Brye v. Social Security Administration, Commissioner of
Filing
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MEMORANDUM OPINION. Signed by Magistrate Judge H Bruce Guyton on 11/12/19. (JBR)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
WILLIAM A. BRYE,
Plaintiff,
v.
ANDREW M. SAUL,1
Acting Commissioner of Social Security,
Defendant.
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No. 3:18-CV-194-HBG
MEMORANDUM OPINION
This case is before the undersigned pursuant to 28 U.S.C. § 636(b), Rule 73 of the Federal
Rules of Civil Procedure, and the consent of the parties [Doc. 16]. Now before the Court are
Plaintiff’s Motion for Summary Judgment and Memorandum in Support [Docs. 13 & 14] and
Defendant’s Motion for Summary Judgment and Memorandum in Support [Docs. 22 & 23].
William A. Brye (“Plaintiff”) seeks judicial review of the decision of the Administrative Law
Judge (“the ALJ”), the final decision of Defendant Andrew M. Saul (“the Commissioner”). For
the reasons that follow, the Court will DENY Plaintiff’s motion and GRANT the Commissioner’s
motion.
I.
PROCEDURAL HISTORY
On July 31, 2014, Plaintiff filed an application for disability insurance benefits pursuant to
Title II of the Social Security Act, 42 U.S.C. § 401 et seq., alleging disability beginning on April
30, 2013. [Tr. 105, 261, 277]. After his application was denied initially and upon reconsideration,
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Andrew M. Saul was sworn in as the Commissioner of Social Security on June 17, 2019,
during the pendency of this case. Therefore, pursuant to Federal Rule of Civil Procedure 25(d),
Andrew M. Saul is substituted as the Defendant in this case.
Plaintiff requested a hearing before an ALJ. [Tr. 208]. A hearing was held on October 4, 2016.
[Tr. 121–66]. On February 24, 2017, ALJ J. Elaine Burke found that Plaintiff was not disabled.
[Tr. 105–16]. The Appeals Council denied Plaintiff’s request for review on March 20, 2018 [Tr.
1–7], making the ALJ’s decision the final decision of the Commissioner.
Having exhausted his administrative remedies, Plaintiff filed a Complaint with this Court
on May 18, 2018, seeking judicial review of the Commissioner’s final decision under Section
405(g) of the Social Security Act. [Doc. 1]. The parties have filed competing dispositive motions,
and this matter is now ripe for adjudication.
II.
ALJ FINDINGS
In her February 24, 2017 disability decision, ALJ Burke made the following findings:
1. The claimant meets the insured status requirements of the Social
Security Act through December 31, 2018.
2. The claimant has not engaged in substantial gainful activity since
April 30, 2013, the alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has had the following severe impairments:
degenerative disc disease of the cervical and lumbar spine, arthritis,
and major knee joint dysfunction (20 CFR 404.1520(c)).
4. The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1
(20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, I find that the
claimant has the residual functional capacity to perform light work
as defined in 20 CFR 404.1567(b) except he can sit for six hours and
stand and/or walk for four hours total in an eight-hour workday with
no more than 30 minutes of continuous sitting, standing, and
walking. The claimant is limited to no climbing ladders, ropes, or
scaffolds and occasional climbing ramps and stairs, stooping,
kneeling, crouching, crawling, and operating foot controls with
lower extremities bilaterally; and frequent balancing, reaching, and
handling. He should avoid even moderate exposure to vibrations
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and workplace hazards, such as dangerous machinery and exposed
heights.
6. The claimant is capable of performing past relevant work as a
logistics specialist. This work does not require the performance of
work-related activities precluded by the claimant’s residual
functional capacity (20 CFR 404.1565).
7. The claimant has not been under a disability, as defined in the
Social Security Act, from April 30, 2013, through the date of this
decision (20 CFR 404.1520(f)).
[Tr. 107–16].
III.
STANDARD OF REVIEW
When reviewing the Commissioner’s determination of whether an individual is disabled
pursuant to 42 U.S.C. § 405(g), the Court is limited to determining whether the ALJ’s decision
was reached through application of the correct legal standards and in accordance with the
procedure mandated by the regulations and rulings promulgated by the Commissioner, and
whether the ALJ’s findings are supported by substantial evidence. Blakley v. Comm’r of Soc. Sec.,
581 F.3d 399, 405 (6th Cir. 2009) (citation omitted); Wilson v. Comm’r of Soc. Sec., 378 F.3d 541,
544 (6th Cir. 2004).
Substantial evidence is “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.”
Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (citations omitted). It
is immaterial whether the record may also possess substantial evidence to support a different
conclusion from that reached by the ALJ, or whether the reviewing judge may have decided the
case differently. Crisp v. Sec’y of Health & Human Servs., 790 F.2d 450, 453 n.4 (6th Cir. 1986).
The substantial evidence standard is intended to create a “‘zone of choice’ within which the
Commissioner can act, without the fear of court interference.” Buxton v. Halter, 246 F.3d 762,
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773 (6th Cir. 2001) (quoting Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)). Therefore, the
Court will not “try the case de novo, nor resolve conflicts in the evidence, nor decide questions of
credibility.” Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984) (citation omitted).
On review, the plaintiff “bears the burden of proving his entitlement to benefits.” Boyes v.
Sec’y. of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994) (citation omitted).
IV.
DISABILITY ELIGIBILITY
“Disability” is the inability “to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous period of not less than twelve months.”
