over the
left thigh.

PAGEID 610-11.

On December 5, 2008, plaintiff reported

that she was doing well, was exercising daily, was able to complete
activities of daily living with little difficulty; her overall pain
was stable with medication.

PAGEID 608.

A September 29, 2008 MRI of the cervical spine revealed no
significant changes since July 5, 2007.

PAGEID 573.

Plaintiff treated with Tarun R. Mansukhani, M.D., on March 5 and
April 3, 2009.

Dr. Mansukhani noted point tenderness at L4; he was

unable to assess plaintiff’s range of motion because she was unable to
climb onto the examining table.

PAGEID 649-51.

On April 30, 2009, plaintiff reported to Dr. Oza difficulty
sleeping and completing some activities of daily living; she continued
to walk her dog every day but she was otherwise not exercising much.

6

PAGEID 647-48.

Plaintiff reported increased pain in June 2009;

straight leg raise was positive at 40 degrees and her lower extremity
motor strength was 5/5.

PAGEID 646.

On July 6, 2009, plaintiff

reported improvement in her back pain.

PAGEID 644-45.

Dr. Oza noted

that plaintiff was “[a]dequately controlled with current med regimen”
and that she was “[a]ble to complete her ADLs.”

PAGEID 644.

On June 30, 2009, Dr. Oza diagnosed degenerative disc disease in
the cervical and lumbar spine and commented that plaintiff had always
been compliant with her treatment.

PAGEID 932.

Dr. Oza opined that

plaintiff
is unable to sit or stand for greater than 15 minutes. She
is unable to lift, carry, push or pull any amount of
weight. She is able to walk approximately 200 feet before
stopping but she does have significant pain with this. She
has very limited bending and is unable to stoop or squat.
I do not see her as being able to work at this time.
Id.
Plaintiff continued to treat regularly with Dr. Oza through at
least February 2013.

See PAGEID 467, 645-48, 679, 686-87, 727, 740-

54, 916-27, 958, 973, 1008, 1029-30, 1071, 1070, 1092-93,.
Plaintiff received steroid injections in the left lateral femoral
cutaneous nerve on March 31, 2010.

PAGEID 956.

steroid injections on April 13, 2010.

She also received

PAGEID 975-76.

Plaintiff underwent complete decompressive laminectomies and
bilateral foraminotomies with fusion/fixation at L4-L5 on August 4,
2010.

PAGEID 937-54.

She was diagnosed post-operatively with left

lateral femoral cutaneous neuralgia.

On November 29, 2010, plaintiff

was doing “very well with excellent resolution of her pre-operative

7

radicular symptoms.”

PAGEID 891-92.

Persistent cramping in the low

back and legs had markedly improved.

PAGEID 892.

On June 4, 2012,

plaintiff complained of axial low back pain symptoms for the prior
couple of months.

PAGEID 1055.

Upon exam, she weighed 232 pounds and

had reduced lumbar range of motion on both flexion and extension,
which triggered low back pain.
negative bilaterally.

PAGEID 1056.

Straight leg raising was

Id.

On July 21, 2011, Dr. Oza diagnosed L4-5 lumbar stenosis with
neurogenic claudication, and indicated that plaintiff’s pain and
paresthesias required pain medication.

PAGEID 931.

Dr. Oza opined

that plaintiff “would be unable to hold a full time work position.”
Id.
Plaintiff treated with Michael F. Evers, D.O., on November 10,
2011 for low back pain and pain in her legs since October 2010.
PAGIED 997.

Upon examination, plaintiff had a slow, deliberate gait

that was not antalgic.

PAGEID 997.

Straight leg raising was positive

on the right in both the seated and supine positions.

PAGEID 997-98.

Plaintiff was able to partially squat, stand erect and flex and extend
at the waist, but she had pain with each motion.

Id.

Dr. Evers

diagnosed chronic low back pain and fibromyalgia, referred plaintiff
to physical therapy, and provided a trial TENS unit.

Id.

A June 12, 2012 MRI of the lumbar spine revealed degenerative
disc disease of the lumbar spine superimposed on congenital spinal
stenosis and minimal asymmetric thickening of some of the left
lumbosacral nerve roots at L5.

