Blair v. Commissioner of Social Security
REPORT AND RECOMMENDATIONS: 1) The Administrative Law Judge's decision be affirmed; and 2) The case be terminated on the docket of this Court. Objections to R&R due by 8/8/2017. Signed by Magistrate Judge Sharon L. Ovington on 7-25-17. (mcm)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
NANCY A. BERRYHILL,
Commissioner of the Social
: Case No. 3:16-cv-00339
: District Judge Walter H. Rice
: Magistrate Judge Sharon L. Ovington
REPORT AND RECOMMENDATIONS1
Plaintiff Kimberly Blair joined the U.S. Marine Corps in 1984 and served until
1996. During her active military service, she suffered accidental injuries to her back and
neck that cause her chronic pain. She has additional health problems including stressrelated headaches/migraines, depression, and anxiety. After her active-duty military
service, the Veterans Administration found her eligible to receive veterans’ benefits due
to her service-related injuries.
Plaintiff’s post-military jobs included work as a security/police officer. Her last
job (at the Dayton Osteopathic Hospital) ended in 2005 because she was missing too
many work days due to her back problems and migraines. (Doc. #7, PageID #866).
In 2009, Plaintiff applied for Disability Insurance Benefits with the Social Security
Attached is a NOTICE to the parties regarding objections to this Report and Recommendations.
Administration. She asserted that she had been under a “disability,” as defined by the
Social Security Act, starting on July 31, 2005. First one and later a second
Administrative Law Judge found Plaintiff not eligible to receive benefits because she was
not under a disability. In the present case, Plaintiff challenges the most recent ALJ’s—
Elizabeth A. Motta’s—decision denying her benefits.
The present review of ALJ Motta’s decision determines whether she applied the
correct legal standards and whether substantial evidence supports her findings. 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). If ALJ Motta failed to apply the correct legal
criteria, her decision may be fatally flawed even if the record contains substantial
evidence supporting her findings. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651
(6th Cir. 2009); see Bowen, 478 F.3d at 746; Wilson v. Comm’r of Soc. Sec., 378 F.3d
541, 546-47 (6th Cir. 2004).
A conclusion is supported by substantial evidence when “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 v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).
Before reaching ALJ’s Motta decision, a discussion of its historical context is
warranted. Plaintiff’s application and evidence first proceeded to consideration by ALJ
Thomas R. McNichols, II under the 5-step sequential evaluation required by Social
Security law. See 20 C.F.R. § 404.1520(a)(4). He found that Plaintiff had severe
impairments of “chronic neck and low back pain, attributed to degenerative disc disease
with osteoarthritic changes, ‘stress-related’ headaches, with infrequent migraines;
depression; and anxiety.” (Doc. #6, PageID #74). ALJ McNichols further found, in
pertinent part, that Plaintiff could perform sedentary work with many limitations, for
example, “[S]he must be free to alternative positions between sitting and standing at onehour intervals throughout the workday…. She is limited to low stress work (defined as
not production quotas and no fast-paced work.” Id. at 77. These and other findings led
ALJ McNichols to the conclusion that a significant number of jobs existed that Plaintiff
could perform and, consequently, she was not under a benefits-qualifying disability.
Plaintiff successfully challenged ALJ McNichols’ decision in this Court due to his
unclear explanation of how much weight he placed on the VA’s disability determination
and the specific reasons for that weight. (Doc. #7, PageID #s 1013-14). The matter thus
returned to the Social Security Administration where ALJ Motta took over.
After holding a hearing, ALJ Motta issued a decision recognizing that Plaintiff
was forty-four years old on the date she was last insured and was consequently
considered a “younger” person for the purpose of resolving her application for benefits.
ALJ Motta also recognized that Plaintiff had a least a high school education.
Plaintiff testified during the hearing held by ALJ Motta that she injured her back
on a Marine Corps obstacle course by falling 15 feet and landing on the back of her head.
(Doc. #7, PageID #875). She explained, “I was in sergeant school when that happened. I
was paralyzed from the neck down for three days. After that happened, I progressively
got to the point where I could not perform my duties.” Id. Upon receiving her discharge
from active duty in 1996, Plaintiff received a 20% disability rating from the VA due to
her back injury. Id. at 864. Her disability rating increased thereafter partly because she
developed migraine headaches. In 2008, she began to receive “total disability” backdated
it to 2006. Id. at 865.
