Smith v. Commissioner of Social Security
DECISION AND ENTRY - IT IS THEREFORE ORDERED THAT: 1. The ALJs non-disability decision is affirmed; and 2. The case is terminated on the Courts docket. Signed by Magistrate Judge Sharon L. Ovington on 9/15/2017. (pb)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
NANCY A. BERRYHILL,
COMMISSIONER OF THE SOCIAL
: Case No. 3:16-cv-164
: Magistrate Judge Sharon L. Ovington
(by full consent of the parties)
DECISION AND ENTRY
Plaintiff Doris Smith brings this case challenging the Social Security
Administration’s denial of her applications for period of disability, Disability Insurance
Benefits, and Supplemental Security Income. She applied for benefits on April 4, 2013,
asserting that she could no longer work a substantial paid job. Administrative Law Judge
(ALJ) George D. McHugh concluded that she was not eligible for benefits because she is
not under a “disability” as defined in the Social Security Act.
The case is before the Court upon Plaintiff’s Statement of Errors (Doc. #7), the
Commissioner’s Memorandum in Opposition (Doc. #10), and the administrative record
Plaintiff seeks a remand of this case for payment of benefits or, at a minimum, for
further proceedings. The Commissioner asks the Court to affirm ALJ McHugh’s nondisability decision.
Plaintiff asserts that she has been under a “disability” since October 1, 2012. She
was fifty-one years old at that time and was therefore considered a person “closely
approaching advanced age” under Social Security Regulations. See 20 C.F.R. §§
404.1563(d), 416.963(d). She has a limited education. See id. §§ 404.1564(b)(3),
Plaintiff testified at the hearing before ALJ McHugh that she cannot work because
her feet swell up and hurt. (Doc. #6, PageID #102). As a result, she has trouble walking.
Id. at 80. Additionally, she is always tired and out of breath. Id. Her doctors believe that
her feet problems, tiredness, and shortness of breath may be due to a lack of circulation.
Id. at 102. On the Monday before the hearing she found out that she is supposed to have
surgery because her “artery’s like 90 percent clogged.” Id. at 103.
Plaintiff has experienced breathing problems for two to three years. Id. at 80. She
explained, “if I walk or do anything, I’m just out of breath.” Id. She has to walk up two
steps to go into her house and they bother her if she does this a lot. Id. at 83. As a result,
“I try to avoid them at all cost[s].” Id. She has an inhaler but she does not use it very
The remaining citations will identify the pertinent Disability Insurance Benefits Regulations with full
knowledge of the corresponding Supplemental Security Income Regulations.
often. Id. at 81. She uses it about once per month, mostly in the winter. Id. at 82.
Smoke, dust, fumes, and strong smells all bother her. Id.
She smokes less than one pack a day. Id. She has tried to quit smoking several
times. Id. at 106. She has been hypnotized and tried Chantix but neither helped. Id. She
wants to try the patches if her insurance approves them. Id.
Plaintiff has had back pain for over ten years, but it started getting worse two years
before the hearing. Id. at 85. She described the pain as “like a toothache in my back[.]”
Id. She always has pain in her lower back and sometimes has pain in her upper back. Id.
at 85-86. Sometimes the pain goes down her right leg. Id. at 86. On a scale from one to
ten, her pain is about seven on an average day. Id. at 86-87. She uses a heating pad and
ice on her back to help with the pain. Id. at 89. When the swelling in her feet goes down,
she is supposed to start physical therapy for her back. Id.
Plaintiff has trouble bending at the waist and twisting. Id. at 87. If she tries to
stand and wash dishes, her back pain increases. Id. She does not vacuum and must have
help doing laundry. Id. She also has difficulty walking. Id. at 88. When she broke her
pelvis, she was prescribed and used a walker. Id. She had not used it in two years. Id.
Plaintiff has type II diabetes. Id. at 89. She tests her blood sugar twice a day and
uses two different kinds of insulin. Id. She has diabetic retinopathy and neuropathy in
her hands and feet. Id. at 90. Her hands are constantly numb. Id. She does not generally
have pain in her feet except when she lifts them up, “it feels like needles shooting.” Id.
