Barnett v. Commissioner of Social Security
Filing
16
OPINION AND ORDER: The Court 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. Signed by Judge James L. Graham on 9/26/2017. (er)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
VERONICA RUCKER BARNETT,
Plaintiff,
Civil Action 2:16-cv-902
Judge James L. Graham
vs.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
OPINION and ORDER
Plaintiff, Veronica Barnett, brings this action under 42 U.S.C. §§ 405(g) and 1383(c)(3)
for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying
her applications for social security disability insurance benefits and supplemental security
income. This matter is before the Court for consideration of Plaintiff’s Statement of Errors (ECF
No. 9), the Commissioner’s Memorandum in Opposition (ECF No. 14), Plaintiff’s Reply (ECF
No. 15), and the administrative record (ECF No. 8). For the reasons that follow, Plaintiff’s
Statement of Errors is OVERRULED and the Commissioner of Social Security’s nondisability
finding is AFFIRMED.
I.
BACKGROUND
In January 2013, Plaintiff filed applications for both supplemental security income and
disability insurance benefits. (R. at 218–27.) Plaintiff maintains that she became disabled on
December 31, 2005, as a result of chronic obstructive pulmonary disease (COPD), asthma, and
panic attacks. (R. at 288.) Plaintiff's applications were denied initially and upon
reconsideration. Plaintiff sought a de novo hearing before an administrative law judge (“ALJ”).
(R. at 178–79.)
Plaintiff appeared and testified at the January 30, 2015, hearing, represented by counsel.
(R. at 47–79.) A vocational expert also appeared and testified at the hearing. (R. at 79–89.) On
May 20, 2015, ALJ Jeffery Hartranft issued a decision finding that Plaintiff was not disabled
within the meaning of the Social Security Act. (R. at 11–28.) On May 29, 2015, Plaintiff filed a
Request for Review of Hearing Decision Order. (R. at 7.) On July 19, 2016, the Appeals
Council denied Plaintiff's request for review and adopted the ALJ's decision as the
Commissioner's final decision. (R. at 1–6.) Plaintiff then timely commenced the instant action.
II. HEARING TESTIMONY
A.
Plaintiff’s Testimony
Plaintiff testified at the administrative hearing that she lives alone in a one-story house.
(R. at 48.) She has two adult children and is divorced. (R. at 48-49.) Plaintiff testified that she
attended college for 2 ½ years, then prior to the hearing, she began school to be a chef. (R. at
49.) She only attended cooking school for four months because she became sick with the flu and
was admitted to the hospital for 14 days, and the school releases a student's position after a 10day period of absence. (R. at 50.)
Plaintiff testified that she last worked in 2010 as a home health aide. (R. at 50.) She
further testified that she is unable to work due to weakness in the left side of her body and
chronic obstructive pulmonary disease that affects her breathing. (R. at 65.) She testified that
some days she is unable to lift anything at all with her left side. (Id.) She also stated that she is
frequently incontinent and wears Depends. (R. at 66.) She is too weak to lift her baby grandson.
(Id.) Plaintiff has pins in her foot from a recent surgery and a boot that she wears sometimes. If
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she stands for a long time, her feet swell and she cannot put on shoes. (Id.)
Plaintiff also testified to suffering from anxiety attacks due to feeling depressed about her
physical health. (Id.) She testified that she has had shortness of breath since 2003. (R. at 67.)
She testified she previously smoked cigars for about 15 years. (R. at 68.) Heat or cold, smoke in
the air, perfume, and other respiratory irritants causes difficulty breathing. (R. at 69.) Plaintiff
testified that she did stop smoking cigars in 2012, started again, and then she stopped smoking
most recently four months prior to the hearing. (R. at 73–74.) Plaintiff admitted to going
through a box of 25 small cigars in three days on average. (R. at 74.)
Plaintiff testified she had no feeling in the two middle fingers of her left hand. (R. at 69–
70.) She has been told this is the result of spinal cord damage. (R. at 70.) She had surgery on
the toes of her right foot in January 2014 and on the left foot in October 2014. If she stood for
45 minutes, her toes would start to throb and swell. (R. at 70–71.)