42 U.S.C. §§ 423(d)(1)(A) and 1382c(a)(3)(A). A claimant will only be considered disabled:
if his physical or mental impairment or impairments are of such
severity that he is not only unable to do his previous work but
cannot, considering his age, education, and work experience, engage
in any other kind of substantial gainful work which exists in the
national economy, regardless of whether such work exists in the
immediate area in which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he applied for work.
42 U.S.C. §§ 423(d)(2)(A) and 1382c(a)(3)(B).
Disability is evaluated pursuant to a five-step analysis summarized as follows:
1. If claimant is doing substantial gainful activity, he is not disabled.
2. If claimant is not doing substantial gainful activity, his
impairment must be severe before he can be found to be disabled.
3. If claimant is not doing substantial gainful activity and is
suffering from a severe impairment that has lasted or is expected to
last for a continuous period of at least twelve months, and his
impairment meets or equals a listed impairment, claimant is
presumed disabled without further inquiry.
4. If claimant’s impairment does not prevent him from doing his
past relevant work, he is not disabled.
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5. Even if claimant’s impairment does prevent him from doing his
past relevant work, if other work exists in the national economy that
accommodates his residual functional capacity (“RFC”) and
vocational factors (age, education, skills, etc.), he is not disabled.
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997) (citing 20 C.F.R. § 404.1520).
A claimant’s residual functional capacity (“RFC”) is assessed between steps three and four and is
“based on all the relevant medical and other evidence in your case record.” 20 C.F.R. §§
404.1520(a)(4), -(e) and 416.920(a)(4), -(e). An RFC is the most a claimant can do despite her
limitations. 20 C.F.R. §§ 404.1545(a)(1) and 416.945(a)(1).
The claimant bears the burden of proof at the first four steps. Walters, 127 F.3d at 529.
The burden shifts to the Commissioner at step five. Id. At the fifth step, the Commissioner must
prove that there is work available in the national economy that the claimant could perform. Her
v. Comm’r of Soc. Sec., 203 F.3d 388, 391 (6th Cir. 1999) (citing Bowen v. Yuckert, 482 U.S. 137,
146 (1987)).
V.
ANALYSIS
Plaintiff asserts that the ALJ’s disability decision is not supported by substantial evidence
in several regards. Plaintiff maintains that the ALJ failed to properly examine the medical record
with respect to Listing 1.04. [Doc. 14 at 20–22]. Next, Plaintiff claims that the ALJ failed to
provide good reasons for assigning little weight to the opinion of his treating neurosurgeon,
William J. Snyder, Jr., M.D. [Id. at 12–14], and improperly assigned great weight to the opinion
of nonexamining state agency consultant, Gurcharan Singh, M.D. [Id. at 15]. Lastly, Plaintiff
alleges that the ALJ improperly failed to develop the record after affording great weight to an
outdated medical opinion. [Id. at 17]. The Court will address Plaintiff’s specific allegations of
error in turn.
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A.
Listing 1.04
Plaintiff claims that the ALJ improperly found that he did not meet Listing 1.04, as well as
that the ALJ’s step three determination is not supported by substantial evidence. [Id. at 20].
Plaintiff maintains that the “blatant lack of analysis in considering whether Plaintiff met[ ] the
Listing[,] when the record consistently showed that Plaintiff suffered nerve root compression, is a
violation of the ALJ’s duty to complete step 3 of her analysis.” [Id. at 21]. The Commissioner
maintains that the ALJ properly found that “the record did not contain evidence sufficient to meet
Listing 1.04,” and that Plaintiff fails to establish that his medical impairments met all of the criteria
under the listing. [Doc. 23 at 7].
At step three of the sequential evaluation, a claimant may establish disability by
demonstrating that his impairment is of such severity that it meets, or medically equals, one of the
listings within the “Listing of Impairments” codified in 20 C.F.R., Part 404, Subpart P, Appendix
1. Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997); Foster v. Halter, 279 F.3d
348, 352 (6th Cir. 2001). The Listings describe impairments that the SSA considers to be “severe
enough to prevent an individual from doing any gainful activity, regardless of his or her age,
education, or work experience.” 20 C.F.R. § 404.1525(a). A claimant who meets the requirements
of a Listed Impairment will be deemed conclusively disabled, and entitled to benefits, but the
claimant has the burden to prove that all of the elements are satisfied. King v. Sec’y of Health &
Human Servs., 742 F.2d 968, 974 (6th Cir. 1984); see also Walters, 127 F.3d at 529. Only when
an impairment satisfies all of the Listing’s criteria will the impairment be found to be of listing
level severity. 20 C.F.R. § 404.1525(d).
In determining whether an impairment is of listing level severity, the ALJ is tasked with
comparing the medical evidence of record with a Listing’s requirements. Reynolds v. Comm’r of
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Soc. Sec., 424 F. App’x 411, 415 (6th Cir. 2011). However, the Sixth Circuit rejected “a heighted
articulation standard” with regard to the ALJ’s step three finding. Bledsoe v. Barnhart, 165 F.
App’x 408, 411 (6th Cir. 2006). “If a claimant does not have one of the findings, however, she
can present evidence of some medical equivalent to that finding.” Bailey v. Comm’r of Soc. Sec.,
413 F. App’x 853, 854 (6th Cir. 2011) (citations omitted). Yet, it is not sufficient to come close
to meeting the conditions of a Listing. See, e.g., Dorton v. Heckler, 789 F.2d 363, 367 (6th Cir.
1989) (affirming Commissioner’s decision that Plaintiff didn’t meet Listing where medical
evidence “almost establishes a disability”).