She has these shooting pains every night when she goes to bed. Id. at 106. She feels
nauseous or vomits daily. Id. at 90. She takes a pill that stops her from vomiting. Id.
Plaintiff has depression that began three or four years before the hearing. Id. at 91.
She does not want to be around people and cries a lot. Id. She spends most of her time
sitting in her bedroom. Id. Her grandchildren come in and out sometimes. Id. at 93. She
does not like crowds. Id. She only leaves home to go to the grocery store. Id. She used
to go to church but does not anymore. Id. Dr. Menendez prescribes her medication—
Elavil. Id. at 94. It has calmed her down and made her less anxious. Id. at 95. However,
it makes her feel tired. Id. She saw a therapist for a brief period before she broke her
pelvis but did not go back after. Id. at 94.
Plaintiff also has difficulty concentrating. Id. at 92. She is able to watch a thirty
minute television show without too much trouble. Id. She has short-term memory
problems and sometimes gets confused about making decisions. Id. at 99.
Plaintiff lives in a house with her two granddaughters and adult son. Id. at 75.
She has a driver’s license and drives approximately once a week, normally to the store.
Id. If she drives for too long, it hurts her back and her right hand feels like it is asleep.
Id. at 75-76. Plaintiff testified that she is able to walk a block before having to stop and
rest. Id. at 97. She has difficulty lifting and carrying things. Id. at 98. She can pick up a
gallon of milk but it is hard for her. Id. On her right hand, her ring finger and pinky
finger are always numb. Id. Her left hand also goes numb but it is not as bad as her right
hand. Id. She also had trouble reaching overhead. Id. She can do it but she tries to
avoid it. Id. at 98-99.
During a typical day, Plaintiff wakes up around 7:30, makes coffee, and watches
television shows on her computer in her bedroom. Id. at 100. A little later, she usually
makes more coffee and continues to watch TV until she gets hungry. Id. Then she
makes something to eat, usually in the microwave, and watches cooking shows. Id.
When her granddaughters get home from school, she checks if they are hungry and then
they usually go play with a neighbor until their bedtime. Id. at 101. She does not go
outside during allergy season. Id. But, when the weather is nice, she sometimes sits
outside in the shade. Id. at 101-02.
Carlos Menendez, M.D.
Dr. Menendez, Plaintiff’s treating physician, completed two assessments. On May
3, 2013, he noted Plaintiff’s diagnoses include COPD, type 2 diabetes with peripheral
neuropathy, osteoarthritis of multiple joints, Dupuytren’s contracture of right hand,
frozen right shoulder, and anxiety. Id. at 384. He indicated she has had all of the
conditions for several years. Id. She requires medications daily; she should continue to
have periodic medical evaluations at his office; and “she would benefit from care from
physical therapy and pulmonologist.” Id. Dr. Menendez opined that Plaintiff has no
limitations with sitting. Id. at 385. However, she is unable to stand for over twenty
minutes; walk for longer than one block; or lift, push, or pull more than ten pounds. Id.
She is not able to stoop, crawl, or climb ladders. Id. As a result of her lung disease, she
is not able to tolerate temperature extremes, strong odors, or dusty/smoky environments.
Id. Additionally, she has poor memory and concentration. Id.
On June 13, 2014, Dr. Menendez completed a medical impairment questionnaire.
Id. at 898. He indicated that Plaintiff’s symptoms include exertional dyspnea; arthralgias
in her neck, lower back, hands, feet, and ankles; numbness in her hands and feet; and
tingling in her hands. Id. And, “She has difficulty grasping particularly with dominant
right hand.” Id. He opined that Plaintiff could stand for fifteen minutes at one time, sit
for thirty minutes at one time, and work for less than one hour per day. Id. She can
occasionally lift five pounds and can frequently lift no weight. Id. She can occasionally
bend, manipulate with her left hand, and raise her left arm over shoulder level. Id. at
898-99. She can never stoop, balance, manipulate with her right hand, or raise her right
arm over shoulder level. Id. He indicated that her pain is severe. Id. at 899. She has a
significant problem with anxiety and/or depression which would markedly limit her
ability to withstand the stresses and pressure of ordinary work activity. Id.