When examined by her counsel, Plaintiff testified to having to stand for seven hours
when she was in chef school in 2012 because they would not permit her to use a stool. (R. at
77.) Plaintiff testified that with her left hand, she is unable to button, pick up small things, or
shuffle through papers. (Id.) She has to use her right hand for “everything.” (R. at 77–78.) She
has asked for a home health aide because she has difficulty doing household chores and dressing
herself. (R. at 78.) She reported tendinitis in her shoulders that makes her unable to lift her
hands over her head or brush the left side of her hair. (Id.) She has pain from the neck down to
the low back, with some transient numbness in the right leg. (Id.) She uses a shower chair for
bathing. (R. at 79.)
B.
Vocational Expert Testimony
The vocational expert testified at the administrative hearing that Plaintiff’s past jobs
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include cook, a medium exertion, skilled job; home health aide, a medium exertion, semi-skilled
position; hostess and security guard, both light, semi-skilled positions; and group home
attendant, a medium, semi-skilled position. (R. at 80-81.)
The ALJ proposed a series of hypotheticals regarding Plaintiff’s residual functional
capacity (“RFC”) to the vocational expert. (R. at 81-84.) Based on Plaintiff’s age, education,
and work experience and the RFC ultimately determined by the ALJ, the vocational expert
testified that Plaintiff could perform approximately 474,000 unskilled, light and sedentary
exertional jobs in the national economy such as an order clerk, retail marker, and inspector. (R.
at 85-86.)
The vocational expert also testified that if the hypothetical individual had additional
manipulative limitations, she would be able to perform the order clerk position. (R. at 88.) The
vocational expert further testified that the job of order clerk could be performed even with a
restriction of no interaction with the general public, though the numbers were reduced. (Id.)
III.
A.
MEDICAL RECORDS
Physical Impairments
1.
Grant Medical Center
The record shows Plaintiff presented to the emergency room reporting breathing
problems three times in 2008 (R. at 739–810), six times in 2009 (R. at 813–892), and four times
in 2010. (R. at 893–946.)
In February 2011, Plaintiff presented to the emergency room for shortness of breath. She
reported that she had been out of Albuterol for the last week and reported a slight cough that was
occasionally productive. She admitted to smoking tobacco, and occasional marijuana use. (R. at
4
332.) On examination, she had scattered wheezing in the lungs and minimal coughing. She had
5/5 muscle strength in all extremities. Plaintiff was treated with Albuterol and Toradol. (R. at
333.)
Plaintiff went to the emergency room for shortness of breath in October 2011, and
on three occasions in December 2011. (R. at 342-418.) She indicated that she could not afford
to see her primary care physician. (R. at 356, 370.) The emergency room physicians noted she
had been noncompliant with her medications and continued to smoke. (R. at 370, 385, 396.)
In April 2012, Plaintiff was treated in the emergency room for shortness of breath.
Diffuse bilateral wheezes were noted. (R. at 440–41.) In June 2012, Plaintiff went to the
emergency room for an asthma attack. Her breathing was labored and dense wheezing was
found bilaterally with diminished breath sounds. (R. at 470–71.) In November 2012, Plaintiff
presented to the emergency room for asthma and shoulder pain, reporting that a U-Haul door fell
on her right shoulder. Her x-ray was normal. On examination, she exhibited bilateral expiratory
wheezes. Plaintiff was diagnosed with asthma exacerbation. (R. at 505–06.) In December 2012,
Plaintiff went to the emergency room twice for asthma and dyspnea. (R. at 536-37, 553–54.)
Her lungs had inspiratory wheezes with expiratory rhonchi throughout. (R. at 554.)
When seen in May 2013, Plaintiff complained of chest pain. On examination, her lungs
were clear to auscultation, heart was regular rate and rhythm, and there was no edema in her
extremities. (R. at 595.) She was admitted to rule out any cardiac issues and was found to be
acceptable for discharge. (R. at 619-20.)
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2.
John E. Ratliff, M.D.
The record contains clinical notes from John E. Ratliff, D.O., a primary care physician,
showing treatment from December 2012 through May 2013. (R. at 571–80, 628–42.) In
February 2013, Plaintiff complained of lower back pain, right shoulder pain, and difficulty
lifting her arm. On examination her BMI was recorded at 33, with a height of 64” and weight at
199 pounds. Her blood pressure was measured at140/90. She was tender to palpation of her
right shoulder and lower back. Plaintiff was assessed with COPD (Bronchitis-Emphysema),
chronic lower back pain, GERD and cephalgia. (R. at 572–73.)
When seen in May 2013, Plaintiff complained of chest pain. On examination, Plaintiff
reported joint pain and stiffness in her extremities. Her lower back was tender. (R. at 629–30.)