Listing 1.04 covers disorders of the spine, including degenerative disc disease, and requires
that the disorder result in “compromise of a nerve root (including the cauda equina) or the spinal
cord.” 20 C.F.R. Part 404, Subpart P, Appendix 1, § 1.04. Listing 1.04(A) further requires:
Evidence of nerve root compression characterized by neuro-anatomic
distribution of pain, limitation of motion of the spine, motor loss (atrophy
with associated muscle weakness or muscle
weakness)
accompanied
by
sensory or reflex loss and, if there is involvement of the lower back, positive
straight-leg raising test (sitting and supine).
Id. Accordingly, in addition to demonstrating a spinal disorder that results in the “compromise of
a nerve root,” Plaintiff must show (1) neuro-anatomic distribution of pain, (2) limitation of motion
of the spine, (3) motor loss, (4) sensory or reflex loss, and (5) sitting and supine positive straightleg test results, in order to meet the requirements of Listing 1.04(A). Id.
In the disability decision, the ALJ noted that although the medical record established
degenerative disc disease, the criteria of Listing 1.04 were not satisfied. [Tr. 109]. Specifically,
the ALJ found that “the record is devoid of evidence of nerve root compression, consistent
limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle
weakness), sensory or reflex loss, spinal arachnoiditis, lumbar spinal stenosis with accompanying
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ineffective ambulation, or positive straight leg raising test (sitting and supine).” [Id.].
Plaintiff challenges the ALJ’s brief step three analysis, asserting that the “record included
objective medical evidence that the nerve root was likely abutted and displaced, diagnosis [sic] by
his treating providers of radiculopathy, and subjective complaints of pain and tingling.” [Doc. 14
at 20].
However, “[t]he Sixth Circuit has declined to adopt a blanket rule that remand is required
whenever an ALJ ‘provides minimal reasoning at step three of the five-step inquiry.’” Wischer v.
Comm’r of Soc. Sec., No. 13-cv-180, 2015 WL 518658, at *12 (S.D. Ohio Feb. 6, 2015), report
and recommendation adopted by, 2015 WL 1107543 (S.D. Ohio Mar. 11, 2015) (quoting Forrest
v. Comm’r of Soc. Sec., 591 F. App’x 359, 364–66 (6th Cir. 2014)). In Forrest, the Sixth Circuit
upheld the ALJ’s conclusory finding at step three for two reasons: (1) the ALJ made sufficient
factual findings elsewhere in his decision to support his conclusion at step three; and (2) even if
the ALJ’s factual findings failed to support his step three findings, the error was harmless because
the plaintiff had not shown his impairments met or medically equaled in severity any of the listed
impairments. 591 F. App’x at 366.
Plaintiff asserts that the medical record is consistent with evidence of nerve root
suppression. However, the Commissioner correctly states that the ALJ largely discussed the
evidence cited by Plaintiff throughout the disability decision. For example, the ALJ cited to
Plaintiff’s outpatient physical therapy initial evaluation at the University of Tennessee Medical
Center Rehabilitation Services on September 28, 2016, to claim that Plaintiff “is able to ambulate
effectively and has essentially normal range of motion, strength, and tone throughout.” [Tr. 108–
09]; see [Tr. 825]. In the RFC determination, the ALJ cited to a February 28, 2014 MRI which
revealed severe multilevel lumbar spondylosis; L3-L4 right paracentral disc extrusion with inferior
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migration and severe right neuroforaminal stenosis; facet arthropathy and disc herniations resulting
in severe left L3-L4 and L4-L5, moderate to severe right L4-L5, and bilateral L5-S1
neuroforaminal stenosis. [Tr. 112]; see [Tr. 369–70]. The ALJ also noted that Plaintiff’s physical
therapy records demonstrated that his symptoms improved with treatment and “that all of his goals
were met when he was discharged from therapy in April 2014,” as well as that he was able to stand
and walk without difficulty. [Tr. 112]; see [Tr. 461, 517]. The ALJ reviewed Plaintiff’s
complaints of low back pain, but found that progress notes indicated that his symptoms improved
with chiropractic treatment, while also noting Plaintiff’s diagnoses of degenerative disc disease
and radiculopathy. [Tr. 112–13].
Ultimately, substantial evidence supports the ALJ’s finding that Plaintiff did not have the
requisite limited range of motion of the spine, motor loss accompanied by sensory or reflex loss,
as well as positive straight-leg raise testing to meet Listing 1.04. The ALJ cited to multiple
physical examination findings showing full range of motion on January 14, 2013, January 8, 2014
and September 28, 2016 [Tr. 108, 111, 113, 114], while also reviewing Plaintiff’s limited range of
motion in his lumbar spine in July 2013 [Tr. 112], and a decreased extension of his lumbar spine
in August 2016 [Tr. 113].
Therefore, the Court finds that the ALJ appropriately reviewed the medical evidence
related to Plaintiff’s degenerative disc disease, and Plaintiff fails to establish that his medical
impairments met every requirement under Listing 1.04. Plaintiff “must point to specific evidence
that demonstrates [s]he reasonably could meet or equal every requirement of the listing.” SmithJohnson v. Comm’r of Soc. Sec., 579 F. App’x 426, 432 (6th Cir. 2014). “Because satisfying the
listings during the third step yields an automatic determination of disability based on medical
findings, rather than a judgment based on all relevant factors for an individual claimant, the
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evidentiary standards for a presumptive disability under the listings are more strenuous than for
claims that proceed through the entire five-step evaluation.” Peterson v. Comm’r of Soc. Sec., 552
F. App’x 533, 539 (6th Cir. 2014) (citing 20 C.F.R. §§ 416.925(d), 416.926; Sullivan v. Zebley,
493 U.S. 521, 532 (1990)). The ALJ reviewed Plaintiff’s improvement in his symptoms after
treatment, as well as the objective medical record, to support her finding that Plaintiff did not meet
Listing 1.04. See, e.g., Hood v. Colvin, No. 2:15-cv-70, 2016 WL 8711709, at *5 (M.D. Tenn.
