Brawner v. Social Security Administration
REPORT AND RECOMMENDATION: The undersigned RECOMMENDS that the Motion for Judgment (Doc. No. 9) be DENIED, that the decision of the Commissioner be AFFIRMED, and that final judgment be entered in favor of the Commissioner pursuant to Sentence 4 of 42 U.S.C. § 405(g). Signed by Magistrate Judge Norah McCann King on 7/12/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
LAURA LINDSAY BRAWNER,
Case No. 3:16-cv-00130
JUDGE ALETA A. TRAUGER
Magistrate Judge King
SOCIAL SECURITY ADMINISTRATION,
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), 1383 for review of a final decision of the Commissioner of
insurance benefits and supplemental security income. This matter is
Plaintiff’s Motion for Judgment on the Administrative Record (Doc. No.
11)(“Response”), and the administrative record (Doc. No. 5). 1 For the
Judgment be DENIED, that the decision of the Commissioner be AFFIRMED,
pursuant to Sentence 4 of 42 U.S.C. § 405(g).
Citations to pages in the Administrative Record will appear as “Tr. __.”
Plaintiff filed her current applications for benefits in January
2012, alleging that she has been disabled since December 29, 2009, by
Plaintiff requested a de novo hearing before an administrative law
A number of administrative hearings were held. On September 18,
2013, the ALJ continued the hearing to permit Plaintiff to obtain
counsel. Tr. 126-31. At a supplemental hearing held on January 24,
2014, Plaintiff, appearing with counsel, testified, as did vocational
expert Chelsea Brown. Tr. 83-124. A second supplemental hearing was
held on June 27, 2014, following a consultative medical examination of
Plaintiff. Plaintiff, who was represented by counsel, testified at
that hearing, as did Rebecca Williams, who testified as a vocational
expert. Tr. 49-63.
In a decision dated August 16, 2014, the ALJ held that Plaintiff
was not disabled within the meaning of the Social Security Act from
decision. That decision became the final decision of the Commissioner
December 15, 2015.
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:
The claimant meets the insured status requirements
of the Social Security Act through March 31 2015.
The claimant has not engaged in substantial gainful
activity since December 29, 2009, the alleged onset date
(20 CFR 404.1571 et seq., and 416.971 et seq.).
determinable impairments: obesity, degenerative disc
disease of the
spondylosis and mild stenosis, arthritis, postural
at C5-6 with
moderate stenosis, mild C6 radiculopathy, sciatica,
fibromyalgia, polycystic ovary syndrome, mild carpal
disorder, personality disorder, mood disorder, panic
disorder with agoraphobia, and history of alcohol abuse
(20 CFR 404.1520(c) and 416.920(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
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and
5. After careful consideration of the entire record,
the undersigned finds that the claimant has the
residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) and 416.967(b), except the
claimant can occasionally lift and/or carry twenty
pounds, and frequently lift and/or carry ten pounds.
During an eight-hour workday, the claimant can sit for
The claimant can stand and/or walk for
at least two hours, with normal breaks, in an eighthour workday.
The claimant can occasionally push
and/or pull objects with her lower extremities. She
can frequently use her bilateral upper extremities for
handling and fingering. The claimant can occasionally
reach overhead with her left upper extremity. The
claimant can occasionally climb ramps and stairs, but
never climb ladders, ropes, or scaffolds. The claimant
can occasionally balance, stoop, kneel, crouch, and
crawl. The claimant should avoid concentrated exposure
to extreme temperatures, and workplace hazards such as
moving machinery and unprotected heights. The claimant
can understand, remember, and carry out detailed tasks
6. The claimant is capable of performing past relevant
work as a Benefits Clerk and Receptionist. This work
does not require the performance of work-related
functional capacity (20 CFR 404.1565 and 416.965).
7. The claimant has not been under a disability, as
defined in the Social Security Act, from December 29,
date of this decision (20 CFR
404.1520(1) and 416.920(1)).
