Vaughn v. Social Security Administration

Filing 16

REPORT AND RECOMMENDATION: The undersigned RECOMMENDS that the Motion for Judgment (Doc. No. 13) be DENIED, that the decision of the Commissioner be AFFIRMED, that this action be DISMISSED, and that final judgment be entered pursuant to Sentence 4 of 42 U.S.C. § 405(g). Signed by Magistrate Judge Norah McCann King on 7/5/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

ELIZABETH VAUGHN,
Plaintiff,
Case No. 3:14-cv-02341
JUDGE ALETA A. TRAUGER
Magistrate Judge King

vs.
SOCIAL SECURITY ADMINISTRATION,
Defendant.

To:

The Honorable Aleta A. Trauger, District Judge
REPORT AND RECOMMENDATION
This is an action instituted under the provisions of 42 U.S.C. §

405(g) for review of a final decision of the Commissioner of Social
Security denying plaintiff’s application for a period of disability
and disability insurance benefits. This matter is before the Court on
Plaintiff’s Motion for Judgment on the Administrative Record (Doc. No.
13)(“Motion for Judgment”), Defendant’s Response to Plaintiff’s Motion
for Judgment on the Administrative Record (Doc. No. 14)(“Response”),
Plaintiff’s Reply Brief to “Defendant’s Response to Plaintiff’s Motion
for Judgment on the Administrative Record” (Doc. No. 15)(“Reply”), and
the administrative record (Doc. No. 12). 1 For the following reasons,
the undersigned RECOMMENDS that the Motion for Judgment be DENIED,
that the decision of the Commissioner be AFFIRMED, that this action be
DISMISSED, and that final judgment be entered pursuant to Sentence 4
of 42 U.S.C. § 405(g).
1

Citations to pages in the Administrative Record will appear as “Tr. __.”

1

Introduction
Plaintiff

filed

her

application

for

benefits

in

March

2012,

alleging that she has been disabled since March 16, 2012, by reason of
both exertional and non-exertional impairments. The application was
denied initially and on reconsideration and Plaintiff requested a de
novo hearing before an administrative law judge (“ALJ”). On May 16,
2013, Plaintiff, represented by counsel, appeared and testified at
that hearing, as did Chelsea Brown, who testified as a vocational
expert.
In a decision dated June 24, 2013, the ALJ held that Plaintiff
was not disabled within the meaning of the Social Security Act from
her

alleged

date

of

onset

through

the

date

of

the

administrative

decision. That decision became the final decision of the Commissioner
of Social Security when the Appeals Council declined review on October
7, 2014.
This

action

was

thereafter

timely

filed.

This

Court

has

jurisdiction over the matter. 42 U.S.C. § 405(g).
The Findings and Conclusions of the ALJ
In his decision, the ALJ made the following findings of fact and
conclusions of law:

1.
The claimant meets the insured status requirements
of the Social Security Act through December 31
,2014.
2.
The claimant has not engaged in substantial
gainful activity since March 1
6, 2012, the alleged
onset date (20 CFR 404.1571 et seq ).
.
3.
The claimant has the following severe impairments:
back disorder; cutaneous lupus erythematosus (CLE) with
vitamin D deficiency; and a mood disorder (20 CFR
404.1520(c)).
4.
The claimant does not have an impairment or
combination of impairments that meets or medically

