Popp v. Commissioner of Social Security Administration

Filing 25

ORDER adopting Report and Recommendations re 23 Report and Recommendations.. Signed by Judge James L. Graham on 3/2/2017. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Robin R. Popp,
Plaintiff,
v.

Case No. 2:15-cv-2977

Carolyn W. Colvin,
Acting Commissioner of
Social Security,
Defendant.
ORDER
Plaintiff Robin R. Popp brings this action under 42 U.S.C.
§405(g) for review of a final decision of the Commissioner of
Social

Security

disability

(“Commissioner”)

insurance

benefits.

denying
The

her

application

administrative

law

for

judge

(“ALJ”) reviewed the medical evidence in the record and held a
hearing,

at

which

plaintiff,

accompanied

by

counsel,

and

a

vocational expert testified. In a decision dated June 4, 2014, the
ALJ found that plaintiff had severe impairments consisting of
degenerative disk disease, left knee degenerative joint disease,
obesity, and depression.1

PAGEID 13.

After considering the entire

record, the ALJ found that plaintiff has the residual functional
capacity (“RFC”) to perform light work which could involve lifting
or carrying twenty pounds occasionally, and ten pounds frequently,
and standing, walking or sitting for six of eight hours during the
workday, but that she could only occasionally climb stairs, stoop,
kneel, crouch and crawl.

PAGEID 15.

Citing the testimony of the

vocational expert, the ALJ concluded that there were jobs in the

1

In her statement of errors, plaintiff advanced no arguments
concerning the ALJ’s findings concerning her mental status.

economy which plaintiff could perform, and that she was not
disabled.
This

PAGEID 18-19.
matter

is

before

the

court

for

consideration

of

plaintiff’s January 23, 2017, objections (Doc. 24) in response to
the January 9, 2017, report and recommendation of the magistrate
judge (Doc. 23), 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.”).

Put another way, a decision supported by

substantial evidence is not subject to reversal, even if the
reviewing court might arrive at a different conclusion.
Bowen, 800 F.2d 535, 545 (6th Cir. 1986).

Mullen v.

“Substantial evidence

exists when ‘a reasonable mind could accept the evidence as

2

adequate to support a conclusion [and] . . . presupposes that there
is a zone of choice within which the decision-makers can go either
way, without interference by the courts.’”

Blakley v. Comm’r of

Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (internal citation
omitted).
decision

Even if supported by substantial evidence, however, “‘a
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. Objections
A. Plaintiff’s Objections
The magistrate judge addressed eight claims of error raised by
plaintiff concerning the ALJ’s formulation of her RFC as permitting
light work as opposed to sedentary work.

Plaintiff specifically

objects to the magistrate judge’s analysis of four of her claims of
error, specifically, Sections III(A)(1), (2), (4) and (7) of the
report and recommendation.
A claimant’s RFC is the most that a claimant can do despite
his or her limitations.
charged

with

20 U.S.C. §404.1545(a)(1).

determining

a

claimant’s

§§404.1527(e)(2) and 404.1546(c).

RFC.

The ALJ is
20

C.F.R.

In making that determination,

the ALJ must evaluate all the medical evidence as well as the
claimant’s testimony.
633 (6th Cir. 2004).

Webb v. Comm’r of Soc. Sec., 368 F.3d 629,
The RFC assessment must include a narrative

discussion describing how the evidence supports each conclusion,
citing specific medical facts and nonmedical evidence.

3

SSR 96-8p,

1996 WL 374184 at *7 (Soc. Sec. Admin. July 2, 2006).

However, an

ALJ need not discuss every piece of evidence in the record for his
decision to stand.

Thacker v. Comm’r of Soc. Sec., 99 F.App’x 661,

665 (6th Cir. 2004).
B. Sections III(A)(1) and (4) - ALJ’s Reference to Good Functioning
During Physical Examinations and Normal Examination Findings
In rejecting plaintiff’s argument that she could perform only
sedentary work, the ALJ noted that plaintiff “had good functioning”
and “walked with a normal gait” during her consultative examination
by Judith Brown, M.D., on August 23, 2012.

