Alloway v. Commissioner of Social Security

Filing 13

REPORT AND RECOMMENDATION: Magistrate Judge RECOMMENDS that Plaintiff's Statement of Errors be OVERRULED and that judgment be entered in favor of Defendant. Objections to R&R due by 9/15/2017. Signed by Magistrate Judge Kimberly A. Jolson on 9/1/2017. (ew)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
TERESA DARLENE ALLOWAY,
Plaintiff,
v.

Civil Action 2:16-cv-990
Judge Michael H. Watson
Magistrate Judge Jolson

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
REPORT AND RECOMMENDATION
Plaintiff, Teresa Darlene Alloway, 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 application for social security disability insurance benefits
(“DIB”). Plaintiff alleges disability beginning September 14, 2012. (See Doc. 10 at 2). For the
reasons that follow, it is RECOMMENDED that the Court OVERRULE Plaintiff’s Statement
of Errors and AFFIRM the Commissioner’s decision.
I.

FACTUAL AND MEDICAL BACKGROUND
Plaintiff filed this case on October 10, 2016 (Doc. 1), and the Commissioner filed the

administrative record on December 20, 2016 (Doc. 9). Plaintiff filed a Statement of Errors on
February 3, 2017, 2016 (Doc. 10), the Commissioner responded on March 16, 2017 (Doc. 11),
and Plaintiff filed a Reply Brief on March 30, 2017 (Doc. 12).
A. Personal Background
Plaintiff was born in 1954. (Doc. 9, Tr. 119). She graduated high school in 1972 and
took two years of business management courses in the 1990s, but did not earn a degree. (Id., Tr.

143). She worked full-time from 1993 until 2002 as a manager of a Dollar General store,
earning $11.45 per hour. (Id., Tr. 144). From 2004 through 2012, she worked 32 hours per
week as a clerk at a gas station, earning $7.70 per hour. (Id.). Plaintiff alleged in her application
that she became disabled on September 15, 2012, the day her employer “closed down.” (Id., Tr.
143).
B. Relevant Medical Evidence
1.

Phillip Short, M.D. (Treating Physician)

Dr. Short is Plaintiff’s primary-care physician. Dr. Short’s records that are part of this
case begin in 2011, and most of them pertain to Plaintiff’s hyperlipidemia, diabetes, and
hypertension, as well as her vitamin B12 deficiency. (See, e.g., Doc. 9, Tr. 324–72, 387–99).
For example, a record from May 2012 notes that Plaintiff was seen “for follow up for
diabetes”—Plaintiff had gained 16 pounds since her last visit, but the exam was otherwise
unremarkable. (Id., Tr. 271–72). Likewise, an illustrative record from 2013 notes that Plaintiff’s
“sugars doing fairly well,” and her neuropathy was “well-controlled” with medication. The
records from 2014 and 2015 address these same issues. During a visit in February 2014, for
example, Plaintiff reported that Lyrica was helping her neuropathy; her exam was
“unremarkable”; her blood pressure was “good”; and Dr. Short “stressed importance of weight
reduction diet compliance and exercise.” (Id., Tr. 341–42). On this last point, Dr. Short’s notes
continually report Plaintiff’s failure to comply with diet, weight loss, and exercise
recommendations. (See, e.g., id., 328, 387, 392).
During the middle of 2014, Plaintiff’s complaints to Dr. Short shifted and began to note
other ailments in addition to those explained above. Specifically, on May 21, 2014, Plaintiff
reported “some discomfort” in the joint of both thumbs. (Id., Tr. 345). During this visit, Dr.