2

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. The claimant has the residual functional capacity
to perform light work as defined in 20 CFR 404.1
567(b)
except the claimant is occasionally able to climb ramps
and
stairs, but never
climb ladders, ropes, or
scaffolds. She is occasionally able to balance, stoop,
kneel,
crouch,
and
crawl.
She
should
avoid
concentrated exposure to temperature extremes of heat
and cold, wetness, humidity, vibrations, and work
hazards such as machinery and heights. With regard to
the claimant's mental impairments, the claimant is able
to understand, remember, and complete simple and
detailed instructions and tasks. She is able to
maintain attention and concentration for periods of at
least two hours and complete a normal workday and
workweek at a consistent pace. She is able to relate
appropriately to peers and supervisors. The claimant
is able to adapt to routine workplace changes.
6. The claimant is unable to perform any past relevant work
(20 CFR 404.1565).
7. The claimant was born on August 15, 1971 and was 40
years old, which is defined as a younger individual age
18-49, on the alleged disability onset date (20 CFR
404.1563).
8. The claimant has at least a high school education
(GED) and is able to communicate in English (20 CFR
404.1564).
9. Transferability of job skills is not material to the
determination of disability because using the MedicalVocational Rules as a framework supports a finding that
the claimant is "not disabled," whether or not the
claimant has transferable job skills (See SSR 82-41
and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant's age,
experience, and residual functional
are jobs that exist in significant
national economy that the claimant can
404.1569 and 404.1569(a)).

education, work
capacity, there
numbers in the
perform (20 CFR

11. The claimant has not been under a disability, as
defined in the Social Security Act, from March 16, 201
2,
through the date of this decision (20 CFR 404.1520(g)).
(Tr. 12, 13, 19-21).

3

Plaintiff’s Claims
Plaintiff asserts the following claims:
1. The ALJ erred by failing to properly consider all of the
Plaintiff’s impairments and by failing to provide
sufficient reasons for not finding these impairments to
be severe impairments.
2. The ALJ erred by failing to include a function-byfunction assessment in the residual functional capacity
(“RFC”) assessment as required by SSR 96-8p.

3. The ALJ erred by failing to properly consider and weigh
the evidence and treating source opinion from Phillip
Beaulieu, M.D.
Motion for Judgment (PageID# 505). Plaintiff does not challenge the
ALJ’s credibility determination, nor does she challenge the vocational
evidence.
Standard of Review
Pursuant

to

42

U.S.C.

§405(g),

judicial

review

of

the

Commissioner’s decision is limited to determining whether the findings
of the ALJ are supported by substantial evidence and employed the
proper legal standards.

Richardson v. Perales, 402 U.S. 389 (1971);

Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011)(internal quotation
marks and citation omitted).

Substantial evidence is such relevant

evidence as a reasonable mind might accept as adequate to support a
conclusion.

Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 405 (6th

Cir. 2009); Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 475 (6th Cir.
2003). This Court does not try the case de novo, nor does it resolve
conflicts

in

the

evidence

or

questions

of

credibility.

Bass

v.

McMahon, 499 F.3d 506, 509 (6th Cir. 2007).
In determining the existence of substantial evidence, this Court
must examine the administrative record as a whole.

Kirk v. Sec’y of

Health and Human Services, 667 F.2d 524, 536 (6th Cir. 1982).

4

If the

Commissioner's decision is supported by substantial evidence, it must
be affirmed even if this Court would decide the matter differently,
Tyra v. Sec’y of Health & Human Servs., 896 F.2d 1024, 1028 (6th Cir.
1990)(citing Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir.
1983)), and even if substantial evidence also supports the opposite
conclusion.