Michael Lehv, M.D., & Venkatachala Sreenivas, M.D.
Dr. Lehv reviewed Plaintiff’s records on June 7, 2013. Id. at 134-48. He opined
Plaintiff could lift, carry, push, and/or pull twenty pounds occasionally and ten pounds
frequently. Id. at 142. She could stand and/or walk for six hours in an eight-hour day
and sit for six hours. Id. She could frequently climb ramps/stairs, crouch, or crawl. Id.
She can never climb ladders, ropes, or scaffolds. Id. She can occasionally reach
overhead with her right upper extremity. Id. at 143. She should avoid concentrated
exposure to fumes, odors, dusts, gases, poor ventilation, etc. Id. He concluded that she is
not under a disability. Id. at 147.
On October 10, 2013, Dr. Sreenivas reviewed Plaintiff’s records. Id. at 166-80.
She confirmed a majority of Dr. Lehv’s assessment. However, she limited Plaintiff to
occasional pushing or pulling with her right upper extremity due to the limitation of her
shoulder movement. Id. at 174. In addition, Plaintiff can frequently stoop and kneel and
never crawl. Id. She has no limitation in her ability to crouch. Id.
Standard of Review
The Social Security Administration provides Disability Insurance Benefits and
Supplemental Security Income to individuals who are under a “disability,” among other
eligibility requirements. Bowen v. City of New York, 476 U.S. 467, 470 (1986); see 42
U.S.C. §§ 423(a)(1), 1382(a). The term “disability”—as defined by the Social Security
Act—has specialized meaning of limited scope. It encompasses “any medically
determinable physical or mental impairment” that precludes an applicant from
performing a significant paid job—i.e., “substantial gainful activity,” in Social Security
lexicon. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); see Bowen, 476 U.S. at 469-70.
Judicial review of an ALJ’s non-disability decision proceeds along two lines:
“whether the ALJ applied the correct legal standards and whether the findings of the ALJ
are supported by substantial evidence.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399,
406 (6th Cir. 2009); see Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 745-46 (6th Cir.
2007). Review for substantial evidence is not driven by whether the Court agrees or
disagrees with the ALJ’s factual findings or by whether the administrative record
contains evidence contrary to those factual findings. Gentry v. Comm’r of Soc. Sec., 741
F.3d 708, 722 (6th Cir. 2014); Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir.
2007). Instead, the ALJ’s factual findings are upheld if the substantial-evidence standard
is met—that is, “if a ‘reasonable mind might accept the relevant evidence as adequate to
support a conclusion.’” Blakley, 581 F.3d at 407 (quoting Warner v. Comm’r of Soc.
Sec., 375 F.3d 387, 390 (6th Cir. 2004)). Substantial evidence consists of “more than a
scintilla of evidence but less than a preponderance ….” Rogers, 486 F.3d at 241
(citations and internal quotation marks omitted); see Gentry, 741 F.3d at 722.
The other line of judicial inquiry—reviewing the correctness of the ALJ’s legal
criteria—may result in reversal even when the record contains substantial evidence
supporting the ALJ’s factual findings. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647,
651 (6th Cir. 2009); see Bowen, 478 F.3d at 746. “[E]ven if supported by substantial
evidence, ‘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 in part
Bowen, 478 F.3d at 746, and citing Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 546-47
(6th Cir. 2004)).
The ALJ’s Decision
As noted previously, it fell to ALJ McHugh to evaluate the evidence connected to
Plaintiff’s application for benefits. He did so by considering each of the five sequential
steps set forth in the Social Security Regulations. See 20 C.F.R. § 404.1520. He reached
the following main conclusions:
Plaintiff has not engaged in substantial gainful employment since
October 1, 2012.