PAGEID 1048-49.

8

In February 2013, Dr. Oza completed a physical capacities
evaluation.

PAGEID 467.

Dr. Oza diagnosed degenerative disk disease

of the lumbar spine, cervical spinal stenosis, lumbosacral neuritis,
failed back surgery syndrome, and fibromyalgia.

Id.

Dr. Oza opined

that plaintiff is unable to work an eight-hour workday and would
remain so for a period of 12 months or more.

Id.

Plaintiff could

stand/walk for 60 minutes in an eight-hour workday, for 20 minutes
without interruption.

Id.

Plaintiff could sit for 60 minutes in an

eight-hour workday, for 10 minutes without interruption.

Id.

Dr. Oza

further opined that plaintiff could rarely handle and could lift/carry
up to five pounds occasionally.

Id.

Dimitri Teague, M.D., reviewed the record and completed a
physical residual functional capacity assessment on October 2, 2009.
PAGEID 709-16.

According to Dr. Teague, plaintiff could lift and/or

carry 20 pounds occasionally and 10 pounds frequently.

“Because of

[plaintiff’s] obesity and chronic cervical lumbar back pain with DDD,
[she] would be able to walk/stand for 2 hours out of an 8 hour work
day.”

PAGEID 711.

Dr. Teague also opined that plaintiff could sit

for about six hours in an eight-hour workday.

Id.

Due to problems

with her lower extremities, as evidenced by positive straight leg
raising, and obesity, plaintiff could never climb ladders, ropes, or
scaffolds; she could occasionally climb ramps/stairs, stoop, kneel,
crouch, and crawl and she could frequently balance.

PAGEID 712.

Plaintiff should avoid all exposure to hazards such as machinery and
heights and concentrated exposure to vibration.

9

PAGEID 713.

Walter Holbrook, M.D., reviewed the record and made a physical
residual functional capacity assessment on October 2, 2009, with
findings similar to those of Dr. Teague.

PAGEID 718-25.

However, Dr.

Holbrook did not include a restriction on exposure to hazards, nor did
he provide a narrative explanation of his findings.

Id.

III. Administrative Decision
The administrative law judge found that plaintiff’s severe
impairments consist of “disorders of the back, fibromyalgia, obesity,
affective disorder, anxiety disorder, and borderline intellectual
functioning.”

PAGEID 80.

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 sedentary work, as defined in 20 CFR 404.1567(a)
and 416.967(a), except that she can never climb ladders,
ropes or scaffolds, and can only occasionally climb ramps
or stairs. In addition, the claimant can only occasionally
stoop, kneel, crouch, crawl, or balance. The claimant also
requires the ability to change from a sitting position to a
standing position (and vice versa) at least every hour.
Furthermore, the claimant is limited to occasional pushing
or pulling activity.
Moreover, the claimant should avoid
concentrated
exposure
to
extreme
vibration,
and
all
exposure to the use of hazardous machinery, operational
control of moving machinery, and unprotected heights.
Finally, the claimant is limited to the performance of
simple,
routine,
and
repetitive
tasks,
in
a
work
environment where changes occur on no more than an
occasional basis.
PAGEID 80-82.

Although this RFC precludes the performance of

plaintiff’s past relevant work, 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

10

national economy, including such representative jobs as office helper,
cashier 2, electronic assembly, final assembly, and hand packager.
PAGEID 91-92.

Accordingly, the administrative law judge concluded

that plaintiff was not disabled within the meaning of the Social
Security Act from May 7, 2009, through the date of the administrative
decision.
IV.

PAGEID 93.

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

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

11

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.

In her Statement of Errors, plaintiff argues, first, that the
administrative law judge violated the treating physician rule in
evaluating the opinions of Dr. Balturshot and Dr. Oza.
Errors, pp. 5-9.

Statement of

Plaintiff argues that Dr. Balturshot’s 2007 opinion

and Dr. Oza’s June 2009, July 2011, and February 2013 opinions should
have been “given significant, if not controlling weight.”

Id.