A document dated October 21, 2008 establishes that the VA assessed Plaintiff’s
disability rating at a total of 100 percent, broken down as follows: 50% disability due to
migraines with aura effective October 20, 2006; a chronic sprain in cervical spine was
20% disabling; degenerative disc disease in her lumbosacral spine was 20%; and ethmoid
sinusitis (bilaterally) was 10% disabling. (Doc. #6, PageID #s 508-09). Doing so, the
VA concluded that Plaintiff was entitled to “individual unemployability effective October
6, 2006, the date the entitlement arose.” Id. at 512. The VA explained, in part,
“Entitlement to individual unemployability is granted because the claimant is unable to
secure or follow a substantially gainful occupation as a result of service-connected
disabilities.” Id. at 513.
Medical records in 2012 indicate that the VA rated Plaintiff as 70% disabled.
Plaintiff testified before ALJ Motta, “[T]hey rated me 70 percent, but they consider me
unemployability, so they pay me at 100 percent.” Id. at 877.
Plaintiff testified that she stopped working her last job because her back injury and
migraines caused her to miss too much work. Id. at 866. She reported that she had
undergone two back surgeries—one in 2012 and one in 2014.
ALJ Motta concluded in her decision that Plaintiff was not under a disability by
conducting the Social Security Administration’s 5-step evaluation. See 20 C.F.R. §
404.1520(a)(4). Her more significant findings began with her conclusion that Plaintiff
had several severe impairments—lumbar degenerative disc disease, cervical degenerative
disc disease; and migraines—but her impairments did not automatically constitute a
disability.2 (Doc. #7, PageID #s 835). ALJ Motta then assessed Plaintiff’s residual
functional capacity or the most she could do despite her impairments. See 20 C.F.R. §
404.1545(a); see also Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 239 (6th Cir. 2002).
Doing so, the ALJ found that despite Plaintiff’s impairments, she could perform a limited
range of light work. She specifically found that Plaintiff could lift and carry 20 pounds
occasionally or 10 pounds frequently, subject to the following:
[T]he individual would need to be off her feet for 15 minutes of
every hour (this could be broken up over the hour but total standing
and walking would still be six hours in an eight-hour workday);
occasional postural activity (climbing ramps/stairs, balancing,
stooping, kneeling, crouching crawling, and twisting side to side;
frequent handling and fingering bilaterally; no climbing ladders,
ropes, or scaffolds; no exposure to hazards, such as dangerous
machinery or working at unprotected heights; and low stress work,
defined as not strict production quotas or fast pace.
(Doc. #5, PageID #s 69-70). These limitations, according to ALJ Motta, prevented
Plaintiff from being able to perform her past work but did not prevent her from
performing a significant number of available jobs. Id. at 848. This meant that she was
not under a disability and not entitled to benefits. Id. at 848-49.
Plaintiff contends that ALJ Motta’s decision did not comply with the Court’s
A social security applicant that meets or equals the Listing of Impairments, 20 C.F.R. Part 404, Subpart
P, Appendix 1, is automatically under a disability. See 20 C.F.R. § 404.920(a)(iii); see also Combs v.
Comm’r of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 2006).
remand Order by failing to provide meaningful reasons for placing moderate weight on,
or essentially rejecting, the VA’s disability determination. And, according to Plaintiff,
ALJ Motta’s omission of meaningful reasons is problematic because it requires
speculation to understand the ALJ’s rationale.
Social Security ALJs are not free to ignore judicial Orders:
In some Social Security cases, district courts will include detailed
instructions concerning the scope of the remand and the issues to be
addressed. In such cases, “[d]eviation from the court’s remand order in
subsequent administrative proceedings is itself legal error, subject to
reversal on further judicial review.” Sullivan v. Hudson, 490 U.S. 877, 886,
109 S.Ct. 2248, 104 L.Ed.2d 941 (1989). See also Mefford v. Gardner, 383
F.2d 748, 758 (6th Cir. 1967) (noting “the general rule that, on the remand
of a case after appeal, it is the duty of the lower court, or the agency from
which appeal is taken, to comply with the mandate of the court and to obey
the directions therein without variation and without departing from such
directions.”). These cases stand for the proposition that the administrative
law judge may not do anything expressly or impliedly in contradiction to
the district court’s remand order. These cases do not preclude the ALJ
from acting in ways that go beyond, but are not inconsistent with, the
district court’s opinion....