Longworth v. Commissioner Social Security Administration,

402 F.3d 591, 595 (6th Cir. 2005)(citing Warner v. Comm’r of Soc. Sec.,
375 F.3d 387, 390 (6th Cir. 2004)).
Summary of Relevant Evidence
The ALJ accurately summarized the relevant medical evidence as
follows:
In terms of the claimant's alleged back disorder, the
record shows the claimant underwent an L4 through S1 fusion
in December of 2008 performed by [Jacob P. Schwarz, M.D.,
a neurosurgeon]. During a follow-up with Dr. Schwarz in
January of 2009, the claimant reported numbness in the lower
extremities, but reported it was "more of an annoyance and
did not affect performing activities of daily living".
Furthermore, the claimant reported being so active that she
did not believe she needed physical therapy, as recommended
by Dr. Schwarz (Ex 5F). In September of 2012, the claimant
presented again to Dr. Schwarz reporting she had done well
for two and one half years following the procedure before
her pain slowly returned. The claimant reported pain,
numbness, tingling, and loss of strength in her bilateral
lower extremities with episodes of falling and with pain in
her neck. During the interim period following the surgical
procedure and the alleged return of symptoms, the claimant
performed work activity as a pizza delivery employee on a
fulltime and later part-time basis before quitting in March
of 2012. During the September 2012 consultation ,
Dr.
Schwarz noted the claimant had not tried physical therapy to
alleviate her symptoms, but had undergone pain management
and two epidural steroidal injections (ESI) without benefit
(Ex 24F).
Upon examination, Dr. Schwarz noted the claimant appeared
pleasant, well nourished , well developed, and oriented in
all areas. He further noted the claimant's extremities were
absent clubbing, cyanosis, or edema, and that the claimant's
gait and station were normal. The claimant's upper and
lower
extremity
examinations
lacked
any
significant

5

findings. Furthermore,
the claimant's range of motion
testing was noted as being in the full range and without
pain, and the claimant's strength level was found normal
throughout. With regard to the claimant's back examination,
Dr. Schwarz noted there was no tenderness to palpation and
a no1
mal range of motion throughout
the claimant displayed
with normal joint stability (Ex 24F).
Dr. Schwarz reviewed an MRI, dated July of 2012, and noted a
small disc bulge at L3-L4 without stenosis at any level. He
noted mild dextroscoliosis and ordered a CT myelogram and
the lumbar spine. The claimant underwent the CT procedur e
and returned to Dr. Schwarz in September of 2012 as
directed. Dr. Schwarz performed another examination with the
same results. He indicated the CT showed good hardware
placement with a solid fusion in place. He further noted
there was no adjacent disc herniation or stenosis at any
other level. Based upon his clinical and diagnostic
findings, Dr. Schwarz noted there were no findings to
explain why the claimant was able to do so well for two and
one half years and then gradually decline. He further noted
the claimant was not eager for surgery and was relieved to
learn there were no acute findings. Dr. Schwarz indicated
the claimant would continue with pain management and return
to him as needed. The record lacks additional evidence of
return presentations with Dr. Schwarz (Ex 24F).
As
reflected in Dr. Schwarz’s treating records, the claimant
exhibited a normal gait and station. These records make no
mention that the claimant was ambulating with a walker. The
record further lacks a recommendation for surgery as noted
in the claimant's testimony.
Regarding sleep, the treating record shows complaints of
sleep loss (Ex 24F, p4).
However, inconsistent with the
claimant's testimony, the record shows she was prescribed
Lunesta 3mg taken immediately prior to bedtime (Ex 24F).
The record shows the claimant presented for treatment with
Dr. Beaulieu for pain management as noted in testimony;
however, the record does not support her allegations of
worsening or lack of benefit from his pain treatment.
The
claimant presented to Dr. Beaulieu in January of 2012
reporting a maximum pain level of ten, on a scale of one to
ten with ten being the most severe. The claimant reported
she was taking over-the-counter (OTC) Tylenol with no
relief; however, she was able to continue performing parttime work activity delivering pizzas while experiencing such
high pain levels. The record further shows the claimant
underwent a urinary drug screening during her initial
consultation with Dr. Beaulieu returning a positive reading
for THC (marijuana) (Ex 12F).
Treating records show the
claimant continued reporting for treatment as directed and