She has the severe impairments of chronic obstructive pulmonary
disease (COPD); osteoarthritis of the lumbar spine; type II diabetes
with peripheral neuropathy; Dupuytren’s contracture of the right
hand; frozen right shoulder; depression and anxiety; and nicotine
She does not have an impairment or combination of impairments that
meets or equals the severity of one in the Commissioner’s Listing of
Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1.
Her residual functional capacity, or the most she could do despite her
impairments, see Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 239
(6th Cir. 2002), consists of “light work … subject to the following
limitations: (1) lifting and carrying up to 20 pounds occasionally and
up to 10 pounds frequently, (2) walking or standing with normal
breaks up to 4 hours, (3) sitting up to 6 hours, (4) occasional pushing
and pulling with the dominant (right) arm, (5) occasional [use of] foot
controls, (6) occasional overhead reaching with the dominant (right)
arm, (7) frequent handling and fingering with the dominant (right)
hand, (8) no climbing of ropes, scaffolds or ladders, (9) occasional
stooping, kneeling and crouching, (10) no crawling, (11) occasional
climbing of ramps and stairs, (12) no exposure to hazards such as
unprotected heights or dangerous machinery, (13) no concentrated
exposure to dust, odors, fumes or pulmonary irritants, (14) limited to
simple, routine, and repetitive tasks, but not at a production rate pace
or strict quota, (15) limited to a static work environment with few
changes in the work setting, (16) a sit/stand option whereby the
person can sit for 15minutes out of every hour standing, (17) in
addition to normal breaks, off-task less than 5% of the day, and (18)
no concentrated exposure to extreme temperatures.”
She is unable to perform any of her past relevant work.
She could perform a significant number of jobs that exist in the
(Doc. #6, PageID #s 44-60). These main findings led the ALJ to ultimately conclude that
Plaintiff was not under a benefits-qualifying disability. Id. at 60.
Plaintiff contends that the ALJ failed to properly weigh the medical evidence of
record. She also asserts that the ALJ’s hypothetical to the vocational expert lacks support
in the record. The Commissioner maintains that substantial evidence supports the ALJ’s
evaluation of the medical evidence and the ALJ reasonably relied on the vocational
Social Security Regulations require ALJs to adhere to certain standards when
weighing medical opinions. “Key among these is that greater deference is generally
given to the opinions of treating physicians than to those of non-treating physicians,
commonly known as the treating physician rule.” Rogers, 486 F.3d at 242 (citations
omitted). The rule is straightforward:
Treating-source opinions must be given “controlling weight”
if two conditions are met: (1) the opinion “is well-supported
by medically acceptable clinical and laboratory diagnostic
techniques”; and (2) the opinion “is not inconsistent with the
other substantial evidence in [the] case record.”
Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013) (quoting in part 20
C.F.R. § 404.1527(c)(2)); see Gentry, 741 F.3d at 723.
If the treating physician’s opinion is not controlling, “the ALJ, in determining how
much weight is appropriate, must consider a host of factors, including the length,
frequency, nature, and extent of the treatment relationship; the supportability and
consistency of the physician’s conclusions; the specialization of the physician; and any
other relevant factors.” Rogers, 486 F.3d at 242 (citing Wilson, 378 F.3d at 544).
The Regulations also require ALJs to provide “good reasons” for the weight
placed upon a treating source’s opinions. Wilson, 378 F.3d at 544. This mandatory
“good reasons” requirement is satisfied when the ALJ provides “specific reasons for the
weight placed on a treating source’s medical opinions.” Id. (quoting Soc. Sec. R. 96-2p,
1996 WL 374188, at *5 (Soc. Sec. Admin. July 2, 1996)). The goal is to make clear to
any subsequent reviewer the weight given and the reasons for that weight. Id.
Substantial evidence must support the reasons provided by the ALJ. Id.
ALJ McHugh found that Dr. Menendez’s opinion was not entitled to controlling or
deferential weight and, instead, assigned it “little weight.” (Doc. #6, PageID #57). He
provided several reasons. He first concluded that Dr. Menendez’s “opinion is
unsupported by objective signs and findings in the preponderance of the record.” Id. He
explained, “the lumbar spine pathology in the record is no more than mild to moderate in
severity, and right shoulder imaging was normal. Pulmonary function studies have
generally shown no more than mild findings, and the claimant’s diabetes is not
documented as causing any significant complications.” Id.