Plaintiff further argues that the administrative law judge erred by
“making conclusory statements about the format of the [opinions] or
what info should have been included in the medical record.”
7 (emphasis omitted).

Id. at p.

According to plaintiff, the administrative law

judge improperly discounted Dr. Balturshot’s opinion for “not
contain[ing] more than a multitude of checkboxes” and because she “did
not state the basis for her disability opinion[s].”

Id.

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 evaluate the
opinion by considering such factors as the length, nature and extent
of the treatment relationship, the frequency of examination, the

12

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),

416.927(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 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 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)).
As discussed supra, plaintiff treated regularly with Dr.
Balturshot from July 2006 through 2008 and with Dr. Oza from August
2008 through 2013.

Dr. Balturshot completed a physical capacities

evaluation on October 3, 2007, in which he opined that plaintiff could
not sit or walk more than 15 to 20 minutes without moving, could never
lift up to 10 pounds and could occasionally carry up to 10 pounds.
PAGEID 529. Plaintiff could not use her hands for pushing and pulling

13

and would be unable to bend, squat, crawl, or climb.
could occasionally reach above shoulder level.

Id.

Id.

Plaintiff

Dr. Balturshot

further opined that plaintiff would be restricted from activities
involving unprotected heights, exposure to marked changes in
temperature and humidity, and driving automobile equipment.

Id.

Plaintiff would have mild restrictions in working around moving
machinery and exposure to dust, fumes, and gases.

Id.

On June 30, 2009, Dr. Oza diagnosed degenerative disc disease in
plaintiff’s cervical and lumbar spine, had been evaluated by
Neurosurgery, Rheumatology, and a pain specialist and had always been
compliant with her treatment.

PAGEID 932.

Dr. Oza opined that

plaintiff
is unable to sit or stand for greater than 15 minutes. She
is unable to lift, carry, push or pull any amount of
weight. She is able to walk approximately 200 feet before
stopping but she does have significant pain with this. She
has very limited bending and is unable to stoop or squat.
I do not see her as being able to work at this time.
Id.
On July 21, 2011, Dr. Oza indicated that plaintiff had undergone
surgery at L4-5 in August 2010, suffered from L4-5 lumbar stenosis
with neurogenic claudication, and required pain medication to
alleviate symptoms of pain and paresthesias.

PAGEID 931.

Dr. Oza

opined that plaintiff “would be unable to hold a full time work
position.”

Id.

The administrative law judge evaluated these opinions as follows:
The
undersigned
next
considered
the
medical
opinion
evidence relating to the claimant’s physical health.
Katherine Balturshot, M.D., completed a Physical Capacities

14

Evaluation on October 3, 2007.
She indicated that the
claimant was severely disabled and unable to do even
sedentary work.
Dr. Baltershot also indicated that the
claimant could not push or pull with either hand, could
perform few postural movements, and needed to avoid all
exposure
to
unprotected
heights,
marked
changes
in
temperature
and
humidity,
and
the
operation
of
an
automobile (B4F).
. . .
In June of 2009, Rupal Oza, M.D., wrote a letter stating
that the claimant could not sit or stand for more than
fifteen minutes, could not lift, carry, push, or pull any
amount of weight, could only walk for 200 feet before
stopping, and was unable to stoop or squat, and, therefore,
could not work (B26F/2).
In July of 2011, he wrote a
letter stating that the claimant would be unable to hold a
full-time work position due to her use of chronic pain
medications and her prior back surgery in August of 2010
(B26F/1).
The undersigned carefully evaluated the medical evidence
and determind that Dr. Balturshot’s opinion was not
credible.
Specifically, her opinion was not consistent
with her own treatment records, which represent the bulk of
the claimant’s treatment records in 2006 and 2007. Indeed,
a review of these records indicated that while Dr.
Balturshot felt that the claimant might have had some
functional limitations, she did not indicate that the
claimant had the types of limitations outlined in her
medical opinion statement. Indeed, Dr. Balturshot did not
tell the claimant to avoid certain types of activities or
that she had significant medically imposed limitations.
Further, other treatment evidence showed that while the
claimant had some ongoing impairments and limitations,
there was no evidence that her providers stated that she
had such extreme and profound functional limitations.
In
addition, the claimant repeatedly reported that she could
perform a full range of activities of daily living without
significant assistance, as well as such activities as
walking her dog and caring for her young grandson during
the daytime hours.
Finally, Dr. Balturshot’s opinion did
not contain more than a multitude of checkboxes.
Her
opinion statement did not indicate in any sense how she
reached her conclusion regarding each determination or what
evidence she relied on.
Overall, these factors led the
undersigned to determine that Dr. Balturshot’s opinion was
not credible.
These same factors led the undersigned to
give Dr. Oza’s opinion of June of 2009, little weight.

