Sims v. Commissioner of Social Security

Filing 14

OPINION AND ORDER: Signed by Judge James L. Graham on 9/25/2017. (ds)

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

CAITLIN L. SIMS,
Plaintiff,
Civil Action 2:16-cv-342
Judge James L. Graham
Magistrate Judge Elizabeth P. Deavers

v.

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
OPINION AND ORDER
Plaintiff, Caitlin L. Sims, brings this action under 42 U.S.C. § 405(g) for review of a final
decision of the Commissioner of Social Security (“Commissioner”) denying her application for
Social Security Supplemental Security Income benefits. This matter is before the Court on
Plaintiff’s Statement of Errors (ECF No. 11), (“SOE”), the Commissioner’s Memorandum in
Opposition (ECF No. 12) (“Opposition”), Plaintiff’s Reply (ECF No. 13) (“Reply”), and the
administrative record (ECF No. 8). For the reasons that follow, Plaintiff’s Statement of Errors
is OVERRULED and the Commissioner’s decision is AFFIRMED.
I.

BACKGROUND

Plaintiff protectively filed her application for benefits in October 2012, alleging that she
has been disabled since October 3, 2004, due to depression and back problems. (R. at 134–40,
169.) Plaintiff’s application was denied initially and upon reconsideration. Plaintiff sought a
de novo hearing before an administrative law judge. (R. at 106.) Administrative Law Judge
Thomas Wang (“ALJ”) held a hearing on September 17, 2014, at which Plaintiff, who was

represented by counsel, appeared and testified. (R. at 41–58.) On November 10, 2014, the
ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Social
Security Act. (R. at 18–31.) On February 23, 2016, the Appeals Council denied Plaintiff’s
request for review and adopted the ALJ’s decision as the Commissioner’s final decision. (R. at
1–4.) Plaintiff then timely commenced the instant action.
II.
A.

HEARING TESTIMONY1

Plaintiff’s Testimony
At the September 17, 2014, administrative hearing, Plaintiff testified that she alleges

disability due to her pain and she “got to the point to where I couldn’t stand it anymore.” (R. at
42.) Her pain starts in her neck and radiates down her lower back and hips. (Id.) She lives
with her husband and seven-year-old son. (Id.) Plaintiff testified that she has problems driving
because it hurts her back to turn the steering wheel. (R. at 43.)
She testified that she worked part-time at Shoe Carnival from August 2012 until March
2013, selling shoes one to two days every other week. She testified that she left that job
because she was taking too many breaks and calling off too often due to pain. (R. at 44–45.)
Plaintiff testified that she spends most of her day lying down. (R. at 45.) According to
Plaintiff, she cannot cook dinner, clean her house, or play with her son because of her pain.
(Id.) At the time of the hearing, she was not taking any pain medications. (Id.) She has never
had back surgery, but has used a TENS unit, noting it works only two to three days and then it no
longer alleviated the pain. (Id.)
1

In addition to exertional impairments, the undersigned recognizes that Plaintiff alleges disability in part
because of her mental impairments. Plaintiff’s SOE, however, focuses primarily on Plaintiff’s exertional
impairments and limitations. Accordingly, the Court will focus its analysis of the evidence and the
administrative decision on Plaintiff’s exertional impairments and limitations.

2

Plaintiff also testified that she goes grocery shopping “four or five times a week,” using a
motorized cart; normally only getting “a few things at a time.” (R. at 55.) Plaintiff stated she
cannot walk a block at a reasonable pace. (Id.) Her husband will help her take a shower and
brush her hair. (R. at 56.) She can walk up ramps but not stairs. (R. at 57.)
When asked why she could not work, Plaintiff testified that she cannot stand or sit for
longer than five to ten minutes at a time. She would have to sit down and take several
unapproved breaks. (R. at 47.) Plaintiff appeared at the hearing with a prescribed cane. (Id.)
B.

Vocational Expert Testimony
Eric W. Pruitt testified as the vocational expert (“VE”) at the administrative hearing. (R.

at 58-66.) He noted that Plaintiff has no past relevant work because there were no periods of
substantial gainful activity. (R. at 59.) The ALJ proposed a series of hypotheticals regarding
Plaintiff’s residual functional capacity (“RFC”) to the VE. (R. at 60–64.) Based on Plaintiff’s
age, education, and work experience and the RFC ultimately determined by the ALJ, the VE
testified that Plaintiff could perform 173,300 light, unskilled jobs in the national economy, such
as a mail sorter, routing clerk, label coder, and laundry press operator. (R. at 61.) Plaintiff
could also perform 109,450 sedentary, unskilled jobs in the national economy, such as a gauger,
printed circuit board inspector, and film touchup inspector. (R. at 61–62.)
The VE further testified that if Plaintiff needed four fifteen-minute breaks in addition to
regularly scheduled breaks, and if she would need to lie down or just rest, the jobs he identified
do not allow for additional breaks above and beyond what is customarily provided for other
employees. (R. at 62.) If Plaintiff would be off task 10 percent of the work day, miss two days

3

of work per month, or require a sit-stand option at will, it would be work-preclusive. (R. at
62–63.)
III.
A.

MEDICAL RECORDS

William Chang, M.D.
Plaintiff began treating with physiatrist, Dr. Chang on April 25, 2013. (R. at 481–89.)