Plaintiff, however, disagrees. She asserts that the medical evidence of record
supports Dr. Menendez’s opinion. She emphasized that multiple tests show severe
cardiac and vascular problems as well as multiple orthopedic issues. (Doc. #7, PageID
#s 1038-39). However, most—if not all—of the issues identified by Plaintiff are
addressed in ALJ McHugh’s opinion. Plaintiff, for example, points to diagnostic imaging
from October 19, 2012 that showed calcified aortic atherosclerotic disease and an EKG
revealed “left anterior fascicular block.” Id. at 1038 (citation omitted); see Doc. #6,
PageID #s 403, 433. And, on March 17, 2015, a carotid artery report indicated “There is
evidence of right external carotid artery [greater than] 50% stenosis. Estimated diameter
reduction of the right internal carotid artery is 70-99%.” Id. (citation omitted); see Doc.
#6, PageID #999.
The ALJ acknowledged Plaintiff’s heart condition at step two and reasonably
concluded that it was not severe. (Doc. #6, PageID #48). He noted that in the carotid
artery report, Dr. Peter Podore specified, “this finding is only considered critical with
associated symptoms.” Id. at 999. And, on April 27, 2015, despite noting “a followup
carotid ultrasound shows 90% stenosis[,]” Plaintiff’s cardiologist, Dr. Khan, does not
indicate that Plaintiff has any limitations resulting from the stenosis. Id. at 1014. Indeed,
Dr. Khan only advised Plaintiff to take aspirin when approved by her ophthalmologist;
“discussed management opinions”; and suggested she “may need carotid endarterectomy
[and] [s]tenting is an option ….” Id. Notably, Dr. Menendez does not mention any heart
problems in either of his assessments, and thus, does not indicate Plaintiff has any
limitations as a result of them.
Plaintiff also explains her orthopedic issues: “Testing shows focal central disc
protrusion with annular tear at the L3-4 level with effacement to the ventral surface of the
thecal sac, mild facet arthrosis to the mid-and lower lumbar spine, osteoporosis of the
lumbar spine and osteopenia of the bilateral hips.” (Doc. #7, PageID #1038) (citing Doc.
#6, PageID #s 497, 499-500, 895).
The ALJ addresses these findings as well. He found that Plaintiff’s osteoarthritis
of the lumbar spine was a severe impairment. (Doc. #6, PageID #46). The ALJ,
however, also concluded Plaintiff “has not sought the type of treatment one would expect
for an individual claiming to suffer from disabling chronic back or shoulder pain.” Id. at
52. He notes that Plaintiff participated in physical therapy for neck and back pain in
2008 and 2009 and reported good relief. Id. at 52, 770-79, 809-20. Additionally,
Plaintiff saw a neurologist, Dr. Cynthia Africk, in November 2013. Id. at 52, 518-29.
Dr. Africk noted that an MRI from September 16, 2013 showed “minimal bulges
central at L5-S1 and L3-4 [with] no nerve compression.” Id. at 524. She opined, “Here
with right left pain but no nerve pinched on [MRI]. ... No surgery needed on lumbar
spine. Will get her into therapy and she can followup with Dr. Menendez.” Id. at 518.
The ALJ correctly observed that Plaintiff has not had significant treatment since that
The ALJ further acknowledged Plaintiff’s hip pain at step two and reasonably
concluded it did not constitute a severe impairment. Id. at 47. On August 25, 2013,
Plaintiff fell and x-rays showed a fracture of her left inferior pubic ramus. Id. at 484,
492. A month later, on September 25, 2013, a bone density densitometry scan of
Plaintiff’s bilateral hips revealed osteopenia.2 Id. at 497. Plaintiff testified that her
doctor prescribed a walker but she stopped using it once her fracture healed. Id. at 88.