July 8, 2016) (finding Plaintiff failed to demonstrate that the ALJ erred by failing to find her
impairments met or equaled Listing 1.04(A) as “the ALJ ultimately relied on the reports of the
examining physicians to find that Plaintiff did not meet Listing 1.04(A)”). Accordingly, the Court
finds that Plaintiff’s allegation of error does not constitute a basis for remand.
B.
ALJ’s Treatment of Medical Opinions
1.
Plaintiff’s Treating Physician—Dr. Snyder
Plaintiff claims that the ALJ improperly weighed the medical opinions of record, first
asserting that the ALJ failed to provide good reasons for assigning little weight to the opinion of
his treating neurosurgeon, William J. Snyder, Jr., M.D. [Doc. 14 at 13]. Plaintiff alleges that the
ALJ improperly found that Dr. Snyder’s opinion was inconsistent with his treatment notes, as
“none of the instances mentioned by the ALJ were in existence at the time of Dr. Snyder’s
opinion.” [Id. at 14]. Further, Plaintiff claims that “even if using the entirety of the treatment
record dated after Dr. Snyder completed his opinion, there is evidence of medical worsening that
would support such a restrictive opinion.” [Id.].
Dr. Wilson began treating Plaintiff and performed a left L3-L4 far lateral foraminotomy
and left L4-L5 far lateral microlumbar discectomy without complications on August 27, 2014. [Tr.
362]. Dr. Wilson subsequently completed a spinal disorder questionnaire on September 29, 2014.
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[Tr. 524]. Dr. Wilson noted that Plaintiff’s prognosis was good, and that his radiculopathies and
muscle weakness improved after surgery. [Id.]. Dr. Wilson opined that Plaintiff could sit for five
to ten minutes continuously, stand for up to five minutes, and walk for up to ten minutes before it
would become necessary to change positions. [Tr. 525–26]. Additionally, Dr. Wilson found that
Plaintiff could sit and stand/walk for less than one-hour total in an eight-hour workday, and that
he would sometimes need to take unscheduled breaks. [Tr. 526]. Lastly, Dr. Wilson found that
Plaintiff had significant limitations in repetitive reaching, handling, or fingering, and that he could
frequently lift and carry up to five pounds, occasionally lift and carry up to twenty pounds, but that
he could never lift and carry over twenty pounds. [Tr. 527].
In the disability decision, the ALJ reviewed Dr. Snyder’s opinion, and first noted the
treatment relationship between Plaintiff and Dr. Snyder. [Tr. 114]. However, the ALJ found that
“his opinion appears to be too restrictive and inconsistent with the claimant’s treatment history
showing significant symptoms improvement post surgeries with therapy.” [Id.]. The ALJ detailed
that Plaintiff “consistently” reported that he was able to exercise and walk for several miles a day,
and that he was able to relieve his pain quickly by stretching. [Id.]. Lastly, the ALJ noted that
Plaintiff’s physical examinations did not reveal any significant limitations, and afforded little
weight to Dr. Snyder’s opinion. [Id.].
Under the Social Security Act and its implementing regulations, if a treating physician’s
opinion as to the nature and severity of an impairment is (1) well-supported by medically
acceptable clinical and laboratory diagnostic techniques and (2) is not inconsistent with the other
substantial evidence in the case record, it must be given “controlling weight.” 20 C.F.R. §§
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404.1527(c); 416.927(c)(2).2 When an opinion does not garner controlling weight, the appropriate
weight to be given to the opinion will be determined based upon the length of treatment, frequency
of examinations, nature and extent of the treatment relationship, amount of relevant evidence that
supports the opinion, the opinion’s consistency with the record as a whole, the specialization of
the source, and other factors which tend to support or contradict the opinion. Id.
The ALJ is not required to explain how he considered each of these factors, but must
nonetheless give “good reasons” for giving a treating physician’s opinion less than controlling
weight. Francis v. Comm’r of Soc. Sec., 414 F. App’x 802, 804 (6th Cir. 2011); see also Morr v.
Comm’r of Soc. Sec., 616 F. App’x 210, 211 (6th Cir. 2015) (holding “good reasons” must be
provided “that are sufficiently specific to make clear to any subsequent reviewers the weight given
to the treating physician’s opinion and the reasons for that weight”) (citing Wilson v. Comm’r of
Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004); 20 C.F.R. §§ 404.1527(c)(2) & 416.927(c)(2)).
First, Plaintiff maintains that Dr. Snyder’s opinion was the only opinion provided by an
examining or treating source in the record. [Doc. 14 at 13]. However, “[a]ny record opinion, even
that of a treating source, may be rejected by the ALJ when the source’s opinion is not well
supported by medical diagnostics or if it is inconsistent with the record.” Norris v. Comm’r of Soc.