(Tr. 22-23, 25, 39-40).
Plaintiff asserts the following claims:
1. The ALJ improperly assigned less weight to the treating
physician’s opinion of limitations.
2. The ALJ failed to properly perform decisional duties at
Step Three of the Sequential Evaluation.
Memorandum in Support (Doc. No. 10, PageID# 889-892). Plaintiff does
challenge the vocational evidence.
Standard of Review
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
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
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).
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
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
extensive treatment for a number of conditions over a number of years.
Based on that record, the ALJ found that Plaintiff suffers a number of
impairments that are relevant to the issues presented in this case.
The ALJ accurately summarized the medical record in that regard as
Medical records documented long-standing history of spine
difficulties resultin g from a car accident on August 24, 2004.
The evidence shows the claimant received consistent medical
care from Dr. James Elrod beginning in 2001.
He treated the
claimant for back pain, depression, anxiety, and obesity.
(l0F). Imaging performed on that date revealed disc space
narrowing at C5-C6, with anterior and posterior osteophytes.
(lF). Records from Dr. Michael Moore, dated September 8, 2004,
indicated the claimant's history of cervical pain actually
dated from 1997. (2F).
X-ray of the lumbar spine, dated July
9, 2004, showed disc space narrowing at L4-L5, and L5-Sl, but
Magnetic resonance imaging (MRI) of
the lumbar spine, performed on September 15, 2004, revealed
disc protrusion at L4-L5, paracentral to the right, into the
neural foramina narrowing the foramen. (3F, 30F).
MRI of the
cervical spine performed on the same date, showed significant
disc protrusion at C5-C6 and C6-C7, particularly at C6-C7, with
posterior displacement of the cord and loss of subarachnoid
space. The disc protrusion was noted as mild in nature.
In records from September 20, 2004, Dr. Gary Stahlman wrote he
believed the claimant had cervical and lumbar strain, with
underlying aggravation of degenerative disc changes at C5-C6,
C6-C7, and L4-L5. He wrote the claimant did not have an acute
(30F). The claimant underwent physical therapy
to treat her symptoms.
In Dr. Stahlman's treatment notes from
October 27, 2004, he wrote, "Ms. Brawner returns stating that
the physical therapy has helped her back pain quite a bit."
Dr. Stahlman recommended continuing her physical therapy program
and emphasized the importance of a home-based program.
On December 22, 2004, Dr. Stahlman noted the claimant
stated back pain was no longer a problem.
continued neck pain, spasm, and pain across her shoulders that
periodically radiated down her arms. On exam, the claimant was
neurologically intact, and she had good range of motion of her
neck, but with pain. Dr. Stahlman found the claimant had no
permanent restrictions. (30F).
On October 1, 2007, nerve study and electromyography (EMG) in
the upper extremities showed possible borderline radiculopathy
involving the C5-C6 roots. (4F, 7F). The claimant presented on
June 26, 2009 to Dr. Garrison Strickland with complaints of
back and neck pain, and pain and weakness in her left upper
EMG and nerve conduction studies performed on that
date revealed minimal left median nerve entrapment at the wrist
consistent with left carpal tunnel syndrome, but no evidence of
right median nerve entrapment.
No evidence was seen of
generalized peripheral neuropathy, left cervical radiculopathy,
or left lumbar radiculopathy. . . . (19F).
At follow-up on
August 6, 2009, Dr. Strickland wrote the claimant's left arm
pain was markedly improved, and all symptoms, other than lower
back pain, were resolved. Dr. Strickland noted MRI preformed on
July 9, 2009, of the cervical and lumbar spine showed
spondylosis. (6F). The claimant underwent a course of physical
therapy for ankle and foot pain. Dr. Strickland 's progress
notes from September 17, 2009, indicated marked improvement as
the result of therapy. (8F, l0F, 19F).