Hollins v. Massanari, 49 Fed. App'x 533, 536 (6th Cir. 2002).
This Court’s previous Order concerning ALJ McNichols’ non-disability cogently
discussed the Social Security Administration’s view of VA disability determinations
together with applicable case law:
Simply put, “the decision of another governmental agency is not
binding on the Commissioner[.])” Rothgeb v. Astrue, 626 F.Supp.2d 797,
809 (S.D. Ohio 2009). Nevertheless, the ALJ must “consider it” and
“articulate reasons for the amount of weight he or she assigns to that
decision.” Id. (citations omitted)); see also, LaRiccia, 549 F. App'x [377,
388 (6th Cir. 2013)] (stating that an ALJ must provide “reasons for the
weight afforded the VA disability determination”).
With regard to weight, the Sixth Circuit recently reiterated its
conclusion “that a disability rating from the [VA] is entitled to
consideration, but we have not specified the weight such a determination
should carry when determining [S]ocial [S]ecurity disability eligibility.”
Ritchie v. Comm'r of Soc. Sec., 540 F. App'x 508, 510 (6th Cir. 2013)
(citation omitted). Instead, “the relative weight to be given this type of
evidence will vary depending upon the factual circumstances of each
case[,]” and “ALJs need not give ‘great weight’ to a VA disability
determination if they adequately explain the valid reasons for not doing so.”
King v Comm'r of Soc Sec., 779 F.Supp.2d 721, 727 (E.D. Mich. 2011)
(citing Chambliss v. Massanari, 269 F.3d 520, 522 (5th Cir. 2001)).
(Doc. #7, PageID #1013). Next, this Court faulted ALJ McNichols’ decision for its
[T]he ALJ stated that he “considered the [VA’s] determination,” but
failed to specifically state the weight assigned. PageID 90. It appears that
the ALJ afforded such determination little to no weight, but the explanation
for this apparent conclusion is not entirely clear. Instead, the ALJ simply
stated that, “for the reasons discussed above, the undersigned finds that the
residual functional capacity … for a reduced range of sedentary work
adequately accounts for the claimant’s back and neck pain, headaches,
depression, anxiety, and history of PTSD.” PageID 90. The ALJ’s
decision preceding this statement sets forth multiple reasons, and the Court
is left to speculate which of the “reasons discussed above” actually apply to
the specific determination by the VA. PageID 87-90. The undersigned
concludes that in the absence of some meaningful explanation by the ALJ
regarding the weight actually accorded the VA’s disability determination,
and the specific reasons therefor, “the Court on review is left to speculate
on the ALJ’s rationale[.]” King [v Comm’r of Soc. Sec., 779 F.Supp.2d
721, 726 (E.D. Mich. 2011)].
Accordingly, the undersigned concludes that “[t]he record on the
VA’s disability determination has not been developed, and the Court cannot
determine that substantial evidence supports the ALJ’s determination. Id.
(Doc. #7, PageID #s 1013-14).
As noted previously, upon the resulting remand from this Court, ALJ Motta took
over. What did ALJ Motta say (on remand) about the VA’s disability determination?
Nothing meaningful or specific, in Plaintiff’s view. This is incorrect.
The ALJ placed moderate weight on the VA’s disability rating and provided many
meaningful reasons for doing so. She explained that the determination was entitled to
moderate weight “but only to the extent it is consistent with the conclusion herein that the
claimant’s back, neck, and headache conditions cause more than minimal functional
impairment.” (Doc. #7, PageID #847). The ALJ therefore credited the VA’s disability
determination to a moderate extent by essentially agreeing with the VA that Plaintiff’s
impairments caused her some work-related limitations. Although the ALJ did not fully
accept the VA’s disability determination, her decision to give it moderate weight—
combined with the reasons she provided for giving it moderate weight—satisfied and
correctly reflected the notion that ALJs are not bound by, but must consider, VA
disability determinations. See Ritchie v. Comm’r of Soc. Sec., 540 Fed. App’x 508, 510
(6th Cir. 2013) (ALJ’s stated “a proper understanding of the law” by indicating, “I am not
bound by [the VA’s] determination; but I did consider [it].”)
