McKinney v. Commissioner of Social Security

Filing 22

ORDER adopting Report and Recommendations re 19 Report and Recommendations.. Signed by Judge James L. Graham on 6/3/2016. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Christina M. McKinney,
Plaintiff,
v.

Case No. 2:15-cv-2351

Commissioner of
Social Security,
Defendant.
ORDER
Plaintiff Christina M. McKinney brings this action under 42
U.S.C.

§§

405(g)

Commissioner

of

for

review

Social

of

Security

the

final

decision

(“Commissioner”)

application for supplemental security income.

of

the

denying

her

In his March 10,

2014, decision, the administrative law judge (“ALJ”) found that
plaintiff had severe impairments consisting of: degenerative disc
disease of the lumbar spine; status post cervical fusion; status
post two right shoulder arthroscopies; asthma; major depression;
generalized anxiety disorder; personality disorder; and borderline
intellectual functioning.

PAGEID 139.

The ALJ concluded that

plaintiff has the residual functional capacity to perform light
work with specified restrictions designed to take into account her
physical and mental limitations, that she was capable of performing
available jobs in the national economy, and that she was not
disabled.

PAGEID 143-56.

This matter is before the court for

consideration of plaintiff’s April 28, 2016, objections to the
April 14, 2016, report and recommendation of the magistrate judge,
recommending that the decision of the Commissioner be affirmed.
I. Standard of Review
If a party objects within the allotted time to a report and

recommendation, the court “shall make a de novo determination of
those portions of the report or specified proposed findings or
recommendations

to

which

objection

is

made.”

§ 636(b)(1); see also Fed. R. Civ. P. 72(b).

28

U.S.C.

Upon review, the

court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”

28

U.S.C. § 636(b)(1).
The court’s review “is limited to determining whether the
Commissioner’s decision ‘is supported by substantial evidence and
was made pursuant to proper legal standards.’”

Ealy v. Comm’r of

Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010) (quoting Rogers v.
Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also,
42 U.S.C. § 405(g) (“The findings of the Commissioner of Social
Security as to any fact, if supported by substantial evidence,
shall be conclusive.”). Even if supported by substantial evidence,
however, “‘a decision of the Commissioner will not be upheld where
the [Commissioner] fails to follow its own regulations and where
that error prejudices a claimant on the merits or deprives the
claimant of a substantial right.’” Rabbers v. Comm’r of Soc. Sec.,
582 F.3d 647, 651 (6th Cir. 2009) (quoting Bowen v. Comm’r of Soc.
Sec., 478 F.3d 742, 746 (6th Cir. 2007)).
II. Plaintiff’s Objections
A. Opinion of Treating Physician Marsha Turner, D.O.
Plaintiff objects to the finding of the magistrate judge that
the ALJ did not err in his consideration of the August 19, 2013,
opinion of Dr. Marsha Turner, D.O., plaintiff’s treating primary
care physician, regarding plaintiff’s physical limitations.

The

court agrees with the conclusion of the magistrate judge that the

2

ALJ complied with the requirements for consideration of treating
physician opinions.
Under Social Security Ruling 96-2p, 1996 WL 374188 (Soc. Sec.
Admin. July 2, 1996), treating-source opinions must be given
“controlling weight” if: (1) the opinion “is well-supported by
medically

acceptable

clinical

and

laboratory

diagnostic

techniques”; and (2) the opinion “is not inconsistent with the
other substantial evidence in [the] case record.”

See 20 C.F.R.

§404.1527(c)(2); Soc. Sec. Rul. No. 96-2p, 1996 WL 374188 at *2-3.
If

the

Commissioner

does

not

give

a

treating-source

opinion

controlling weight, then the opinion is weighed based on factors
such as the length, frequency, nature, and extent of the treatment
relationship, the treating source’s area of specialty, and the
degree to which the opinion is consistent with the record as a
whole

and

is

supported

by

relevant

evidence.

20

C.F.R.