Dr. Strickland's records from December 7, 2009, noted the
absence of back pain, joint
pain, joint redness, joint
swelling, muscle pain, muscle weakness, or neck pain. (30F).
During a visit on October 5, 2010, Dr. Elrod noted the claimant
felt well, with minor complaints, had good energy, but was
sleeping poorly. He wrote the claimant exercised three to four
times a week.
Dr. Elrod noted no physical or mental
abnormalities upon his examination of the claimant. (l0F).
The claimant received treatment from Nashville Medical Group.
On January 19, 2012, the claimant's medical problems included
trapezius muscle spasm, somatic dysfunction of cervical and
thoracic region, and polycystic ovarian syndrome.
noted the claimant complained of pain in the neck and left
shoulder, radiating to the left hand.
It was noted the
claimant previously took Tramadol for pain, but was not
currently taking pain medication.
Physical examination noted
neck and shoulder discomfort and stiffness.
found no reduction in range of motion or strength in any areas.
. . . The claimant was prescribed Flexeril and Hydrocodone to
On February 7, 2012, records noted, "As
patient symptoms do not correlate with physical findings
suspect patient may affect her pain. Will try to treat with
Amitriptyline which will help depression symptoms and chronic
pain." Nashville Medical Group records from February 13, 2012,
documented an assessment of lower back pain, for which
evaluation and treatment by pain management was ordered.
On February 29, 2012, the claimant presented to the Center for
Spine, Joint, and Neuromuscular Rehabilitation for an initial
The claimant reported prescribed Flexeril and
Norco helped lessen her pain, but not relieve it entirely. She
stated she had undergone physical therapy on several occasions,
but denied effectiveness in decreasing her symptoms. The
claimant's prescribed N eurontin and Lortab were increased in
An assessment was provided of chronic pain
She was instructed to increase stretching exercises
and activity as tolerated.
The claimant returned on March 28,
2012, with similar complaints, but reported prescribed pain
medication helped lessen her pain and allowed her to be active
with her children. She denied side effects from the medication.
Mild cervical lymphadenopathy palpable was noted upon physical
There was moderate palpable tenderness to the
cervical spinous processes, and mild to moderate pain with
palpation of the cervical paraspinals and bilateral trapezius
muscles with noted spasm.
Right upper extremity range of
motion and abduction was without pain or limitations, left
shoulder range of motion was full, but revealed pain and
Straight leg raise test was positive
bilaterally, with mild palpable tenderness to the sacroiliac
Gait was mildly antalgic without a limp, limitations,
or assistive devices. Impression included cervicalgia, cervical
spondylosis, and spinal stenosis, lumbago,
stimulation (TENS) unit, a back brace, physical therapy, and
possibly interventional injections. (20F, 37F).
Treatment notes from February 25, 2013, documented the claimant
presented with complaints of pain, anxiety, and depression.
Records noted the claimant reported she was involved in a motor
vehicle accident in 2004, went to physical therapy and got
better. However, she now alleged progressively worsening pain.
Exam revealed diffuse tenderness to palpation over paraspinal
musculature. The claimant stood-up halfway through appointment
due to being uncomfortable sitting the whole time.
leg raise was negative bilaterally. An assessment was given of
back pain and depression.
Records from Calvin Johnson, M.D.,
dated March 13, 2013, noted the claimant was seen for neck and
back pain. It was noted the claimant was not currently on any
Dr. Johnson wrote that the exam revealed that she
did not appear to be in any obvious pain. Her gait was normal,
range of motion of the neck showed some limitation of flexion
with pain experienced posteriorly.
The claimant was "a little
sensitive over the paracervical muscles."
examination of the upper extremities was normal, muscle power
There was a little sensory deficit.
The low back
revealed some discomfort in the lumbar area with both flexion
Hip motion on the left side was not decreased,
but was painful.
Straight leg raising tests were normal.
Johnson wrote the MRI of the cervical spine showed disc
protrusion at C5-6 and C6-7 posteriorly and mild at C4-5.