6

that she received counseling for THC again in December of
2012, with no future aberrancies tolerated (Ex 26F, p2).
During her presentations with Dr. Beaulieu, the claimant
generally
reported
worsening
symptoms
with
reduced
functional abilities; however, she also reported decreased
pain levels, at a seven of ten, while taking prescribed
medications (Ex 12F, 17F, and 26F).
With regard to medications, the record shows MS Contin 30mg
taken once every twelve hours; Soma 350mg taken twice daily
as needed; and Percocet 10-325mg taken three times daily as
needed without reported side effects (Ex 26F). The claimant
testified she was not supposed to drive while taking her
medications; however, she further testified that she drove
to her doctor appointments, and to the grocery store every
three months or so.
Dr. Beaulieu's examinations were generally noted with
significant deficits in range of motion (ROM) testing,
positive straight leg raising (SLR), decreased strength
levels, and the occasional use of a walker for ambulation
(Ex 12F, 17F and 24F). With regard to the walker, the
undersigned notes the record shows the claimant reported
using the walker; however, the record lacks observations
from medical providers of the claimant using a walker.
In
February of 2013, the claimant reported reduced pain levels
with medication and that she was able to perform ADL’s
[activities of daily living]
without assistance the
majority of the time and that she was able to do what she
needed to do. The claimant further reported feeling that
her pain was stable (Ex 24F, pl).
With regard to Dr. Schwarz and Dr. Beaulieu 's examination,
the undersigned finds the disparity between the pain
management physician's examinations and the neurosurgeon' s,
Dr. Schwarz, examinations significant and accepts the
neurosurgeon's
examination findings (Ex 24F). Further,
although the claimant testified she ceased work activity in
March of 2012, Dr. Beaulieu's records showed continued work
activity through June of 2012 (Ex 17F, p4).
With regard to pain, the claimant generally described her
pain as a dull, sharp, aching, tingling, burning, numbing,
shooting, and cramping pain that was worsened with lying,
sitting, standing, walking, bending, and lifting. However,
the claimant testified she spent the majority of her day
lying on a couch or sitting with her feet elevated on an
ottoman to relieve her pain. In January of 2012, she
reported persistent functional limitations regarding her
activities of daily living (ADL's) to include doing dishes,
laundry, mopping, sweeping, sitting for more than one hour,
standing more than twenty minutes, lifting more than ten

7

pounds, and walking for more than one
block without
resting. However, despite her reported limitations, Dr.
Beaulieu noted the claimant remained able to perform parttime work. He further noted the claimant reported a trial
course of physical therapy; however, the record does not
support the claimant's report based upon Dr. Schwarz’s
records showing the claimant had not attempted any physical
therapy. The claimant fu1ther reported using a TENS unit to
alleviate
her
pain;
however, the
treatment
was
not
effective. The claimant reported her pain level was reduced
with medications and rest (Ex 12F, 17F, 24F and 26F).
In terms
of the
claimant's
alleged
cutaneous
lupus
erythematosus (CLE) with vitamin D deficiency, the record
shows she presented to the Murfreesboro Dermatology Clinic
in December of 2011 reporting pain and burning "off and on
from head to toe", and a sun intolerance for the previous
two years. The record further contains a positive antinuclear antibody reading in December of 2011. Further
testing shows the claimant was negative for systemic lupus
as subsequent skin sampling showed more consistent with
polymorphic light eruption (PMLE) (Ex 14F and 21F).
In terms of the claimant's alleged mental impairments, the
record lacks treatment on an inpatient or outpatient basis
from a mental healthcare provider. However, the claimant
complained of mood disorders and anxiety to Dr. Beaulieu
while undergoing pain management treatment (Ex 12F, 17F, and
26F). However, Dr. Beaulieu's examination records generally
show the claimant
was alert and oriented;
displayed
appropriate recall of information; normal speech patterns;
normal
mood and affect; and appropriate insight
and
judgment. The undersigned notes the record lacks medications
or
other treatment
commensurate
with
the
claimant's
allegations and testimony.
***
Dr. Phillip Beaulieu, M.D., the claimant's pain management
physician offered an opinion, dated December 3, 2012, and a
narrative
supporting
the
claimant's
allegation
of
disability, dated April 11, 2013 (Ex 25F and 27F). Dr.
Beaulieu opined the claimant could lift and carry up to ten
pounds occasionally but less than ten pounds frequently. He
further opined the claimant could stand and walk for about
two hours in an eight-hour workday; sit for about six hours
in an eight­ hour workday; and alternate between sitting,
standing, and
walking
every
five to thirty
minutes
accordingly. He further opined the claimant would require
the need to lie down at least five to six times in an eighthour workday; and never climb stairs or ladders; and never
twist, stoop, or crouch. Lastly, Dr. Beaulieu opined the
claimant would be absent from work more than four days per