PAGEID 15-16.

Dr.

Brown’s report stated that plaintiff appeared to be stable and
comfortable

in

supine

and

sitting

positions,

that

no

muscle

weakness was noted, and that plaintiff was able to stand on each
leg alone without difficulty, to walk on heels and toes, and to
walk heel to toe without difficulty.

Ex. 2F, PAGEID 245, 247.

Dr.

Brown opined that while activities such as bending, stooping,
lifting, crawling, squatting, carrying and traveling would be
mildly affected, plaintiff could probably perform light duty work.
PAGEID 247.
The ALJ observed that plaintiff “walked with a normal gait and
had normal sensations” during a second consultative examination of
plaintiff by Dr. Brown on August 27, 2013.

PAGEID 16.

Dr. Brown

stated in her report that plaintiff “ambulates with a normal gait,”
not unsteady, lurching or unpredictable, that although plaintiff
carried a walker, she did not appear to lean on it, and that she
walked heel to toe without difficulty.

Ex. 11F, PAGEID 414, 416.

Dr. Brown again opined that plaintiff’s ability to work appears to
be

mildly

impaired.

PAGEID

417.

4

The

ALJ

also

cited

the

examination records of Gregory Parranto, M.D., from October, 2012,
and April, 2013, which reported no joint tenderness and normal
neurological exams, and from September, 2012, which reported a
normal bilateral knee examination.

PAGEID 16, citing Ex. 7F.

Due

to other reports that plaintiff ambulated normally, the ALJ gave
only some weight to the opinions of the state physicians, Gary
Hinzman, M.D., and Anahi Ortiz, M.D., who concluded that plaintiff
was limited to four hours of standing or walking.

PAGEID 17.

These state physicians nonetheless concluded that plaintiff was not
disabled.

See Exs. 1A and 3A.

The magistrate judge noted other examples in the medical
records of plaintiff’s normal gait, including the July, 2012,
report of Dr. Sudhir Dubey, Psy.D. that plaintiff’s gait “was
unremarkable,” and the May 14, 2013, report of Dr. Frank Fumich
that plaintiff “presents to the office using no assistive devices
for ambulation” and “has [a] non-antalgic, non-antaxic gait.”
Doc. 23, pp. 10-11, PAGEID 291, 335.
that

the

references

in

the

See

The magistrate judge stated

medical

records

to

plaintiff’s

difficulty in straight leg raising and standing on one leg, as well
as her decreased cervical spine range of motion, did not change the
fact that plaintiff presented with good functioning during her
examinations.

Doc. 23, p. 11.

Plaintiff argues that the ALJ erred in failing to mention
abnormal examination findings noted in the medical records or to
explain why those findings did not impact his conclusion that
plaintiff was capable of light work.
that

the

magistrate

judge

Plaintiff further contends

engaged

in

improper

post-hoc

rationalization by discussing the impact of abnormal exam findings

5

on plaintiff’s good functioning because these findings should have
been addressed by the ALJ in his decision.
As noted above, the ALJ need not discuss every piece of
evidence in the record for his decision to stand.

Thacker, 99

F.App’x at 665.
While it might be ideal for an ALJ to articulate his
reasons for crediting or discrediting each medical
opinion, it is well settled that: “[a]n ALJ can consider
all the evidence without directly addressing in his
written decision every piece of evidence submitted by a
party.”
Kornecky v. Comm’r of Soc. Sec., 167 F.App’x 496, 508 (6th Cir.
2006)(quoting Loral Defense Systems–Akron v. N.L.R.B., 200 F.3d
436, 453 (6th Cir. 1999)(citations and internal quotation marks
omitted)).

An ALJ’s failure to cite specific evidence does not

indicate that it was not considered.