Lumbar spine MRI showed some degenerative change at L4-L5. He
provided an assessment of cervical degenerative disc disease
and lumbar degenerative disc disease.
He opined the claimant
had chronic pain syndrome with respect to her back and neck.
He further opined this condition would be best treated with a
continued exercise program. He noted there was no sign of any
Dr. Johnson indicated he had a long
discussion about weight loss and continuing the exercise
He noted that, "at the present time, she does not
think she wants to come to the physical therapy here for a
review of the exercise." (30F).
The claimant presented to Faith Family Medical Clinic on April
10, 2013, with complaints of continued neck and back pain.
Records noted that previous MRIs of cervical and lumbar spine
showed stenosis and some disc bulges, but no impingement of
specific nerves. The claimant reported her left upper extremity
is "fried", a previous diagnosis of carpal tunnel through EMG
testing, and continued numbness and tingling. The claimant
specifically denied attending physical therapy, stating that she
did not believed it works. The claimant admitted she is not
responsible enough to continue physical therapy at home after
discharged from a formal physical therapy program. She then
reported symptoms return after she stops doing exercises. It
explained to the claimant that the ineffectiveness of
physical therapy was not a problem with the actual therapy
itself, but rather compliance. Upon examination, the claimant
had a normal gait and was able to stand without difficulty.
The claimant was prescribed Cymbalta and MRIs of the cervical
and lumbar spine were ordered. (30F).
imaging (MRI) of the cervical
performed at Premier Radiology Charlotte Pike on April 22,
2013, revealed degenerative changes of the cervical spine, most
severe at C5-C6 and C6-C7. There was posterior disc protrusion
with annular tear at C5-C6, resulting in moderate ventral canal
stenosis with effacement of the lateral recess bilaterally.
There was moderate left foraminal narrowing at this level. MRI
of the lumbar spine showed mild left neuroforaminal stenosis at
stenosis, and mild
neuroforaminal stenosis at L4-L5. (29F).
notes from Gary
initially saw the claimant after her 2004 motor vehicle
accident, when she reported neck pain and lumbar pain.
noted these conditions were generally managed with therapy and
medications. Dr. Stahlman wrote at that time she was noted to
have fairly substantial disc space degenerative changes at L4-5
as well as in her cervical spine.
He noted the claimant
complained of continued problems with both neck pain and lower
He noted more recent symptoms as several years of
predominantly in the lateral aspect of her left shoulder
brachium down into her forearm, as well as into her neck. The
claimant also reported periodic episodes of pain and paresthesia
around the periauricular area on the left into her forehead.
She has pain across her shoulders and shoulder blades, and
lower back discomfort radiates into the left leg predominantly
in the posterolateral dermatome.
Physical examination showed
the claimant was neurologically intact in her bilateral upper
and lower extremities.
Dr. Stahlman wrote the MRI findings
from April 22, 2013, were essentially similar to those seen on
the MRI dated July 7, 2009.
He provided an impression of
radiculopathy, as well as progressively symptomatic lumbar
spondylosis, disc space degenerative changes, and stenosis. He
discussed options of observation, trial of Gabapentin, epidural
injection, or surgical discectomy and fusion. The claimant
expressed a desire to try the Gabapentin. If her symptoms are
not abated and she has no side effects, then dosage level would
be increased at the next appointment. When the claimant returned
on June 18, 2013, she alleged continued pain, but Dr. Stahlman
wrote the claimant had not been taking the Gabapentin on a
routine basis as prescribed. He recommended compliance with
prescribed therapy. On July 10, 2013, the claimant returned and
stated she was feeling somewhat better overall. She reported
continued burning discomfort into her legs, particularly when
she standing and walking. . . . Dr. Stahlman wrote the claimant
continued to take Gabapentin with good benefit overall. He
reviewed diagnostic studies again, and noted that while the
claimant did have some stenosis at L4-5, and surgical treatment
may be able to provide her with some improvement in her leg
symptoms, he was, "less hopeful that any type of surgery could
help her neck issues given the diffuse spondylosis." The
claimant agreed with Dr. Stahlman's advice. He agreed to see
the claimant on an as-needed basis. (3lF, 32F).