A cervical spine MRI taken in November 2013 showed severe spinal stenosis at C5-6,
moderately severe stenosis at C6-7, and some narrowing at C7-T1. There was severe cord
compression at C5-6 and moderate narrowing at C4-5 and at C6-7. (R. at 662–63.) The MRI of
her thoracic spine was normal. (R. at 664.)
3.
The Breathing Association Lung Health Clinic (“Breathing Association”)
Plaintiff consulted with the Breathing Association in February 2012. She reported
suffering from shortness of breath, coughing, wheezing, and nocturnal dyspnea over the past
several months. She said she was a long-term smoker who lived with a house full of smokers.
She was seen at the Mount Caramel medical bus and referred for assistance with her
medications. (R. at 654.) Plaintiff had a normal gait and station and no wheezing or use of
accessory muscles in the respiratory examination. (R. at 655.) Spirometry showed a forced vital
capacity (FVC) measured at 1.91, which was 53% of Plaintiff's predicted volume. Her forced
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expiratory volume at one second (FEV1) was measured at 1.31, or 46% of the predicted volume.
(R. at 653.) Plaintiff was diagnosed with chronic obstructive bronchitis without an exacerbation
and given prescriptions for medications and a free nebulizer. (R. at 656.) She was also referred
to no-cost primary care and women’s health, vision, dental, and pharmacy services. (R. at 657.)
In July 2013, Plaintiff followed up with the Breathing Association for evaluation. She
reported that she still occasionally smoked. (R. at 649.) Plaintiff had a normal gait and station
and slight left-sided wheezes. (R. at 650.) Spirometry showed a FVC of 2.22 which was 62% of
Plaintiff's predicted volume. Her FEV1 was measured at 1.74, or 61 % of the predicted volume.
(R. at 653.) Plaintiff’s diagnosis remained chronic obstructive bronchitis without an
exacerbation. (R. at 651.) She was given prescriptions for medications and also referred again
to no cost primary care and women’s health, vision, dental, and pharmacy services. (R. at 652.)
Plaintiff returned in September 2013 and January, May, and September 2014. In 2014,
she reported that she was a daily smoker. She complained of shortness of breath, productive
cough, and wheezing. Plaintiff had a normal gait and station, and no wheezes, rales, or
rhonchi. She was given prescriptions for medications and also referred to no-cost primary care
and women’s health, vision, dental, and pharmacy services. On all occasions, she received
counseling on tobacco cessation. (R. at 712–35.) Spirometry results during this period showed
FVC of 53% to 72% of the predicted volume and FEV1/FVC of 76-97 of the predicted volume.
(R. 736–38.)
4.
Ohio Health Neurological Physicians
Michael Meagher, M.D., a consulting neurologist, evaluated Plaintiff on March 4, 2014.
Dr. Meagher noted that Plaintiff had long-standing numbness and tingling in her arms, chronic
7
COPD and asthma. On examination, Dr. Meagher found “fairly profound weakness” in her lefthand muscles, and sensory loss in her left hand compared to the right. He believed that the C5C6 cord compression was causing Plaintiff’s symptoms and referred her to a spine surgeon in his
practice. (R. at 684-85.)
An MRI of the lumbar spine showed a small central disc protrusion at L5-S1 and a
shallow disc bulge at L3-L4 with mild congenital spinal canal stenosis. (R. at 686-87.)
Plaintiff underwent a C5-C6, C6-C7, C7-T1 anterior cervical microdiskectomy and
fusion on March 20, 2014 with Brian Seaman, D.O. (R. at 688-90.) In June 2014, Dr. Seaman
reported that Plaintiff was doing quite well with improvement of her radiculopathy and
myelopathy. At that time, she had some shoulder discomfort and aches and pains, but her x-rays
and fusion looked great. She was using a bone stimulator and no longer needed to wear a
cervical collar. She was doing quite well in physical therapy. He concluded that he was “happy
with her progress to date.” (R. at 693.)
In July 2014, Plaintiff had improved grip strength and range of motion bilaterally. (R. at
1228-30.) In September 2014, Plaintiff reported minimal neck pain and had improved strength
in her left hand. She was happy with her progress and had returned to normal activities. (R. at
1263.)