Plaintiff complained of persistent pain in her entire back, from lower to upper back and posterior
neck region. She reported she began experiencing gradual onset intermittent lower back pain in
the late 1990’s without any immediate precipitating event. Plaintiff’s lower back pain gradually
worsened over the years and became persistent for about five years. (R. at 484.) On
examination, Dr. Chang found tenderness in the neck and back as well as a limited range of
motion. Plaintiff’s straight leg raises were negative, she had full motor strength, her reflexes
were normal, and she had a normal gait. (R. at 482.) Dr. Chang diagnosed Plaintiff with
chronic persistent lower, middle and upper back pain; facet pain syndrome; chronic pain
disorder; lumbar spine stabilizing muscle weakness; and morbid obesity. (R. at 485.) Dr.
Chang recommended that Plaintiff increase her aerobic activity, exercise regularly, increase her
endurance by performing activities of daily living, and perform a home exercise program
independently, consistently, and regularly. (R. at 483.) Dr. Chang also prescribed aqua
therapy. (R. at 486.)
When seen for follow-up in May 2013, Plaintiff reported she had attended two sessions
of aqua therapy and she still had pain in her entire back, especially the lower back, but
that the pain now occurs intermittently. Plaintiff described her pain as an on-and-off sharp
squeezing sensation and she rated her pain severity at a level of 9 on a 0–10 visual analog scale.

4

Plaintiff also reported that when she was in a swimming pool, she did not feel any pain at her
back at all. (R. at 526.) On examination, Dr. Chang found no tenderness at her neck,
shoulders, extremities, or her back. She had increased lower back pain with lower back active
movement in extension and bilateral bending especially extension. She exhibited a negative
straight leg raise test bilaterally. She had no abnormalities in her extremities, normal muscle
strength, normal sensation, and a normal gait. (R. at 526–27.) Dr. Chang increased her Elavin
and directed her to continue ongoing aqua therapy treatment until its completion. He advised
Plaintiff to go to an available swimming pool and perform the aqua therapy exercises on the days
she was not attending aqua therapy sessions. (R. at 527.)
In June, July, and August 2013, Dr. Chang found Plaintiff had no abnormalities in her
extremities, normal muscle strength, normal sensation, full muscle strength, and a normal gait.
(R. at 529–37.) Dr. Chang continued to recommend that Plaintiff attend physical therapy, and
she was advised to lose weight and continue her home exercise program. (R. at 530, 534, 537.)
Records through February 2014 showed that Plaintiff continued to complain of back and
neck pain. (R. at 632–43.) By January 2014, Dr. Chang diagnosed Plaintiff with fibromyalgia
pain syndrome, persistent chronic lower back, middle and upper back pain with right lower
extremity sciatic radicular pain (most likely due to chronic pain disorder, fibromyalgia pain
syndrome, chronic thoracolumbar spine muscular strain secondary to leg length discrepancy,
facet pain syndrome with the referring pain, chronic pain disorder, lumbar spine stabilizing
muscle weakness, morbid obesity with weight gain, and lumbar L3-4 to L5-SI disk bulging),
chronic neck pain (probably secondary to cervical spine muscular strain and cervical disc
disorder, to rule out cervical disc herniation), leg length discrepancy with right lower extremity

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shorter, morbid obesity with weight gain, insomnia, and chronic pain disorder through central
sensitization. (R. at 639.) He noted that Plaintiff continued to have persistent painful
symptoms with increasing intensity, and that all of the conservative treatment and interventional
injection treatment has not produced significant prolonged pain reduction effect. (Id.) Dr.
Chang believed that Plaintiff’s persistent pain was most likely due, not only to fibromyalgia pain
syndrome, but also to hypersensitivity of nervous system function involving pain perception.
(Id.) He recommended that Plaintiff be physically active as much as she could tolerate, and that
she should change her walking exercise routine to a routine of higher frequency, but that the
duration of the routine could be reduced to a more tolerable level. (Id.) He also recommended
that she should perform a frequent short-duration, low-impact light aerobic exercise regularly,
and he placed Plaintiff on a regular physical therapy treatment program with the goal of
increasing her functional capacity and tolerance despite persistent pain. (Id.) In February
2014, Dr. Chang prescribed an adjustable straight cane. (R. at 659.)
In March 2014, Dr. Chang completed a medical source statement. (R. at 627–31.) Dr.
Chang opined that Plaintiff could lift or carry up to 15 pounds on an occasional basis, and sit,
stand or walk for 1 hour or less during an 8-hour work day. (R. at 627–28.) According to the
statement, Plaintiff required the use of a cane to ambulate “at times.” (R. at 628.) Dr. Chang
opined that it was medically necessary for Plaintiff to use a cane, but that she was able to
ambulate without the cane effectively within her own home. (Id.) Dr. Chang also opined that
Plaintiff was limited to occasional bilateral reaching, and frequent handling, fingering, and
feeling. (Id.) Plaintiff was further precluded from climbing ladders or scaffolds, balancing, or
crawling, and was occasionally limited in her ability to stoop, kneel, or crouch. (R. at 629.)

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Dr. Chang listed the medical or clinical finding which support this assessment as: 18/18 tender
points required for fibromyalgia diagnosis; tenderness at entire cervical, thoracic and lumbar
spine regions; bilateral upper and lower extremities; and MRI results of the lumbar spine from
August 2013 showing disc degeneration and desiccation at L3-4, L4-5, and L5-SI, with a small
central disc herniation at L4-5. (R. at 631.)
Plaintiff reported to Dr. Chang in April 2014 that she “sometimes” needed to use her
mother’s straight cane to assist with walking due to back pain. (R. at 644.)
B.

Genesis Rehabilitation Center
Plaintiff attended physical therapy from May through July 2013. (R. at 510–25.)

When initially evaluated, the physical therapist found decreased range of motion and flexibility,
pain, decreased muscular strength, palpable tenderness, soft tissue dysfunction, and postural
dysfunction. (R. at 520.) During therapy, her therapist observed that Plaintiff had no pain
behaviors during the aquatic sessions. (R. at 510, 512, 515.) Throughout the sessions, Plaintiff
had no issues with her gait. (R. at 510-25.) In July 2013, no goals were met and Plaintiff
reported she could not tolerate the aquatic therapy or the stretching. (R. at 510.)
C.