On May 1, 2013, the claimant presented with complaints of left
arm and leg pain, and asked about a physical exam for
Exam noted the claimant was tender in ten of
eighteen spots for fibromyalgia. Records from June 26, 2013,
documented the claimant called and stated Dr. Stahlman advised
her to be referred to a pain management clinic. Dr. Panovec's
records from September 3, 2013, noted the claimant was not
doing physical therapy or exercises for her lower back pain.
Dr. Panovec discussed water-based exercise at her local YMCA for
back pain. After he reviewed h e r MRI results, he found the
claimant's chronic back pain would most likely respond to longterm approach of gentle exercise, weight loss, and lifestyle
modification. On September 26, 2013, Dr. Panovec wrote he spent
forty-five minutes with the claimant filling out attorney's
paperwork. He encouraged the claimant to continue with possible
lifestyle changes. The claimant presented to Faith Family
Medical Clinic on October 31, 2013, with complaints of
increased anxiety and headaches. She reported stress related to
her four-year-old son. She was assessed with general headache
and stress. The treating provider informed the claimant that
many of her symptoms would decrease if she could decrease her
stress, and recommended seeing a counselor soon. September 30,
2013, noted the claimant was requesting a possible increase in
Cymbalta. Records noted anxiety was not addressed, because the
claimant was there for disability paperwork. (34F).
The claimant returned to the Center for Spine, Joint, and
Neuromuscular Rehabilitation on January 28, 2014. Records noted
the claimant stated she stopped treatment in 2012 due to losing
insurance coverage. The claimant alleged constant pain in her
back, neck, and legs. She reported sitting, standing, walking,
lying down, driving, and numerous other activities increased
her pain level. The claimant was instructed to engage in
regular exercise, and was specifically advised against bed
rest. . . . The claimant was prescribed Lortab, Flexeril, and
physical therapy was considered. On February 25, 2014, the
claimant received trigger point injections, and dosage levels
of Norco and Neurontin were increased. An electro-diagnostic
study was ordered, as was a behavioral health consultation. On
March 26, 2014, the claimant reported she received "50% relief
for two weeks from the trigger point injections." Fioricet was
added to the claimant's prescriptions, and she was advised to
lose weight in order to help her back and joint pain. On April
23, 2014, the claimant stated she did not have her prescriptions
filled, as she could not afford them. Electro-diagnostic
performed on April 23, 2014, . . . revealed evidence of mild
chronic C6 radiculopathy on the left, but no evidence of any
other abnormalities, including lumbar radiculopathy in the left
lower extremity. Records noted the claimant demonstrated
clinical signs of radiculopathy and diagnostic testing was
suggestive of nerve root impingement. Therefore, a therapeutic
epidural steroid injection was recommended. . . . (37F).
The claimant presented to Dr. Timothy Mangrum for physical
examination on May 29, 2014. . . . Physical examination revealed
no tenderness in the spine or SI joints. Straight leg raise
test was normal. Other than a decrease in range of motion on
the left side, no abnormalities were noted in the extremities.
Dr. Mangrum provided an assessment of polycystic ovarian
syndrome, fibromyalgia, chronic pain, cervicalgia, pain in
joint, malaise, fatigue,
obesity. The claimant was
prescribed medication to treat symptoms and instructed to
schedule a follow-up appointment in three months. (38F).