Sec., 461 F. App’x 433, 439 (6th Cir. 2012) (citing 20 C.F.R. §§ 404.157, 416.927; Ealy v. Comm’r
of Soc. Sec., 594 F.3d 504, 514 (6th Cir. 2010)). Therefore, the ALJ was not required to accept
2
The treating physician rule has been abrogated as to claims filed on or after March 27,
2017. See 20 C.F.R. §§ 404.1520c; 416.920c (“We will not defer or give any specific evidentiary
weight, including controlling weight, to any medical opinion(s) . . . including those from your
medical sources.”); see also Revisions to Rules Regarding the Evaluation of Medical Evidence, 82
Fed. Reg. 5844-01, 2017 WL 168819, at *5852–57 (Jan. 18, 2017). The new regulations eliminate
the term “treating source,” as well as what is customarily known as the treating physician rule. As
Plaintiff’s application was filed before March 27, 2017, the treating physician rule applies. See
id. §§ 404.1527; 416.927.
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Dr. Snyder’s opinion solely because it was delivered by Plaintiff’s treating physician.
Plaintiff asserts, however, that the ALJ failed to provide good reasons for discrediting Dr.
Snyder’s opinion. Plaintiff alleges that although the ALJ found that Plaintiff reported that he was
able to exercise, “[t]here is no evidence of any of the treatment notes showing Plaintiff’s ability to
exercise prior to Dr. Snyder’s opinion.” [Doc. 14 at 14]. Here, the ALJ properly considered the
medical record as a whole, including finding that ALJ’s symptoms improved following his surgery
with physical therapy. See, e.g., Moruzzi v. Comm’r of Soc. Sec., 759 F. App’x 396, 400 (6th Cir.
2018) (noting the ALJ properly found that the claimant’s treating physician’s opinion was
inconsistent with reports that the claimant “had recently shown some improvement”); Hoover v.
Comm’r of Soc. Sec., No. 1:14-CV-90, 2015 WL 1011390, at *9 (N.D. Ohio Mar. 5, 2015) (“Here,
the ALJ properly explained that he gave little weight to Dr. Poolos opinion because it contained a
conclusory statement that Plaintiff could not work; the opinion was offered only a few months
following surgery; and Plaintiff subsequently continued to make significant improvements . . . .”).
Earlier in the disability decision, the ALJ reviewed Plaintiff’s testimony and cited to
treatment records which indicated that he was able to regularly exercise by walking on June 12,
2014 [Tr. 407], November 5, 2014 [Tr. 542], and November 24, 2015 [Tr. 566]. The ALJ also
found that surgery and conservative treatment, through injections and therapy, “have been
effective in significantly improving the claimant’s symptoms.” [Tr. 110]. Additionally, the ALJ
cited to physical examinations on November 7, 2013 and November 5, 2014 which “showed that
the claimant had normal movements without pain and normal gait, station, posture, strength and
tone without any instability, subluxation, or laxity.” [Tr. 111]; see [Tr. 411, 545]. Therefore, the
Court finds that the ALJ appropriately found that Plaintiff’s improvement following his surgery
with Dr. Snyder, continued exercise through walking, and improvement through physical therapy
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provided support for her conclusion that Dr. Snyder’s opinion was inconsistent with the medical
record.
Plaintiff points to his subsequent car accident in the year after his surgery with Dr. Snyder,
as well as the “objective evidence of worsening back problems” demonstrated in a May 27, 2015
MRI. [Doc. 14 at 15]. In the disability decision, the ALJ extensively reviewed the medical record
with respect to Plaintiff’s complaints of back, neck, and shoulder pain both before and after his
surgery with Dr. Snyder, as well as following his car accident in April of 2015. [Tr. 112–13]. The
ALJ detailed that treatment notes from Plaintiff’s orthopedic follow-up appointment with Dr.
Wilson noted that Plaintiff’s radicular symptoms improved following his surgery [Tr. 112]; see
[Tr. 512]. The ALJ also reviewed the May 27, 2015 MRI cited in Plaintiff’s brief, summarizing
that the MRI displayed “significant interval progressive degenerative change with slight increase
in retrolisthesis of L2 with respect to L3 and L3 with respect to L4,” as well as that “[e]nlarging
disc extrusions at L3-L4 and L4-L5 resulted in moderate to severe central canal and bilateral recess
stenosis at those levels.” [Tr. 112]; see [Tr. 585–86]. The ALJ contrasted the results of this MRI
with Plaintiff’s subsequent report on June 29, 2015 that he was feeling “back to normal” after
physical therapy, as well an April 11, 2015 x-ray showing unremarkable sacroiliac joints. [Tr.
112]; see [Tr. 570, 778]. Further, the ALJ detailed that although Plaintiff reported increased back
pain after his car accident, he denied any problems with his lower extremities and Dr. Snyder
“indicated that the results of the lumbar MRI showing [an] increase in the disc bulge with canal
stenosis would be expected to produce neurogenic claudication or radiculopathy, but that the
claimant did not have any lower extremity symptoms.” [Tr. 112–13].
The ALJ also reviewed Plaintiff’s back and neck pain from August 2015 to March 2016,
first noting that Plaintiff had increased range of motion of his left shoulder, that he continued to
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walk with exercise, but had to stop and stretch every ten minutes to relieve pain, and that while he
had decreased extension of his lumbar spine, there was not tenderness on examination and
Plaintiff’s straight leg raise test was negative. [Tr. 113]; see [Tr. 562, 602, 825]. Lastly, the ALJ
reviewed how “[p]hysical therapy records show that the claimant’s symptoms improved with
therapy” beginning with his initial physical evaluation on March 21, 2016. [Tr. 113].