Simons v. Barnhart, 114

F.App’x 727, 733 (6th Cir. 2004).
The ALJ noted that he determined that plaintiff could perform
light work “when considering all the evidence in the record[.]”
PAGEID 18.

The ALJ stated that “considering the claimant’s back

pain and left knee pain in combination, the claimant was still able
to walk normally during two consultative examinations” (referring
to the consultative reports of Dr. Brown and assigning her findings
“great weight”).

PAGEID 17.

The ALJ also discussed both normal

and abnormal exam findings. He noted to a March 2012 lumbar x-ray,
an October 2012 cervical x-ray, and a May 2013 MRI, which he
acknowledged “showed mild to moderate spinal abnormalities that did
not affect the claimant’s ability to walk or her strength.” PAGEID
15-16.

He specifically referred to a left knee MRI performed in

October of 2012 and a left knee x-ray in August of 2012, which

6

showed “a lateral meniscus tear and intermediate chondromalacia”
and “mild medial compartment osteoarthritic without acute bony
abnormality.”
indicates

PAGEID 16.

that

he

The ALJ’s references to these records

considered

them.

The

fact

that

these

abnormalities existed did not require the ALJ to conclude that
plaintiff

is

disabling.
Cir. 2013).

disabled.

Not

every

diagnosable

condition

is

Lee v. Comm’r of Soc. Sec., 529 F.App’x 706, 713 (6th
Rather, disability is determined by the functional

limitations imposed by a condition, not the mere diagnosis of it.
Hill v. Comm’r of Soc. Sec., 560 F.App’x 547, 551 (6th Cir. 2014).
The magistrate judge did not engage in an impermissible posthoc analysis in addressing this claim of error. It is the function
of the magistrate judge and this court to review the record to
determine whether the Commissioner’s decision is supported by
substantial evidence. Ealy, 594 F.3d at 512. The magistrate judge
properly examined the record evidence as a whole, including the
evidence

referred

to

by

plaintiff,

in

deciding

evidence undermined the ALJ’s RFC determination.

whether

that

For example, the

fact that plaintiff’s straight leg raises while in a supine
position were limited to fifty degrees for the right leg and fortyfive degrees for the left leg, see PAGEID 247, does not defeat the
ALJ’s conclusion, based on the entire record, that plaintiff is
able to walk normally for purposes of performing light work.
C. Section III(A)(2) - Rejection of Diagnosis of Stenosis
Plaintiff objects to the magistrate judge’s analysis regarding
whether the ALJ adequately explained why he rejected the diagnosis
of lumbar stenosis offered by Dr. Fumich. “Discretion is vested in
the ALJ to weigh all the evidence.”

7

Collins v. Comm’r of Soc.

Sec., 357 F. App’x 663, 668 (6th Cir. 2009).

“Where there are

conflicting opinions from various medical sources, it is the ALJ’s
function to evaluate the medical evidence and determine Plaintiff’s
RFC.”

Swett v. Comm’r of Soc. Sec., 886 F.Supp.2d 656, 660

(S.D.Ohio 2012)(citing Webb, 368 F.3d at 633).

A reviewing court

will

it

affirm

the

Commissioner’s

decision

if

is

based

on

substantial evidence, even if substantial evidence would also have
supported the opposite conclusion.

Gayheart v. Comm’r of Soc.

Sec., 710 F.3d 365, 376 (6th Cir. 2013).
The ALJ did give an explanation for his rejection of Dr.
Fumich’s diagnosis of stenosis.

He noted that “[i]n May 2013, the

claimant’s orthopedist [Dr. Fumich] mentioned stenosis at the L4-L5
disc level, which was not depicted in the results of the MRI, or
any other imaging in the record,” citing to Exhibit 8F. PAGEID 1516.

Exhibit 8F is the report of Jane Burk, M.D., who interpreted

plaintiff’s May 14, 2013, MRI.
stenosis.

PAGEID 348.