8

month due to her impairments or due to treatment for her
impairments. In April of 2013, Dr. Beaulieu submitted a
narrative opinion generally consistent with his opinion of
December 2012.
Tr. 15-18.
Discussion
1. Severe Impairments
As

noted,

the

ALJ

found

that

Plaintiff’s

severe

impairments

consist of a back disorder, cutaneous lupus erythematosus with vitamin
D deficiency, and a mood disorder. Tr. 12. Plaintiff complains that
the ALJ erred by failing to include as additional severe impairments
chronic

pain

postlaminectomy

syndrome,
syndrome,

insomnia,
and

lumbar

polyarthralgias,
radiculopathy.

lumbar

Motion

for

Judgment (PageID# 510).
The Commissioner’s regulations define a "severe impairment" as
one "which significantly limits [the claimant's] physical or mental
ability

to

do

basic

work

activities...."

20

C.F.R.

§404.1520(c).

Basic work activities include physical functions "such as walking,
standing, sitting, lifting, pushing, pulling, reaching, carrying or
handling."

20 C.F.R. §404.1521(b)(1).

The United States Court of

Appeals for the Sixth Circuit has held that an impairment is not
severe only if it is a "slight abnormality which has such a minimal
effect on the individual that it would not be expected to interfere
with the individual's ability to work, irrespective of age, education,
or

work

experience."

Farris

v.

Secretary

of

Health

and

Human

Services, 773 F.2d 85, 89-90 (6th Cir. 1985).
The finding of a severe impairment at step two of the sequential
analysis

is,

however,

only

a

threshold

9

determination;

where

the

administrative law judge has found at least one severe impairment, the
sequential

analysis

limitations

and

must

continue

restrictions

and

imposed

by

“the
all

ALJ

of

impairments, even those that are not severe.”

must

[the]

consider

individual’s

Fisk v. Astrue, 253

F.App’x 580, 583 (6th Cir. 2007)(internal quotation marks omitted);
see also 20 C.F.R. § 404.1523.

Thus, so long as the ALJ considers all

of the claimant’s impairments, the “failure to find additional severe
impairments . . . does not constitute reversible error.”

Id. at 583

(brackets and internal quotation marks omitted). See also Maziarz v.
Sec’y of Health & Human Servs., 837 F.2d 240, 244 (6th Cir. 1987).
Here, having found that Plaintiff suffers severe impairments,
the ALJ continued the sequential analysis and considered Plaintiff’s
impairments in determining her RFC. The Commissioner argues that the
additional
symptoms

impairments
of

the

proposed

impairments

by

found

Plaintiff
by

are

the

ALJ

either
or

merely

alternative

descriptions of those impairments. Response (PageID# 527). This Court
agrees. For example, although Plaintiff complains that the ALJ failed
to include insomnia as a separate severe impairment, the ALJ fully
considered

this

complaint

and

its

treatment

when

he

evaluated

Plaintiff’s subjective complaints. See, e.g., Tr. 14. And although
Plaintiff

complains

that

the

ALJ

failed

to

include

chronic

pain

syndrome, polyarthralgias, lumbar postlaminectomy syndrome, and lumbar
radiculopathy in his articulation of Plaintiff’s severe impairments,
the ALJ fully considered Plaintiff’s complaints of pain in connection
with Plaintiff’s back disorder.
Significantly, although Plaintiff complains that the additional

10

severe impairments proposed by her “cause additional limitations which
could prevent the Plaintiff from performing at the RFC assigned in the
[ALJ’s] decision,” Motion for Judgment (PageID# 511), Plaintiff does
not identify what additional limitations, beyond those found by the
ALJ in his assessment of Plaintiff’s RFC, these proposed additional
impairments
failure

to

in

fact

find

cause.

