DeFrank v. Commissioner of Social Security
REPORT AND RECOMMENDATIONS re 3 Complaint filed by Troy M. DeFrank. It is RECOMMENDED that the Court OVERRULE Plaintiffs Statement of Errors and AFFIRM the Commissioners decision. Objections to R&R due by 8/17/2017. Signed by Magistrate Judge Elizabeth Preston Deavers on August 3, 2017. (jlk)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
TROY MICHAEL DEFRANK,
Civil Action 2:16-cv-467
Judge Michael H. Watson
Magistrate Judge Elizabeth P. Deavers
REPORT AND RECCOMENDATION
Plaintiff, Troy Michael DeFrank, brings this action under 42 U.C.S. §§ 405(g) and
1383(c)(3) for review of a final decision of the Commissioner of Social Security
(“Commissioner”) denying his applications for social security disability insurance benefits and
supplemental security income. This matter is before the United States Magistrate Judge for a
Report and Recommendation on Plaintiff’s Statement of Errors (ECF No. 12), the
Commissioner’s Memorandum in Opposition (ECF No. 17), and the administrative record.
(ECF No. 8.) For the reasons that follow, it is RECOMMENDED that the Court OVERRULE
Plaintiff’s Statement of Errors and AFFIRM the Commissioner’s decision.
Plaintiff filed his application for benefits on April 9, 2012, alleging that he had been
disabled since May 9, 2008 due to a herniated and bulging disk, obesity, diabetes, asthma, spina
bifida, degenerative disc disease, and degenerative arthritis. Plaintiff’s applications were denied
initially on September 10, 2012 and upon reconsideration on January 25, 2013. Plaintiff sought a
hearing before an administrative law judge. On June 20, 2014, Plaintiff appeared in Wheeling,
West Virginia, for a video hearing with Administrative Law Judge Terrence Hugar (“ALJ”),
however the hearing was postponed in order for Plaintiff to obtain representation. On September
17, 2014, the Plaintiff appeared and testified via video hearing before the ALJ. Larry Ostrowski,
Ph. D., a vocational expert, also appeared and testified. At the hearing Plaintiff amended his
alleged onset date to February 21, 2012. On September 30, 2014, the ALJ issued a decision
finding that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 12–
23.) The ALJ’s decision became the final Agency decision on March 9, 2016 when the Appeals
Council denied review. Plaintiff then timely commenced the instant action.
As noted in the ALJ’s decision, Plaintiff has filed multiple prior applications for
disability benefits, most recently in July 2010. (R. at 12.) His July 2010 application was denied
initially, on reconsideration, and after a hearing before an ALJ. On February 21, 2012, ALJ Karl
Alexander found Plaintiff not disabled because he retained the residual functional capacity
(“RFC”) to perform a range of light work as defined by the regulations, and the vocational expert
testified that an individual with Plaintiff’s vocational profile could perform work existing in
significant numbers in the national economy. (R. at 12, 86–103.) As such, the unadjudicated
time period at issue in the instant matter is from February 22, 2012, the day after ALJ
Alexander’s decision, through September 20, 2014, the date of ALJ Hugar’s decision.
In his Statement of Errors, Plaintiff raises two issues. Plaintiff asserts that ALJ Hugar
erred by failing to provide particular weight to consultative examiner Dr. Sella and failing to
explain why he implicitly rejected portions of Dr. Sella’s opinion. (Plaintiff’s Statement of
Errors (“SOE”), ECF No. 12.) Additionally, Plaintiff asserts that ALJ Hugar erred by failing to
consider and weigh the functional opinion from treating physical Dr. Parulkar when determining
whether Dr. Parulkar’s non-functional opinions were deserving of more weight.
In her Memorandum in Opposition, the Commissioner counters that the ALJ sufficiently
articulated his findings with respect to the medical opinions and that, even if the ALJ had erred,
such errors were harmless. (Defendant’s Memorandum in Opposition (“Def.’s Opp.”) at 5.)