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Short examined Plaintiff and noted no evidence of synovitis, swelling or tenderness in her thumb
joints, and a good range of motion, and found that Plaintiff had “good grip strength bilaterally.”
(Id., Tr. 347). To further investigate Plaintiff’s complaints, Dr. Short ordered X-rays. The Xrays showed “[n]o fracture,” “[n]o dislocation,” and “[j]oint spaces are generally maintained.”
Overall, “the impression was negative.” (Id., Tr. 357, 360).
Plaintiff continued to see Dr. Short, and, in January 2015, he completed a medical-source
statement. (Id., Tr. 400). He wrote that Plaintiff’s diagnoses include diabetic neuropathy,
hypertension, hyperlipidemia, and diabetes. (Id.). He categorized her prognosis as “fair.” He
also noted “persistent leg pain,” which was “moderately severe” as her only symptom. (Id.).
When asked about the frequency and length of the treatment relationship, Dr. Short did not
respond. (See id.).
In the medical-source statement, Dr. Short additionally stated that Plaintiff is functionally
limited in a number of ways—limited to walking less than one block without rest or severe pain;
limited to sitting for 20 minutes at one time; unable to stand for any significant length of time
without requiring position change; and unable to sit and stand/walk for more than 2 hours each in
an 8-hour workday.

(Id.).

Dr. Short also found that Plaintiff was likely to take 2 to 3

unscheduled breaks during the workday due to pain/paresthesia and adverse effects of
medication. (Id.). He estimated that each of these unscheduled breaks would average 15
minutes. (Id.). He also found that Plaintiff could only lift less than 10 lbs. occasionally; 10 lbs.
rarely; and never lift 20 lbs. or more. (Id., Tr. 402). She could rarely twist, stoop, crouch, or
squat; never climb stairs and ladders, and reach overhead bilaterally no more than 50% of the
time. (Id.). Plaintiff would not have any difficulty with reaching, handling, or fingering. (Id.).
Dr. Short stated that Plaintiff was likely to experience symptoms severe enough to interfere with

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attention and concentration needed to perform even simple work tasks 5% of the day but did not
explain why. (Id.). She was also likely to miss about 2 days per month as a result of her
impairments/treatment. (Id.). Dr. Short noted that these limitations started before 2011. (Id.).
In March 2015, Plaintiff again saw Dr. Short. He noted that Plaintiff was “not following
her diet” and not “losing weight.” (Id., Tr. 387). She complained of some paresthesia in her
hands and feet that the doctor believed was diabetic neuropathy, but no muscle weakness, chest
pain, or vision trouble. (Id., Tr. 387, 389). In June 2015, Plaintiff reported similar problems but
reported that Lyrica was helping with the diabetic neuropathy. (Id., Tr. 392).
On July 20, 2015, an EMG was performed on Plaintiff’s bilateral upper and lower
extremities. (Id., Tr. 404). The testing revealed severe left median nerve carpal tunnel syndrome;
moderate right median nerve carpal tunnel syndrome; and active left cervical and lumbosacral
motor radiculopathy. (Id., Tr. 406).
In August 2015, an MRI of Plaintiff’s neck revealed moderate central disc protrusion,
mild to moderate central canal stenosis, medium broad-based disc bulge, mild to moderate
foraminal stenosis, and mild facet arthropathy. (Id., Tr. 423). The impression was “[m]ultilevel
degenerative disc disease as detailed above most pronounced at C4-C5 where there is a central
disc protrusion with impingement of the ventral spinal cord.” (Id., Tr. 424). An MRI of the
lumbar spine showed “[n]o evidence of nerve impingement, [n]o significant degenerative disc
disease, [and only] mild L4-L5 and L5-S1 facet arthropathy.” (Id., Tr. 458–59). Examination
for bilateral carpal tunnel in August 2015, revealed some diminished grip strength, weak Tinel’s
and Phalen’s test, and normal wrists. (Id., Tr. 432–35). It was noted that splints worn on the
wrists helped with pain somewhat. (Id., Tr. 436). Surgery was recommended, but not scheduled.
(Id.).

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2.