Yahya Bakdalieh, M.D.
The first treatment record in July 2013 from pain management specialist, Dr. Bakdalieh,

reflects that Plaintiff exhibited tenderness over the cervical, thoracic, and lumbar paraspinal
muscles. (R. at 549.) However, Dr. Bakdalieh also noted that Plaintiff had good active range
of motion and normal muscle strength in her lower extremities and that she “walks normally
without assistive devices.” (Id.) In the fall of 2013, Plaintiff underwent two bilateral lumbar
medial branch blocks. (R. at 551–58.) In December 2013, Dr. Bakdalieh again noted that

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Plaintiff walked normally without assistive devices. (R. at 597.) He diagnosed Plaintiff with
chronic lower back and neck pain, ordered an MRI and prescribed medication. (Id.)
On November 18, 2013, Dr. Bakdalieh and Plaintiff’s physical therapist at that time,
Jacquelyn Yom, PT, opined that Plaintiff could stand, walk or sit for a total of 1 hour each during
an 8-hour workday, lift 10 pounds on a rare basis, and occasionally bend, squat, crawl, or climb
stairs. (R. at 543–44.)
When seen in December 2013, given the limited relief seen from the steroid injections,
Dr. Bakdalieh recommended holding any further injections and referred Plaintiff to a
neurosurgeon. Dr. Bakdalieh noted that Plaintiff walked normally without assistive devices and
prescribed a TENS unit. (R. at 559.) In January 2014, based on the “significant improvement
in the patient’s lower back pain,” Dr. Bakdalieh discharged Plaintiff from the clinic. (R. at
561.)
D.

Andrew C. Stiegler , DC
Plaintiff initially began receiving chiropractic treatment in 2005 when she was 18 years

old due to low back and hip pain. (R. at 342–46.) Dr. Stiegler treated Plaintiff for cervical,
thoracic and lumbosacral area segmental dysfunction/subluxation. (R. at 342–400.) When he
examined Plaintiff in July 2012, Dr. Stiegler reported mal-alignment of the spine with deep
paraspinal musculature localized to the entire lower cervical spine. He also found joint
dysfunction and subluxation in the lower and upper thoracic spine areas. (R. at 386.)
Plaintiff returned to treatment in May 2013. (R. at 538–40.) Dr. Stiegler ordered
diagnostic imaging, which did not reveal significant abnormalities. (R. at 541.)
Plaintiff was seen again in May 2014. Dr. Stiegler found Plaintiff had 5/5 motor

8

strength in all muscle groups, and although she had decreased range of motion of the spine, she
was limited by pain; no neurological involvement was noted. (R. at 719–20.) Plaintiff was
able to heel walk on the right and toe walk bilaterally, and her deep tendon reflexes were normal.
(Id.). Dr. Stiegler diagnosed moderate cervicalgia, thoracalgia, and lumbosacral
neuritis/radiculitis. (R. at 724.) He assessed that, “the patient’s symptoms are exhibiting
measurable progress.” (R. at 727.)
E.

Genesis Health Care System
The record contains numerous visits to the emergency room from 2010 through 2014.

During these visits Plaintiff complained of coughs, colds, pain in her arm, and allergies. (R. at
251, 256–57, 265, 278, 284, 299, 300–01, 317, 320, 327, 413.) Reports of examinations during
these visits stated that Plaintiff’s musculoskeletal and neurological examinations were normal,
and that she denied back pain. (R. at 251–52, 257–58, 265–66, 278–79, 284–85, 317–18,
320–21, 327, 413.) Plaintiff had no joint swelling, back pain, or gait problems (R. at 251, 317),
and had normal range of motion in her musculoskeletal system (R. at 279, 318, 321, 327, 414)
and full muscle strength (R. at 318, 321.) She denied pain or tenderness. (R. at 312, 318, 321.)
In March 2013, Plaintiff underwent x-rays of her lumbar, cervical, and thoracic spine that
revealed no abnormalities. (R. at 271, 273, 275, 277.)
F.

State Agency Evaluation
On May 29, 2013, Edmond Gardner, M.D., a state agency physician, reviewed the record

upon reconsideration and opined that Plaintiff could lift and/or carry twenty pounds occasionally
and ten pounds frequently; stand and/or walk about six hours in a workday; and sit for about six
hours in a workday. (R. at 87.) Plaintiff was also limited to occasionally stooping and

9

crouching; she could never climb ladders, ropes, or scaffolds; and could never kneel or crawl.
(R. at 87–88.) Dr. Gardner further limited Plaintiff to no unprotected heights or moving
machinery; no commercial driving; and no uneven terrain. (R. at 88.) Dr. Gardner based the
limitations on cervical, thoracic and lumbosacral pain with morbid obesity with a BMI of 60.64.
(Id.) Dr. Gardner noted that Plaintiff alleged her back pain was worse and that she could only
sit or stand for short periods of time, but he found Plaintiff’s allegations to be only partially
credible.

He observed that x-rays from cervical to lumbar were normal. Dr. Gardner

concluded that Plaintiff’s allegations that she could sit for 10 minutes and stand for 20 were
disproportionate with medical findings and were considered not credible. (R. at 86.)
IV.