§404.1527(c)(2)-(6); Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365,
376 (6th Cir. 2013).
The Commissioner is required to provide “good reasons” for
discounting

the

§404.1527(c)(2).

weight

given

to

a

treating-source

opinion.

These reasons must be “supported by the evidence

in the case record, and must be sufficiently specific to make clear
to any subsequent reviewers the weight the adjudicator gave to the
treating source’s medical opinion and the reasons for that weight.”
Soc. Sec. Rul. No. 96-2p, 1996 WL 374188 at *5; Rogers, 486 F.3d at
242.

However, 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).

An ALJ may accomplish the goals of the “good reasons”

requirement by indirectly attacking the supportability of the

3

treating physician’s opinion or its consistency with other evidence
in the record.

Coldiron v. Comm’r of Soc. Sec., 391 F.App’x 435,

439-41 (6th Cir. 2010); Nelson v. Comm’r of Soc. Sec., 195 F.App’x
462, 470-72 (6th Cir. 2006).
The ALJ assigned little weight to Dr. Turner’s opinion,
noting, at PAGEID 144:
The opinion is quite restrictive, but offers no specific
findings to support such restrictions.
Overall, the
opinion is far more limiting than what is supported by
the medical record, which ultimately shows the claimant
has subjective tenderness with good strength and range of
motion.
Furthermore, Dr. Turner is a primary care
physician and is not Board Certified in orthopedics, [or
in] neurological[] or physical medicine.
Plaintiff objects to the ALJ’s comment that Dr. Turner was a
primary care physician. However, Dr. Turner’s area of specialty is
a factor which the ALJ was specifically permitted to consider under
20 C.F.R. §404.1527(c)(5), and the ALJ’s comment that Dr. Turner
was a primary care physician was not erroneous.
that

the

ALJ

did

not

make

similar

comments

Plaintiff notes
regarding

the

qualifications of the state agency reviewing consultants, Dr.
Dimitri Teague and Dr. Frank Stroebel, in assigning their opinions
significant weight (one was an emergency room physician and the
other was a pediatrician). Unlike the rules applicable to treating
physician opinions, the ALJ was not required to give “good reasons”
for the weight assigned to non-treating sources. Ealy, 594 F.3d at
514; Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 876 (6th Cir.
2007).
on

the

Nonetheless, although the ALJ did not specifically comment
fact

that

the

state

agency

physicians

were

also

not

specialists in orthopedics, neurology, or physical medicine, the
ALJ did note that they were “well-qualified by reason of training

4

and experience in reviewing an objective record and formulating an
opinion as to limitations” and that they “are deemed to possess
specific

‘understanding

of

our

evidentiary requirements[.]’”

disability

programs

PAGEID 143-44.

and

their

The ALJ gave an

adequate explanation for the weight he assigned to the opinions of
the state agency reviewing consultants.
Plaintiff also argues that it was error to give the state
agency reviewers’ 2012 opinions more weight because their review
did not include later medical records to which Dr. Turner would
have had access in completing her August, 2013, assessment. An ALJ
can rely on a non-examining source who did not have the opportunity
to

review

later

medical

records,

as

long

as

there

is

some

indication in the decision that the ALJ considered the new evidence
before giving weight to an opinion that is not based on a review of
a complete case record.

Blakley v. Comm’r of Soc. Sec., 581 F.3d

399, 409 (6th Cir. 2009).
plaintiff’s

RFC

“[a]fter

Here, the ALJ stated that he formulated
careful

consideration

of

the

entire

record[.]” PAGEID 143. The ALJ also recognized and considered the
fact that the state agency consultants did not have an opportunity
to consider later medical records, noting that
the evidence received into the record after the
reconsideration determination concerning the claimant’s
physical and mental status [by the State Agency
consultants] did not provide any credible or objectively
supported new and material information that would alter
the State Agency’s findings concerning the claimant’s
physical and mental limitations.
PAGEID 144.