Plaintiff also claims that the ALJ ignored several of his asserted limitations in the
credibility determination and analysis of Dr. Snyder’s opinion; as, for example, the ALJ stated that
Plaintiff could watch television, read, prepare simply meals, cook, do laundry, and take care of his
dog, while Plaintiff asserts that he testified that he did not cook beyond the preparation of simple
meals and did not handle any household chores. See [Doc. 14 at 18]. Further, Plaintiff asserts that
while the ALJ stated that Plaintiff spends time with others on the phone and in person, as well as
drives a car, he testified that his ability to socialize was compromised and he suffered increased
pain from being in a car. [Id. at 18–19]. Lastly, Plaintiff alleges that the ALJ used evidence of his
improvement after surgery as a reason to discount Plaintiff’s testimony and Dr. Synder’s opinion,
despite the fact that “there was objective medical evidence that showed that Plaintiff’s condition
was worsening after the date of the surgery.” [Id. at 19].
“The ALJ may not pick and choose portions of opinions that support his findings without
providing a clear analysis of why certain portions are rejected while other are accepted.” Perez v.
Comm’r of Soc. Sec., No. 1:17-cv-2311, 2018 WL 5620094, at *14 (N.D. Ohio Oct. 30, 2018).
However, the Court finds that the ALJ did not mischaracterize Plaintiff’s testimony or treatment
records; rather, she resolved inconsistent evidence in the medical record and properly detailed
Plaintiff’s reported daily activities and noted conservative treatment and improvement after
surgery and through physical therapy. Although Plaintiff would interpret the medical evidence
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differently, the Court finds that the ALJ’s determination was within her “zone of choice.” Blakley
v. Comm’r of Soc. Sec., 581 F.3d 399, 407 (6th Cir. 2009) (holding that “[t]he substantial-evidence
standard . . . presupposes that there is a zone of choice within which the decisionmakers can go
either way” and that as long as substantial evidence supports the ALJ’s finding, the fact that the
record contains evidence which could support an opposite conclusion is irrelevant) (quotations
omitted); see also Huizar v. Astrue, No. 3:07CV411-J, 2008 WL 4499995, at *3 (W.D. Ky. Sept.
29, 2008) (“While plaintiff understandably argues for a different interpretation of the evidence
from that chosen by the ALJ, the issue is not whether substantial evidence could support a contrary
finding, but simply whether substantial evidence supports the ALJ’s findings.”).
Ultimately, the Court’s review is limited to whether there is substantial evidence in the
record to support the ALJ’s decision to assign little weight to Dr. Snyder’s opinion, and the ALJ’s
findings “are not subject to reversal merely because there exists in the record substantial evidence
to support a different conclusion.” Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001) (citing
Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)). Here, the Court finds that substantial
evidence supports the ALJ’s assignment of little weight to the opinion of Plaintiff’s treating
physician, as the ALJ provided good reasons for finding that Dr. Snyder’s opinion was not
consistent with Plaintiff’s treatment history and medical records showing substantial improvement
after therapy. Additionally, the ALJ reviewed the objective evidence which Plaintiff claims was
consistent with Dr. Snyder’s opinion, and examined the consistency of Dr. Snyder’s opinion with
the entire medical record. Therefore, Plaintiff’s assignments of error do not constitute a basis for
remand.
2.
Nonexamining State Agency Consultant—Dr. Singh
Plaintiff challenges the ALJ’s assignment of great weight to the opinion of the
16
nonexamining state agency consultant, Dr. Singh, largely because Dr. Singh rendered his opinion
on April 30, 2015—“almost a year and a half prior to the hearing held on October 4, 2016.” [Doc.
14 at 15]. Therefore, Plaintiff asserts that Dr. Singh’s opinion should have been granted less
weight because he “did not have the entirety of the record before him at the time of determination.”
[Id.].
Dr. Singh reviewed the medical evidence of record at the reconsideration level of the
agency’s review on April 30, 2015. [Tr. 187]. Dr. Singh opined that Plaintiff could occasionally
lift and/or carry up to twenty pounds, frequently lift and/or carry up to ten pounds, that Plaintiff
could stand and/or walk for a total of four hours, and that he could sit for about six hours in an
eight-hour workday. [Tr. 185]. Further, Dr. Singh found that Plaintiff was limited in his lower
extremities in the ability to push or pull, including operating hand or foot controls. [Id.]. With
respect to Plaintiff’s postural limitations, Dr. Singh opined that he could frequently balance, as
well as that he could occasionally climb ramps or stairs, stoop, kneel, crouch, and crawl. [Tr. 185–
86]. When detailing Plaintiff’s exertional limitations, Dr. Singh also provided specific evidence
that supported her conclusions, including noting Plaintiff’s degenerative disc disease post
microdiscectomy, good range of motion and normal gait, and that he was able to hike and walk
several miles weekly. [Tr. 185]. Additionally, Dr. Singh noted that Plaintiff had increased left
knee pain after a fall, but an x-ray and examination was “intact other than effusion,” and the
resolution was expected to baseline with nonsteroidal anti-inflammatory medication and
conservative care. [Id.].
In reviewing the opinion, the ALJ noted that Dr. Singh provided specific reasons for her
opinion about Plaintiff’s RFC, “showing that the opinion was grounded in the evidence of record,
including careful consideration of the objective medical evidence and the claimant’s allegations
17
regarding symptoms and limitations.” [Tr. 115]. The ALJ afforded great weight to the opinion,
as it was “consistent with [Plaintiff’s] treatment history showing significant symptoms improving
with surgeries and therapy, imaging studies, physical examinations findings, and reported
extensive activities of daily living.” [Id.].