In January 2015, Dr. Seaman reported that Plaintiff had done well following her cervical
spine surgery. At that time, she complained of pain in her low back, paresthesias in her lower
extremities, and urinary incontinence. She described an inability to sense her bladder and stated
she has to rush to the bathroom or else she will have an accident. Dr. Seaman indicated that this
has been an ongoing issue for her, in conjunction with the paresthesias in the right lower
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extremity and intermittently in the left lower extremity. Dr. Seaman was concerned that her
epidural lipomatosis and lumbar stenosis might be playing a role. He referred Plaintiff to a
urologist. (R. at 1259-60.)
5.
State Agency Evaluation
On May 24, 2013, Maria Congbalay, M.D., a state agency physician, reviewed the record
and assessed Plaintiff’s physical functioning capacity. (R. at 93–102.) Dr. Congbalay 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 100.)
Dr. Congbalay found that Plaintiff was limited in push and/or pull in her left upper extremity.
(Id.) Dr. Congbalay also found that Plaintiff had manipulative limitations, including occasional
handling and fingering with the left upper extremity due to weakness and decreased grasp and
manipulation. (R. at 101.) According to Dr. Congbalay, Plaintiff could occasionally crawl, but
never climb ladders, ropes, or scaffolds. (R. at 101.) Dr. Congbalay also found Plaintiff would
need environmental limitations due to her COPD. (R. at 102.) Dr. Congbalay assigned great
weight to the opinion of Robert Whitehead, M.D., who performed a physical consultative
examination in April 2013 and reported that plaintiff had a loss of grip strength and decreased
sensation in the left hand. (R. at 100.)
Gary Hinzman, M.D., reviewed Plaintiff's records upon reconsideration on September
2013 and confirmed Dr. Congbalay’s assessment. (R. at 128-33.)
B.
Mental Impairments
1.
Stephen Meyer, Ph.D.
Dr. Meyer examined Plaintiff on behalf of the state agency on April 1, 2013. (R. at 58186.) Plaintiff reported that she was applying for disability because of COPD, asthma, and panic
9
attacks. (R. at 581.) She further indicated that she did not have a history of psychiatric
hospitalizations, but received mental health counseling following her divorce in 1997. When
discussing her work history, Plaintiff’s longest period of employment was six years for the same
company, and she denied any difficulties getting along with coworkers or supervisors, or in
following instructions on previous jobs. She said she could not work because of her physical
problems. (R. at 582.)
Plaintiff reported that she rises at six o’clock in the morning, cares for her pets, does
household chores, has a breathing treatment, takes a walk, and watches television. Her
grandchildren visited her occasionally. She does not go too far from home and usually doesn’t
visit others. She is involved with her church and helps feed people in the community. Her adult
daughter and son check on her every day. She has a boyfriend whom she sees daily. She does
the housework, cooking, and shopping, independently, although her pastor’s wife occasionally
takes her to the store or to doctors’ appointments. (R. at 583.)
Dr. Meyer found that Plaintiff was cooperative and talkative and that she related in a
friendly, pleasant manner. Her facial expressions varied from normal to exaggerated, and she
used frequent hand gestures. She said she does not go too far from home because she worries
about having a panic attack in public. Dr. Meyer noted that at times during this evaluation,
Plaintiff was dramatic and worked herself up with gasping breaths. She reported a history of
anxiety and panic symptoms, but did not manifest any obvious signs of anxiety. Plaintiff
described her panic attacks as difficulty breathing and pain in her lungs (R. at 583-84.)
Dr. Meyer assessed Plaintiff with a depressive disorder NOS and an anxiety disorder
NOS. (R. at 584-85.) He opined that Plaintiff had no difficulty understanding simple or
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moderately complex instructions. He noted she was able to read and write, attended college for
two years, had a good work history, and denied having any problems following instructions at
her prior jobs. He noted her cognitive abilities appeared commensurate with her educational
background. He opined that she had the cognitive capacity to understand, remember, and carry
out simple and complex instructions and would be expected to be able to perform simple and
complex routine work within her physical restrictions. Dr. Meyer also found that Plaintiff
displayed no evidence of concentration, persistence, or pace problems based on her performance
on the mental status examination. He noted that she was able to maintain attention to complete
the interview and was functional in her activities of daily living. He believed that she would be
expected to be able to perform adequately in a work setting without strict production
requirements. With regard to her social functioning, he noted that historically, Plaintiff had not
had any problems getting along with people, although she reported some social avoidance. She
had not had any conflicts or misconduct within the work environment. He noted she was
friendly, talkative, and cooperative during the assessment. He discussed that Plaintiff used many
hand gestures during the interview and was somewhat dramatic at times. He noted that Plaintiff
was somewhat restricted socially, but did socialize regularly with her family and others. He
opined that Plaintiff would be expected to be able to perform in a low social setting, with
intermittent/occasional interactions with coworkers and supervisors. (R. at 585.) In discussing
her ability to respond appropriately to work pressures, Dr. Meyer opined that Plaintiff
would be able to perform in a lower stress work setting, with assistance if needed at times of
change in routine. (R. at 586.)