The ALJ’s reasons, moreover, were sufficiently meaningful and specific, and
supported by substantial evidence, to justify placing moderate weight on the VA’s
determination. The ALJ pointed to spinal imaging (several x-rays) during the relevant
period that showed mild to moderate findings. (Doc. #7, PageID #s 841, 847)). The ALJ
also referred to Plaintiff’s cervical-spine x-ray in June 2013 that showed mild findings.
Id. And, the ALJ found Plaintiff’s “fairly mild treatment history” to be insufficient to
show she was under a disability under social security standards. Id. at 841-43, 847. This
included her treatment records from the Veterans Administration Medical Center
(VAMC) that showed some abnormal findings but mostly normal neurological
examinations. Id. at 841-42, 847.
Plaintiff objects to the ALJ’s observation that “the VA determination appears to be
diagnosis rather than function driven …” Id. at 847. The ALJ, however, was correct to
observe the absence from the VA’s determination of a discussion of Plaintiff’s functional
work limitations. See Doc. #6, PageID #s 508-14. The only reference to functional
limitations appears to be limitations on Plaintiff’s ability to bend due to degenerative disc
disease in her lumbosacral spine. See id. at 511. Yet, the VA rated Plaintiff’s
lumbosacral problems at only 20% disability and stated, “[a] higher evaluation of 40%, is
not warranted unless there is forward flexion of the thoracolumbar spine of 30 degrees or
less; or, favorable ankylosis of the entire thoracolumbar spine.” Id. at 512. This was
largely consistent with the ALJ’s limitation of Plaintiff to “occasional postural activities
(climbing ramps/stairs, balancing, stooping, kneeling, crouching, crawling, and twisting
from side to side).” (Doc. #7, PageID #839). As such, it is an example of how the ALJ
placed moderate weight on the VA’s determination.
Similarly, the ALJ recognized that the VA gave Plaintiff a 10% disability rating
for ethmoid sinusitis, as well as a 10% disability rating for eczema . (Doc. #6, PageID #s
508-20,; Doc. #7, PageID #s 720, 846). However, as noted elsewhere in the ALJ’s
decision, treatment notes contain little evidence of any significant treatment for either
condition, and Plaintiff made no significant mention of either condition in the initial
disability reports or at the hearings associated with the claim. (Doc. #7, PageID #836).
Substantial evidence, moreover, supports the ALJ’s findings regarding the non-limiting
effects of Plaintiff’s sinus and eczema problems. In July 2008, three months before the
VA issued its determination, Plaintiff had an x-ray of her sinuses. (Doc. #6, PageID #
522). The report showed no evidence of sinusitis and noted that little was changed from
the January 2007 study, which was normal. Id. at 527). At the hearing, the ALJ asked
Plaintiff what impairments affected her ability to work and she discussed her back, lower
back, headaches and neck. (Doc. #7, PageID #s 871-72). Plaintiff did not mention her
sinuses or eczema. Therefore, consistent with the Social Security Regulations and
Rulings, the ALJ concluded that the VA determination’s disability determination
regarding Plaintiff’s sinus problems and eczema was not entitled to any weight. Id. at
836; cf. 20 C.F.R. § 404.1527(c)(4) (explaining, “the more consistent an opinion is with
the record as a whole, the more weight we give to that opinion).