Bradley Arndt, D.C. (Chiropractor)

In May and August 2013, Plaintiff went to her chiropractor, Bradley Arndt, D.C., and
denied “having any current health complaints or physical symptoms.” (Id., Tr. 311, 312). Her
prognosis was excellent. (Id.). In November 2013, Dr. Arndt completed a form stating that
Plaintiff had mild cervical spine pain and stiffness but that this condition did not cause any
impairment. (Id., Tr. 427–28). In March 2014, Plaintiff saw chiropractor Dr. Arndt and reported
mild neck tension, of pain level 2 out of 10. (Id., Tr. 372). She reported her problem is relieved
with chiropractic adjustment. (Id.). At the beginning of June 2014, Plaintiff complained of level
5 pain in her back; Dr. Arndt noted tenderness and recommended ice packs. (Id., Tr. 373).
Plaintiff then began seeing Dr. Arndt more frequently for adjustments, and by the end of June,
her back pain was 0 out of 10, and neck tension was 1 out of 10. (Id., Tr. 380).
3.

Eli Perencevich, D.O. and Anne Prosperi, D.O. (State Agency Reviewers)

In April 2013, Eli Perencevich, D.O., evaluated Plaintiff’s medical records for the state
agency. (Id., Tr. 54–60). Dr. Perencevich opined that Plaintiff could lift, carry, push and pull 10
pounds frequently and 20 pounds occasionally; stand and/or walk about 6 hours in an 8-hour
workday; and sit about 6 hours in an 8-hour workday. (Id., Tr. 58). This was consistent with
light exertional work. 20 C.F.R. § 404.1567(b). She could push/pull only frequently with the
left leg due to mild degenerative joint disease. (Id.). Plaintiff could frequently stoop and climb
ramps/stairs; occasionally kneel, crouch and crawl; and never climb ladders, ropes, or scaffolds.
(Id., Tr. 58–59). These postural limitations were based on Plaintiff’s peripheral neuropathy,
morbid obesity, and some limited range of motion in the cervical spine. (Id., Tr. 59). Finally,
Plaintiff needed to avoid concentrated exposure to vibration and all exposure to hazards such as
machinery and heights. (Id.). In support, Dr. Perencevich described some of Plaintiff’s prior

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physical health records, including a March 2013 office visit where Plaintiff was non-compliant
with her diet, there was no edema, and she reported her peripheral neuropathy was well
controlled by medication. (Id., Tr. 56).
In January 2014, Anne Prosperi, D.O., evaluated Plaintiff’s medical records for the state
agency. (Id., Tr. 63–73). Dr. Prosperi also opined that Plaintiff could perform light exertional
work but was limited to only frequent bilateral foot and hand controls due to her peripheral
neuropathy, and frequent bilateral handling, fingering, and feeling. (Id., Tr. 71–72). Plaintiff
agreed with Dr. Perencevich that Plaintiff could frequently stoop and climb ramps/stairs;
occasionally kneel, crouch and crawl; and never climb ladders, ropes, or scaffolds; and that
Plaintiff needed to avoid concentrated exposure to vibration and all exposure to hazards such as
machinery and heights. (Id., Tr. 71–73).
4.

Judith Brown, M.D. (Consultative Examiner)

In January 2014, the agency sent Plaintiff for a consultative examination with Judith
Brown, M.D. (Id., Tr. 314–25). Plaintiff reported having diabetes for 15 years with some
related numbness in her hands and feet. (Id., Tr. 314). She reported taking insulin and Lyrica,
which helped with numbness and pain “somewhat.” (Id.). Plaintiff also reported 25 years of
back pain. (Tr. 314). Plaintiff was obese at 5’3” and 243 pounds. (Id., Tr. 315). She was able
to ambulate with a normal gait without any assistive devices; she was stable at station and
comfortable in the supine and sitting positions. (Id., Tr. 316). She was able to walk on the heels,
walk on the toes, and walk heel-to-toe without difficulty. (Id., Tr. 317). Examination of the
cervical spine revealed no paravertebral muscle spasm and no tenderness.

(Id., Tr. 316).

Examination of the hands showed tenderness of the thumb bilaterally, however, she was able to
make a fist with both hands, and there was no redness, warmth, swelling, or atrophy present.