A. Plaintiff’s Testimony
Plaintiff testified that he currently lives with his mother and stepfather, he has a driver’s
license and will occasionally drive to the grocery store. (R. at 36–37.) He also helps his mother
out with housework. (R. at 37.) He testified that his last job, in heavy construction, ended in
May 2008. According to Plaintiff, he had to stop working at his construction job because he was
receiving treatment for his back and his job could not accommodate the restrictions set forth by
his Doctor. (R. at 35.) He testified that beyond his back issues, he also suffers from high blood
pressure, diabetes, and asthma, as well as a significant amount of arthritis in his knees and the
loss of 80 percent of the ligaments in his left knee. (R. at 39–40.) His knee locks up and
sometimes gives out on him. (R. at 38.) He has had injections to treat the pain in his knees.
(Id.) He also suffers from arthritis in his elbows. (R. at 42.) He takes 800 milligrams of
Ibuprofen daily for his back pain. (R. at 44.)
B. Vocational Expert Testimony
The vocational expert (“VE”) testified that with the limitations in the RFC, Plaintiff could
perform work as a sales attendant, marker, and mail clerk. (R. at 46.) With the addition of a
sit/stand option every 30 minutes, the VE testified that Plaintiff could perform work as a mail
clerk, storage facility rental clerk, and officer helper. (R. at 46–47.) Even if further limited to
simple work with no production pace and occasional interaction with others, Plaintiff could still
perform work as a mail clerk, storage facility rental clerk, or office helper. (R. at 47–48.) If
limited to sedentary work with the other postural and mental limitations from previous
hypotheticals, the VE testified that Plaintiff would be able to perform work as a surveillance
system monitor, document preparer, and ampoule sealer. (R. at 48–50.)
MEDICAL EVIDENCE 1
A. Dr. Sella
On August 9, 2012, consultative examiner Gabriel Sella, M.D., observed that Plaintiff
walked with assistance of a cane in his right hand, had decreased breathing volume and
percussion, a positive Romberg test, one-third full squatting ability, an inability to hop on the left
leg, and severe bilateral trigger points in the L5-S1 and left piriformis areas. (R. at 393–95.)
Plaintiff reported that he could walk thirty feet before becoming short of breath and reported
paresthesia in his leg. (Id.) Dr. Sella opined that Plaintiff could sit without restriction, stand and
walk five to ten minutes at one time several times per day, and lift and carry moderate weight.
(R. at 395.)
B. Dr. Khalid Darr
State agency consultative examiner Dr. Khalid Darr, M.D., examined Plaintiff on July 17,
2014. (R. at 451–65.) Dr. Darr observed that Plaintiff “ambulates with a normal gait” and
“appears stable at station and comfortable in the supine and sitting positions.” (R. at 452.)
Based upon the evaluation, Dr. Darr determined that “claimant is able to carry and lift 30 to 40
pounds frequently and lift and carry between 41 and 60 pounds occasionally.” (R. at 455.)
The Court limits its analysis of the medical evidence to the issues raised in Plaintiff’s Statement
of Errors, namely evidence related to the weight the ALJ gave to the opinions of Doctors Sella
C. Dr. Parulkar
Plaintiff visited Dr. Parulkar on March 23, 2010 and May 18, 2010. During the May 18,
2010 visit, Plaintiff complained of pain in his back and Dr. Parulkar ordered an MRI of the
lumbar spine. (R. at 95.) Per Dr. Parulkar’s order, Plaintiff underwent an MRI of the lumbar
spine on May 28, 2010. (R. at 414.) The MRI revealed various degrees of spinal canal and
foraminal stenosis from L1 through S1; mild levoscoliosis centered at L4; mild desiccation of the
L1-2 and L3 through S1 discs without significant loss of disc height; mild diffuse disc bulging at
L1-2 and L2-3 with ventral flattening of the thecal sac at both levels and mild spinal canal
narrowing without foraminal compromise; diffuse disc bulging at L3-4 with ventral flattening of
the thecal sac resulting in mild spinal canal narrowing at this level and significant bilateral
foraminal narrowing and diffuse disc bulging at L5-S1 with ventral flattening of the thecal sac
resulting in mild spinal canal stenosis with significant bilateral foraminal stenosis. (Id.)