The ALJ further noted that credibility issues are of “primary importance to Social
Security evaluations and that no credibility evaluations were associated with the VA
disability determination.” Id. at 847. This constitutes a valid basis for not fully crediting
the VA’s determination, although there is room to quibble with the ALJ’s use of the word
“primary.” This phrase—“primary importance”—incorrectly suggests that social security
law requires ALJs to first and foremost consider an applicant’s credibility. The
credibility regulations do not say this, see 20 C.F.R. §§ 404.1528-1529, and the
applicable Social Security Ruling suggests otherwise: “[A] finding that an individual’s
statements are not credible, or not wholly credible, is not in itself sufficient to establish
that an individual is not disabled.” Soc. Sec. R. 96-7p, 1996 WL 374186 at *5. The
regulations and Ruling 96-7p, moreover, place greater significance on medical evidence,
stating, for instance, “No symptom or combination of symptoms can be the basis for a
finding of disability, no matter how genuine the individual’s complaints may appear to
be, unless there are medical signs and laboratory findings demonstrating the existence of
a medical determinable physical or mental impairment(s) that could reasonably be
expected to produce the symptoms.” Id. at *1 (emphasis added). This is not to say that
an applicant’s credibility, or lack thereof, is insignificant as this would surely conflict
with the social security law. See id.; see also 20 C.F.R. §§ 404.158-1529; e.g., Warner v.
Comm’r of Soc. Sec., 375 F.3d 387, 392 (6th Cir. 2004). The point instead is that if a
social security ALJ’s analysis considers—first and foremost—whether an individual is
credible, the analysis drifts from its legal moorings. Doing so risks improperly
minimizing or ignoring potentially dispositive medical evidence, including objective tests
and medical source statements. This in turn would be an error of significant magnitude.
See, e.g., Gentry v. Comm’r of Soc. Sec., 741 F.3d 708, 725 (6th Cir. 2014) (ALJ erred by
“ignoring substantial record evidence that supports Gentry’s complaints ….”); Minor v.
Comm'r of Soc. Sec., 513 Fed Appx. 417, 435 (6th Cir. 2013) (reversing where the ALJ
“cherry-picked select portions of the record” rather than doing a proper analysis).
Despite these observations, in the present case the ALJ’s reference to credibility as
“of primary significance,” can be reasonably read in context to identify a significant
difference between the greater significance social security regulations, as opposed to VA
regulations, place on an applicant’s credibility. Cf. Bird v. Berryhill, 847 F.3d 911, 913
(7th Cir. 2017) (“[T]here are differences in how the agencies evaluate claims: the VA’s
evaluation is pro-claimant rather than neutral: “When after careful consideration of all
procurable and assembled data, a reasonable doubt arises regarding the degree of
disability such doubt will be resolved in favor of the claimant.” 38 C.F.R. § 4.3; Hodge
v. West, 155 F.3d 1356, 1362–63 (Fed. Cir. 1998). That is not SSA’s approach.”). This
was a valid reason to place only moderate weight on the VA’s determination in this case.
See Social Sec. Ruling 06-03p, 2006 WL 2329939, at *7 (Aug. 9, 2006) (“because other
agencies may apply different rules and standards than we do for determining whether an
individual is disabled, this may limit the relevance of a determination of disability made
by another agency.”).
The ALJ also discussed Plaintiff’s treatment history and noted that it was “quite
minimal” during the period at issue, even though she had access to substantial VA
medical resources. Id. Substantial evidence supports this ground for not fully crediting
the VA’s determination. Social Security Ruing 96-7p states that an “individual’s
statements may be less credible if the level or frequency of treatment is inconsistent with
the level of complaints.” 1996 WL 374186 at *7 (July 2, 1996). Plaintiff alleged that her
symptoms were so severe that she could not work, yet as the ALJ noted, the record shows
that she did not receive consistent treatment for her impairments. Plaintiff went to the
VAMC for a Compensation and Pension evaluation in January 2007. (Doc. #6, PageID
#s 576-85). Plaintiff had some abnormalities but a normal gait, normal sensation, full
strength and normal neurological functioning. Id. at 577-78.
The record shows no significant findings or treatment until July 2007, six months
later. (Doc. #7, PageID # 841 (citing PageID #s 486-87)). Her neurological examination
was normal. Id. at 487. A year later, in July 2008, Plaintiff returned to the VAMC for
another Compensation and Pension evaluation. Id. at 841 (citing PageID #s 558-66).
Again, some abnormalities were noted but her neurological examination was normal
(Doc. #6, PageID #562).