additional

Under
severe

these

circumstances,

impairments

at

step

the

ALJ’s

two of

the

sequential evaluation is “legally irrelevant.” See McGlothin v. Comm’r
of Soc. Sec., 299 F. App’x 516, 522 (6th Cir. 2008).
2. RFC Assessment
The ALJ found that, despite her severe impairments, Plaintiff
retains the RFC for a reduced range of light work. Tr. 13. Plaintiff
complains that the ALJ erred in making this finding because he failed
to include a function-by-function assessment as required by SSR 96-8p.
Motion for Judgment (PageID# 513-15).
The
reserved

RFC
to

determination
the

is

Commissioner.

an

administrative

20

C.F.R.

§§

finding

of

fact

404.1527(d)(2),

(3);

Edwards v. Comm'r of Soc. Sec., 97 F. App'x 567, 569 (6th Cir. 2004).
It represents the most, not the least, that a claimant can do despite
her impairments.

20 C.F.R. § 404.1545(a); Griffeth v. Comm’r of Soc.

Sec., 217 F. App'x 425, 429 (6th Cir. 2007).

In assessing a claimant's

RFC, an ALJ must consider all relevant evidence, including medical
source opinions, relating to the severity of a claimant's impairments.
See 20 C.F.R. §§ 404.1527(d), 404.1545(a).

M o r e o v e r ,

SSR 96-

8p requires that the RFC determination consider certain exertional
capacities

or

functions:

“[s]itting,

11

standing,

walking,

lifting,

carrying,

pushing,

However,

and

although

pulling.”
“SSR

96-8p

Id.,

1996

requires

a

WL

374184,

at

*5.

‘function-by-function

evaluation’ to determine a claimant’s RFC, case law does not require
the

ALJ

to

discuss

those

capacities

for

which

no

limitation

is

alleged.” Delgado v. Commissioner of Social Sec., 30 Fed. Appx. 542,
547 (6th Cir. 2002). “‘[T]he ALJ need only articulate how the evidence
in the record supports the RFC determination, discuss the claimant’s
ability to perform sustained work-related activities, and explain the
resolution of any inconsistencies in the record.’” Id.at 548 (citing
Bencivengo v. Comm’r of Soc. Sec., 251 F.3d 153 (table), No. 00-1995
(3d Cir. Dec. 19, 2000)).
In

the

case

presently

before

the

Court,

the

ALJ

provided

a

lengthy assessment of Plaintiff’s RFC, including an express reference
to

“light

work

as

defined

in

20

404.1567(b),” 2

CFR

postural

limitations, non-exertional environmental limitations, and limitations
imposed by her mental impairments. Tr. 13. In making this assessment,
the

ALJ

also

provided

a

detailed

and

comprehensive

review

and

evaluation of the evidence of record. See Tr. 14-19. Plaintiff does
not specify in what respect the ALJ’s RFC determination was deficient
and this Court concludes that it was not.
3.

Evaluation of the Medical Evidence
Plaintiff complains that the ALJ failed to properly evaluate the

opinion of Phillip Beaulieu, M.D., a pain specialist who has treated
Plaintiff

since

January

2012.

See

2

Tr.

462.

In

December

2012,

Dr.

“Light work” is defined in the Commissioner’s regulations as “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).