That report did not mention

The ALJ’s statement was sufficient to

explain why he accepted the opinion of Dr. Burk, and why he
concluded that Dr. Fumich’s diagnosis was not supported by the
objective medical evidence. The court notes that although there is
a reference to spinal stenosis in the records of Dr. Parranto, see
Ex. 7, those records give no indication that Dr. Parranto actually
read the x-rays or the MRI.

The magistrate judge did not err in

addressing this claim of error.
D. Section III(A)(7) -

Discussion of Activities of Daily Living

Plaintiff objects to Part 7 of the magistrate judge’s analysis
regarding the ALJ’s reliance on plaintiff’s activities of daily
living in formulating her RFC.

The ALJ concluded that plaintiff

8

had mild restrictions in activities of daily living, as plaintiff
reported that she prepares simple meals, sorts and starts laundry,
drives, shops for groceries occasionally, watches television and
pays her bills.

PAGEID 14.

The magistrate judge concluded that

this finding was consistent with the record, noting plaintiff’s
reports of similar activities during a psychological consultative
examination with Dr. Dubey on July 23, 2012.

Doc. 23, pp. 14-15;

citing PAGEID 292. The magistrate judge noted plaintiff’s argument
that these reports were taken out of context in light of evidence
that plaintiff has pain when she sleeps, and that pain prevents her
from taking a shower every day.

Doc. 23, p. 15.

The magistrate

judge then concluded that the ALJ reasonably relied on plaintiff’s
previous reports of her daily activities in considering plaintiff’s
inconsistency in reporting her daily activities.

Doc. 23, p. 15,

citing Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 392 (6th Cir.
2004)(ALJ may consider daily activities in evaluating complaints of
disabling pain).
The magistrate judge correctly analyzed this claim of error.
The ALJ’s observations concerning plaintiff’s reports of her daily
activities

are

plaintiff’s
limitations.

supported

hearing

by

testimony

PAGEID 15.

the

record.

concerning

The

ALJ

additional

addressed
pain

and

However, the ALJ also discussed several

factors which undermined plaintiff’s credibility, including: (1)
her inconsistent work history prior to her onset of disability
date; (2) her attendance at four of nine physical therapy sessions;
(3)her use of Tylenol and Ibuprofen for pain, as opposed to
stronger medication; (4) her normal gait and good functioning
during Dr. Brown’s consultative examinations; (5) the May, 2013,

9

MRI, which showed no nerve root compression or stenosis; (6) and
plaintiff’s conservative treatment for knee pain, which did not
include injections or surgery.

PAGEID 16-17.

Under Soc. Sec. Rul. 96-7p, 1996 WL 374186 at *4 (Soc. Sec.
Admin. July 2, 1996), the ALJ can weigh a claimant’s credibility in
considering a claimant’s statements as evidence bearing on the
issue of disability.

It is for the ALJ, not the reviewing court,

to evaluate the credibility of the claimant.
247.

Rogers, 486 F.3d at

An ALJ may dismiss a claimant’s allegations of disabling

symptomatology as implausible if the subjective allegations, the
ALJ’s personal observations, and the objective medical evidence
contradict.

Tyra v. Sec’y of Health & Human Servs., 896 F.2d 1024,

1030 (6th Cir. 1990).

The ALJ reasonably concluded that the above

factors, including plaintiff’s reports of her daily activities,
“demonstrate that the claimant’s impairments are not disabling.”
PAGEID 17.
III. Conclusion
Having reviewed the record de novo, the court determines that
there is substantial evidence supporting the ALJ’s determination
that plaintiff is not disabled, as defined in the Social Security
Act.

The court hereby adopts and affirms the magistrate judge’s

report and recommendation (Doc. 23).
24) are denied.

Plaintiff’s objections (Doc.

The Commissioner’s decision is affirmed, and this

action is dismissed.

Date: March 2, 2017

The clerk shall enter final judgment.

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

10