15

. . .
The undersigned also considered Dr. Oza’s opinion from 2011
but did not find it credible because he merely stated what
treatment the claimant was receiving and concluded that she
could not work.
Much like Dr. Balturshot’s opinion from
2007, he did not provide any specific functional findings
or explanation for why he felt that she could not work.
The undersigned determined that this did not necessarily
represent a medical opinion and instead merely indicated
that the claimant could not work. However, even if treated
as a medical opinion, the claimant’s treatment record and
her reported abilities, as discussed above and below,
indicated
that
his
opinion
was
not
credible,
and,
therefore, entitled to little weight.
PAGEID 87-88.
The administrative law judge did not violate the treating
physician rule in evaluating Dr. Balturshot’s opinion or Dr. Oza’s
June 2009 opinion.

The administrative law judge’s analysis is

sufficiently specific as to the weight given to the opinions and the
reasons for assigning that weight.

The administrative law judge

discounted the opinions because they were inconsistent with the
doctors’ own treatment records and other substantial evidence in the
record.

PAGEID 87.

The administrative law judge also noted that

plaintiff repeatedly reported that she could perform a full range of
activities of daily living without significant assistance, as well as
such activities as walking her dog and caring for her young grandson
during the daytime hours.

Id.

Moreover, the administrative law judge

found that Dr. Balturshot failed to identify objective medical
findings to support her opinion regarding plaintiff’s impairments.
Id.

These findings enjoy substantial support in the record.

16

As noted by the administrative law judge, the treatment notes of
neither doctor suggest that plaintiff has the type of limitations
opined by either doctor, and neither doctor advised plaintiff to avoid
certain types of activities or or told her that she had significant
medically imposed limitations.

Plaintiff frequently complained of

pain to Drs. Balturshot and Oza and both doctors provided medication
management of those complaints.

However, plaintiff also reported that

she could perform a full range of activities of daily living without
significant assistance, see PAGEID 752 (September 2009); 742 (December
2009); 740 (January 2010); 686-87 (February 2010); 958 (March 2010);
919-20 (May 2011: “Chronic pain in her lower back is stable;” “Able to
complete most ADLs, taking care of her 7 mo grandson today – who is
here with her to the visit today.”

“Gait normal.”); 1029-30 (March

2012: “Chronic back stable, still with significant pain though.”
“Able to function and complete ADLs, during the day watches her 2yo
grandson.”); 1041 (June 2012: pain control adequate on most days; able
to complete all ADLs with little assistance); 1070 (July 2012: “Able
to complete most ADLs, baby sits her grandson.”); 1093 (October 2012:
“Able to complete most ADLs independently.”); but see PAGEID 727 (May
2010: “Reports pain is stable, continues to use a cane to ambulate and
struggles with ADLs, has to sit every few hours for prolonged periods
of time.”); 1008 (November 2011: helps her daughter take care of
grandson, able to complete some ADLs, works very slowly, pain
medication is not adequate), as well as walking her dog and caring for
her grandson.

PAGEID 647-48 (April 2009: “She does walk her dog

17

everyday.”); 923-24 (February 2011: “Takes care of her grandson while
her daughter works full time.”).

Moreover, it is not improper for the

administrative law judge to consider whether a physician has
identified objective medical findings to support a medical opinion.
See Price v. Comm'r Soc. Sec. Admin., 342 F. App'x 172, 176 (6th Cir.
2009) (“Because Dr. Ashbaugh failed to identify objective medical
findings to support his opinion regarding Price's impairments, the ALJ
did not err in discounting his opinion.”).
The administrative law judge also did not err in evaluating Dr.
Oza’s 2011 opinion.