No error has been shown in the ALJ’s weighing of the

opinions of the state agency physicians.
Plaintiff further objects that the ALJ “baselessly maligned
Dr. Turner’s opinion as relying upon ‘subjective’ reports” and
5

“ignored the breadth and depth of the objective findings drawn upon
by Dr. Turner in making her assessments.”

Doc. 20, p. 3.

The ALJ

correctly found that Dr. Turner’s opinion did not include specific
findings. PAGEID 144. The forms completed by Dr. Turner (Ex. 33F)
were

“check-box”

forms

which

included

no

explanation

findings concerning plaintiff’s physical limitations.
“DIAGNOSES”

section,

Dr.

Turner

simply

noted

of

her

In the

plaintiff’s

degenerative disc disease of the cervical and lumbar spine, spine
discectomy and fusion, and shoulder rotator cuff repair.
remarks were not sufficient to explain her findings.

These

See Walters

v. Comm’r of Soc. Sec., 127 F.3d 525, 530 (6th Cir. 1997)(treating
physician’s mere documentation of impairments was not sufficient to
support his opinion that claimant could not perform past job). The
ALJ did not err in considering Dr. Turner’s failure to explain her
findings in assigning her opinion little weight.

See Price v.

Comm’r Soc. Sec. Admin., 342 F.App’x 172, 176 (6th Cir. 2009)(ALJ
properly discounted treating physician’s opinion where physician
failed

to

provide

interrogatories

any

regarding

explanation

for

his

responses

plaintiff’s

impairments);

Rogers

to
v.

Comm’r of Soc. Sec., No. 99-5650, 2000 WL 799332 at *6 (6th Cir.
June 9, 2000)(treating physician’s documentation of impairments on
check-box form not entitled to great weight when no further
explanation was given).
The ALJ also complied with the treating source requirements by
indirectly attacking Dr. Turner’s opinion.

The ALJ included a

thorough discussion of plaintiff’s medical records in his decision
which supported his conclusion that these records lacked sufficient
objective medical evidence to substantiate the degree of functional

6

limitations found by Dr. Turner. PAGEID 146. For example, the ALJ
summarized multiple medical records concerning: (1) plaintiff’s
treatment following the June, 2011, rotator cuff repair, which
ultimately reported good range of motion and reduced pain, with few
complaints

of

numbness

and

tingling;

(2)

plaintiff’s

neck

complaints, including a cervical discectomy and fusion in March,
2012, documented by examination and test results which showed at
most only slight limitation in range of motion; (3) plaintiff’s
treatment for spinal problems, which showed mild degenerative disc
disease with no fractures, disc herniation, or central or foraminal
stenosis; and (4) plaintiff’s treatment for asthma, with normal
examination results.

PAGEID 147-151.

The ALJ’s discussion of

these records adequately explains and supports his conclusion that
Dr.

Turner’s

opinion

was

not

based

on

sufficient

objective

evidence.
Likewise, to the extent that the ALJ criticized Dr. Turner’s
opinion as being based on plaintiff’s subjective complaints, which
the ALJ found to be insufficiently supported by objective evidence,
the ALJ did not err.

See Ferguson v. Comm’r of Soc. Sec., 628 F.3d

269, 273-74 (6th Cir. 2010)(ALJ did not err in rejecting medical
opinion based on claimant’s subjective complaints which were not
supported by objective medical evidence).

The ALJ also concluded

that plaintiff’s subjective complaints concerning the severity of
her symptoms were not fully reliable or credible.

See Jones v.

Comm’r of Soc. Sec., 336 F.3d 469, 475-76 (6th Cir. 2003)(the ALJ
may properly consider the credibility of a claimant when making a
determination

of

disability,

and

the

ALJ’s

credibility

determinations are accorded great weight and deference).

