Milliser v. Commissioner of Social Security

Filing 23

OPINION AND ORDER - Plaintiff's statement of errors (Doc. 17 ) is overruled. The Commissioner's decision denying benefits is affirmed. Signed by Magistrate Judge Terence P. Kemp on 3/28/2017. (agm)

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

Todd Milliser,

:

Plaintiff,

:

v.

:

:
Commissioner of Social Security,
Defendant.

Case No.

2:16-cv-56

Magistrate Judge Kemp

:
OPINION AND ORDER
I.

Introduction

Plaintiff, Todd Milliser, filed this action seeking review
of a decision of the Commissioner of Social Security denying his
application for disability insurance benefits.

That application

was filed on October 30, 2012, and alleged that Plaintiff became
disabled on February 28, 2009.
After initial administrative denials of his claim,
Plaintiff was given a hearing before an Administrative Law Judge
on November 24, 2014.
ALJ denied benefits.

In a decision dated January 23, 2015, the
That became the Commissioner’s final

decision on December 9, 2015, when the Appeals Council denied
review.
After Plaintiff filed this case, the Commissioner filed the
administrative record on March 29, 2016.

Plaintiff filed a

statement of specific errors on June 28, 2016, to which the
Commissioner responded on October 12, 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. Milliser was 49 when the administrative hearing was
held.

He has a high school education.

He testified to the

following at the administrative hearing (see Tr. 53-91).

Plaintiff first testified that he had worked from 2007 to
2009 as a roof estimator and salesperson.

He had to stop working

because he could no longer climb stairs or ladders to look at
roofs.

His job involved frequent checking on the progress of

roofing work and supervising the roofers.

He did the same job

for a roofing company before starting his own business.

The

other job he had in the past fifteen years was running a machine
which stuffed coupons into envelopes.

He lifted up to forty or

fifty pounds in the self-employed roofing job, and less than 20
pounds in the other two positions.
When asked why he could no longer work, Plaintiff replied
that he could not walk without pain.

He could walk for no longer

than three to five minutes with pain medication, and not at all
without it.
not release.

After a short walk, his muscles cramped up and would
He would have to sit for at least half an hour

before getting up again.

Also, he experienced numbness in his

hands and would drop objects.

Finally, he described depressive

symptoms and panic or anxiety attacks (which could also be
seizures) accompanied by tunnel vision and ringing in his ears.
His doctor had prescribed a walker for him and he had been using
it for two years.

Due to depression, he slept excessively and

had a poor appetite.
Plaintiff further testified that he was unable to do
household chores except for folding laundry while sitting.
had difficulty with tasks like bathing and shaving.

He was able

to watch television and to go to medical appointments.
sit but had to prop up his legs.

He

He could

Plaintiff could carry a gallon

of milk but it was painful to do so.

He said that his symptoms

had gotten progressively worse but he was resistant to increasing
his medication.
III.

The Medical Records

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

The Court will summarize those

records which pertain to Plaintiff’s three statements of error.
A.

Physical Impairments

Plaintiff was seen at the emergency room a number of times
in late 2012 reporting chronic low back pain.

The record also

contains office notes for treatment of that condition. Diagnostic
tests from that time frame show only mild findings.

He was

taking various medications at that time including Vicodin.
left one visit against medical advice.

He

See Tr. 418.

The first comprehensive medical report comes from Dr. Karas,
a neurosurgeon, who saw Plaintiff on October 29, 2012.

Plaintiff

described a ten-year history of back pain as well as pain in the
thighs and lower legs.

He had recently had a lumbar injection

without lasting relief.

Lower extremity examination was

difficult due to pain.

Straight leg raising was positive

bilaterally.

Dr. Karas concluded that the amount of pain which

Plaintiff was reporting was not consistent with the objective
test results and he recommended an EMG.
was recommended.
study.

(Tr. 321-23).

No surgical intervention

The subsequent EMG was a normal

(Tr. 324-25).

There is a functional capacity evaluation form appearing as
part of a set of treatment notes from 2012.

It indicates that

Plaintiff was seen from August to December, 2012, suffered from
back and leg pain of uncertain etiology, and would be severely
limited in walking bending, and stooping.

Also, Plaintiff used a

walker and could not sit for more than two hours at a time.
Although the form is not signed, it apparently was filled out by
Dr. Henriques.

(Tr. 376-77).

There are more notes from Dr.

Henriques’ office in 2013 which are similar to the 2012 treatment
notes.
Plaintiff began seeing Dr. Figg in 2013 for treatment for
his back and leg pain.