The next pertinent record was dated June 2009, when Aivars Vitols, D.O.,
performed a consultative examination at the request of the state agency. (Doc. #7,
PageID # 841 (citing PageID #s 612-20)). Plaintiff continued receiving treatment in
2009 and a few times in 2010. (Doc. #7, PageID # 842 (citing PageID # 660-63, 666-70,
679-84). After October 2010, the record showed no further treatment for musculoskeletal
impairments until April 2011, which was a month after her date last insured (PageID #
842). In light of such evidence, it was reasonable for the ALJ to discount the VA’s
determination on the ground that Plaintiff underwent minimal treatment of her alleged
disabling symptoms when such treatment was available to her at the VMAC. Cf. Strong
v. Soc. Sec. Admin., 88 F. App’x 841, 846 (6th Cir. 2004) (“In the ordinary course, when
a claimant alleges pain so severe as to be disabling, there is a reasonable expectation that
the claimant will seek examination or treatment.”)
In sum, ALJ Motta’s consideration of the VA’s determination was sufficiently
meaningful and specific, and was supported by substantial evidence. For these reasons,
her decision complied with the Court’s remand Order.
Plaintiff next argues that the ALJ erred by rejecting the opinions of B.T. Onamusi,
MD and placing more weight on the opinions of Dr. McCloud, MD, a non-examining
reviewer. Plaintiff points out the Dr. Onamusi was a specialist in occupational medicine,
which the ALJ did not consider, while Dr. McCloud’s specialty was orthopedics but not
neurology. Plaintiff further notes that Dr. McCloud reviewed the record two years before
Dr. Onamusi examined Plaintiff.
Dr. Onamusi examined Plaintiff in November 2011. He diagnosed her with
chronic neck pain and lower back pain, “probably degenerative in nature” and recurrent
migraine headaches. (Doc. #6, PageID #687). Dr. Onamusi opined that Plaintiff “may
have difficulty engaging in more than sedentary level activities as defined in the
Dictionary of Occupational Titles. [She] will need to be able to frequently alternate
positions between sitting and standing, in order to get some degree of comfort. The
frequent\recurrent nature of the migraines may disrupt scheduled work activities.” Id.
The ALJ placed little weight on Dr. Onamusi’s opinions because they were
“unsupported by objective signs and findings upon examination and in the preponderance
of the record.” (Doc. #7, PageID #846). This applied the correct legal criteria to the
evaluation of opinions provided by one-time examining physicians. See 20 C.F.R. §
404.1527(c); see also Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir.
2013) (nontreating physicians’ opinions weighed by considering “examining relationship
(or lack thereof), specialization, consistency, and supportability ….”). Substantial
evidence supports the ALJ’s reasons for not crediting Dr. Onamusi’s opinion that
Plaintiff was limited to sedentary work. Dr. Onamusi, as the ALJ acknowledged, noted
that Plaintiff exhibited decreased neck and back motion, mild tenderness in her cervical
and paralumbar musculature, difficulty in fully extending her right knee, and pain while
lying in a supine position. (Doc. #7, PageID #s 843). Yet, the ALJ essentially and
accurately characterized Dr. Onamusi’s other findings as minimal. Dr. Onamusi, for
example, found that Plaintiff had mild difficulty in standing on her heals and toes,
relatively normal grasp and grip strength, intact cranial nerves, normal muscle power and
tone, symmetrical reflexes, negative Babinski signs, intact sensation, no paraspinal
muscle spasm, and negative straight-leg-raising test bilaterally. Dr. Onamusi also
observed that although Plaintiff walked with a slow and cautious gait, she was able to get
on and off the examination table with only mild difficulty. And Plaintiff could reach
forward, push or pull with her upper extremities, use her hands for fine coordination and
manipulative tasks, and do fine fingering movements. (Doc. #6, PageID #s 686-87). Dr.
Onamusi checked boxes indicating that Plaintiff was limited to occasional lifting and
carrying up to 10 pounds, and had significant limitations in her ability to sit, stand, and
walk during an 8-hour work day. Id. at 688-89. Yet, Dr. Onamusi did not refer to any
medical or clinical findings in support of these limitations and did not provide any
explanation for these limitations even though the form he completed asked him to do so.
Id. Substantial evidence therefore supports the ALJ’s decision not to agree with Dr.
Onamusi’s opinion that Plaintiff was limited to sedentary work. See 20 C.F.R.