On October 12, 2012, Dr. Parulkar indicated that Plaintiff suffered from severe back pain
due to disc space narrowing and foraminal encroachment at multiple levels of lumbar spine and
opined that Plaintiff was “not able to work because of this.” (R. at 408.) Imaging of the lumbar
spine from December 5, 2012 showed grade I anterolisthesis of L5 S1, narrowing of L5-S1 disc
space, and small anterior osteophytes throughout the spine. (R. at 412.) On March 24, 2014,
Plaintiff reported pain in his back and his left knee. (R. at 436.) Dr. Parulkar observed
tenderness to palpation of the lumbar spine and 1+ bilateral edema and tenderness in the left
knee. She administered a dexamethasone injection and Toradol injection. (R. at 437.) X-ray of
the left knee on April 28, 2014 showed mild degenerative changes in the lateral compartment.
(R. at 444.) On April 30, 2014, Plaintiff reported more pain as well as swelling in his legs. (R.
at 438.) Dr. Parulkar observed cervical tenderness. (R. at 439.)
On July 21, 2014, Plaintiff reported pain in his right elbow to Dr. Parulkar, who observed
tenderness to palpation over the lumbosacral spine, paraspinal muscle spasm bilaterally, and
positive straight leg raising bilaterally. (R. at 501–02.) At that visit, Dr. Parulkar indicated that
she was going to get Plaintiff handicapped parking permission at his request. (R. at 501.)
D. Dr. Thomas Ranieri
Dr. Thomas Ranieri of Allied Pain Treatment Center evaluated Plaintiff on November 1,
2011 for complaints of low back pain. According to the ALJ’s decision, due to the low back
pain, Plaintiff reported that he could barely walk when he first got up in the morning. After
testing, Dr. Ranieri diagnosed Plaintiff with lumbar disc disease, lumbar radiculities at S1 and
exogenous obesity. (R. at 96.) Dr. Ranieri gave Plaintiff an epidural steroid injection on
November 28, 2011 and prescribed Percocet 10 for him. (R. at 97.)
On September 30, 2014, ALJ Hugar issued his decision. (R. at 12–23.) At step one of
the sequential evaluation process, 2 ALJ Hugar found that Plaintiff had not engaged in
Social Security Regulations require ALJs to resolve a disability claim through a five-step
sequential evaluation of the evidence. See 20 C.F.R. §416.920(a)(4). Although a dispositive
finding at any step terminates the ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th
Cir. 2007), if fully considered, the sequential review considers and answers five questions:
Is the claimant engaged in substantial gainful activity?
Does the claimant suffer from one or more severe impairments?
Do the claimant’s severe impairments, alone or in combination, meet or
equal the criteria of an impairment set forth in the Commissioner’s Listing of
Impairments, 20 C.F.R. Subpart P, Appendix 1?
Considering the claimant's residual functional capacity, can the claimant
perform his or her past relevant work?
Considering the claimant's age, education, past work experience, and residual
functional capacity, can the claimant perform other work available in the national
substantially gainful activity since February 22, 2012, the first day after the most recent prior
ALJ decision was issued. (R. at 15.) ALJ Hugar found that Plaintiff had the severe impairments
of degenerative disc disease/degenerative arthritis of the lumbar spine, morbid obesity, diabetes
mellitus, and asthma. ALJ Hugar found that Plaintiff’s other alleged impairments including
hypertension, bilateral knee pain, and right elbow pain are non-severe because those impairments
“have been responsive to treatment, cause no more than minimally vocationally relevant
limitations, have not lasted or are not expected to last at a “severe” level for a continuous period
of 12 months or expected to result in death, or have not been properly diagnosed by an
acceptable medical source.” (R. at 15.) He further found 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. (R. at 16.) At step four of
the sequential process, ALJ Hugar set forth Plaintiff’s RFC as follows:
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform a range of light work as
defined in the 20 CFR 404.156(b) and 416.967(b) except the work with:
occasional postural, except no crawling or climbing ladders, ropes or scaffolds; no
concentrated exposure to fumes, odors, dust, gases, and poor ventilation; and no
exposure to extreme heat, extreme cold, wetness, humidity, vibration, and hazards
such as unprotected heights and moving mechanical parts.