There is no further indication in the record that Plaintiff complained of further problems
related to her hips. Accordingly, substantial evidence supports the ALJ’s finding that it is
not a severe impairment.
“[Osteopenia and osteoporosis] are varying degrees of bone loss, as measured by bone mineral density, a
marker for how strong a bone is and the risk that it might break. If you think of bone mineral density as a
slope, normal would be at the top and osteoporosis at the bottom. Osteopenia, which affects about half of
Americans over age 50, would fall somewhere in between.” Osteopenia: When you have weak bones,
but not osteoporosis, HARVARD MEDICAL SCHOOL (June 2009; updated Mar. 25, 2017)
The ALJ also found that Dr. Menendez’s treatment notes were not consistent with
his assessments. He acknowledged, “Dr. Menendez’s progress notes generally show only
some abnormal findings, which have included a slowed gait, moderate para-lumbosacral
pain, tenderness over the lumbar spine, decreased and painful range of motion of the right
shoulder, right shoulder tenderness, Dupuytren’s contracture of the right hand with some
notations of 4/5 grip strength in the hands bilaterally, decreased breath sounds, and only
some bilateral foot weakness.” Id. at 57. Plaintiff relies on these, or similar, notes to
contend that Dr. Menendez’s treatment notes are consistent with his opinion.
But, as the ALJ correctly observed, “these findings were not documented on a
consistent basis, and on many other occasions, Dr. Menendez documented no significant
muscle spasms, a normal gait, full strength of the right shoulder, clear lungs, normal
respiratory rate and pattern, normal breath sounds with no rales, rhonhi, wheezes, or
rubs.” Id. at 57 (citing Exhibits 2F [PageID #s 382-433], 6F [PageID #s 461-95], 14F
[PageID #s 535-71], 18F [PageID #s 898-905], and 22F [PageID #s 960-88]).
Although Plaintiff is able to point to some specific examples of her symptoms,
“[t]he substantial-evidence standard ... presupposes that there is a zone of choice within
which the decisionmakers can go either way, without interference by the courts.” Mullen
v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986). “[I]f 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, 581 F.3d at 406
(quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)). In the present case,
substantial evidence supports the ALJ’s finding that Dr. Menendez’s opinions concerning
Plaintiff’s limitations are not supported by objective evidence and are not consistent with
his treating notes.
The ALJ also addressed some of the factors. He appropriately recognized that Dr.
Menendez has been Plaintiff’s primary-care physician for several years. (Doc. #6,
PageID #57); see 20 C.F.R. § 404.1527(c)(2)(i) (“Generally, the longer a treating source
has treated you and the more times you have been seen by a treating source, the more
weight we will give to the source’s medical opinion.”). Plaintiff emphasizes that Dr.
Menendez’s treatment relationship with her was extensive. In June 2014, when he
completed one of his assessments, he had seen Plaintiff nine times. (Doc. #7, PageID
#1039). Further, Plaintiff saw other doctors and nurse practitioners at Dr. Menendez’s
practice six more times. Id. Although this detailed analysis is comprehensive and
helpful, the ALJ’s failure to include the number of times Plaintiff saw Dr. Menendez does
not constitute error in this case.
The ALJ also points out that Dr. Menendez is a family physician and not a
specialist. (Doc. #6, PageID #57). This observation reasonably supports the ALJ’s
decision to discount Dr. Menendez’s opinions. See 20 C.F.R. § 404.1527(c)(5) (“We
generally give more weight to the medical opinion of a specialist about medical issues
related to his or her area of specialty than to the medical opinion of a source who is not a
ALJ McHugh addresses two of Dr. Menendez’s opinions specifically. He first
assigns “little weight” to Dr. Menendez’s opinion that Plaintiff’s depression and anxiety
would markedly limit her ability to tolerate work stress. He emphasizes, “Dr. Menendez
is an internist and is less qualified to offer an opinion on the claimant’s level of mental
functioning.” (Doc. #6, PageID #57). As mentioned above, specialization is a factor for
ALJ’s to consider. See 20 C.F.R. § 404.1527(c)(5). However, the ALJ should also have
acknowledged that Dr. Menendez treated Plaintiff’s mental conditions since at least May
2013. (Doc. #6, PageID #400).