2.
State agency review
In April 2013, Aracelis Rivera, Psy.D., a state-agency psychologist, reviewed the medical
11
record and assessed Plaintiff's mental condition. (R. at 93-72.) Dr. Rivera based his evaluation
on the medically determinable impairments of an affective disorder and anxiety disorder. (R. at
98.) Dr. Rivera concluded that Plaintiff had mild restrictions of activities of daily living;
moderate difficulties in maintaining social functioning and in maintaining concentration,
persistence, or pace; and no episodes of decompensation. (Id.) Dr. Rivera also found that the
evidence did not establish the presence of the “Part C” criteria. (R. at 99.) Dr. Rivera also
determined that there was no psychological evidence in the file prior to the April 2013
psychological consultative examination. (Id.) Dr. Rivera noted that Plaintiff’s allegations were
credible. (Id.) Dr. Rivera found that Plaintiff was moderately limited in the following areas: the
ability to interact appropriately with the general public, the ability to accept instructions and
respond appropriately to criticism with supervisors, the ability to get along with coworkers or
peers without distracting them or exhibiting behavioral extremes, and the ability to respond
appropriately to changes in the work setting. (R. at 103.) He observed that Dr. Meyer’s opinion
was consistent with the objective evidence. (R. at 100.) Dr. Rivera concluded that Plaintiff is
limited to superficial social interactions and is capable of adapting to a low stress work setting.
(R. at 103.)
In September 2013, Cynthia Waggoner, Psy.D. a state-agency psychologist, reviewed the
mental health evidence upon reconsideration and affirmed Dr. Rivera’s assessment. (R. at 12335.)
IV. THE ADMINISTRATIVE DECISION
On June 18, 2015, the ALJ issued his decision. (R. at 11–28.) Plaintiff met the insured
status requirements through June 30, 2015. At step one of the sequential evaluation process
required under 20 C.F.R. § 416.920(a)(4), the ALJ found that Plaintiff had not engaged in
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substantially gainful activity since December 31, 2005, the alleged onset date. (R. at 13.) At
step two, the ALJ found that Plaintiff had the severe impairments of chronic obstructive
pulmonary disease, cervical degenerative disc disease with radiculopathy and weakness in the
non-dominant left upper extremity, depressive disorder, anxiety disorder, and bunions. (R. at
14.) The ALJ determined that Plaintiff’s migraine headaches, hypertension, incontinence and
degenerative disc disease were non-severe impairments. (R. at 14–15.) At step three, the ALJ
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 15.) 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
404.1567(b) and 416.967(b) except that she can occasionally push and pull with
her non-dominant left upper extremity. She can frequently handle and finger with
both upper extremities. She should avoid more than moderate exposure to
irritants such as fumes, dust and gasses and work in environments with only
moderate exposure to poorly ventilated areas. The claimant is able to perform
low stress jobs, defined as work requiring only occasional decision-making and
with no more than occasional changes in the work setting. She can do work
requiring no contact with the general public and only occasional contact with
coworkers and supervisors.
(R. at 17–18.) In reaching this determination, the ALJ assigned “great weight” to Dr. Meyer’s
opinion and found that Dr. Meyer’s opinion is consistent with medical evidence showing few
limitations in function due to mental impairments. (R. at 25.) In assessing Plaintiff’s
manipulative limitations, the ALJ afforded only some weight to the consultative opinion of Dr.
Whitehead because it reflected Plaintiff’s condition prior to her cervical spine surgery. (R. at
21.)
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Relying on the vocational expert’s testimony, the ALJ concluded that Plaintiff can
perform jobs that exist in significant numbers in the national economy and that Plaintiff was not
disabled under the Social Security Act. (R. at 26-27.)
VII. 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.
14
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
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)).
VIII. ANALYSIS
Plaintiff puts forward three assignments of error. Plaintiff first contends that the ALJ
erred by failing to weigh the opinions of the state agency medical consultants. (ECF No. 9 at 6.)