(R. at 17.) In reaching this determination, the ALJ found that “no objective evidence consistent
with or supportive of finding any impairment, including degenerative changes of the lumbar
spine, obesity, diabetes, and asthma, intractable in nature and preclusive of any and all forms of
work activity.” (R. at 18.)
See 20 C.F.R. §416.920(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009);
Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001).
In assessing Plaintiff’s RFC, ALJ Hugar recognized the previous ALJ’s decision. He
acknowledged that “prior to the period of at issue” an MRI revealed degenerative changes
throughout the lumbar spine, including herniation and bulging, as well as narrowing and
stenosis; “however, changes were no more than mild to moderate in nature.” (R. at 18.) He
further explained that the imaging did not reveal any compression fractures, spinal cord
compromise, spinal arachnoiditis, or pseudoclaudication. (Id.) Further, despite those findings,
the prior ALJ determined that Plaintiff was capable of performing a range of light exertional
work. (Id.) Moreover, in assessing the relevant period, ALJ Hugar found that “no progression or
worsening of lumbar spine degenerative changes were established” and that “a whole body scan
as recent as August 2014 was unremarkable for abnormality.” (Id.) During the relevant time
period, Plaintiff did not seek out or require “more than conservative pharmacological
management and maintenance. . .” (Id.)
ALJ Hugar accorded the State agency medical consultants’ and consultative examiners
“the greatest weight” “to the extent that [they] . . . showed that claimant’s ability to perform
work requirements was not grossly restricted, and to the extent that each opinion was consistent
with the majority of the objective findings in the medical evidence.” (R. at 20.) This includes
consideration of “the August assessment of State agency consultative examiner Gabriel Sella,
M.D., finding the claimant capable of lifting/carrying moderate weights, sitting without
restriction, and standing/walking five to ten minutes at one time several times per day.” (R. at
On the other hand, the ALJ accorded Dr. Parulkar’s opinions “less than great weight.”
(R. at 20.) While he acknowledged Dr. Parulkar as Plaintiff’s treating physician, he found
important that Dr. Parulkar is not a specialist or expert, and the statement of disability she
provided did not constitute a function-by-function assessment or medical opinion. (Id.) He
further reasoned that
such a general assessment, as well as the acquiescence to the claimant’s request
for a parking sticker, are inconsistent with and unsupported by Dr. Parulkar’s own
visitation records, which were repeatedly absent of any remarkable objective
abnormality, including no abnormality in ambulation, as well as the treatment
pursued by Dr. Parulkar (i.e., conservative medical monitoring and maintenance),
which was not the type of medical treatment one would reasonably expect for a
totally disabled individual, especially given that Dr. Parulkar contended said
totally disabling impairment(s) had been ongoing for half a decade.
(Id.) The ALJ therefore found it reasonable to believe that Dr. Parulkar relied upon
Plaintiff’s subjective assertions. (Id.) Relying on the VE’s testimony, the ALJ found that
Plaintiff was not disabled under the Social Security Act.
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. at 2009)
(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. at 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 & Human 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.
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
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
In his Statement of Errors, Plaintiff argues first that the ALJ failed to provide particular
weight to Dr. Sella’s opinion and failed to explain why he implicitly rejected portions of her
opinion. Second, Plaintiff contends that the ALJ failed to weigh the functional opinion from Dr.
Parulkar when determining whether Dr. Parulkar’s non-functional opinions were deserving of
more weight. (See SOE.) In essence then, Plaintiff posits a single contention of error, namely
that the ALJ failed to properly weigh the medical opinions in the record in formulating the RFC.
Nevertheless, the Undersigned reviews Plaintiff’s Statement of Errors in turn.
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
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). An ALJ is
required to explain how the evidence supports the limitations that he or she set forth in the
The RFC assessment must include a narrative discussion describing how the
evidence supports each conclusion, citing specific medical facts (e.g., laboratory
findings) and nonmedical evidence (e.g., daily activities, observations). In
assessing RFC, the adjudicator must discuss the individual’s ability to perform
sustained work activities in an ordinary work setting on a regular and continuing
basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule), and
describe the maximum amount of each work-related activity the individual can
perform based on the evidence available in the case record. The adjudicator must
also explain how any material inconsistencies or ambiguities in the evidence in
the case record were considered and resolved.