“State agency medical consultants . . . are ‘highly qualified physicians and psychologists
who are experts in the evaluation of the medical issues in disability claims under the [Social
Security] Act.’” Miller v. Comm’r of Soc. Sec., 811 F.3d 825, 834 (6th Cir. 2016) (quoting Soc.
Sec. Rul. 96–6p, 1996 WL 374180, at *2 (July 2, 1996)).
Therefore, “[i]n appropriate
circumstances, opinions from State agency medical and psychological consultants and other
program physicians and psychologists may be entitled to greater weight than the opinions of
treating or examining sources.” SSR 96–6p, 1996 WL 374180, at *3. “One such circumstance
. . . [is] when the ‘State agency medical . . . consultant’s opinion is based on review of a complete
case record.’” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 409 (6th Cir. 2009) (quoting SSR
96–6p, 1996 WL 374180, at *3).
“[B]efore an ALJ accords significant weight to the opinion of a non-examining source who
has not reviewed the entire record, the ALJ must give ‘some indication’ that he ‘at least considered’
that the source did not review the entire record. In other words, the record must give some
indication that the ALJ subjected such an opinion to scrutiny.” Kepke v. Comm’r of Soc. Sec., 636
F. App’x 625, 632 (6th Cir. 2016) (quoting Blakely, 581 F.3d at 409). The Sixth Circuit has found
that an ALJ satisfied Blakley by reviewing the medical evidence that was entered after the
nonexamining state agency consultant’s opinion, and explaining why the consultant’s opinion was
afforded greater weight despite the subsequent evidence. Spicer v. Comm’r of Soc. Sec., 651 F.
App’x 491, 493–94 (6th Cir. 2016) (citing Blakley, 581 F.3d at 409).
18
Here, the Court has already reviewed the ALJ’s discussion of the medical record following
Plaintiff’s far lateral foraminotomy and left L4-L5 far lateral microlumbar discectomy which was
performed on August 27, 2014. The ALJ detailed Plaintiff’s recovery following his surgery,
reports of back, neck, and shoulder pain, as well as physical therapy records and treatment notes.
Further, Plaintiff fails to point to any portion of the medical record after Dr. Singh’s opinion that
the ALJ failed to review or that was in conflict with Dr. Singh’s opinion.
Accordingly, although Dr. Singh did not review Plaintiff’s progress and recovery from
surgery, as well as increased reports of pain, the record reflects that the ALJ made an independent
determination based on all the medical evidence and that the ALJ’s analysis spanned the entire
record. See Gibbens v. Comm’r of Soc. Sec., 659 F. App’x 238, 247–48 (6th Cir. 2016) (affirming
ALJ’s assessment of great weight to the nonexamining state agency consultant’s opinion which
did not review the entire record as “the ALJ’s own analysis clearly spanned the entire record”).
Therefore, the ALJ “subjected [Dr. Singh’s] opinion to scrutiny” sufficient to find that she
considered that these nonexamining state agency consultants did not review the entire record. See
Kepke v. Comm’r of Soc. Sec., 636 F. App’x 625, 632 (6th Cir. 2016).
C.
ALJ’s Duty to Develop the Record
Plaintiff also claims that the ALJ improperly failed to develop the record after she granted
little weight to his treating physician’s opinion, and that the nonexamining state agency
consultant’s opinion was outdated. [Doc. 14 at 16]. Plaintiff asserts that “[f]ailure to do so,
necessitated the ALJ to play doctor and determine the medical importance of over a year’s worth
of medical records in determining Plaintiff’s RFC.” [Id.]. The Commissioner responds that the
ALJ is not required to base her RFC on a medical opinion and appropriately considered the medical
and non-medical evidence in the record in the RFC determination. [Doc. 23 at 17].
19
While the claimant bears the ultimate burden of establishing that he is entitled to disability
benefits, the ALJ has an affirmative duty to develop the factual record upon which his decision
rests, regardless whether the claimant is represented by counsel. See, e.g., Wright–Hines v.
Comm’r of Soc. Sec., 597 F.3d 392, 397 (6th Cir. 2010) (“This court has also long recognized
an ALJ’s obligation to fully develop the record.”) (citation omitted); Lashley v. Sec’y of Health
and Human Servs., 708 F.2d 1048, 1051 (6th Cir. 1983) (stating the ALJ has “the
ultimate responsibility for ensuring that every claimant receives a full and fair hearing”).
Plaintiff relies upon Deskin v. Commissioner of Social Security, where the Northern
District of Ohio stated:
As a general rule, where the transcript contains only diagnostic evidence and no
opinion from a medical source about functional limitations (or only an outdated
nonexamining agency opinion), to fulfill the responsibility to develop a complete
record, the ALJ must recontact the treating source, order a consultative
examination, or have a medical expert testify at the hearing. This responsibility can
be satisfied without such opinion only in a limited number of cases where the
medical evidence shows relatively little physical impairment and an ALJ can render
a commonsense judgment about functional capacity.
605 F. Supp. 2d 908, 912 (N.D. Ohio 2008) (internal citation and quotations omitted). “[H]owever,
. . . the Deskin case has been criticized as being overly broad by other courts, including the
Northern District of Ohio.” Johnson v. Saul, No. 1:18-0041, 2019 WL 3647058, at *4 (M.D. Tenn.
