Locke v. Commissioner of Social Security

Filing 22

OPINION AND ORDER - Plaintiff's statement of errors (Doc. 16 ) is overruled. The Commissioner's decision denying benefits is affirmed. This case is terminated. Signed by Magistrate Judge Terence P. Kemp on 3/20/2017. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Scott Locke,

:

Plaintiff,

:

v.

:

:
Commissioner of Social Security,
Defendant.

Case No. 2:16-cv-39
Magistrate Judge Kemp

:
OPINION AND ORDER
I.

Introduction

Plaintiff, Scott Locke, filed this action seeking review of
a decision of the Commissioner of Social Security denying his
applications for disability insurance benefits and supplemental
security income.

Those applications were filed on May 7, 2010,

and alleged that Plaintiff became disabled on December 31, 2007.
After initial administrative denials of his claim,
Plaintiff was given a hearing before an Administrative Law Judge
on July 2, 2012.

In a decision dated November 21, 2012, the ALJ

denied benefits.

That became the Commissioner’s final decision

on November 13, 2015, when the Appeals Council denied review.
After Plaintiff filed this case, the Commissioner filed the
administrative record on March 21, 2016.

Plaintiff filed a

statement of specific errors on June 10, 2016, to which the
Commissioner responded on September 26, 2016.

Plaintiff did not

file a reply brief, and the case is now ready to decide.
II.

Plaintiff’s Testimony at the Administrative Hearing

Mr. Locke was 45 when the administrative hearing was held.
He has a high school education.

He testified to the following at

the administrative hearing (see Tr. 34-54).
Plaintiff was first asked what his most serious medical

problem was; he responded that it was his feet or his eyesight.
His eyes had been an issue for several years, and he had been
unable to see out of one of his eyes for some months.

His feet

would swell during the day and he needed to be able to move them
around.

Plaintiff also testified to shortness of breath when

walking up two or three flights of stairs or pushing a lawn
mower, and to numbness in his right hand, especially in cold
weather.
He was also asked to describe a normal day in 2010 (which
was the year he filed his applications).

Plaintiff said that he

would get his children ready for school because his wife was
working.

He would then do household chores including sweeping,

doing dishes, and doing laundry.

Plaintiff was also able to

drive to the store to shop for groceries, help his children with
homework, and take his children to activities.

He could prepare

the evening meal as well.
III.

The Medical Records

The medical records in this case are found beginning on page
238 of the administrative record.

The Court will summarize those

records which pertain to Plaintiff’s five statements of error.
Plaintiff was diagnosed in September, 2010 as having had a
myocardial infarction.

An echocardiogram showed no wall motion

abnormalities and an ejection fraction of 50%.

Plaintiff was

discharged with other diagnoses as well, including hypertensive
urgency, diabetes, and anxiety.

(Tr. 241).

He continued to see

his cardiologist, Dr. Pool, for treatment of those various
conditions throughout 2011, but did not report any significant
heart-related problems.

He also was treated for diabetes during

this time frame.
Dr. Pool did a stress test in January, 2012.

The results

showed no inducible ischemia and a post-stress injection fraction
of 44% with mildly reduced global left ventricular function.
-2-

(Tr. 386-87).
In 2012, Plaintiff saw a retina specialist.

He reported

floaters in his left eye and some leakage in his right eye.
389-96).

(Tr.

He underwent surgery on February 23, 2012, for a

vitreous hemorrhage and a retinal tear.

(Tr. 405).

Later in

2012 he had a retinal tear in his left eye.
On April 27, 2012, Pamela Suver, a certified nurse
practitioner, filled out a physical capacity evaluation form.
She said that Plaintiff could stand, walk, or sit for only
fifteen minutes at a time, could lift ten pounds occasionally,
could not use his feet for repetitive movements, could only
occasionally bend or climb steps, could never climb ladders,
crawl, or squat, and would miss more than three days of work per
month, all due to diabetic neuropathy and heart disease.

(Tr.

409-410).
The remaining records show that Plaintiff was treated by a
podiatrist for foot issues caused by his diabetic neuropathy.
The condition was described as moderate to severe.
State agency reviewers also expressed opinions about
Plaintiff’s functional capacity.

The short version of those

opinions is that, as of May 24, 2011, the state agency doctors
thought that Plaintiff could do a relatively full range of light
work.

See, e.g., Tr. 108-110.
IV.

The Medical Expert Testimony

Dr. Jonathan Nusbaum testified at the administrative hearing
as a medical expert.