S.S.R. 96–8p, 1996 WL 374184, at *6–7 (internal footnote omitted).
In considering a claimant’s case and assessing the RFC, the ALJ must consider all
medical opinions that he or she receives. 20 C.F.R. § 416.927(c). The applicable regulations
define medical opinions as “statements from physicians and psychologists or other acceptable
medical sources that reflect judgments 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).
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
evidence that cannot be obtained from the objective medical filings alone . . .” 20 C.F.R. §
416.927(c)(2); Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 408 (6th Cir. 2009). 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
[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). The Sixth Circuit has stressed the importance of the
“The requirement of reason-giving exists, in part, to let claimants understand the
disposition of their cases,” particularly in situations where a claimant knows that
his physician has deemed him disabled and therefore “might be especially
bewildered when told by an administrative bureaucracy that she is not, unless
some reason for the agency’s decision is supplied.” Snell v. Apfel, 177 F.3d 128,
134 (2d Cir. 1999). The requirement also ensures that the ALJ applies the treating
physician rule and permits meaningful review of the ALJ’s application of the rule.
See Halloran v. Barnhart, 362 F.3d 28, 32–33 (2d Cir. 2004).
Wilson, 378 F.3d at 544–45. Thus, the reason-giving requirement is “particularly important
when the treating physician has diagnosed the claimant as disabled.” Germany-Johnson v.
Comm’r of Soc. Sec., 313 F. App’x 771, 777 (6th Cir. 2008) (citing Rogers, 486 F.3d at 242).
There is no requirement, however, 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); 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
Finally, the Commissioner reserves the power to decide certain issues, such as a
claimant’s residual functional capacity. 20 C.F.R. § 404.1527(d). 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)
A. Opinions of Dr. Sella
Plaintiff first argues that ALJ Hugar did not provide particular weight to Dr. Sella’s
opinion and implicitly rejected portions of his opinion without explanation. Specifically,
Plaintiff takes issue with the ALJ’s RFC formulation because Dr. Sella opined that Plaintiff can
only stand or walk five to ten minutes at once several times per day, but the ALJ did not include
a standing or walking limitation in the RFC. The Commissioner counters that ALJ Hugar
sufficiently analyzed the non-examining source opinion of Dr. Sella and that his RFC was
supported by substantial evidence. (Def.’s Opp. at 9.)
The Undersigned finds that ALJ Hugar sufficiently explained the weight he accorded Dr.
Sella and that the RFC formulation without a standing or walking limitation was supported by
substantial evidence. An ALJ “must explain in the decision the weight given the opinions of a
State Agency medical . . . consultant[,]” 20 C.F.R. § 404.2527(e)(2)(ii), but need not give “an
exhaustive factor-by-factor analysis” of his decision. Cf. Francis v. Comm'r of Soc. Sec., 414 F.
App’x 802, 804 (6th Cir. 2011) (citations omitted).
Indeed, ALJ Hugar did meaningfully explain the weight he gave Dr. Sella’s opinion. The
ALJ wrote that he “fully considered the August 2012 assessment of State agency consultative
examiner Gabriel Sella, M.D.” (R. at 19.) To the extent that Dr. Sella and the other State agency
medical consultants and consultative examiners “showed that claimant’s ability to perform work
requirements was not grossly restricted, and to the extent that each opinion was consistent with
the majority of the objective findings in the medical evidence, the undersigned accorded them
the greatest weight.” (R. at 20.) In his decision, he explains that Dr. Sella opined that Plaintiff is
capable of lifting/carrying moderate weights, sitting without restriction, and standing/walking
five to ten minutes at one time several times a day. (R. at 19.) He then states that he fully
considered Dr. Khalid Darr, another State agency consultative examiner’s opinion, who found
Plaintiff capable of “a range of medium exertional work, with the ability to sit, stand, and walk
for six hours, able to perform postural and manipulative movements occasionally to frequently,
and able to be exposed to environmental factors on an occasional to frequent basis.” (R. at 19–
20.) While Dr. Sella opined that Plaintiff could only walk or stand for five to ten minutes at a
time, Dr. Darr found that Plaintiff could sit or stand and walk for six hours at a time. The ALJ
explicitly found that Plaintiff retained the ability to perform light work “as defined in in 20
C.F.R. §§ 404.1567(b) and 416.967(b).” (R. at 17.) 20 C.F.R. §§ 404.1567(b) and 416.967(b)
define light work as involving “a good deal of walking or standing,” as consistent with Dr.