12

Beaulieu

assessed

Plaintiff’s

ability

to

engage

in

work-related

activities. Tr. 429-30. According to Dr. Baulieu, Plaintiff could only
occasionally lift and carry 10 pounds, could stand and walk about two
(2) hours per 8-hour day, with “frequent breaks,” could sit for a
total of about six (6) hours, but for only 30 minutes at a time;
Plaintiff would need to lie down at unpredictable intervals five (5)
or six (6) times per 8-hour work day. Tr. 429. Dr. Beaulieu attributed
these limitations to, inter alia, 3 Plaintiff’s limited range of motion.
Plaintiff could never twist, stoop, crouch, or climb stairs or ladders
due to her “use of [a] walker for ambulation 40% of time to prevent
falls.” Tr. 430. Plaintiff’s impairments would cause her to be absent
from work more than four (4) days per month. Id. In April 2013, Dr.
Beaulieu reported that, despite medical management, including a trial
of epidural steroid injunctions, Plaintiff “continues to have very
high

pain

levels

and

limited

functional

abilities.”

Tr.

462.

Beaulieu commented:
Given the persistent high levels of pain despite medication
treatment, her persistent limited range of motion of the
lumbar spine, and persistent motor weakness in her legs
with dependence on a walker for mobility despite previous
anterior/posterior surgical fusion, Mrs. Vaughn has been
unable to continue working. This is a permanent condition
that has shown no signs of improving since her initial
visit in my office 1/2012.
Id.
Dr. Beaulieu is not Plaintiff’s only treating physician. It
was

Jacob

P.

anterior/posterior

3

Schwarz,

M.D.,

instrumented

who

fusion

performed
in

Portions of Dr. Beaulieu’s notes are illegible.

13

2008.

Plaintiff’s
In

an

office

Dr.

visit in October 2012 for complaints of pain, Dr. Schwarz noted
no clubbing, cyanosis, or edema in the extremities, a normal gait
and station, intact sensation and a full range of motion without
pain in the lower extremities. Tr. 423. Plaintiff’s active range
of motion of the back was within normal limits, with normal joint
stability and alignment. Tr. 424. Images and myelogram of the
lumbar spine showed “good placement of anterior instrumentation,
posterior trans-facet instrumentation, and solid fusion L4-S1.
There is no adjacent disc herniation or stenosis at any other
level.” Id.

Dr. Schwarz summarized:

Mrs. Vaughn suffers from one year of low back pain and
bilateral lower extremity pain[,] occasional numbness and
weakness. She is otherwise neurologically intact. She does
have mild dextroscoliosis but no other obvious abnormaility
on her recent MRI scan. There is metal artifact that is
considerable in the region of her previous surgery. In
order to better assess that region for any stenosis or
other explanation for her symptoms[,] I ordered a CT
myelogram of the lumbar spine. That shows her post
operative changes but no findings that would explain
why she did well for 2.5 years and then gradually
declined. She is not eager for surgery and is relieved
that no acute findings are present. She will continue
her pain management and return to see me as needed in
the future.
Id.
The ALJ considered the reports and opinions of both treating
physicians, as well as those of the state agency reviewing physicians,
see

Tr.

19,

but

assigned

“little

weight”

to

the

opinion

of

Beaulieu:
As an acceptable medical source, per 20 CPR 404.1502, and a
treating physician, Dr. Beaulieu' s opinion is allowed
consideration
for controlling weight
per
SSR 96-2p.
However, the undersigned finds his opinion is not entirely
consistent with the evidence and is not credited with
controlling
weight.
The
undersigned
finds
the

14

Dr.

examinations performed by the claimant's neurosurgeon, Dr.
Schwarz, more accurate and
compelling regarding
the
claimant's clinical and objective signs. However, the
undersigned finds the claimant's signs and symptoms as
in Dr. Beaulieu's treating records somewhat
reported
credible, to include her medication regimen. As such, the
undersigned
finds
the
record
supports
the
finding
indicating the claimant able to perform work at the light
exertional level as noted in the determined residual
functional capacity. Accordingly, Dr. Beaulieu's opinion is
credited with little weight.
Tr. 19.
An administrative law judge is required to evaluate every medical
opinion,

regardless

of

its

source.

20

C.F.R.

§

404.1527(c).

The

Commissioner accords the greatest weight to the opinions of treating
sources; if an administrative law judge does not give “controlling
weight” to the medical opinion of a treating source, he must provide
“good reasons” for discounting that opinion.