The administrative law judge found that Dr. Oza’s

2011 opinion did not constitute a “medical opinion” because he “merely
stated what treatments the claimant was receiving and concluded that
she could not work.”

PAGEID 88.

The administrative law judge also

found that, even if Dr. Oza’s 2011 opinion was considered a “medical
opinion,” it was not credible for the same reasons that he discredited
Dr. Balturshot’s opinion and Dr. Oza’s 2009 opinion.

Id.

These

findings enjoy substantial support in the record.
Dr. Oza indicated that he “do[es] do not see [plaintiff] as being
able to work at this time.”

PAGEID 932.

However, an opinion that a

claimant is unable to work “is tantamount to a disability opinion, a
matter reserved to the Commissioner for determination.”

See Sims v.

Comm’r of Soc. Sec., 406 F. App’x 977, 980 n.1 (6th Cir. 2011).

See

also Payne v. Comm’r of Soc. Sec., 402 F. App’x 109, 112 (6th Cir.
2010) (“The applicable regulations provide that a statement by a
medical source that the claimant is ‘unable to work’ is not a ‘medical

18

opinion[;] rather, it is an opinion on an ‘issue[] reserved to the
Commissioner because [it is an] administrative finding[] that [is]
dispositive of a case, i.e., that would direct the determination or
decision of disability.’”) (quoting 20 C.F.R. § 404.1527(e)(1)).
Accordingly, Dr. Oza’s opinion that plaintiff is unable to work is,
“as a matter of law, ‘not given[n] any special significance.’”

See

Payne, 402 F. App’x at 112.
Plaintiff also argues that the administrative law judge erred in
failing to evaluate Dr. Oza’s February 2013 physical capacities
evaluation.

Statement of Errors, pp. 8-9.

The February 2013 opinion

post-dates the administrative law judge’s decision and was not
available for the administrative law judge’s consideration.
Accordingly, the administrative law judge did not err in failing to
evaluate Dr. Oza’s February 2013 opinion.3
Plaintiff next argues that the administrative law judge “failed
to mention the symptoms, effects and limitations that Plaintiff would
experience because of her fibromyalgia.”

Statement of Errors, p. 9.

Plaintiff specifically argues that “[t]here was no consideration of
Plaintiff’s fibromyalgia in determining the physical residual
functional capacity as directed by SSR 12-2p at steps 4 and 5 of the
ALJ’s analysis.”

Id. at p. 11.

Plaintiff’s argument in this regard

is not well taken.

3

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. Plaintiff has not, however, sought a
Sentence 6 remand.

19

The administrative law judge included fibromyalgia in plaintiff’s
severe impairments and found that plaintiff’s fibromyalgia did not
meet or medically equal any listed impairment.

PAGEID 80-81.

In

determining plaintiff’s RFC, the administrative law judge provided an
extensive evaluation of the medical evidence and expressly considered
the diagnosis of fibromyalgia and its symptoms.

See PAGEID 83 (“After

reviewing [the evidence previously discussed by the administrative law
judge], doctors determined that [plaintiff] likely had fibromyalgia in
addition to her back and spine impairments.

They continued to

prescribe medication designed to help deal with her fibromyalgia
symptoms, and recommended she continue to see pain management
professionals (B4F, B18F, and B19F).”); 83 (“Doctors diagnosed her
several times with fibromyalgia and various back impairments, and
continued to prescribe medication management, physical therapy, weight
loss, and exercise.

The claimant appeared to follow these

recommendations, as she reported that she engaged with pool therapy,
was compliant with medications, and was riding her bike several times
per week.

However, despite these reports, her doctors also felt that

she would benefit from additional pain management evaluations and a
surgical consultation (B5F, B17F/50-70, and B19F).”); 86 (“The
providers performed a physical exam and noted that her gait was stable
and that she could perform heel and toe standing, but did indicate she
had reduced spinal range of motion.
make any mention of cane usage.