Darr’s walking and standing limitations for Plaintiff. Moreover, the ALJ explained that he
accorded the greatest weight to the State agency examiners’ opinions where “claimant’s ability
to perform work requirements was not grossly restricted.” The ALJ properly weighed Dr. Sella’s
opinion in this regard.
Plaintiff also challenges the ALJ’s RFC determinations insofar as he implicitly rejected
Dr. Sella’s postural restrictions regarding a sit/stand option at Plaintiff’s will, which prior-ALJ
Alexander imposed in his RFC in 2012. Yet, ALJ Hugar considered the record as a whole in his
determination of the RFC. Importantly, as the ALJ noted, under the Drummond ruling and in
accordance with AR 98-4(6), in determining whether Plaintiff was disabled during the
unadjudicated period, he was required to adopt the previous ALJ’s findings from the February
12, 2012 decision. Drummond v. Comm’r of Soc, Sec., 126 F.3d 837 (6th Cir. 1997); see also
Holt v. Astrue, No. 1:10–cv–439, 2011 WL 3861891, at *7 (S.D. Ohio July 6, 2011) (“[B]ecause
Plaintiff failed to present any new and/or material evidence in the record that showed Plaintiff's
condition had worsened since [the] previous unfavorable decision, [the ALJ] acted properly by
following Drummond and . . . adopting said decision.”) (Report and Recommendation later
adopted). Upon review of the record, ALJ Hugar notes that “no objective evidence consistent
with or supportive of finding impairment,” or increased impairment during the applicable time
period existed to support the postural limitations in Dr. Sella’s opinions. Substantial evidence
supports this conclusion. For instance, in making that determination he reviewed medical
evidence indicating that any changes throughout Plaintiff’s lumbar spine were no more than mild
to moderate in nature, that Plaintiff evidenced no motor loss and no evidence showed the
Plaintiff had complete inability to ambulate effectively and that the previous ALJ had determined
that with those impairments, Plaintiff was capable of performing a range of light exertional work.
(R. at 18.) ALJ Hugar’s RFC at issue here, is reflective of ALJ Alexander’s previous RFC,
which also did not include a time limitations on standing or sitting. (R. at 93.) Moreover, a
whole body scan from August 2014 “was unremarkable for abnormality” and the Plaintiff did not
seek out or receive more than the conservative pharmacological management and maintenance
during the period at issue. (Id.); see Gault v. Comm’r of Soc. Sec., 535 F. App’x 495, 496 (6th
Cir. 2013) (holding that the ALJ properly evaluated the physician’s opinion where the degree of
the opined limitations was inconsistent with the claimant’s benign clinical examinations,
conservative course of treatment, and daily activities) ALJ Hugar further noted Plaintiff’s
reported activities, which reflect an ability to engage in light activity including helping his mom
with laundry and dinner, and mowing as recently as August 2014. The ALJ properly noted that
these activities of daily living undermined any argument that Plaintiff required additional
restrictive limitations in his RFC.
Because the Undersigned finds that the ALJ did not err in his consideration of Dr. Sella’s
opinion and in not including limitations in the RFC formulation for standing and walking
supported by substantial evidence, it is RECCOMENDED that Plaintiff’s first contention of
error be OVERRULED.
B. Dr. Parulkar’s Opinion
In his second assignment of error, Plaintiff argues that ALJ Hugar erred by failing to
consider and weigh the functional opinion from treating physician Dr. Parulkar, particularly her
December 16, 2011 assessment, when determining whether Dr. Parulkar’s non-functional
opinions were deserving of more weight. (SOE at 11.) Specifically, Plaintiff contends that the
ALJ failed to acknowledge that Dr. Parulkar provided a functional assessment regarding
Plaintiff’s specific abilities on December 16, 2011 and as a result failed to weigh her opinion
Defendant, on the other hand, contends that ALJ Hugar’s review of Plaintiff’s medical
records and acknowledgment and incorporation of ALJ Alexander’s 2012 decision provided
sufficient consideration and justification for the weight given to Dr. Parulkar’s opinion. (Def.’s
Opp. at 14.)