Dr. Figg reported on May 13, 2013, that
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after an initial visit, Plaintiff’s medications were adjusted and
he reported significant reduction in his pain.

(Tr. 452-53).

was still having diffuse pain at the next visit.

He

Dr. Figg noted

that Plaintiff had walked out of the room without his walker at
the end of that visit.

(Tr. 478-79).

In an August, 2013 note,

Dr. Figg commented that there may be some embellishing or
predominately psychogenic component to Plaintiff’s pain.
474-76).

(Tr.

Neurologic testing done in November of that year did

not show any ongoing neuromuscular disorder.

(Tr. 520).

Dr.

Figg’s office note from February 11, 2014 was not materially
different from his earlier ones, with a workup still ongoing.
(Tr. 527-28).
normal.

Another EMG study done that month was again

(Tr. 549-50).

A prior note from Dr. Johnson, who read

the EMG study, showed that Plaintiff could walk with or without
his walker.

(Tr. 552-54).

Plaintiff was seen by Dr. Ott of Fairfield County
Professionals Rheumatology on August 5, 2014.
muscular pain in both legs.

He reported

He denied any joint inflammation.

Dr. Ott found no evidence of rheumatoid arthritis, and she
recommended further testing.

(Tr. 613-14).

At about the same

time, Plaintiff was referred to the Berger Hospital Pain
Management Center by Dr. Menosky, his primary care physician.

At

that point, he had great difficulty transitioning from sitting to
standing, walked with an antalgic gait, and was using a walker.
Again, no specific cause of his pain was uncovered.

(Tr. 655-

57).
Finally, Dr. Roger Miller saw Plaintiff on February 2, 2014,
for a basic medical and consultative exam.

Plaintiff reported an

8-year history of back pain with radiation into both legs.

He

also described muscle pain in both legs, a pinched nerve in his
back, and nerve pain which limited his exercise tolerance and
ability to walk and perform routine tasks.
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Dr. Miller checked

boxes indicating that Plaintiff could not heel-and-toe walk and
used a walker.

His examination showed loss or some range of

motion in the spine, but upper and lower extremities showed
normal range of motion and straight leg raising was negative
bilaterally.

He concluded that Plaintiff was extremely limited

in his ability to stand and walk, to lift and carry, and to push
and pull, although his sitting ability was only slightly limited.
Dr. Miller also said that Plaintiff could not climb stairs, shop,
or do household chores, and needed help in bathing, dressing,
doing laundry, cooking, and using public transportation.

(Tr.

628-32).
B.

Psychological Impairments

Plaintiff saw Dr. Marc Miller for a psychological evaluation
on January 15, 2013.

He reported suffering from a neuromuscular

disease which required frequent injections and from a seizure
disorder controlled by medication.
walked very slowly.

Plaintiff used a walker and

His behavior indicated depression and he was

excessively talkative and had to be refocused constantly.

He

reported panic attacks which had also been helped by medication.
Dr. Miller concluded that Plaintiff would have no difficulty
dealing with simple job instructions but would have some problems
relating to others.

He also had some impairment in his attention

and concentration due to anxiety and the same was true with
respect to dealing with work stress.

His GAF function level was

rated at 40, although it was 55 as to symptoms.
C.

(Tr. 432-36).

State Agency Reviewers

State agency reviewers also expressed opinions about
Plaintiff’s functional capacity.

The short version of those

opinions is that, from a physical standpoint, both Dr. Bolz and
Dr. Klylop thought that Plaintiff could do a limited range of
light work, and that both Dr. Rivera and Dr. Hoffman concluded
that he could do simple, routine work with restrictions on his

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contact with others in the workplace and in a relatively static
work setting with clear performance expectations.

(Tr. 102-117,

119-135).
IV.

The Vocational Testimony

James Breen was the vocational expert in this case.

His

testimony begins at page 91 of the administrative record.
Mr. Breen first testified that Plaintiff’s past relevant
work as a roofing estimator was skilled and medium, and the
mailing insert machine operator was unskilled and light.
Mr. Breen was then asked to testify about a hypothetical
individual with Plaintiff’s age, education, and work experience.
The person could work at the light exertional level but could
only stand or walk for four hours in an eight-hour work day,
could frequently climb ramps and stairs, stoop, kneel, crouch,
and crawl, and could occasionally climb ladders, ropes, and
scaffolds.

Also, the person had to avoid all exposure to hazards

such as unprotected heights and dangerous moving machinery.