Regarding opinion evidence, Dr. Eric Swanson performed a
consultative examination of the claimant and submitted a
medical source statement on March 19, 2012. (1lF). Dr. Swanson
wrote the claimant indicated she began experiencing back and
sciatic pain in 1997, and arthritis in August of 2006.
claimant also alleged dizziness, fibromyalgia, heart murmur,
holocystic ovarian syndrome, and shoulder pain. Dr. Swanson
observed the claimant appeared to be in no distress, and
exhibited normal gait and station. He noted the claimant could
walk on heels and toes without difficulty, and could not squat
down fully. Dr. Swanson wrote the claimant did not use an
assistive device, needed no help getting on and off the exam
table, and was able to rise from chair without difficulty.
Mobility was listed as normal. The claimant 's grip strength
measured as eighty pounds in each hand, and she was able to
lift ten pounds with each hand. . . . The claimant's back was
abnormalities palpated. Her extremities exhibited no cyanosis,
clubbing, or edema. The claimant's Swansonmeasured as 5/5 in all
universally. There was no other tenderness, redness, swelling,
or muscle wasting in any joint
spasm, joint enlargement,
examined. There was a negative Romberg Test, negative Straight
Leg Raising Tests, bilaterally, and no other focal motor or
sensory deficits noted. Dr. Swanson gave an impression of
Fibromyalgia, per the claimant, prognosis also good.
pain, with full range of motion and good muscle strength.
Episodic dizziness, with no abnormal physical findings, which
could be orthostatic in nature. Arthritis, with full range of
motion and good muscle strength. . . . Based on his examination
of the claimant, Dr. Swanson opined the claimant had no
impairment-related physical limitations. (1lF). The undersigned
accords some weight to the medical findings of Dr. Swanson, but
finds the medical evidence of record indicates the claimant
does have limitations related to her physical impairments.
Max Miller, M.D, reviewed the medical records for the State
agency and completed a medical evaluation and physical residual
functional capacity assessment in June of 2012. (13F, 4F). Dr.
Miller opined the claimant could occasionally lift and/or carry
up to twenty pounds and frequently lift and/or carry up to ten
pounds. He found she could sit for about six hours in an eighthour workday. Dr. Miller opined the claimant could stand and/or
walk for up to two hours, with normal breaks, in an eight-hour
workday. He found the claimant was limited in her ability to
push and/or pull objects in her lower extremities. The claimant
could occasionally reach overhead with her bilateral upper
extremities. He found the claimant could occasionally climb
ramps and stairs, but never climb ladders, ropes, or scaffolds.
Dr. Miller opined the claimant could occasionally balance,
stoop, kneel, crouch, and crawl. He opined the claimant should
avoid concentrated exposure to extreme cold, wetness, and
workplace hazards such as moving machinery and unprotected
heights. 13F, 14F). Dr. Miller's opinions are consistent with
the claimant's treatment history and other evidence of record,
therefore, they are given significant weight.
Mark Cohn, M.D, completed a medical evaluation and case
analysis on September 21, 2011. Dr. Cohn reviewed the prior
assessment by Dr. Miller on July 22, 2011, and affirmed Dr.
Miller 's initial assessment. (18F).
consultative examination of the claimant. (21F). On evaluation
of range of motion Dr. Patel noted cervical spine flexion was
40 degrees, extension 60 degrees, right lateral flexion 40
degrees, and left lateral flexion 40 degrees. Right rotation
was 70 degrees, and left rotation 70 degrees. In the dorsolumbar
spine, flexion was 80 degrees, but otherwise extension and
right and left lateral flexion were normal. In the claimant's
shoulders, range of motion was n o r m al bilaterally, with the
exception of external rotation on the left shoulder, which was
Elbow and hip ranges of motion were normal. Knee
range of motion was 100 degrees bilaterally. Wrist and ankle
ranges of motion were normal, as were the hands and fingers.