With respect to the previously adjudicated period, ALJ Hugar noted that “diagnostic
imaging revealed degenerative changes throughout the lumbar spine, including some herniation,
bulging, narrowing and stenosis, however, changes were not more than mild to moderate in
nature (e.g., Exs. C4F and C9F).” (R. at 18.) The exhibits ALJ Hugar cited, include Dr.
Parulkar’s medical notes. (R. at 356–91.) Moreover, ALJ Hugar incorporated by reference ALJ
Alexander’s findings into his decision “to the extent that any previously stated and since
uncontradicted evidentiary findings contained within the February 21, 2012 unfavorable hearing
decision may continue to offer support for the conclusions reached within the present
determination. . .” (R. at 13.) Although ALJ Hugar did not outright discuss Dr. Parulkar’s
December 2011 opinion, that opinion was discussed in the February 21, 2012 decision, which the
ALJ incorporated. ALJ Alexander gave no significant weight to Dr. Parulkar’s December 2011
opinion, finding that Dr. Parulkar failed to provide any objective medical signs and findings in
her office notes that would support her opined limitations. (R. at 95.)
With regards to the unadjudicated period at issue, the ALJ accorded Dr. Parulkar’s
opinions “less than great weight.” (R. at 20.) This determination too is supported by substantial
evidence. As the ALJ recognized, Plaintiff’s medical records, including Dr. Parulkar’s medical
notes, show “no progression or worsening of lumbar spine degenerative changes were
established.” (R. at 18.) The ALJ further bases his determination on Plaintiff’s objective
medical evidence, including a whole body scan from August 2014, which “was unremarkable for
abnormality” and on the “conservative pharmacological management and maintenance during
the period at issue, with no recommended or required inpatient treatment or specialized treatment
such as surgical intervention.” (Id.) The Undersigned finds that the ALJ adequately evaluated
Dr. Parulkar’s opinion. See Anderson v. Colvin, Case No. 2:14-cv-, 2015 WL 1875359, at *10
(S.D. Ohio April 23, 2015) (“An ALJ can consider a claimant’s conservative course of treatment
in determining what weight to give a medical opinion.”) (citation omitted).
ALJ Hugar further explained that although Dr. Parulkar is a treating and examining
source, she is not a specialist and is not considered an expert familiar with the regulations and
evidentiary requirements. (R. at 20.) This too was proper. Moore v. Comm’r of Soc. Sec., Case
No. 2:14-cv-911, 2015 WL 4399787, at * 6 (S.D. Ohio) R&R adopted by 2015 WL 579465 (S.D.
Ohio Sept. 30, 2015) (finding the ALJ properly discounted treating source opinions where
treating source was not an expert and source’s limitations were inconsistent with reported
activities of daily living.) Similar to ALJ Alexander’s findings, the ALJ found that Dr. Parulkar
“relied heavily, if not primarily, upon the claimant’s subjective assertion that he could not work
and, more recently, wanted a handicap sticker; assertions that are undermined by the context in
which each is produced (i.e., a longstanding history of seeking secondary and contingent
financial-related disability benefits and subjective based evidence to support said longstanding
attempt).” (Id.) The Undersigned concludes that ALJ Hugar properly evaluated Dr. Parulkar’s
opinions. The ALJ properly concluded that Plaintiff had improved since the February 2012
decision and that a less restrictive RFC was appropriate. Plaintiff’s second contention of error is
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, it is
RECOMMENDED that the Court OVERRULE Plaintiff’s Statement of Errors and AFFIRM
the Commissioner’s decision.
PROCEDURE ON OBJECTIONS
If any party seeks review by the District Judge of this Report and Recommendation, he
may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District Judge and
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation). Even when timely objections are filed,
appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d
981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to
specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation
IT IS SO ORDERED.
Date: August 3, 2017
/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?