The

person could understand, remember, and carry out simple, routine,
repetitive tasks with occasional interaction with coworkers,
supervisors, and the general public that did not involve
persuading others or conflict resolution, could tolerate
occasional changes in routine with relatively static duties, and
had to avoid fast-paced work or production quotas.

Mr. Breen

said that such a person could not do any of Plaintiff’s past
jobs, but someone so limited could perform sedentary unskilled
jobs like circuit board tester, eyeglass assembler, and sorter.
He gave numbers for such jobs in the State and national
economies.

If the person had to use a walker, however, that

would preclude employment in those jobs or other sedentary jobs,
as would needing frequent redirection to stay on task.
In response to additional questions from Plaintiff’s
counsel, Mr. Breen testified that a limitation of only occasional

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use of the upper extremities for handling, fingering, pushing,
and pulling would be work-preclusive, as would being off-task for
more than 15% of the day or missing two days per month for
medical reasons.
V.

The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 2738 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 September 30, 2014.

Next, the ALJ found that he had not

engaged in substantial gainful activity since his alleged onset
date of February 28, 2009.
Going to the next step of the sequential evaluation process,
the ALJ determined that Plaintiff had severe impairments
including back problems, seizures, anxiety, depression, and pain
disorder.

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 light exertional level except that he
could only stand or walk for four hours in an eight-hour work
day, could frequently climb ramps and stairs, stoop, kneel,
crouch, and crawl, and could occasionally climb ladders, ropes,
and scaffolds.

Also, he had to avoid all exposure to hazards

such as unprotected heights and dangerous moving machinery.
Plaintiff also could understand, remember, and carry out simple,
routine, repetitive tasks with occasional interaction with
coworkers, supervisors, and the general public that did not
involve persuading others or conflict resolution, could tolerate

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occasional changes in routine with relatively static duties and
had to avoid fast-paced work or production quotas.
The ALJ next concluded that Plaintiff, with these
limitations, could not do any of his past relevant work.
However, Plaintiff could do a number of light jobs such as
circuit board tester, eyeglass assembler, and sorter.

The ALJ

further found that these jobs existed in significant numbers in
the State and national economies.

Consequently, the ALJ

concluded that Plaintiff was not entitled to benefits.
VI.

Plaintiff’s Statement of Specific Errors

Plaintiff raises three issues in his statement of errors:
(1) the ALJ did not give proper weight to the functional opinions
of the treating and consulting physicians; (2) the ALJ did not
properly evaluate Plaintiff’s pain and the effect it had on his
capacity to work; and (3) the ALJ erred in not incorporating a
limitation of the need to use a walker into the residual
functional capacity finding.

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

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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
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).
A.

Medical Opinions

In this statement of error, Plaintiff contends, first, that
the ALJ did not give sufficient weight to the opinion of Dr.
Henriques, a treating source, and, second, to the opinion of Dr.
Roger Miller, the consultative examiner.

He asserts that the

ALJ’s basis for discounting Dr. Henriques’ opinion - that it was
based only on Plaintiff’s subjective complaints - is not
supported by the record, and the same is true for Dr. Miller’s
opinion.

The Commissioner responds that the ALJ had a sound

basis for concluding that Dr. Henriques based his views on
Plaintiff’s subjective complaints because the objective evidence
does not support such extreme limitations, and that Dr. Miller’s
opinion could properly have been discounted because it (unlike
the opinions of the State agency reviewers) was not supported by,
and was inconsistent with, the other evidence in the record.
The Court begins with the treating physician’s opinion.

It

has long been the law in social security disability cases that a
treating physician's opinion is entitled to weight
substantially greater than that of a nonexamining medical
advisor or a physician who saw plaintiff only once.

20 C.F.R.

§404.1527(c); see also Lashley v. Secretary of H.H.S., 708 F.2d
1048, 1054 (6th Cir. 1983); Estes v. Harris, 512 F.Supp. 1106,
1113 (S.D. Ohio 1981).

However, in evaluating a treating
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physician’s opinion, the Commissioner may consider the extent to
which that physician’s own objective findings support or
contradict that opinion.

Moon v. Sullivan, 923 F.2d 1175 (6th

Cir. 1990); Loy v. Secretary of HHS, 901 F.2d 1306 (6th Cir.
1990).

The Commissioner may also evaluate other objective

medical evidence, including the results of tests or examinations
performed by non-treating medical sources, and may consider the
claimant’s activities of daily living.
HHS, 25 F.3d 284 (6th Cir. 1994).