July 19, 2019) (internal citations omitted), report and recommendation adopted by, 2019 WL
3574250 (M.D. Tenn. Aug. 6, 2019). Therefore, Deskin has been interpreted to detail that “[s]uch
general rule ‘applies only when an ALJ makes a finding of work-related limitations based on no
medical source opinion or an outdated source opinion that does not include consideration of a
critical body of objective medical evidence.’” Snell v. Comm’r of Soc. Sec., No. 3:18-CV-173,
2019 WL 3406435, at *3 (S.D. Ohio July 29, 2019) (quoting Kizys v. Comm’r of Soc. Sec., 3:1020
CV-25, 2011 WL 5024866, at *2 (N.D. Ohio Oct. 21, 2011)).
The first circumstance described in Deskin does not apply in the present case, as the ALJ
considered Dr. Snyder and Dr. Singh’s opinions. Therefore, Plaintiff argues that Dr. Singh’s April
30, 2015 opinion was outdated at the time of the October 4, 2016 hearing. However, the Court
does not find that the ALJ’s RFC determination was based on an “outdated” medical source
opinion “that [did] not include consideration of a critical body of objective medical evidence.”
Kizys, 2011 WL 5024866, at *2.
The ALJ did not interpret “raw medical data,” such as MRI results, and translate that date
into functional limitations. See Deskin, 605 F. Supp. 2d at 912. Rather, as the Court has already
detailed, the ALJ reasonably relied upon Dr. Singh’s opinion detailing Plaintiff’s physical
condition after his surgery, as well as physical therapy records showing Plaintiff’s symptoms
improved with therapy and his treating physicians recommended conservative treatment. See
Colaner v. Comm’r of Soc. Sec., No. 12-CV-00716, 2013 WL 5487037, at *4 (S.D. Ohio Sept. 30,
2013) (“Rather, an ALJ has sufficiently developed the record, and may avoid a Deskin remand,
when the ALJ acts based on some medical expert opinion evidence.”); Willaman v. Comm’r of
Soc. Sec., 5:12–CV–180, 2013 WL 877126, at *6 (N.D. Ohio Mar. 7, 2013) (holding that
unlike Deskin, the ALJ “did not interpret raw medical data. Instead, the ALJ’s decision was based
on his review of all the medical opinion evidence, particularly the opinions of the two state agency
physicians who reviewed Willaman’s records and opined regarding his functional limitations”).
The ALJ summarized the medical record to note that Plaintiff reported improvement through
physical therapy after his surgery, that he was doing well with his back pain until his motor vehicle
accident, and Plaintiff’s neurologist noted that his symptoms had improved and advised Plaintiff
to continue with conservative treatment, as well as reviewed Plaintiff’s reported daily activities to
21
his primary care physician. [Tr. 112–14]; see, e.g., Raber v. Comm’r of Soc. Sec., 4:12–CV–97,
2013 WL 1284312, at *17 (N.D. Ohio Mar. 27, 2013) (“Though Plaintiff’s medical record included
some records post-dating Dr. Stock’s assessment that he therefore could not have considered, the
Court finds these did not so change the medical evidence regarding Plaintiff’s condition as to
render Dr. Stock’s opinion outdated. Specifically, records from 2010 showed Plaintiff continued
to undergo radiofrequency treatment and knee injections and continued to report improvement.”).
Ultimately, the ALJ is responsible for weighing medical opinions, as well as resolving
conflicts in the medical evidence of record. Richardson v. Perales, 402 U.S. 389, 399 (1971); see
also 20 C.F.R. § 416.946(c) (stating the final responsibility for assessing a claimant’s RFC rests
with the ALJ). The regulations provide that the agency “may ask [the claimant] to have one or
more physical or mental examinations or tests” if the claimant’s “medical sources cannot or will
not give us sufficient medical evidence” to determine whether the claimant is disabled. 20 C.F.R.
§ 416.917. Additionally, “[a]n ALJ has discretion to determine whether further evidence, such as
additional testing or expert testimony, is necessary.” Foster v. Halter, 279 F.3d 348, 355 (6th Cir.
2001); see Poe v. Comm’r of Soc. Sec., 342 F. App’x 149, 157 n.3 (6th Cir. 2009) (“[A]n ALJ is
required to re-contact a treating physician only when the information received is inadequate to
reach a determination on claimant’s disability status[.]”).
Here, the Court finds that the ALJ did not fail to develop the record in this case, and that
the evidence that Dr. Singh did not consider was not enough to constitute a “critical body of
objective medical evidence.” Kizys v. Comm’r of Soc. Sec., 3:10-CV-25, 2011 WL 5024866, at
*2 (N.D. Ohio Oct. 21, 2011); see, e.g., Raber, 2013 WL 1284312, at *17 (“[H]ere, the evidence
related to Plaintiff’s condition after the consultative review covered roughly eleven months and
showed she was reporting improvement or relief through treatment and did not want surgery.”).
22
Accordingly, Plaintiff’s allegation of error does not constitute a basis for remand. See, e.g., Adams
v. Colvin, No. 1:14-CV-2097, 2015 WL 4661512, at *16 (N.D. Ohio Aug. 5, 2015) (“While Adams
correctly notes that approximately ten months elapsed between Dr. Torello’s opinion and the
ALJ’s decision, she has not demonstrated that the additional records regarding Adams’ colostomy
closure and subsequent treatment for wound infection so changed the medical evidence regarding
her physical impairments that it rendered Dr. Torello’s opinion outdated.”).
V.
CONCLUSION
Based on the foregoing, Plaintiff’s Motion for Summary Judgment [Doc. 13] will be
DENIED, and the Commissioner’s Motion for Summary Judgment [Doc. 22] will be GRANTED.
The decision of the Commissioner will be AFFIRMED. The Clerk of Court will be DIRECTED
to close this case.
ORDER ACCORDINGLY.
United States Magistrate Judge
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