Muscle strength was 5/5 in the upper and lower extremities,
including handgrip bilaterally. There were no focal motor or
sensory deficits. Regarding gait and station, the claimant was
able to briefly stand on one leg. She was able to squat and
arise, and was able to walk heel-to-toe. Dr. Patel noted no
abnormalities in the claimant's gait. Dr. Patel provided
diagnoses of fibromyalgia , multiple joint complaints involving
her upper body, depression, anxiety, degenerative disc disease,
and polycystic ovary syndrome. In her summary, Dr. Patel found
that based on her evaluation, the claimant did have some mild
deficits in range of motion in her cervical spine, left
shoulder, and knees, but no significant deficits were found.
Muscle strength was normal in upper and lower extremities. Dr.
Patel noted the claimant did appear to be in pain with many of
the movements that she was asked to perform, but was able to
move her joints without pain. Dr. Patel wrote the claimant also
described a significant amount of depression, but this would be
better evaluated with a psychological evaluation. Dr. Patel
wrote she did not recommend that the claimant do any bending,
squatting, crawling, climbing, or prolonged walking, but may be
able to perform work in a sedentary setting. (21F). The
undersigned gives some weight to Dr. Patel's opinions, but
finds the medical evidence of record indicates the claimant has
a greater ability to perform physical activities.
Marcus Whitman, M.D, reviewed the medical records for the State
agency and completed a physical residual functional capacity
assessment on April 26, 2012. (25F). Dr. Whitman opined the
claimant could occasionally lift and/or carry up to twenty
pounds and frequently lift and/or carry up to ten pounds. He
found she could sit for about six hours in an eight-hour
workday. Dr. Whitman opined the claimant could stand and/or
walk for up to six hours, with normal breaks, in an eight-hour
claimant's her ability to push and/or pull objects. He found the
claimant could occasionally climb ramps and stairs, but never
climb ladders, ropes, or scaffolds. Dr. Whitman opined the
claimant could occasionally balance, stoop, kneel, crouch, and
crawl. He opined the claimant should avoid concentrated
exposure to extreme cold, wetness, and humidity. He recommended
the claimant should avoid all exposure to workplace hazards
such as moving machinery and unprotected heights. (25F).
Dr. Whitman's opinions are generally consistent with the
claimant 's treatment history and other evidence of record,
therefore, they are given some weight. However, the medical
opinions of Dr. Miller are more consistent with the medical
records, and are given greater weight.
Celia Gulbenk, M.D., also reviewed the medical records for the
State agency and completed a physical residual functional
capacity assessment on June 20, 2012. (27F). Dr. Gulbenk opined
the claimant could occasionally lift and/or carry up to fifty
pounds and frequently lift and/or carry up to twenty-five
She found the claimant could sit for about six hours
in an eight hour workday. Dr. Gulbenk opined the claimant
could stand and/or walk for up to six hours, with normal
breaks, in an eight-hour workday. Dr. Gulbenk found the
claimant could frequently use her upper extremities to handle,
finger, and push and/or pull objects, frequently climb ramps
scaffolds. Dr. Gulbenk opined the claimant could frequently
balance, stoop, kneel, crouch, and crawl. She did not recommend
any additional limitations. (27F). The undersigned finds Dr.
Gulbenk's opinions are overly optimistic in light of the medical
record, and gives them little weight.
On September 26, 2013, Dr. Panovec of Faith Family Clinic
completed a treating
statement regarding physical
capacities. Dr. Panovec opined the claimant could rarely lift
and/or carry up to nineteen pounds, occasionally lift up to
nine pounds, and frequently lift and/or carry less than four
pounds. He found she could sit for up to three hours, for one
hour at a time, in an eight-hour workday. Dr. Panovec opined
the claimant could stand and/or walk for up to three hours, for
one hour at a time, in an eight-hour workday. Dr. Panovec
assigned limitations to the claimant's ability to grasp with
her left hand, and push and/or pull objects with her bilateral
upper extremities. He wrote the claimant was unable to use her
left leg for operating foot controls. He found the claimant
could frequently reach above her shoulder, and only rarely
bend, squat, crawl, and climb. Dr. Panovec opined the claimant
could have mild exposure to driving automotive equipment, and
moderate exposure workplace hazards such as moving machinery
and unprotected heights. (33F). The undersigned finds Dr.