Plaintiff also argues that the ALJ erred by accepting the opinions of consulting examiner Stephen
Meyer, Ph.D., but then failing to adopt all of his opined limitations without explanation. (Id. at
9.) Finally, Plaintiff contends that the ALJ failed to properly account for all of Plaintiff’s
limitations in his RFC formulation. (Id. at 10.)
A. The ALJ Properly Weighed State Agency Physician Opinion Evidence
In her first assignment of error, Plaintiff argues that the ALJ erred by failing to weigh the
state agency experts’ findings, which were more restrictive with respect to Plaintiff’s limitations
than the ALJ’s findings. (Id. at 6.) Specifically, Plaintiff maintains that it was error not to credit
State agency doctors’ opinions “that beginning in January 2013, plaintiff was limited to . . . only
occasional handling and fingering with the left upper extremity due to weakness and decreased
grasp and manipulation. . . . [and] superficial social interactions and to work in a low stress work
setting. (Id. at 7 (internal emphasis omitted).) In contrast, Plaintiff notes, the ALJ’s RFC
determination limited Plaintiff to frequent handling and fingering. Id. at 8. In support of giving
the state agency opinions great weight, Plaintiff cites the April 2013 report of Dr. Whitehead,
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which stated that Plaintiff’s consultative examination “revealed loss of intrinsic strength and
decreased grip strength, a loss of motion in the wrist with extension as well as with adduction
and abduction. Sensation was decreased in the hand on the third, fourth and fifth digits.” (Id.)
The regulations state that the ALJ, regardless of a medical opinion’s source, will evaluate
the opinion based on the following factors: whether there was an examining relationship,
whether the opinion was made by a treating source, the length of the treating relationship, the
supportability of the opinion’s conclusions, the consistency of the opinion with the record as a
whole, any specialization of the opinion source, and other factors raised by Plaintiff. 20 C.F.R. §
404.1527(c). The ALJ may give the opinions of non-examining state agency doctors weight
“only insofar as they are supported by evidence in the case record.” SSR 96-6p. The ALJ is
specifically directed to consider whether the state agency doctors’ opinions are supported by
“evidence received at the administrative law judge . . . level[ ] that was not before the state
agency.” (Id.) Where an ALJ’s opinion satisfies the goal of § 404.1527(c) and is otherwise
supported by substantial evidence, the failure to explicitly provide the weight assigned is
harmless. See, e.g., Pasco v. Comm’r of Soc. Sec., 137 F. App’x 828, 839 (6th Cir. 2005)
(harmless error where the ALJ failed to mention or weigh the report of consultative neurologist
who only evaluated plaintiff once and was not a treating source); Dykes v. Barnhart, 112 F.
App’x 463, 467–69 (6th Cir. 2004) (failure to discuss or weigh opinion of consultative examiner
was harmless error).
Plaintiff correctly notes that the ALJ did not specifically assign a weight to the opinions
of the state agency doctors. However, the state agency doctors both listed Dr. Whitehead’s April
2013 examination as the source of evidence for their opinions of Plaintiff’s left-hand physical
16
restrictions. (R. at 100, 131.) Although the ALJ was not required to give “good reasons” for the
weight given to non-treating source opinions such as those of Dr. Whitehead, see Smith v.
Comm’r of Soc. Sec., 482 F.3d 873, 876 (6th Cir. 2007), here the ALJ did give good reasons for
giving only some weight to Dr. Whitehead’s opinion. (R. at 21.) The ALJ stated that because
Dr. Whitehead’s 2013 examination occurred prior to Plaintiff’s cervical spinal surgery in March
2014, his opinion was accorded only “some weight, in so far [as it] reflects the claimant’s
condition prior to treatment of her cervical disc disease.” (Id.) The ALJ also discussed postsurgery medical records which reported that Plaintiff did “quite well” after surgery, see Exhibit
26F; that in July 2014, plaintiff had improved grip strength and range of motion bilaterally, see
Exhibit 54F; and that a September 2014 examination record noted that Plaintiff had improved
strength in the left hand and had returned to normal activities, see Exhibit 56F. By giving Dr.
Whitehead’s opinion only some weight, the ALJ essentially assigned the same weight to the
opinions of the state agency physicians insofar as they were based on the hand use restrictions
opined by Dr. Whitehead. The ALJ properly applied the factors set forth in 20 C.F.R. §
404.1527(c) in considering the expert opinions and found them unsupported in light of the
evidence of Plaintiff’s post-surgery condition.