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(Id., Tr. 317). Straight leg raise test was normal in both the sitting and supine position. (Id.).
There was decreased pinprick and light touch sensation noted in a stocking and glove pattern
extending to the knees and wrists bilaterally. (Id.). Her lungs were clear, and her heartbeat was
normal. (Id., Tr. 318). Manual muscle testing showed full strength in all extremities, no muscle
spasm, and no atrophy. (Id., Tr. 319–20). She had slightly diminished range of motion in her
spine and entirely normal range of motion in all other joints. (Id., Tr. 320–22). Dr. Brown
concluded that Plaintiff’s “ability to perform work-related activities such as bending, stooping,
lifting, walking, crawling, squatting, carrying and traveling as well as pushing and pulling heavy
objects appears to be at least mildly impaired by the findings noted.

The claimant could

probably perform moderate duty work.” (Id., Tr. 318).
C. Relevant Hearing Testimony
Plaintiff testified at the Administrative Hearing on September 11, 2015. (Id., Tr. 36–53).
She testified that she has been suffering from neck pain for thirty years, has neuropathy in her
hands and legs, and has sharp, shooting pains down her thumbs and big toes. She testified that
she believes she’s unable to “physically, mentally” perform her previous jobs. She also testified
that she no longer engages in enjoyable hobbies, like knitting, crocheting, and gardening. She
now lives with her mother so that her mother can assist her with daily living, like grocery
shopping. She testified that she no longer can lift items, “gets winded,” and has to take several
stops when walking any distance. She additionally testified that she cannot button or pin
anything and regularly drops silverware. She also testified that she has jitters in her legs.
D. Relevant Portions of the ALJ’s Decision
Plaintiff suffers from the following severe impairments: Diabetes Mellitus, type 2 with
peripheral neuropathy, cervical and lumbosacral radiculopathy, bilateral carpal tunnel syndrome,

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severe left and moderate right bilateral knee arthritis, degenerative disc disease, osteoarthritis and
obesity. The ALJ noted Dr. Short’s opinion that Plaintiff is likely to miss two or more days of
work per month and unable to perform more than sedentary work but found Dr. Short’s opinion
inconsistent with the record evidence. (Doc. 9, Tr. 28). Ultimately, the ALJ limited Plaintiff to
light work except that she “is able to frequently push or pull, operate foot controls, climb
ramps or stairs, stoop, handle, finger, and feel; never climb ladders, ropes, or scaffolds;
occasionally kneel, crouch, and crawl; can have occasional exposure to vibration; and can
have no exposure to unprotected heights.” (Id., Tr. 25).
II.

LEGAL STANDARD
The Court’s review “is limited to determining whether the Commissioner’s decision is

supported by substantial evidence and was made pursuant to proper legal standards.” Winn v.
Comm’r of Soc. Sec., 615 F. App’x 315, 320 (6th Cir. 2015); see 42 U.S.C. § 405(g).
“[S]ubstantial 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 v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)
(quoting Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994)). The
Commissioner’s findings of fact must also be based upon the record as a whole. Harris v.
Heckler, 756 F.2d 431, 435 (6th Cir. 1985). To that end, the Court must “take into account
whatever in the record fairly detracts from [the] weight” of the Commissioner’s decision. Rhodes
v. Comm’r of Soc. Sec., No. 2:13-cv-1147, 2015 WL 4881574, at *2 (S.D. Ohio Aug. 17, 2015).
III.