His testimony begins at page 54 of the

record.
Dr. Nusbaum was first asked to identify the medical
impairments which were documented in the records.

He said that

Plaintiff suffered from juvenile diabetes under poor control,
microalbuminemia, hypertension, premature coronary artery
disease, a myocardial infarction that occurred in September,
-3-

2010, diabetic retinopathy, and diabetic neuropathy.

Dr. Nusbaum

also testified that none of these impairments were severe enough
to satisfy any section of the Listing of Impairments.
Next, Dr. Nusbaum provided an evaluation of Plaintiff’s
residual functional capacity.

He said that Plaintiff could lift

only ten pounds occasionally, could sit for two hours at a time
and up to six hours in a workday, could stand or walk for fifteen
minutes at a time and no more than two hours in total, and could
perform stooping, squatting, and crouching for less than ten
percent of the time.

Also, he could not climb ladders, use foot

controls, or work in a cold environment.

Dr. Nusbaum did not

believe that it was necessary for Plaintiff to keep his feet
elevated.
V.

The Vocational Testimony

Dr. Oestreich was the vocational expert in this case.

His

testimony begins at page 60 of the administrative record.
Dr. Oestreich first testified that Plaintiff’s past relevant
work included being a laborer in two settings, which was medium
to heavy unskilled work, being a janitor, which was medium and
unskilled, and being a retail salesperson, which was light and
semi-skilled.
Dr. Oestreich was then asked to testify about a hypothetical
individual who had the physical limitations described by Dr.
Nusbaum.

He said that such a person could not do any of

Plaintiff’s past jobs because they all required more than
sedentary work ability.

He did, however, testify that

someone

so limited could perform about 75% of unskilled sedentary jobs in
the economy, including jobs like hand packer, inspector, and
assembler.

If the person had to stand every fifteen minutes,

however, that would preclude employment.
VI.

The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 13-4-

23 of the administrative record.

The important findings in that

decision are as follows.
The Administrative Law Judge found, first, that Plaintiff
met the insured status requirements of the Social Security Act
through December 31, 2012.

Next, the ALJ found that he had not

engaged in substantial gainful activity since his alleged onset
date of December 31, 2007.
Going to the next step of the sequential evaluation process,
the ALJ determined that Plaintiff had multiple severe impairments
including insulin dependent diabetes mellitus with diabetic
neuropathy and proliferative diabetic retinopathy; status post
vitreous hemorrhage in the left eye; hypertensive retinopathy in
both eyes; status post myocardial infarction; status post
vitrectomy; hypothyroidism; and premature coronary artery
disease.

The ALJ also found that these impairments did not, at

any time, meet or equal the requirements of any section of the
Listing of Impairments (20 C.F.R. Part 404, Subpart P, Appendix
1).
Moving to step four of the sequential evaluation process,
the ALJ found that Plaintiff had the residual functional capacity
to perform work at the sedentary exertional level except that he
could lift ten pounds only occasionally, could sit for two hours
at a time and up to six hours in a workday, could stand or walk
for fifteen minutes at a time and no more than two hours in
total, could perform stooping, squatting, and crouching for less
than ten percent of the time, could not climb ladders or use foot
controls, and could not work in an environment where the
temperature was lower than 40 degrees Fahrenheit.

These

restrictions had existed since May 1, 2010.
The ALJ next concluded that Plaintiff, with these
limitations, could not do any of his past relevant work.
However, Plaintiff could do 75% of the sedentary jobs in the

-5-

economy, and could specifically perform the jobs of assembler,
hand packer, and inspector.

The ALJ further found that these

jobs existed in significant numbers in the regional and national
economies.

Consequently, the ALJ concluded that Plaintiff was

not entitled to benefits.
VII.

Plaintiff’s Statement of Specific Errors

Plaintiff raises five issues in his statement of errors: (1)
the ALJ did not give proper weight to the functional capacity
assessment of the treating source; (2) the ALJ did not properly
evaluate the assessment done by the nurse-practitioner; (3) the
ALJ did not properly evaluate the medical evidence; (4) the ALJ’s
residual functional capacity finding is not supported by
substantial evidence; and (5) the ALJ erred by finding that
Plaintiff could perform substantial gainful activity.

Each of

these contentions is reviewed under the following legal standard.
Standard of Review.

Under the provisions of 42 U.S.C.

Section 405(g), "[t]he findings of the Secretary [now the
Commissioner] as to any fact, if supported by substantial
evidence, shall be conclusive. . . ."