ADMINISTRATIVE DECISION

On November 10, 2014, the ALJ issued his decision. (R. at 18–31.) At step one of the
sequential evaluation process, see 20 C.F.R. § 416.920(a)(4), the ALJ found that Plaintiff had not
engaged in substantially gainful activity since October 5, 2012, the application date. (R. at 20.)
At step two, the ALJ found that Plaintiff had the following severe impairments: morbid obesity,
a depressive disorder, and adjustment disorder with anxiety, fibromyalgia, lumbar degenerative
disc disease with L5-S1 foraminal narrowing, cervical disc disorder, and thoracolumbar spine
strain. (Id.) At step three, the ALJ concluded that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled one of the listed impairments
described in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id.) At step four of the sequential
process, the ALJ set forth Plaintiff’s RFC as follows:
After careful consideration of the entire record, [the ALJ] finds that the claimant
has the residual functional capacity to perform light work as defined in 20 CFR
416.967(b) except she is limited to work that requires occasional climbing of
ramps or stairs, [stooping], and crouching. She cannot perform work that
requires her to climb ladders, ropes, or scaffolds, or to kneel, crawl, or perform
10

commercial driving. She is limited to occasional exposure to extreme cold and
vibration. She can never work around moving or hazardous machinery,
unprotected heights, or uneven terrain. Mentally, she is limited to goal-based
production where the work is measured by the end result, without pace-work, and
where she can be off task up to 5% of the workday. She can occasionally work
in low stress jobs defined as jobs involving only occasional changes in the work
setting.
(R. at 22.) In reaching this determination, the ALJ assigned “significant weight” to the opinion
of Dr. Gardner, the state agency reviewing physician at the reconsideration level, finding his
opinion was consistent with the record as a whole. (R. at 29.) The ALJ determined that Dr.
Chang’s opinion was entitled to only “little” weight, finding his opinion inconsistent with the
record and with his own treatment notes.

(R. at 26.)

The ALJ stated that Dr. Chang’s reports

routinely indicated “mild” or “normal” findings, stated that Plaintiff could walk without assistive
devices, and documented significant improvement. (R. at 26–27.) The ALJ further determined
that Dr. Chang’s opinion conflicted with Plaintiff’s testimony that she had no problems in
reaching, handling, fingering, or feeling. (R. at 27.)
The ALJ declined to give Dr. Bakdalieh’s opinion controlling weight and assigned it only
“little weight.” The ALJ noted that the questionnaire was “completed by a physical therapist
who evaluated the claimant at the doctor’s request,” (id.) and that the opinion concerning
plaintiff’s abilities was overly restrictive, especially in light of evidence of normal diagnostic
imaging and condition on physical exam and Plaintiff’s sustained physical activities. (Id.)
The ALJ granted “partial weight” to the assessment of Dr. Stiegler, Plaintiff’s chiropractor,
which he considered as “other source” evidence under SSR 06-3p. (Id.)
Relying on the VE’s testimony, the ALJ concluded that Plaintiff is capable of making a
successful adjustment to other work that exists in significant numbers in the national economy.

11

(R. at 30–31.) The ALJ therefore concluded that Plaintiff was not disabled under the Social
Security Act. (R. at 31.)
V.

STANDARD OF REVIEW

When reviewing a case under the Social Security Act, the Court “must affirm the
Commissioner’s decision if it ‘is supported by substantial evidence and was made pursuant to
proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009)
(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. §
405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial evidence is
defined as ‘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.’” Rogers, 486
F.3d at 241 (quoting Cutlip v. Sec’y of Health & Hum. Servs., 25 F.3d 284, 286 (6th Cir. 1994)).
Although the substantial evidence standard is deferential, it is not trivial. The Court
must “‘take into account whatever in the record fairly detracts from [the] weight’” of the
Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting
Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, “if substantial
evidence supports the ALJ’s decision, this Court defers to that finding ‘even if there is
substantial evidence in the record that would have supported an opposite conclusion.’” Blakley
v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir.
1997)).
Finally, even if the ALJ’s decision meets the substantial evidence standard, “‘a decision
of the Commissioner will not be upheld where the SSA fails to follow its own regulations and

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where that error prejudices a claimant on the merits or deprives the claimant of a substantial
right.’” Rabbers, 582 F.3d at 651 (quoting Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746
(6th Cir. 2007)).
VI.

ANALYSIS

In her SOE, Plaintiff advances three contentions of error. Plaintiff first asserts that the
ALJ violated the treating source rule when evaluating Dr. Chang’s opinions. Specifically,
Plaintiff argues that the ALJ did not properly determine that Dr. Chang’s opinions were entitled
to controlling weight; did not properly accord special deference to Dr. Chang’s opinions; and did
not provide sufficient good reasons for rejecting Dr. Chang’s opinions. Plaintiff next argues
that the ALJ incorrectly determined that a medical source statement was completed by a physical
therapist instead of Dr. Bakdalieh and therefore improperly weighed the medical source
statement. Finally, Plaintiff contends that the ALJ erred in failing to incorporate Plaintiff’s need
to use a cane for ambulation into her RFC despite the allegedly significant medical evidence
documenting the use of a cane as a medical necessity.
A.

ALJ’s Consideration of the Medical Opinion Evidence
According to Plaintiff, the ALJ should have accorded more weight to the opinion of

treating physician Dr. Chang. (SOE at 7–13; Reply 3–4.) The Commissioner counters that
substantial evidence supports the ALJ’s assessment and that he reasonably evaluated the medical
opinion evidence. (Opposition at 7–16.)
The ALJ generally gives deference to the opinions of a treating source “since these
sources are likely to be the medical professionals most able to provide a detailed, longitudinal
picture of [a patient’s] medical impairment(s) and may bring a unique perspective to the medical

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evidence that cannot be obtained from the objective medical filings alone . . .” 20 C.F.R. §
416.927(c)(2); Blakley, 581 F.3d at 408. If the treating physician’s opinion is “well-supported
by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent
with the other substantial evidence in [the claimant’s] case record, [the ALJ] will give it
controlling weight.” 20 C.F.R. § 404.1527(c)(2).
If the ALJ does not afford controlling weight to a treating physician’s opinion, the ALJ
must meet certain procedural requirements. Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544
(6th Cir. 2004). Specifically, if an ALJ does not give a treating source’s opinion controlling
weight:
[A]n ALJ must apply certain factors-namely, the length of the treatment
relationship and the frequency of examination, the nature and extent of the
treatment relationship, supportability of the opinion, consistency of the opinion
with the record as a whole, and the specialization of the treating source-in
determining what weight to give the opinion.
Id. Furthermore, an ALJ must “always give good reasons in [the ALJ’s] notice of determination
or decision for the weight [the ALJ] give[s] your treating source’s opinion.” 20 C.F.R. §
416.927(c)(2). Accordingly, the ALJ’s reasoning “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.” Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 550
(6th Cir. 2010) (internal quotation omitted). However, there is no requirement that the ALJ
“expressly” consider each of the Wilson factors within the written decision. See Tilley v.
Comm’r of Soc. Sec., 394 F. App’x 216, 222 (6th Cir. 2010) (indicating that, under Blakley and
the good reason rule, an ALJ is not required to explicitly address all of the six factors within 20
C.F.R. § 404.1527(c)(2) for weighing medical opinion evidence within the written decision);