DISCUSSION
Plaintiff sets forth two statements of error. First, she argues that “[t]he ALJ erred in

failing to give controlling weight to the opinion of Dr. Philip Short,” Plaintiff’s treating
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physician. (Doc. 10 at 6). Second, Plaintiff asserts substantial evidence does not support the
ALJ’s RFC determination. (Id. at 13). The Court considers Plaintiff’s arguments in turn.
A. Dr. Short’s Opinion
Two related rules govern how an ALJ is required to analyze a treating physician’s
opinion. Dixon v. Comm’r of Soc. Sec., No. 3:14-cv-478, 2016 WL 860695, at *4 (S.D. Ohio
Mar. 7, 2016). The first is the “treating physician rule.” Id. The rule requires an ALJ to “give
controlling weight to a treating source’s opinion on the issue(s) of the nature and severity of the
claimant’s impairment(s) if the opinion is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the
case record.” LaRiccia v. Comm’r of Soc. Sec., 549 F. App’x 377, 384 (6th Cir. 2013) (quoting
20 C.F.R. § 404.1527(c)(2)) (internal quotation marks omitted). Closely associated is “the good
reasons rule,” which requires an ALJ always to give “good reasons . . . for the weight given to
the claimant’s treating source opinion.” Dixon, 2016 WL 860695, at *4 (quoting Blakely, 581
F.3d at 406 (alterations in original)); 20 C.F.R. § 404.1527(c)(2). The treating physician rule and
the good reasons rule together create what has been referred to as the “two-step analysis created
by the Sixth Circuit.” Allums v. Comm’r of Soc. Sec., 975 F. Supp. 2d 823, 832 (N.D. Ohio
2013).
Here, Plaintiff’s treating physician, Dr. Short, completed a form, indicating that Plaintiff
would be capable of less than sedentary work and would be absent from work two or more days
per month. (Doc. 9, Tr. 400–04). During the hearing, the ALJ asked Plaintiff about this form.
(Id., Tr. 40). Plaintiff testified that Dr. Short did not consult with her regarding the form and that
Dr. Short normally sees her “pretty quick[ly].” (Id.). The ALJ gave this opinion “little weight.”

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The opinion of Philip Short, M.D., [Plaintiff’s] treating physician, indicating that
[she] was capable of less than sedentary work and would be absent from work
about two days per month is given little weight because it is inconsistent with the
medical evidence of record. (Exhibit 12F). The record shows generally only mild
to moderate objective findings and symptoms, which have been responsive to
regular, conservative treatment, as discussed above. [Plaintiff] has received only
chiropractic treatment for her spinal issues and her diabetes and related symptoms
have been adequately controlled with medication. The evidence also does not
show severe symptoms that would cause her to be absent from work multiple
times per month.
(Id., Tr. 28 (emphasis added)).
The “as discussed above,” included, inter alia:
•

The medical evidence of record shows that [Plaintiff] has degenerative
disc disease of the cerical and lumbar spine. . . . Despite this diagnosis,
[Plaintiff] has received little real treatment for this condition and has not
required narcotic pain medication or surgical repair.

•

The record indicated that [Plaintiff] has left knee osteoarthritis. . . . Again,
[Plantiff] has received little real treatment for this condition, which is only
mild in nature.

•

The medical evidence suggests that [Plaintiff] has carpel tunnel
syndrome. . . . Even with these moderate to severe findings, [Plaintiff] has
made relatively few complaints of pain and has not yet received any
treatment for this condition.

•

The evidence demonstrates that the claimant has diabetes mellitus with
peripheral neuropathy (Exhibit 2F, p. I). The claimant has been
prescribed Levemir and Novolg to treat this condition (Exhibit 2F, p. I).
The treatment notes generally indicate that the claimant’s blood sugar
has been under fair control, with no hypoglycemic episodes (Exhibit
2F, pp. 2, 7; 3F, pp. 2, 6, I5, 26; and 8F, p. I). The claimant has
complained of numbness and burning in her hands and feet, consistent
with a diagnosis of diabetic peripheral neuropathy (Exhibits 6F, p. I and
I IF, p. I). Upon examination, she had had decreased sensation in a
stocking and glove pattern in her upper and lower extremities; however,
she has maintained a normal gait (Exhibit 6F, pp. 3, 5). On the other
hand, an EMG and nerve conduction study performed in July 2015 was
inconsistent with diabetic peripheral neuropathy (Exhibit 13F, p. 3). In
any event, her symptoms are “fairly well­controlled” on Lyrica
(Exhibits 2F, pp. I, 2, 7; 3F, pp. 2, 6, I I, 20; and 8F, p. I I ).