The Court finds that the ALJ’s weighing of Dr. Whitehead’s opinion, and, by extension,
the opinions of the state agency doctors, is supported by substantial evidence.
B. Failure to Incorporate All of Dr. Meyer’s Findings in the RFC
In her second assignment of error, Plaintiff argues that the ALJ erred in failing to
incorporate a restriction in the RFC which reflected Dr. Meyer’s findings that “plaintiff retained
the ability to perform simple and complex routine work in a setting without strict production
17
requirements.” (ECF No. 9 at 9.) Plaintiff argues that by accepting Dr. Meyer’s opinion and
giving it great weight, he also adopting Dr. Meyer’s finding Plaintiff “is expected to be able to
perform adequately (within her physical restrictions) in a work setting without strict production
requirements.” (R. at 585). Plaintiff argues that a restriction that she cannot work under strict
production requirements would require a finding of disability because all of the jobs the ALJ
determined are available to Plaintiff require maintaining a specific level of productivity. (Id. at
9-10.)
An ALJ’s decision to give great weight to medical opinion evidence does not require the
ALJ to incorporate every restriction proposed by the medical source. Salisbury v. Comm’r of
Soc. Sec., No. 5:11-CV-2277, 2013 WL 427733, at *7 (N.D. Ohio Feb. 1, 2013). “Although
physicians opine on a claimant’s residual functional capacity to work, ultimate responsibility for
capacity-to-work determinations belongs to the Commissioner.” Nejat v. Comm’r of Soc. Sec.,
359 F. App’x 574, 578 (6th Cir. 2009); See 20 C.F.R. § 404.1527(e)(1). “[T]he ALJ’s findings
are not to be overturned unless there is no substantial evidence supporting such conclusions.”
Kirk v. Sec’y of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1981).
The ALJ referred to the fact that “Dr. Meyer believed [Plaintiff] could perform
adequately in a work setting without strict production requirements.” (R. at 25.) However, the
ALJ also noted that Dr. Meyer’s own observation in the same paragraph that Plaintiff’s mental
status examination revealed “no evidence of difficulties with concentration, persistence, or
pace.” (R. at 25.) While Dr. Meyer stated that plaintiff “is expected to be able to perform
adequately ... in a work setting without strict production requirements[,]” he did not state that
this was a required restriction. In light of Dr. Meyer’s comment that he saw no evidence of
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difficulties with concentration, persistence, or pace, the ALJ could reasonably conclude, and
obviously decided, that the lack of strict production requirements was not being advanced by Dr.
Meyer as a needed restriction in Plaintiff’s case. However, the ALJ did accept Dr. Meyer’s
recommendation that plaintiff be limited to “a lower stress work setting” due to the fact that
Plaintiff “is somatically focused and her physical symptoms cause anxiety.” (R. at 586.) The
ALJ stated,
Because of [Plaintiff’s] somatic focus and anxiety about her physical symptoms,
[Dr. Meyer] expected the claimant to be able to perform best in a low stress work
setting, with assistance if needed during times of change in routine. This opinion
is the result of his own observations, a clinical interview, and a mental status
evaluation. Furthermore, as a consultant for the Social Security Administration,
he has knowledge of [the] Social Security Administration’s program and
requirements. Dr. Meyer’s opinion is consistent with medical evidence showing
few limitations in function due to mental impairments. Therefore, his opinion is
accepted and given great weight.
(R. at 25.) To address the need for a low stress work setting, the ALJ specified in the RFC that
plaintiff could perform “low stress jobs, defined as work requiring only occasional decisionmaking and with no more than occasional changes in the work setting.” (R. at 18). In specifying
this definition of “low stress jobs,” the ALJ made it clear that he did not find that a restriction on
strict production requirements was needed in Plaintiff’s case. Plaintiff’s RFC also included the
restriction that plaintiff could “do work requiring no contact with the general public and only
occasional contact with coworkers and supervisors.” (R. at 18) Although this restriction is
typically included to address limitations in socialization, it would also operate to mitigate job
stress. The decision of the ALJ not to incorporate a limitation on jobs with strict production
requirements is also supported by the April 18, 2013, opinion of Aracelis Rivera, Psy. D. and the
September 4, 2013, opinion of Cynthia Waggoner, Psy, D., state agency examiners, who stated
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that Plaintiff did not have sustained concentration and persistence limitations, and could adapt to
a low stress work setting. (R. at 103, 134-35.)