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Boseley v. Comm’r of Soc. Sec. Admin., 397 F. App’x 195, 199 (6th Cir. 2010) (“Neither the ALJ
nor the Council is required to discuss each piece of data in its opinion, so long as they consider
the evidence as a whole and reach a reasoned conclusion.”). Although the ALJ will consider
opinions of treating physicians “on the nature and severity of your impairment(s),” opinions on
issues reserved to the Commissioner are generally not entitled to special significance. 20 C.F.R.
§ 404.1527(d); Bass v. McMahon, 499 F.3d 506, 511 (6th Cir. 2007).
The ALJ considered Dr. Chang’s opinion in the medical source statement dated March
27, 2014, but assigned it “little weight,” reasoning as follows:
The claimant’s spine specialist provided a medical source statement in which he
assessed the claimant’s residual functional capacity. He opined that the claimant
could occasionally lift and carry up to 15 pounds, and sit or stand, five minute at a
time without interruption or walk 10 minutes at a time (Exhibit 18F/1, 2). He
opined that she could sit and stand less than an hour per eight hour workday, or
walk for one hour in an eight hour workday. He indicated that the claimant
sometimes requires the use of a cane to ambulate, although he stated that she
could ambulate within her home without it (Id., at 2). He opined that she was
unable to single leg stand and was therefore a fall risk. He opined that she could
occasionally reach, including overhead reach, and could frequently handle, finger,
or feel. He noted that her limitations were self-limited secondary to pain. He
opined that she could occasionally push or pull with her upper extremities, and
that she could frequently use her feet for operation of foot controls. He opined
that she could occasionally climb stair and ramps, stoop, kneel, and crouch. He
opined that she could never climb ladders or scaffolds, balance, or crawl due to
poor balance for climbing and increased pain with postural activity. He opined
that she can occasionally work around unprotected heights, moving mechanical
parts, or extremes of temperature, airborne irritants, and vibrations (Exhibit
18F/3, 4).
Though Dr. Chang is a treating source, this opinion was given little weight,
because it is wholly inconsistent with his office treatment records, as well as with
the greater weight of the evidence of record. His treatment records routinely
indicated that her symptoms and diagnostic findings were “mild” or “normal” and
his physical examination records indicate that she walked normally without
assistive devices. His notes document significant improvement of her lower back
pain, good active range of motion, and normal muscle strength (See Exhibits
1lF/5; 2F/23, 25, 27; 15F/36, 58; 19F/2; 27F/3). Moreover, Dr. Chang’s
assessments conflict with the claimant’s statements. At the hearing, she stated
15

that she has no problems with reaching, handling, fingering, or feeling. This
assessment is too restrictive, and appears to have little basis in the evidence.
Accordingly, the undersigned assigned it little weight.
(R. at 26–27.)
The Court finds that the ALJ offered good reasons for rejecting Dr. Chang’s opinion.
See 20 C.F.R. § 416.927(c) (citing supportability and consistency of the opinion with the record
as a whole). Plaintiff insists that Dr. Chang’s opinion is not internally inconsistent and that the
ALJ’s reliance on certain exhibits does not support his inconsistency opinion. (SOE at 9.)
However, for the reasons that follow, substantial evidence supports the ALJ’s conclusion that Dr.
Chang’s opinion was inconsistent with his own treatment notes. See 20 C.F.R. § 404.1527(c)(4)
(identifying consistency with the record as a whole as a relevant consideration). Dr. Chang’s
medical source statement reflects that he premised his opinion on certain limitations in Plaintiff’s
ability to sit, stand, walk, reach, handle, finger and feel. Dr. Chang’s treatment notes, however,
reveal that Plaintiff had no abnormalities in her extremities, normal muscle strength, normal
sensation, full muscle strength, and a normal gait. (R. at 482, 485, 526–27, 529–30, 532–33,
535–36, 632–33, 635–36, 638–39, 642, 645.) In May 2013, Plaintiff complained of pain, but
Dr. Chang, upon exam, reported that Plaintiff had no tenderness in her neck, shoulders, back, or
extremities. (R. at 526.) In December 2013, Dr. Chang prescribed a portable TENS unit but
noted that Plaintiff walked normally without assistive devices and had normal strength in her
lower extremities. (R. at 597.) In January 2014, Dr. Chang reported good active range of
motion and “5/5” muscle strength in Plaintiff’s lower extremities with “significant improvement”
in her lower back pain. (R. at 619.) Dr. Chang advised Plaintiff to increase her aerobic activity
and encouraged Plaintiff to start looking for a job. (R. at 25, 483, 537, 640.) These