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(Id., Tr. 26–27) (emphasis in original).
The ALJ’s explanation for assigning little weight to Dr. Short’s opinions contains enough
detail to satisfy the good-reasons requirement. It is sufficiently clear that the ALJ came to his
conclusion because he found that Dr. Short’s opinions were unsupported by specific, objective
evidence in the record. The Sixth Circuit “‘has consistently stated that the [Commissioner] is not
bound by the treating physician’s opinions, and that such opinions receive great weight only if
they are supported by sufficient clinical findings and are consistent with the evidence.’” Combs
v. Comm’r of Soc. Sec., 459 F.3d 640, 652 (6th Cir. 2006) (en banc) (quoting Bogle v. Sullivan,
998 F.2d 342, 347–48 (6th Cir. 1993)). In other words, the ALJ found that, despite the treating
relationship, Dr. Short’s opinions lacked sufficient evidence to support his ultimate conclusion
regarding Plaintiff’s abilities. For these reasons, it was not error for the ALJ to assign little
weight to them.
B. Residual Functional Capacity
Plaintiff also challenges the ALJ’s RFC determination. This second assignment of error
is closely linked to the first in that Plaintiff relies heavily on Dr. Short’s opinion for support.
The ALJ is responsible for determining a Plaintiff’s residual functional capacity. See 20
C.F.R. § 404.1546(c). While medical source opinions are considered, the final responsibility for
deciding the RFC is reserved to the Commissioner. See 20 C.F.R. § 404.1527(d); Coldiron v.
Comm’r of Soc. Sec., 391 F. App’x 435, 439 (6th Cir. 2010) (“The Social Security Act instructs
that the ALJ—not a physician—ultimately determines a claimant’s RFC.”).

An RFC

determination is a legal decision rather than a medical one, and the development of a claimant’s
RFC is solely within the province of an ALJ. See 20 C.F.R. §§ 404.1527(e), 405.1546. See Poe

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v. Comm’r of Soc. Sec., 342 F. App’x 149, 157 (6th Cir. 2009) (stating that the responsibility for
determining a claimant’s RFC rests with the ALJ, not a physician).
Here, the ALJ crafted the following RFC:
After careful consideration of the entire record, the undersigned finds that
the claimant has the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) except the claimant is able to frequently
push or pull, operate foot controls, climb ramps or stairs, stoop, handle,
finger, and feel; never climb ladders, ropes, or scaffolds; occasionally
kneel, crouch, and crawl; can have occasional exposure to vibration; and
can have no exposure to unprotected heights.
(Doc. 9, Tr. 25).
Plaintiff challenges this RFC, claiming “she is unable to perform the frequent lifting,
standing and walking required for light work.” (Doc. 10 at 14). Plaintiff notes that, as set forth
in SSR 83-10, light work requires “a good deal of walking or standing,” which is the “primary
difference between sedentary and most light jobs.”

Additionally, light work requires the

frequent lifting or carrying of objects weighing up to 10 pounds. SSR 83-10. Plaintiff asserts
that her severe neuropathy, obesity, and bilateral carpal tunnel syndrome preclude her from
performing the requirements of light work on a sustained basis.
The ALJ, however, considered Plaintiff’s neuropathy, obesity, and bilateral carpal tunnel
syndrome. As to neuropathy, the ALJ noted the diagnosis but also explained that “an EMG
and nerve conduction study performed in July 2015 was inconsistent with diabetic peripheral
neuropathy (Exhibit 13F, p. 3). And, in any event, her symptoms are ‘fairly well­controlled’ on
Lyrica (Exhibits 2F, pp. I, 2, 7; 3F, pp. 2, 6, I I, 20; and 8F, p. I I ).” (Doc. 9, Tr. 27). As to
carpel tunnel syndrome, the ALJ relied on the record—“[Plaintiff] has made relatively few
complaints of pain and has not yet received any treatment for this condition.” (Id., Tr. 27).
Finally, as to obesity, the ALJ “considered its effect both on the severity of [Plaintiff’s]