See Rogers v. Comm’r of

Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007) (quoting Soc. Sec. Rul.
96-2p, 1996 WL 374188, at *5); Ealy v. Comm’r of Soc. Sec., 594 F.3d
504, 514 (6th Cir. 2010).
As noted, the ALJ accorded “little weight” to the opinions of Dr.
Beaulieu. Tr. 19. Instead, the ALJ accorded “great weight” to the
opinions of the state agency reviewing physicians:
The residual functional capacity conclusion reached by
physicians
and
psychologists
employed
by
the
State
Disability Determination Services (DDS), also supports a
finding of 'not disabled.' DDS opinions are rendered from
non-examining and non-treating sources; however, SSR 96-6p
requires their opinions be treated as "expert opinion
evidence" and weighed accordingly. The DDS consultants
reviewed the documentary record and opined the claimant
could perform a range of work at the light exertional level
except the claimant was occasionally able to climb ramps
and stairs, but never climb ladders, ropes, or scaffolds.
She was occasionally able to balance, stoop, kneel, crouch,
and crawl.
She should avoid concentrated exposure to
temperature extremes of heat and cold, wetness, humidity,
vibrations, and work hazards such as machinery and heights.
With regard to the claimant's mental impairments, the

15

claimant was found able to understand, remember, and
complete simple and detailed instructions and tasks. She
was found able to maintain attention and concentration for
periods of at least two hours and complete a normal
workday and workweek at a consistent pace. She was found
able to relate appropriately to peers and supervisors and
able to adapt to routine workplace changes. The undersigned
finds the consultants opinions were generally consistent
with the documentary record and are credited with great
weight insofar as they support and are consistent with the
determined residual functional capacity (Ex 13F, 16F, 18F,
and 19F). With regard to the claimant's testimony and
evidence received since the consultants opined as above,
the undersigned finds the claimant's testimony as generally
not credible and the evidence not persuasive in altering
the undersigned's findings.

Id. This Court concludes that the ALJ properly considered all the
medical evidence and opinions in the record and gave good reasons for
according little weight to the opinions of Dr. Beaulieu in light of
the inconsistency of those opinions with the findings of Plaintiff’s
other treating physician, Dr. Schwarz. The Court further concludes
that the findings and conclusions of the ALJ in this regard enjoy
substantial support in the record.
In short, the undersigned concludes that the decision of the
Commissioner is supported by substantial evidence and employed in all
respects the proper legal standards.
Recommendation
In light of the foregoing, the undersigned RECOMMENDS that the
Motion for Judgment (Doc. No. 13) be DENIED, that the decision of the
Commissioner be AFFIRMED, that this action be DISMISSED, and that
final

judgment

be

entered

pursuant

405(g).

16

to

Sentence

4

of

42

U.S.C.

§

Procedure on Objections
If any party seeks review by the District Judge of this report
and recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the report and recommendation,
specifically designating the part thereof in question, as well as the
basis for the objection.
72(b).

28 U.S.C. § 636(b)(1); Fed. R. Civ. P.

Response to objections must be filed within fourteen (14) days

thereafter.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object
to the report and recommendation will result in a waiver of the right
to de novo review by the District Judge and waiver of the right to
appeal the judgment of the District Court.

See, e.g., Pfahler v.

Nat’l Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007). Even when
timely objections are filed, appellate review of issues not raised in
those objections is waived.

Robert v. Tesson, 507 F.3d 981, 994 (6th

Cir. 2007). Filing only “vague, general, or conclusory objections does
not meet the requirement of specific objections and is tantamount to a
complete failure to object.” Drew v. Tessmer, 36 F. App’x 561, 561 (6th
Cir.

2002)

(citing

Miller

v.

Currie,

50

F.3d

373,

380

(6th

1995)).

s/Norah McCann King
Norah McCann King
United States Magistrate Judge
July 5, 2017
(Date)

17

Cir.