16

inconsistencies provide substantial evidence for discounting Dr. Chang’s opinion. See Dawson
v. Comm’r of Soc. Sec., 468 F. App’x 510, 513 (6th Cir. 2012) (finding ALJ properly discounted
a treating physician’s opinion where the physician’s conclusions were inconsistent with his own
progress notes).
The ALJ also found that Dr. Chang’s opinion was inconsistent with the greater weight of
the evidence. (R. at 26.) This finding enjoys substantial support in the record. For example,
in assessing Plaintiff’s RFC, the ALJ noted that numerous emergency department treatment
records for illnesses such as coughs, colds, and allergies, reflected that Plaintiff’s
musculoskeletal and neurological examinations were normal, and that she denied back pain,
anxiety, and depression. (R. at 24, 251, 257–58, 265–66, 278–79, 284–85, 300–01, 317–18,
320–21, 327–28, 413–14.) The records also noted that Plaintiff exhibited no joint swelling,
back pain, or gait problems (R. at 251, 278, 284, 317, 320.) and had a normal range of motion in
her musculoskeletal system (R. at 279, 321, 328, 414) and full muscle strength (R. at 318, 321).
The ALJ noted that while Plaintiff complained of pain during chiropractic treatment, the
March 2013 x-rays of her lumbar, thoracic, and cervical spine were normal. (R. at 24, 481.)
Despite complaints of back pain, Plaintiff had normal range of motion and normal reflexes. (R.
at 24, 464.) The ALJ further observed that although Dr. Chang prescribed aqua therapy,
Plaintiff failed to attend a number of sessions. (R. at 24, 510, 512.) Plaintiff reported that she
could not tolerate the aqua therapy, but no pain behavior or pain was noted during aquatics. (R.
at 24, 510, 512, 515.) Although aqua therapy was terminated in July 2013, Plaintiff reported
that she continued to perform the exercises in a community swimming pool on a weekly basis
and could not do so more frequently due to a lack of transportation. (R. at 24, 510, 529.)

17

Upon exam in July 2013, Dr. Bakdalieh observed that Plaintiff walked “normally without
assistive devices[,]” had a good range of motion in extremities and normal muscle strength, and
had no neurological abnormalities. (R. at 548–49.) Dr. Bakdalieh reported similar findings in
September, October, and December 2013. (R. at 550, 553, 555, 559.) During three of these
exams, Dr. Bakdalieh noted that Plaintiff walked without assistance. (R. at 553, 555, 559.)
In evaluating Plaintiff’s RFC, the ALJ also cited Plaintiff’s daily activities as
demonstrating that she was not as functionally limited as alleged. (R. at 29.) Plaintiff is the
primary caregiver for her kindergarten-aged son. In a function report dated December 10, 2012,
she admitted that “normally I’m running errands from the time I get up until go to bed. Then
there’s when I work. I work about 6 hours and I’m on my feet and moving, bending, lifting.”
(R. at 29, 177.) Plaintiff’s ability to function in this regard further supports the ALJ’s finding
that Dr. Chang’s opinion was inconsistent with the greater weight of the evidence.
Plaintiff nevertheless insists that Dr. Chang’s opinion is consistent with the record, citing
to specific evidence. (SOE at 9–10.) However, the Court defers to the ALJ’s decision “‘even
if there is substantial evidence in the record that would have supported an opposite conclusion.’”
Blakley, 581 F.3d at 406 (internal citations omitted).
Finally, plaintiff challenges the ALJ’s reliance on Plaintiff’s testimony that she had no
difficulty handling, fingering, or feeling, (R. at 27, 58.), because the ALJ only asked generic
questions and did not ask about her ability to use her hands on a daily basis, and because
Plaintiff is not a medical professional. (SOE at 11–12.) However, as the Commissioner points
out, Plaintiff never testified or suggested that her ability to perform these tasks would diminish
throughout the day. (R. at 58.) Moreover, Dr. Chang did not explain why Plaintiff’s abilities

18

in these areas were more limited than Plaintiff testified. (R. at 627–32.) Even though Plaintiff
is not a medical professional, her contradictory testimony is nevertheless a relevant consideration
when weighing Dr. Chang’s opinion. 20 C.F.R. § 404.1527(c)(4).
In summary, the ALJ properly weighed and assessed Dr. Chang’s medical source
statement, which was supported by substantial evidence. Plaintiff’s first contention of error is
OVERRULED.1
B.

The ALJ’s Consideration of Dr. Bakdalieh’s Opinion
Plaintiff contends that the ALJ erred in partially discrediting a medical source statement

as not from an “acceptable medical source” because he incorrectly determined that a physical
therapist, instead of Dr. Bakdalieh, completed the evaluation. (SOE at 13–15; Reply at 3–4.)
The Court disagrees and finds that substantial evidence supports the ALJ’s assessment of the
evaluation.
“[A]n opinion signed by both a medically acceptable source, such as a physician, and a
non-acceptable source, such as a social worker, may be properly given controlling weight as a
treating source opinion if the signing physician personally qualifies as a treating source.”
Mitchell v. Comm’r of Soc. Sec., No. 5:15 CV 974, 2016 WL 4507791, at *6 (N.D. Ohio Aug.
29, 2016) (citation omitted); see also Robinson v. Comm’r of Soc. Sec., No. 2:14-cv-01682, 2015
WL 5768483, at *3 (S.D. Ohio Sept. 30, 2015) (SSR 96-2p requires that a treating source
opinion must be a medical opinion and must come from a treating source; the Ruling does not
distinguish between opinions filled out and signed by a treating psychiatrist and opinions filled
out by a social worker and then signed—and thus adopted—by a treating psychiatrist). “Where