Substantial evidence is

"'such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion'"

Richardson v. Perales, 402

U.S. 389, 401 (1971) (quoting Consolidated Edison Company v.
NLRB, 305 U.S. 197, 229 (1938)).
scintilla.'" Id.
Cir. 1976).

It is "'more than a mere

LeMaster v. Weinberger, 533 F.2d 337, 339 (6th

The Commissioner's findings of fact must be based

upon the record as a whole.

Harris v. Heckler, 756 F.2d 431, 435

(6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366 (6th
Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir.
1984).

In determining whether the Commissioner's decision is

supported by substantial evidence, the Court must "'take into
account whatever in the record fairly detracts from its weight.'"
Beavers v. Secretary of Health, Education and Welfare, 577 F.2d

-6-

383, 387 (6th Cir. 1978) (quoting Universal Camera Corp. v. NLRB,
340 U.S. 474, 488 (1951)); Wages v. Secretary of Health and Human
Services, 755 F.2d 495, 497 (6th Cir. 1985).

Even if this Court

would reach contrary conclusions of fact, the Commissioner's
decision must be affirmed so long as that determination is
supported by substantial evidence.

Kinsella v. Schweiker, 708

F.2d 1058, 1059 (6th Cir. 1983).
Although Plaintiff has raised five seemingly separate
statements of error, they are interrelated.
Court discusses them as a group.

Consequently, the

For the following reasons, the

Court concludes that none of them provide a basis for reversal
and remand.
To summarize Plaintiff’s argument, he claims that the ALJ
ignored significant objective medical evidence showing that he
suffered from uncontrolled diabetes, reduced ejection fraction,
shortness of breath, chest tightness, reduced left ventricular
function, and substantial visual impairment.

He then argues that

the ALJ erred by not giving sufficient weight to the opinion from
Nurse Suver, and that this case cannot be distinguished from
Randazzio v. Colvin, 2014 WL 2560729 (S.D. Ohio June 6, 2014),
adopted and affirmed 2015 WL 881511 (S.D.Ohio March 2, 2015),
where this Court remanded the case for further proceedings
because the ALJ in that case erred in the way in which a nurse
practitioner’s opinion was evaluated.

In response, the

Commissioner disputes the claim that this case is similar to
Randazzio and argues that the ALJ’s evaluation and rejection of
Nurse Suver’s opinions was entirely proper.
The Court begins with Randazzio, since Plaintiff’s argument
for remand relies heavily upon that decision.

There, as here, a

certified nurse practitioner completed a form on which she
described the claimant’s residual functional capacity.

The ALJ

stated, in the administrative decision, both that the opinion of

-7-

a nurse practitioner was not entitled to controlling weight under
Social Security Ruling 96-2p, and that such opinions were not
“medical opinions” as defined in the applicable regulations.
Randazzio, 2014 WL 2560729, *10.

This Court held that the ALJ

misinterpreted the regulations, particularly 20 C.F.R. §404.1513,
which explicitly states that a nurse practitioner is a “medical
source,” and failed to follow Social Security Ruling 06-03p,
which explains how an ALJ should evaluate opinions from “other
medical sources” such as nurse practitioners.

Id. at *11.

Given

that conclusion, the Court held that “[t]he same factors used to
evaluate medical opinions from acceptable medical sources should
have been applied to the opinion” of the nurse practitioner.

Id.

The case was then remanded so that could occur.
Despite Plaintiff’s argument to the contrary, it is clear
that the ALJ in this case did not commit the error which led the
Court to remand Randazzio.

The ALJ correctly described the

opinion of Nurse Suver as having come from “an unacceptable
medical source,” which is correct.

(Tr. 20).

The ALJ did not

appear to have concluded, as did the ALJ in Randazzio, that Nurse
Suver’s opinion could not be given great weight, but simply
stated (again correctly) that it could not be given controlling
weight in the same way that an opinion from a treating,
acceptable medical source could.

Consequently, Plaintiff’s

reliance on Randazzio is misplaced.

That does not, however, end

the Court’s inquiry.
Under SSR 06-03p (which the ALJ cited in the first paragraph
of Section 5 of the administrative decision, see Tr. 16, but did
not discuss when analyzing Nurse Suver’s opinion), opinions from
medical sources like nurse practitioners “may provide insight
into the severity of the impairment(s) and how it affects the
individual's ability to function.”