The ALJ also gave “little weight to Dr. Menendez’s opinion that the claimant was
‘totally and permanently disabled,’ as the determination of disability is a question
reserved to the Commissioner, and there is no indication that Dr. Menendez is qualified
to offer an opinion on the claimant’s employability.” Id. at 57. The fact that Dr.
Menendez expressed an opinion on the ultimate issue of Plaintiff’s disability status is not
a valid reason to discount or ignore it. “The pertinent regulation says that ‘a statement by
a medical source that you are ‘disabled’ or ‘unable to work’ does not mean that we will
determine that you are disabled.’ That’s not the same thing as saying that such a
statement is improper and therefore to be ignored....” Bjornson v. Astrue, 671 F.3d 640,
647 (7th Cir. 2012) (internal citation omitted); see Kalmbach v. Comm’r of Soc. Sec., No.
09-2076, 409 F. App’x 852, 861 (6th Cir. 2011) (“the fact that the ultimate determination
of disability, per se, is reserved to the Commissioner, 20 C.F.R. § 404.1527(e) [§
416.927(d)(1)], did not supply the ALJ with a legitimate basis to disregard the
physicians’ [opinions].”). However, the ALJ provided other good reasons for rejecting
Dr. Menendez’s opinion and, therefore, any errors he made in discussing these two
specific opinions are harmless.
The court’s review of an ALJ’s decision is limited to determining whether the ALJ
applied the correct legal standard and whether the ALJ’s decision is supported by
substantial evidence. Gayheart, 710 F.3d at 374. In the present case, ALJ McHugh
applied the correct legal standards to determine that Dr. Menendez’s opinions are entitled
to little weight. The ALJ’s decision is supported by substantial evidence.
State Agency Record-Reviewing Physicians
The ALJ assigned “significant weight to the opinions of the DDD reviewing
physicians [Dr. Lehv and Dr. Sreenivas], with greatest weight to [Dr. Sreeniva’s] most
recent assessment, as their assessments are generally supported by objective signs and
findings in the preponderance of the record.” (Doc. #6, PageID #56). The ALJ
“essentially adopted these limitations but has added a few additional non-exertion
limitations to further account for the claimant’s severe impairments.” Id. Plaintiff
contends that the ALJ erred in his assessment of these opinions.
Under the Regulations, “Unless a treating source’s opinion is given controlling
weight, the administrative law judge must explain in the decision the weight given to the
opinions of a State agency medical or psychological consultant….” 20 C.F.R. §
416.927(e)(2)(ii); see Soc. Sec. R. 96-6p, 1996 WL 374180, at *2 (Soc. Sec. Admin. July
2, 1996). When considering the opinions of nontreating sources, ALJs use the same
factors applicable to weighing treating source opinions—the examining relationship,
supportability, consistency, specialization, and other factors such as the source’s
understanding of disability programs. 20 C.F.R. § 416.927(a)-(d).
Plaintiff contends the ALJ erred by failing to provide citations to evidence that
support his conclusion. Plaintiff is correct. However, given the similarities between the
ALJ’s assessment of Plaintiff’s residual functional capacity and the State agency
physicians’ opinion, the ALJ’s reasons for Plaintiff’s limitations throughout his decision
also support his conclusion that the State agency physicians’ opinions are entitled to
significant weight. For example, the State agency physicians opined Plaintiff could lift
and/or carry twenty pounds occasionally and ten pounds frequently,3 and she is limited
to occasional reaching overhead with her right upper extremity. (Doc. #6, PageID #s
142-43, 174-75). The ALJ, after discussing medical reports concerning Plaintiff’s
shoulder, concluded, “When considering these findings, as well as the relatively mild to
moderate pathology described above, the limitation to a reduced range of light exertion
with only occasional right-sided overhead reaching adequately accounts for these
conditions.” Id. at 52. Because the ALJ’s finding mirrors the State agency physicians’
opinions, the reasons he provided for his findings also support the State agency
Plaintiff further argues that the ALJ applied much stricter scrutiny to Dr.