1

To the extent that Plaintiff refers to the ALJ’s weighing of Dr. Bakdalieh’s opinion in her first
contention of error, the Court addresses that issue in its discussion of the second contention of
19

an ALJ confronted by such an opinion bearing the signatures of both an acceptable and
non-acceptable source simply declares the non-acceptable source the sole ‘author’ of that
opinion, and makes no attempt to ascertain whether the acceptable source qualifies as a ‘treating
source,’ the ALJ has failed to evaluate that opinion under the proper standard.” Mitchell, 2016
WL 4507791, at *6 (citation omitted).
Here, an assessment captioned “Physical Capacity Evaluation,” describes Plaintiff’s
limitations that would be present in a work setting where an individual is expected to work an
eight-hour day, five days a week. (R. at 543–44.) The ALJ assigned “little weight” to this
assessment, reasoning as follows:
Little weight was given to the assessment provided by the claimant’s pain
management specialist [Dr. Bakdalieh], set forth at Exhibit 12F. In this
questionnaire, which was completed by [a] physical therapist who evaluated the
claimant at the doctor’s request, it was opined that the claimant can sit, stand, and
walk no more than one hour of an 8-hour workday, and can rarely lift, with a lift
maximum of 10 pounds. The report indicated that the claimant was unlimited in
her ability to use her hands and feet for repetitive movements, and that she could
occasionally bend, squat, crawl, and climb stairs, but that she could never climb
ladders (Exhibit 12F/ 1, 2). As with Dr. Chang’s assessment, this opinion is too
restrictive, particularly with regard to the claimant’s ability to sit, stand, and walk,
because as noted previously, the diagnostic scans indicate relatively benign
findings, her physical examination records (including those taken by the pain
management physician) have routinely been normal, and her activities of daily
living indicate that she is capable of more sustained exertional activity than this
opinion source has indicated.
Further, although the questionnaire was attributed to Dr. Bakdalieh, the
claimant’s pain management physician, it was signed by the physical therapist,
Jacquelyn Yom (Exhibit 12F/2). A physical therapist is not an acceptable
medical source, and this particular therapist did not provide physical therapy
services to the claimant, and therefore does not have a longitudinal perspective of
the claimant’s functioning such that the assessment would fall within the purview
of Social Security Ruling 06-3p. It lacks credibility as a treating source opinion,
and as an opinion from an “other source” who is familiar with the claimant’s

error.
20

functioning. The assessment itself is inconsistent with the medical evidence and
other credible opinion evidence, and is therefore granted little weight.
(R. at 27.) The signatures of both Dr. Bakdalieh and a physical therapist, dated November 18,
2013, and November 15, 2013, respectively, appear on the second page of the assessment. (R.
at 544.)
Contrary to Plaintiff’s assertion, the discussion recited above does not establish that the
ALJ improperly determined that the assessment should be solely credited to the physical
therapist. Instead, the Court agrees with the Commissioner’s reading of this discussion that the
ALJ considered the Physical Capacity Evaluation twice: first, as an opinion from Dr. Bakdalieh
as a treating physician, and second, as an opinion from the physical therapist, an unacceptable
medical source. (R. at 27.) In other words, this is not a situation where the ALJ declared the
physical therapist to be the sole author of the assessment and failed to evaluate that opinion
under the proper standard. See Mitchell, 2016 WL 4507791, at *6 (citation omitted).
However, even if Plaintiff is correct that the ALJ did not consider Dr. Bakdalieh as a
treating source, that error is harmless. An ALJ may meet the purpose of the “good reasons”
requirement for rejecting a treating physician’s opinion by indirectly attacking the supportability
of the 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). Here, the ALJ analyzed the medical
record and cited to objective evidence, including diagnostic scans and physical examination
records, and considered Plaintiff’s daily living activities. (R. at 27.) After doing so, the ALJ
concluded that Dr. Bakdalieh’s opinion was too restrictive and inconsistent with the other record
evidence. (Id.) The ALJ’s analysis “implicitly provides sufficient reasons for the rejection” of
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Dr. Bakdalieh’s restrictions in the Physical Capacity Report. Nelson, 195 F. App’x at 470
(quoting Hall v. Comm’r of Soc. Sec., 148 F. App’x 456, 464 (6th Cir. 2005) (internal quotation
marks omitted)).
For these reasons, the Court finds that the ALJ properly weighed and assessed Dr.
Bakdalieh’s opinion contained within the Physical Capacity Evaluation. Plaintiff’s second
contention of error is OVERRULED.
C.

RFC Determination and ALJ’s Consideration of Plaintiff’s Use of a Cane
Plaintiff challenges the ALJ’s RFC to the extent that it did not accommodate for

Plaintiff’s use of a cane. (SOE at 16–19; Reply at 2–3.)
1.

Standard

A plaintiff’s RFC “is defined as the most a [plaintiff] can still do despite the physical and
mental limitations resulting from her impairments.” Poe v. Comm’r of Soc. Sec., 342 F. App’x
149, 155 (6th Cir. 2009); see also 20 C.F.R. §§ 404.1545(a), 416.945(a). The determination of
the RFC is an issue reserved to the Commissioner. 20 C.F.R. §§ 404.1527(e), 416.927(e).
Nevertheless, substantial evidence must support the Commissioner’s RFC finding. Berry v.
Astrue, No. 1:09CV000411, 2010 WL 3730983, at *8 (S.D. Ohio June 18, 2010). When
considering the medical evidence and calculating the RFC, “‘ALJs must not succumb to the
temptation to play doctor and make their own independent medical findings.’” Simpson v.
Comm’r of Soc. Sec., 344 F. App’x 181, 194 (6th Cir. 2009) (quoting Rohan v. Chater, 98 F.3d
966, 970 (7th Cir. 1996)). Additionally, the ALJ must consider all medical opinions that he or
she receives in evaluating a claimant’s case. 20 C.F.R. § 416.927(d). The applicable
regulations define medical opinions as “statements from physicians . . . that reflect judgments

22

about the nature and severity of your impairment(s), including your symptoms, diagnosis and
prognosis, what you can still do despite impairment(s), and your physical or mental restrictions.”
20 C.F.R. § 416.927(a)(2).
2.