404.1527(c)(3) (“The more a medical source presents relevant evidence to support an
opinion, particularly medical signs and laboratory findings, the more weight we will give
that opinion. The better an explanation a source provides for an opinion, the more weight
we will give that opinion….”).
Plaintiff contends that the ALJ failed to give the state agency reviewers the same
level of scrutiny as she gave one-time examiner Dr. Onamusi in violation of Gayheart,
710 F.3d at 379. This contention, however, misapplies Gayheart’s recognition that, in
light of the hierarchical ranking of medical sources’ opinions set by the regulations, “[a]
more rigorous scrutiny of the treating-source opinion than the nontreating and
nonexamining opinion is precisely the inverse of the analysis that the regulation
requires.” Id. This case is distinguishable from Gayheart for several reasons. First,
there were no medical opinion from any of Plaintiff’s treating physicians during the
relevant time period, so the ALJ could not have scrutinized Dr. Onamusi’s opinion more
than she scrutinized a treating source’s opinion. Without such greater scrutiny, or a
violation of the treating physician rule, see 20 C.F.R. §404.1527(c)(2), the present case is
Second, unlike the ALJ in Gayheart, where the ALJ failed to scrutinize the
opinions of the state agency doctors, the ALJ in this case rejected some of their findings
and credited others. (Doc. #7, PageID # 845). For instance, the ALJ explained that
while the state agency physicians did not adopt Dr. Vitols’s opinion—that Plaintiff
needed to change positions throughout the workday—the ALJ included a sit/stand
opinion in Plaintiff’s residual functional capacity. (Doc. #7, PageID #845, referring to
PageID #839 (finding that Plaintiff needed to be off her feet for 15 minutes out of every
hour)). The ALJ also further limited Plaintiff to no more than frequent handling and
fingering bilaterally to account for any upper extremity symptoms associated with
Plaintiff’s cervical spine condition. Id. at 845. In this manner, the ALJ applied more
scrutiny to the opinions of the state agency physicians than Plaintiff suggests. Third,
unlike the ALJ in Gayheart, ALJ Motta in this case provided several reasons why Dr.
Onamusi’s opinion was not entitled to full weight. And, as discussed above, substantial
evidence supported those reasons.
Lastly, in support of her challenge to the ALJ’s use of the “specialization” to
discount Dr. Onamusi’s opinions, Plaintiff finds information about Dr. Onamusi’s
specialty in occupation medicine that appears in the Ohio Medical Board’s website.
(Doc. #9, PageID #1559. However, the citation Plaintiff provides does not lead to the
State Medical Board of Ohio’s website, http://www.med.ohio.gov, or to any information
found there that shows Dr. Onamusi is, or was, a specialist in occupational medicine. As
a result, the factual basis for Plaintiff’s “specialization” argument is lacking. Assuming,
moreover, that Dr. Onamusi is a specialist in occupational medicine, Plaintiff does not
indicate that the ALJ was presented with evidence that Dr. Onamusi held this specialty,
and Dr. Onamusi does not indicate in his report that he is a specialist in occupational
medicine. (Doc. #6, PageID #s 685-701). Consequently, Plaintiff has not shown that the
ALJ erred when weighing Dr. Onamusi’s opinion under the “specialization” factor.
Accordingly, for all the above reasons, Plaintiff’s Statement of Errors lacks merit.
IT IS THEREFORE RECOMMENDED THAT:
Administrative Law Judge Motta’s denial of Plaintiff’s March 31, 2009
application for Disability Insurance Benefits application for Disability
Insurance Benefits be affirmed; and
The case be terminated on the docket of this Court.
July 25, 2017
s/Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within fourteen days after
being served with this Report and Recommendations. Such objections shall specify the
portions of the Report objected to and shall be accompanied by a memorandum of law in
support of the objections. If the Report and Recommendations are based in whole or in
part upon matters occurring of record at an oral hearing, the objecting party shall
promptly arrange for the transcription of the record, or such portions of it as all parties
may agree upon or the Magistrate Judge deems sufficient, unless the assigned District
Judge otherwise directs. A party may respond to another party’s objections within
fourteen days after being served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See United States v. Walters, 638 F. 2d 947 (6th Cir. 1981); Thomas v. Arn, 474
U.S. 140 (1985).
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