Menendez’s opinion than he did to the State agency physicians. (Doc. #7, PageID
#1041). She points out, for example, the ALJ noted that Dr. Menendez is a family
physician and not a specialist. But, he does not discuss whether the state agency
physicians are specialists. The ALJ further discounted Dr. Menendez’s opinion because
Under the Regulations, “Light work involves lifting no more than 20 pounds at a time with frequent
lifting or carrying of objects weighing up to 10 pounds....” 20 C.F.R. §404.1567(b).
“there is no indication that [he] is qualified to offer an opinion of Ms. Smith’s
employability.” (Doc. #6, PageID #57). The ALJ does not, however, question whether
the state agency physicians are qualified to offer an opinion on Ms. Smith’s
Plaintiff is correct that to the extent possible, the ALJ should have indicated
whether the State agency physicians specialize in a particular area of medicine. “[T]he
regulations do not allow the application of greater scrutiny to a treating-source opinion as
a means to justify giving such an opinion little weight. Indeed, they call for just the
opposite.” Gayheart, 710 F.3d at 374. However, the ALJ did not need to address
whether the State agency physicians were qualified to offer an opinion of Plaintiff’s
employability, as “State agency medical and psychological consultants are highly
qualified physicians and psychologists who are experts in the evaluation of the medical
issues in disability claims under the Act.” Soc. Sec. R. 96-6p, 1996 WL 374180, at *2.
ALJ McHugh did not categorically accept the State agency physicians’ opinions.
Indeed, he added a significant number of additional limitations. For example, they
found Plaintiff could stand and/or walk for up to six hours total in an eight-hour day,
and the ALJ lowered it to only four hours. (Doc. #6, PageID #s 50, 142, 174). Both
physicians opined Plaintiff could frequently climb ramps or stairs and the ALJ reduced
it to occasional. Id. at 50, 142, 175. Both found she had no limitations in her ability to
balance and the ALJ concluded she could never balance. Id.
ALJ McHugh provided good reasons for assigning the State agency physicians’
opinion significant weight. Substantial evidence supports those reasons.
Plaintiff asserts that the ALJ’s hypothetical to the vocational expert, Charlotte
Ewers, lacks support in the record. She contends, “The record supports that Ms. Smith
would be off task greater than 10% of the workday. … It seems as if the ALJ also took
that same position, but when it resulted in there being no jobs available, he reduced the
time off task to 5% or less per day.” (Doc. #7, PageID #1042). She further explained,
“This reduction in the percentage of time off task may or may not be a little sketchy.
Unfortunately, the ALJ did not address this in his decision. It seems a little suspect to
ask a question that would rule out all jobs and then quickly, with no other explanation,
change the question to result in jobs still being available.” Id. at 1043.
Plaintiff’s summary is not an accurate assessment of the ALJ’s conversation with
the vocational expert. After going through his hypothetical with Ms. Ewers, the ALJ
added two limitations: 1) “A sit stand option whereby the person can sit for 15 minutes
out of every hour standing”; and 2) “In addition to normal breaks, off task less than 10%
of the day.” (Doc. #6, PageID #113). Ms. Ewers responded that the same jobs would
exist with the sit/stand option. However, she asked the ALJ to clarify how much time the
hypothetical individual would be off task. She required clarification because the same
jobs would exist if the individual was off task up to 5% of the day, but all jobs would be
eliminated if the individual was off task more than 5% of the day. Thus, Ms. Ewers
could not answer the ALJ’s hypothetical without knowing whether the individual would
be off task 5% or less or over 5%. As a result, it was not “sketchy” for the ALJ to clarify
his hypothetical to Ms. Ewers.
Accordingly, for the above reasons, Plaintiff’s Statement of Errors lacks merit.
IT IS THEREFORE ORDERED THAT:
The ALJ’s non-disability decision is affirmed; and
The case is terminated on the Court’s docket.
Date: September 15, 2017
s/Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge
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