The Ruling acknowledges that

the regulatory framework does not directly address how such

-8-

opinions are to be evaluated, but notes that “medical sources
such ... as nurse practitioners ... have increasingly assumed a
greater percentage of the treatment and evaluation functions
previously handled primarily by physicians and psychologists.”
Consequently, the Ruling directs ALJs to consider the same list
of factors set out in 20 C.F.R. §404.1527(c) when evaluating, for
example, a nurse practitioner’s opinion, while recognizing that
“[n]ot every factor for weighing opinion evidence will apply in
every case.”
There is no magic formula which an ALJ must recite when
dealing with opinion evidence which comes from someone who is not
an “acceptable medical source.”

This Court has held that SSR

06-03p
does not create an independent regulatory duty to
articulate the ALJ's reasoning in the same way required
for an opinion rendered by a treating source. See,
e.g., Robinson v. Comm'r of Social Security, 2012 WL
194966, *12 (N.D. Ohio Jan. 20, 2012) (“there is no
controlling precedent requiring an ALJ to explicitly
address written statements such as” a function report
from a case manager). Rather, all that is needed is a
sufficient discussion of all of the evidence of record
to demonstrate that the ALJ considered the key factors
of “‘supportability and consistency’” in deciding how
much to credit these types of reports. See Acton v.
Comm'r of Social Security, 2013 WL 3761126, *5 (S.D.
Ohio July 16, 2013), quoting Kerlin v. Astrue, 2010 WL
3937423, *8 (S.D. Ohio March 25, 2010), adopted and
affirmed 2010 WL 3895175 (S.D. Ohio Sept. 29, 2010).
Swartz v. Comm'r of Social Security, 2014 WL 868127, *8 (S.D.
Ohio March 5, 2014), adopted and affirmed 2014 WL 1343094 (S.D.
Ohio Apr. 3, 2014).

The same question is presented here: did the

ALJ discuss all of the evidence in a way that makes clear that
she both understood the factors to be used in evaluating Nurse
Suver’s opinion and applied them in a way that is supported by
the evidence?
The actual discussion of Nurse Suver’s opinion is brief.
-9-

The ALJ gave only two reasons for assigning little weight to her
opinion: that it came from an unacceptable medical source, and,
as to one particular part of it - the statement that Plaintiff
needed to keep his feet elevated and recline frequently - the
record was “devoid of evidence” to support this conclusion.
20-21).

(Tr.

In a footnote, the ALJ also discussed, briefly, that

portion of the opinion indicating that Plaintiff would need to
change positions every fifteen minutes, concluding (at least
indirectly) that this restriction contradicted Dr. Nusbaum’s view
of Plaintiff’s residual functional capacity.

Id.

The ALJ did

not mention the supportability of other portions of the opinion
nor did she discuss factors like the length of the treating
relationship, how well the opinion was explained, Nurse Suver’s
expertise, or any of the other matters listed in SSR 06-3p.
In some cases, the failure even to acknowledge the relevant
factors or apply them to an opinion from an “unacceptable medical
source” could be grounds for remand, especially if that failure
leads the Court to conclude that the opinion was rejected simply
because the person rendering the opinion is not an acceptable
medical source.

That would clearly violate SSR 06-03p.

However,

in this case, the two specific comments made by the ALJ show that
she did consider the consistency and supportability of two key
parts of Nurse Suver’s opinion.

The balance of the

administrative decision indicates that the ALJ placed the
greatest reliance on Dr. Nusbaum’s evaluation, preferring his
conclusions to those of the state agency physicians based on his
having seen a greater volume of medical evidence and having been
able to take Plaintiff’s testimony into account.

There is no

likelihood that, even if the ALJ had engaged in a more
comprehensive analysis of the SSR 06-3p factors as they related
to Nurse Suver’s opinion, she would have credited that opinion
over Dr. Nusbaum’s, which she described as coming from an expert
in the Social Security program and someone whose analysis was
-10-

“consistent with and supported by objective clinical and
laboratory findings found in the record.”

(Tr. 20).

Plaintiff

has not attacked that finding as lacking substantial support, and
the objective and clinical findings, while they do show the
presence of various impairments, do not overwhelmingly suggest
functional limitations inconsistent even with sedentary work.
For all of these reasons, the Court concludes that the
Commissioner’s denial of benefits in this case must be affirmed.
VIII.

Decision

Based on the above discussion, Plaintiff’s statement of
errors (Doc. 16) is overruled.

The Commissioner’s decision

denying benefits is affirmed.

The Clerk is directed to enter

judgment in favor of Defendant and to terminate this case.

/s/ Terence P. Kemp
United States Magistrate Judge

-11-