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limitations and on her residual functional capacity.” (Id., Tr. 27–28). All of this supports the
ALJ’s RFC determination.
In crafting the RFC, the ALJ also relied on the state agency medical reviewers, giving
their opinions “great weight” overall because of their expertise and because their opinions were
consistent with the medical evidence of record. (Id., Tr. 28). The ALJ, however, did not rely on
the state reviewers opinions regarding manipulative limitations because Plaintiff was later
diagnosed with carpal tunnel syndrome. (Id.). On that issue, the ALJ noted that “[t]he record
shows generally only mild to moderate objective findings and symptoms, which have been
responsive to regular, conservative treatment, as discussed above.” (Id.). The ALJ accordingly
crafted a more restrictive RFC than the state agency reviewers suggested regarding Plaintiff’s
manipulative limitations.
The ALJ additionally considered Dr. Brown’s opinion. Dr. Brown examined Plaintiff
and found her “ability to perform work-related activities such as bending, stooping, lifting,
walking, crawling, squatting, carrying, and traveling as well as pushing and pulling heavy
objects appears to be at least mildly impaired” and concluded that Plaintiff “could probably
perform moderate duty work.” (Id., Tr. 318). The ALJ gave this opinion only “partial weight”
because it did not provide a function-by-function assessment, and Plaintiff’s carpel tunnel
diagnosis came after Dr. Brown’s examination. (Id.). The ALJ thus crafted an RFC that was
more restrictive than Dr. Brown’s opinion.
The RFC also was much more restrictive than what the records of Plaintiff’s chiropractor
would warrant. For example, in May and August 2013, Plaintiff went to her chiropractor,
Bradley Arndt, D.C., and denied “having any current health complaints or physical symptoms.”
(Id., Tr. 311, 312). Her prognosis was excellent. (Id.). In November 2013, Dr. Arndt completed
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a form stating that Plaintiff had mild cervical spine pain and stiffness but that this condition did
not cause any impairment. (Id., Tr. 427–28). In March 2014, Plaintiff saw Dr. Arndt and
reported mild neck tension, noting a pain level of 2 out of 10. (Tr. 372). She reported her
problem is relieved with chiropractic adjustment. (Id.). At the beginning of June 2014, Plaintiff
complained of level 5 pain in her back; Dr. Arndt noted tenderness and recommended ice packs.
(Id., Tr. 373). Plaintiff saw Dr. Arndt more frequently for adjustments, and, by the end of June,
her back pain was 0 out of 10, and neck tension was at a level 1. (Id., Tr. 380).
Finally, the Court acknowledges certain evidence in record arguably supports a more
restrictive RFC. That, however, is not the question for this Court. See, e.g, Buxton v. Halter,
246 F.3d 762, 773 (6th Cir. 2001) (noting that “there is a ‘zone of choice’ within which the
Commissioner can act, without the fear of court interference”). Instead, the Court must decide if
substantial evidence supports the ALJ’s conclusion, and it does. Taking into account all that the
ALJ considered, substantial evidence supports his RFC determination.
IV.

CONCLUSION
For the reasons stated, it is RECOMMENDED that the Plaintiff’s Statement of Errors be

OVERRULED and that judgment be entered in favor of Defendant.
V.

PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that party may, within fourteen

(14) days of the date of this Report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection is made, together with
supporting authority for the objection(s).

A judge of this Court shall make a de novo

determination of those portions of the report or specified proposed findings or recommendations
to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or

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modify, in whole or in part, the findings or recommendations made herein, may receive further
evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C.
§ 636(b)(1). Failure to object to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and Recommendation de novo, and also
operates as a waiver of the right to appeal the decision of the District Court adopting the Report
and Recommendation. See Thomas v. Arn, 474 U.S. 140, 152–53 (1985).
IT IS SO ORDERED.

Date: September 1, 2017

/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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