Cutlip v. Secretary of

No matter how the issue of the

weight to be given to a treating physician’s opinion is finally
resolved, the ALJ is required to provide a reasoned explanation
so that both the claimant and a reviewing Court can determine why
the opinion was rejected (if it was) and whether the ALJ
considered only appropriate factors in making that decision.
Wilson v. Comm’r of Social Security, 378 F.3d 541, 544 (6th Cir.
2004).
Here, the ALJ first found that Plaintiff’s description of
his symptoms was not fully credible (something which Plaintiff
challenges in his second statement of error).

Next, the ALJ

summarized the medical evidence from 2012 which predated Dr.
Henriques’ opinion, noting that it showed only mild degenerative
disease in the lower spine and normal EMG results. The ALJ also
discussed the fact that Plaintiff appeared to be walking normally
during a November, 2012 emergency room visit and that he left
against medical advice after being told he would not be given
Dilaudid.

The ALJ then addressed Dr. Henriques’ opinion, giving

it “little weight” because “[t]he limitations proposed are based
on subjective statements by the claimant.”

(Tr. 34).

The ALJ

gave, as examples of this, the fact that Plaintiff was able to
walk without a walker only a month before, but Dr. Henriques said
he required one; the fact that there was nothing in the evidence
suggesting that Plaintiff could sit for only two hours; and the
fact that Plaintiff told Dr. Henriques that the EMG test results
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were abnormal.
Plaintiff is correct that Dr. Henriques did not specifically
say that he was basing his opinion on Plaintiff’s subjective
reports of disabling symptoms.

However, as the Commissioner

argues, that is a fair inference to be made from the record.
There were no objective test results reported prior to December,
2012, when Dr. Henriques filled out the form in question,
explaining any kind of disabling symptoms (and, in fact, there
are none in the succeeding years either).

Dr. Henriques did not

explain what test results or examination findings supported his
view that Plaintiff could not sit for more than two hours or
needed to use a walker, and there is evidence in the record
contradicting both of these findings.

The ALJ also mentioned the

fact that Dr. Henriques did not start treating Plaintiff until
only four months before he expressed his opinion and apparently
saw him only a few times in that four-month period.

All of these

factors were adequately explained by the ALJ and are appropriate
reasons for discounting the opinion of a treating source.
Dr. Miller, of course, was not a treating source, and his
opinion was not required to be given the same level of deference.
Under Social Security Regulation 06-03p, however, medical
opinions from non-treating sources are still evaluated using the
criteria listed in 20 C.F.R. §404.1527(c).

An ALJ need not cite

to every factor when explaining how a non-treating medical source
opinion is evaluated, but there must be enough reasoning provided
to allow the Court to determine that the ALJ considered the key
factors of “supportability and consistency.”

See 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).

And, of

course, the ALJ’s determination of this issue must be supported
by substantial evidence as well.

See Locke v. Comm’r of Social

Security, 2017 WL 1044772, *5 (S.D. Ohio March 20, 2017)(ALJ must
apply these factors “in a way that is supported by the
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evidence”).
After discussing Dr. Henriques’ opinion, the ALJ continued
to review the evidence, noting that again in March, 2013,
Plaintiff was reported as having no trouble walking when he
visited the emergency room.
(Tr. 34).

He again was denied medication.

He also forgot his walker temporarily when leaving a

June, 2013 medical appointment.

Plaintiff underwent many tests

during 2013 but was never diagnosed with either a neuromuscular
disorder or myotonic dystrophy.

The ALJ then assigned

considerable weight to the opinions of the state agency reviewers
as being consistent with the record.

Finally, the ALJ discussed

Dr. Miller’s opinions, giving them little weight because of
inconsistencies with the other medical records and with Dr.
Miller’s own findings, and because they, too, appeared to be
based on Plaintiff’s subjective complaints.
Again, the body of medical evidence, accurately summarized
by the ALJ, is clearly lacking in objective support for
Plaintiff’s claim of disabling symptoms.

The ALJ is correct that

no doctor diagnosed any type of neuromuscular disease, which is
what Plaintiff testified his leg pain was caused by.

The

inconsistent evidence about his own use of a walker, and the lack
of evidence supporting the need for one, allowed the ALJ to infer
that opinions about that device, such as Dr. Miller’s, had to be
based on Plaintiff’s subjective reports.

There are also

inconsistencies between the findings of normal muscle strength
and range of motion and some of the limitations Dr. Miller
imposed; again, the only reasonable explanation for that is that
Dr. Miller credited Plaintiff’s statements about the extent to
which pain, rather than some other functional limitation,
affected his abilities.