As the discussion above demonstrates, although the ALJ gave great weight to Dr.
Meyer’s medical opinion evidence, he exercised his authority to make the ultimate capacity-towork determination. Nejat, 359 F. App’x at 578. The ALJ’s RFC determination is supported by
substantial evidence in the record, including Dr. Meyer’s own mental status examination results.
Accordingly, the ALJ’s decision not to incorporate a specific limitation precluding jobs with
strict production requirements is supported by substantial evidence and affords no basis to
overturn the ALJ’s findings. Kirk, 667 F.2d at 535.
C. The ALJ’s Step Five Determination is Supported by Substantial Evidence
In Plaintiff’s third assignment of error, she argues that because the ALJ found at step four
of the evaluation process that Plaintiff has moderate difficulties with regard to concentration,
persistence or pace, (R. at 17), he should have included language to that effect in the RFC as well
as in his hypothetical question to the vocational expert . The ALJ’s hypothetical to the
vocational expert tracked the language of the RFC, limiting plaintiff to “a low-stress job, which
is defined as having only occasional decision-making required and there being only occasional
changes in the work setting; that the individual should not have contact with the general public
and only occasional contact with coworkers and supervisors.” (R. at 84.) According to Plaintiff,
the ALJ’s determination that she experiences moderate limitations in the areas of social
functioning and concentration, persistence or pace requires an inclusion of parallel language in
the ALJ’s RFC determination and the hypothetical question posed to the vocational expert
However, the ALJ’s bare statement finding that “[w]ith regard to concentration, persistence or
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pace, the claimant has moderate difficulties” says nothing about what type of restrictions, if any,
he felt were needed to accommodate these difficulties.
Plaintiff relies on Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 517 (6th Cir. 2010).
However, Ealy is readily distinguishable on its facts. In Ealy, an expert expressed a restriction,
with which the ALJ agreed, that the claimant was limited to simple, repetitive tasks for “[twohour] segments over an eight-hour day where speed was not critical.” Id. at 516. The court held
that the ALJ’s hypothetical question to the vocational expert, which only asked him to assume
that the claimant was “limited to simple, repetitive tasks and instructions in non-public work
settings” did not adequately reflect the claimant’s limitations because it truncated the doctor’s
specific restrictions. Id.
In this case, the ALJ’s statement that Plaintiff has moderate difficulties with regard to
concentration, persistence or pace is not phrased in terms of a job restriction. Rather, it is found
in the section of the decision which addressed whether Plaintiff’s impairments qualified as listed
impairments, not at the step five level which discussed Plaintiff’s RFC and whether her physical
or mental impairments would impact her ability to work. No inconsistency arises due to the
ALJ’s failure to include that precise statement in the RFC or in his hypothetical question.
Likewise, the ALJ did not fail to include in the hypothetical question any expert-opined
restriction with which he agreed. As discussed above, the ALJ noted that Dr. Meyer observed no
difficulties with concentration, persistence or pace during his evaluation of the Plaintiff. The
ALJ obviously did not find that there was a need to confine Plaintiff to jobs without strict
production requirements. The ALJ did adopt the restriction recommended by Dr. Meyer, see R.
at 586, that Plaintiff be limited to “a lower stress work setting” to address plaintiff’s anxiety.
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The ALJ reasonably concluded that this could be accomplished by the restrictions in the RFC
which limited Plaintiff to “low stress jobs, defined as work requiring only occasional decisionmaking and with no more than occasional changes in the work setting” and “work requiring no
contact with the general public and only occasional contact with coworkers and supervisors.”
(R. at 18.) These restrictions were included in the ALJ’s hypothetical question to the vocational
expert.
The ALJ’s RFC determination is supported by substantial evidence in the record, and the
ALJ did not err in posing a hypothetical question to the vocational expert which mirrored this
RFC.
IX. CONCLUSION
In conclusion, for the reasons stated above, the Court concludes that substantial evidence
supports the ALJ’s decision denying benefits. Accordingly, Plaintiff’s Statement of Errors is
OVERRULED and the Commissioner of Social Security’s decision is AFFIRMED. The Clerk
is DIRECTED to enter judgment in favor of Defendant.
IT IS SO ORDERED.
Date: September 26, 2017
S/ James L. Graham
James L. Graham
UNITED STATES DISTRICT COURT
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