7

In

concluding that plaintiff’s subjective complaints were not fully
credible, the ALJ noted that: (1) plaintiff’s daily activities
(including caring for her young son, driving, attending on-line
school for seven months, performing household chores and grocery
shopping) were consistent with the light work permitted by the RFC;
(2)

plaintiff

made

inconsistent

statements

concerning

drug

(marijuana and Oxycodone) and alcohol use and the efficacy of her
prescription medication; (3) Dr. Sudhir Dubey, Psy.D., reported in
September, 2012, that plaintiff appeared to be magnifying her
symptoms (Ex. 26F); and (4) plaintiff failed to comply with
treatment
cessation.

recommendations

concerning

PAGEID 153-154.

exercise

and

smoking

In light of the ALJ’s credibility

findings, any criticism of Dr. Turner’s reliance on plaintiff’s
subjective complaints was not “baseless.”
Plaintiff’s objection to the ALJ’s analysis of Dr. Turner’s
opinion is denied.
B. Opinion of Todd Warren
Plaintiff also objects to the ALJ’s discussion of the July 3,
2013, mental residual functional capacity evaluation completed by
Todd Warren, a licensed professional counselor.

See Ex. 32F.

The

ALJ

noting

Mr.

assigned

this

assessment

little

weight,

that

Warren’s findings of extreme limitations were not supported by the
medical evidence of record, that Mr. Warren did not provide
specific findings to support his opinion, and that Mr. Warren
relied heavily on plaintiff’s subjective reports, which the ALJ
found to be not entirely credible. PAGEID 144. The ALJ’s decision
includes an extensive discussion of plaintiff’s mental health
treatment history, both as part of the five-step analysis and later
in the decision.

See PAGEID 140-143, 151-152.
8

Plaintiff argues that the ALJ erroneously restricted his
consideration of Mr. Warren’s opinion in stating that this opinion
would be “considered only to the extent that it helps understand
how

an

impairment

416.913(e)).”

affects

PAGEID 1233.

the

ability

to

work

(see

20

CFR

Plaintiff’s objection suggests that

Mr. Warren’s opinion should be afforded the same weight and
treatment as an opinion from an “accepted medical source” because
not all social security applicants can afford the services of a
medical practitioner.

Doc. 20, p. 3.

The court agrees with the conclusion of the magistrate judge
that the ALJ accurately cited and followed the requirements of 20
C.F.R.

§416.913

in

evaluating

Mr.

Turner’s

opinion.

That

regulation indicates that as a licensed professional counselor, Mr.
Warren’s opinion falls within the category of evidence from “other
sources” which may be considered to “show the severity of your
impairment(s) and how it affects your ability to work.” Similarly,
under Soc. Sec. Rul. 06-3p, 2006 WL 2329939 (S.S.A. Aug. 9, 2006),
evidence from medical sources such as licensed clinical social
workers or therapists are deemed to be “other source” evidence as
defined in §416.913(d).

See SSR 06-3p, 2006 WL 2329939 at *2.

This policy ruling states that “we may use evidence from ‘other
sources,’

...

to

show

the

severity

of

the

individual’s

impairment(s) and how it affects the individual’s ability to
function.”

Id. (emphasis supplied).

Although the policy includes

a list of factors which “can be applied” by the ALJ to opinion
evidence from “other sources,” id., 2006 WL 2329939 at *4, an ALJ
is not required to weigh all the factors in every case, but
generally should explain the weight given to other source opinions

9

in a manner sufficient to ensure that a subsequent reviewer can
follow the ALJ’s reasoning.

Id., 2006 WL 2329939 at *5-6.

Here,

the ALJ considered Mr. Turner’s opinion, and gave sufficient
reasons for assigning that opinion little weight.

No error

occurred in the ALJ’s evaluation of Mr. Turner’s opinion.
III. Conclusion
For the reasons stated above, the court concludes that the
Commissioner’s non-disability finding is supported by substantial
evidence.

The court overrules the plaintiff’s objections (Doc.

20), and adopts and affirms the magistrate judge’s report and
recommendation (Doc. 19).

The decision of the Commissioner is

affirmed, and this action is dismissed.

The clerk is directed to

enter final judgment in this case.
It is so ordered.

Date: June 3, 2016

s/James L. Graham
James L. Graham
United States District Judge

10