Because the ALJ did apply the key

factors of consistency and supportability to Dr. Miller’s
opinion, and because there is substantial support in the record
for the way she did so, the Court cannot grant Plaintiff any
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relief based on the ALJ’s decision to assign only little weight
to either Dr. Henriques’ or Dr. Miller’s opinions.
B.

Evaluation of Plaintiff’s Pain

Plaintiff’s second argument is that the ALJ’s credibility
finding, which discounted Plaintiff’s complaints of disabling
pain, is contrary to the weight of the evidence.

Plaintiff

asserts that subjective complaints of pain must be analyzed under
the factors listed in SSR 96-7p, which include symptoms and
treatment, and contends that the ALJ read the record in a
selective fashion, focusing on the normal examination and test
findings while ignoring other evidence which confirmed the
existence of severe pain.

He claims that although the various

treating doctors never identified the source of his pain, the
treatment they provided, including narcotic medication, indicates
that it was real, and that he did not engage in any daily
activities which were inconsistent with disabling pain.
A social security ALJ is not permitted to reject allegations
of disabling symptoms, including pain, solely because objective
medical evidence is lacking.

Rather, the ALJ must consider other

evidence, including the claimant's daily activities, the
duration, frequency, and intensity of the symptoms, precipitating
and aggravating factors, medication (including side effects),
treatment or therapy, and any other pertinent factors.
§404.1529(c)(3).

20 C.F.R.

Although the ALJ is given wide latitude to make

determinations about a claimant’s credibility, the ALJ is still
required to provide an explanation of the reasons why a claimant
is not considered to be entirely credible, and the Court may
overturn the ALJ’s credibility determination if the reasons given
do not have substantial support in the record.

See, e.g. Felisky

v. Bowen, 35 F.3d 1027 (6th Cir. 1994).
The ALJ acknowledged that SSR 96-7p provides the appropriate
framework for judging a claimant’s credibility.

(Tr. 35).

The

ALJ then cited, as reasons for finding Plaintiff less than fully
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credible, the objective medical evidence, as summarized above,
and “several inconsistencies that do not bolster the claimant’s
credibility.”

Id.

The ALJ did not specifically identify those

inconsistencies, but they presumably include those instances
where Plaintiff did not appear to use or need a walker and the
times when he unsuccessfully sought narcotic medication from the
emergency room, as well as the fact that Plaintiff claimed
disability dating back to 2009 even though he denied any
debilitating symptoms in 2011.

(Tr. 33).

The ALJ did not

discuss Plaintiff’s activities of daily living in finding him
less than fully credible, and the summary given by the ALJ of
Plaintiff’s testimony accurately reflects the fact that Plaintiff
did not admit to activities of daily living which were compatible
with full-time employment.
Certainly, the ALJ could have included a more robust
analysis of Plaintiff’s credibility.

On the other hand, she

cited to the appropriate source of law and touched on several of
the relevant factors, which, in this case, clearly includes the
inability of Plaintiff’s doctors to identify a cause for his most
severe symptoms.

The ALJ did not disregard evidence that, at

times, he walked with an abnormal gait or used a walker, but
simply found that inconsistencies in his presentation detracted
from his credibility.

Overall, the ALJ made a decision that was

within her “zone of choice,” see

Buxton v. Halter, 246 F.3d 762,

773 (6th Cir. 2001), and this Court is not free to disturb it.
C.

Use of a Walker

Plaintiff’s third and final statement of error relates to
the issue of whether he needed to use a walker.

The vocational

expert testified that, if that were the case, Plaintiff was not
employable.

The Commissioner argues that the ALJ had a

reasonable basis - mainly the instances cited above - for finding
that a walker was not medically required.
Plaintiff is correct that many of the medical sources
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reported that Plaintiff used a walker.

That is not the same as

saying that his medical condition required one, however.

The

Court has already upheld both the ALJ’s decision to discount the
opinion of Dr. Henriques and Plaintiff’s own testimony about his
limitations, and the ALJ also limited Plaintiff to less than a
full range of light work based on his subjective complaints and
the clinical evidence.

The jobs which the vocational expert

identified were all sedentary jobs.

Plaintiff is essentially

arguing that the record compels the conclusion that he needed to
use a walker to do even the amount of walking required for
sedentary work.

The Court believes that reasonable minds could

differ on that issue.

Consequently, there is no basis for

overturing the ALJ’s finding.
VII.

Decision

Based on the above discussion, Plaintiff’s statement of
errors (Doc. 17) 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

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