The claimant’s providers did not

They diagnosed her with chronic back

pain and fibromyalgia, while noting her to be status-post lumbar

20

spinal stenosis.

They recommended participation in pain management,

the avoidance of significant lifting and strenuous exercises (until
after additional evaluation), participation in physical therapy, and
that she should continue completing her activities of daily living
(B31F/66-79).”); 86 (“[T]he claimant did exhibit some reduced range of
motion in her back.

Providers again diagnosed the claimant with

fibromyalgia, but also diagnosed failed back surgery syndrome.

They

recommended that she continue doing her activities of daily living,
avoid prolonged rest, engage in gentle aerobic conditioning and
physical therapy, and take her medications (B31F/94-100).”).
Plaintiff’s arguments to the contrary notwithstanding, see Statement
of Errors, pp. 9-11, the administrative law judge also discussed the
symptoms experienced by plaintiff as a consequence of her diagnosed
fibromyalgia, including, inter alia, muscle pain, PAGEID 83-91,
numbness and weakness in her lower extremities, PAGEID 83, depression,
PAGEID 84, and anxiety, PAGEID 85.
*3 (July 25, 2012).

See SSR 12-2P, 2012 WL 3104869, at

Moreover, although plaintiff argues that the

administrative law judge erred in evaluating her fibromyalgia,
Statement of Errors, pp. 9-11, plaintiff does not suggest what
additional limitations she believes should be included in her RFC
assessment as a result of that condition.

Accordingly, the Court

finds no error in the administrative law judge’s evaluation of
plaintiff’s fibromyalgia.
Plaintiff also argues that the administrative law judge “failed
to consider the impact of the Plaintiff’s obesity on her

21

musculoskeletal impairments when determining the Plaintiff’s residual
functional capacity.”

Id. at p. 11.

Social Security Ruling 02-01p, 2000 WL 628049 (Sept. 12, 2002)
(“the Ruling”), explains the Commissioner’s policy and protocol in
connection with the evaluation of obesity.

SSR 02-01p provides that,

at step two of the five step evaluation, obesity may be considered a
severe impairment alone or in combination with another medically
determinable impairment.

Id.

It further provides that the

Commissioner will perform “an individualized assessment of the impact
of obesity on an individual’s functioning when deciding whether the
impairment is severe.”

Id.

The Ruling also directs that a claimant’s

obesity be considered not only at step two of the Commissioner’s five
step evaluation process, but also at the subsequent steps of the
evaluation.

Moreover, an administrative law judge must consider the

impact of a claimant’s obesity on her RFC.

At step five of the

sequential analysis, the burden shifts to the Commissioner to show
that there are other jobs that exist in significant numbers in the
economy that a claimant can perform consistent with her RFC, age,
education, and work experience.
C.F.R. § 404.1520(a)(4)(v).

See Wilson, 378 F.3d at 548; 20

When a claimant is obese, the

administrative law judge must consider this condition in that
assessment.

SSR 02-01p; Young v. Comm’r of Soc. Sec., 282 F. Supp. 2d

890, 897-898 (N.D. Ill. 2003).
In the case presently before the Court, the administrative law
judge included obesity in plaintiff’s severe impairments and

22

considered plaintiff’s obesity in determining whether a Listing had
been met or medically equalled.

The administrative law judge found

that, “while the claimant’s weight aggravated her impairments, there
was no evidence that her obesity by itself or in combination with her
other impairments caused the claimant to meet or equal any of the
listed impairments.”

PAGEID 80.

In formulating plaintiff’s RFC, the

administrative law judge noted that obesity had been diagnosed, and he
assigned weight to Dr. Tanley’s opinion, which set forth specific
limitations caused by plaintiff’s obesity.

PAGEID 87, 89.

Plaintiff’s RFC includes postural and environmental limitations that
Dr. Tanley opined were present because of plaintiff’s obesity.
Compare PAGEID 712-13, with PAGEID 89.

Plaintiff has also failed to

identify any additional limitations that should be included in her RFC
assessment as a result of her obesity.

Accordingly, the Court finds

no error in the administrative law judge’s evaluation of plaintiff’s
obesity.
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

23

thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

28

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).

December 17, 2014

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

24