Application

Plaintiff challenges the RFC to the extent that it did not account for Plaintiff’s use of a
cane. In his decision, the ALJ specifically considered Plaintiff’s use of a cane, reasoning as
follows:
However, the claimant’s allegations of her inability to sit, stand, or walk for more
than a few minutes at a time are not fully credible. During her consultative
psychological examination, she told Dr. Meyer that she is able to work, but that
she was limited physically as to the types of work she could do, which indicates
that she considered herself capable of some work. Further, the record indicates
that she worked part-time at Shoe Carnival since the alleged onset date. She
testified that she worked there from August 2012 until March 2013, selling shoes
one to two days every other week. She was performing this work as of the date
of the consultative examination. She testified that she had to leave that job
because she was taking too many breaks and calling off too often due to pain, and
that she spends most of her days lying down, but in her function report she
indicated that she is a primary caregiver for her kindergarten-aged son, and she
stated that “normally I’m running errands from the time I get up” until returning
to bed. She reported that when she was not running errands, she was working,
where she worked for about six hours on her feet, moving, bending, and lifting
(Exhibit 6E/2). She indicated that she could lift 15-25 pounds, walk “less than ¼
mile” and stand about an hour before she began to feel pain (Id., at 6). Her
function report is dated December 10, 2012, and the record does not contain
evidence of significant worsening of any of her impairments after that date.
Though she appeared at the hearing with a cane and has a prescription for the
device, she told her physician in April 2014 that she “sometimes” needs to use her
mother’s straight cane to assist walking due to back pain, and as noted above, her
physician opined at Exhibit 18F that she requires the use of a cane to ambulate “at
times” (Exhibits 20F/1, 18F/2). All of this evidence indicates that she is not
dependent on the cane for assistance with walking, and that she is capable of
prolonged physical activity at least the light exertional level per her own
statements in documents submitted to the Agency. Moreover, she testified at the
hearing that she is not currently taking any pain medications. The relatively
benign diagnostic findings in the medical imaging and physical examinations, the
conservative medical treatment, and the claimant’s activities of daily living
indicate that, while she does have symptoms that could reasonably arise from her
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documented impairments, she is not as functionally limited as alleged.
(R. at 29.)
Plaintiff challenges the ALJ’s failure to accommodate for her use of a cane, contending
that her treating physician, Dr. Chang, reported that Plaintiff used a cane “at times” to ambulate,
that the cane was “medically necessary,” although she could ambulate at home without the use of
a cane. (SOE at 17.) The Court disagrees and finds that substantial evidence supports the
ALJ’s RFC assessment that does not accommodate for use of a cane.
“Before finding [a cane] is medically required, the record must ‘describ[e] the
circumstances for which it is needed (i.e., whether all the time, periodically, or only in certain
situations; distance and terrain; and any other relevant information).’” Salem v. Colvin, No.
14-CV-11616, 2015 WL 12732456, at *4 (E.D. Mich. Aug. 3, 2015) (quoting SSR 96-9p, 1996
WL 374185, at *7 (July 2, 1996)). Here, the ALJ fully considered the record and concluded that
Plaintiff’s medical records and physical activities belie her alleged need for a cane. As the ALJ
noted, Dr. Chang’s records stated that Plaintiff only needed the cane “at times” and that she
“sometimes” needed to use her mother’s cane to ambulate. (R. at 29.) The ALJ also noted that
Plaintiff had worked one to two days every other week selling shoes since the alleged onset date.
(R. at 29, 44–45.) She is the primary caretaker for her young son and runs errands all day long.
(R. at 29, 177.) When she is not doing that, she works for approximately six hours on her feet,
moving, bending, and lifting. (Id.) While Plaintiff relies on Dr. Chang’s prescription and his
opinion that she sometimes needs a cane, this evidence is not dispositive. See Salem, 2015 WL
12732456, at *4. Moreover, the ALJ properly assigned little weight to Dr. Chang’s opinion for
the reasons previously discussed.

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The medical evidence detailed above also supports the ALJ’s RFC. For instance,
Plaintiff’s medical records consistently reflected that she had no gait problems (R. at 251, 568), a
normal gait (R. at 482, 485, 527, 530, 533, 536, 633, 636, 639, 642, 645), and full strength and
range of motion in her lower extremities (R. at 549, 559, 597.) In physical evaluations, Dr.
Bakdalieh, reported on at least three occasions that Plaintiff “walk[ed] normally without assistive
devices[.]” (R. at 549, 559, 597.) In short, even though Dr. Chang prescribed a cane and noted
that Plaintiff needed to use the cane “at times,” there is ample evidence demonstrating that
Plaintiff was capable of ambulating without a cane. The ALJ properly considered all of the
evidence concerning Plaintiff’s use and nonuse of a cane in concluding that no special
accommodation for the use of a cane was required in plaintiff’s RFC, and this determination was
supported by substantial evidence. See SSR 96-9p; Marko v. Comm’r of Soc. Sec., No.
2:16-cv-12204, 2017 WL 3116246, at *5 (E.D. Mich. July 21, 2017) (“In sum, there is nothing in
the record to indicate that Plaintiff was required to use a cane more than ‘occasionally,’ let alone
constantly, and that such use would preclude her from performing light work. Case law in this
district has found that the use of a cane does not preclude light work.” (collecting cases)); Salem,
2015 WL 12732456, at *4 (“This zone of choice [within which an ALJ has discretion reaching a
decision] exists even when the need for a cane is well-established by the medical record, if there
is substantial evidence that the use of a cane is not required as part of the claimant’s RFC.”);
Moore v. Colvin, No. 3:14–cv–01525, 2015 WL 1648985, at *7 (M.D. Tenn. Apr. 13, 2015)
(“The ALJ properly considered the medical record and her own observations of Plaintiff’s
behavior at trial, and chose not to include a restriction based on Plaintiff’s use of a cane in the
RFC.”)

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Accordingly, Plaintiff’s third contention of error is OVERRULED.
VII.

CONCLUSION

In sum, from a review of the record as a whole, the Undersigned concludes that
substantial evidence supports the ALJ’s decision denying benefits. Accordingly, Plaintiff’s
Statement of Errors is OVERRULED and the Commissioner’s decision is AFFIRMED. The
Clerk is DIRECTED to enter FINAL JUDGMENT in favor of Defendant.

Date: September 25, 2017
s/James L. Graham
James L. Graham
United States District Judge

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