Panovec's opinions are overly restrictive and not consistent
with the claimant's treatment history or the objective evidence
of record. Dr. Panovec's recommended restrictions are given
little weight, as the suggested severity of restriction is not
supported by the medical evidence of record.
Subsequent to the January 24, 2014, hearing the claimant
underwent a consultative examination by Dr. Horace Watson.
(36F). Dr. Watson examined the claimant on April 15, 2014. Dr.
Watson wrote that upon physical examination, the claimant was
considerably overweight, measuring five feet and nine inches in
height, and weighing 278 pounds. Dr. Watson noted the claimant
had a normal spinal curvature and a full range of motion of the
cervical and thoracic spine. He wrote the claimant has limited
motion of the lumbar spine with 30 degrees flexion, 20 degrees
extension, and 20 degrees lateral bend to each side. The
claimant had a full range of motion of all joints of the four
extremities, and was 5/5 in motor function in all four
extremities. She had excellent grip strength in both hands. The
sciatic stretch test was negative bilaterally. The deep tendon
reflexes are 2 plus, and equal in the upper and lower
Dr. Watson opined the claimant could occasionally lift and/or
carry up to ten pounds. He found the claimant could sit, for up
to two hours at a time, for up to six hours in an eight-hour
workday. The claimant could stand for a total of two hours,
for one hour at a time, in an eight-hour workday. The claimant
could walk for a total of two hours, for one hour at a time,
in an eight hour workday. Dr. Watson found the claimant could
occasionally use her upper extremities to reach, reach
overhead, handle, finger, push, and pull. He opined the
extremities to operate foot controls. He opined the claimant
could occasionally climb ramps and stairs, but never climb
ladders, ropes, or scaffolds. Dr. Watson opined the claimant
could occasionally balance, stoop, kneel, crouch, and crawl.
He wrote the claimant was unable to walk on rough or uneven
surfaces for a block at a reasonable pace. He recommended
could occasionally have exposure to operation of a motor
vehicle, humidity, wetness, extreme temperatures, vibrations,
and pulmonary irritants such as fumes, odors, gases, and poor
ventilation. He recommended that the claimant should avoid all
exposure to workplace hazards such as moving machinery and
unprotected heights. (36F).The undersigned give little weight
to Dr. Watson's recommended limitations. His suggested
restrictions are not supported by his own examination or the
objective medical record.
1. Opinions of Treating Physicians
Plaintiff complains that the ALJ failed to properly evaluate the
opinion of Parker Panovec, M.D., a physician with the Faith Family
Medical Clinic whom Plaintiff characterizes as a treating physician.
Dr. Panovec treated Plaintiff on September 3, 2013, for complaints of
urinary symptoms. Tr. 775-76. Plaintiff also reported “back pain.” Tr.
775. On clinical examination, Dr. Panovec noted “strength 5/5 lower
characterized Plaintiff’s back condition “most likely to respond to
[a] long term approach of gentle exercise, weight loss, and lifestyle
modification.” Id. On September 26, 2013, Dr. Panovec spent 45 minutes
with Plaintiff “filling out attorney’s paperwork.” Tr. 772. According
to Dr. Panovec, Plaintiff could sit, and stand or walk, for less than
three (3) hours in an 8-hour workday, for no more than one (1) hour at
a time; could use neither hand for repetitive pushing and pulling;
could not use her left foot and leg for repetitive movements; could
frequently lift up to 4 pound, but only occasionally lift up to 9
pounds; could frequently carry up to 9 pounds, but only rarely carry
10 pounds; could only rarely bend, squat, crawl, and climb (although
Plaintiff “to continue with possible lifestyle changes.” Tr. 772.
The ALJ gave “no weight” to Dr. Panovec’s exertional limitations,
underlying clinical testing.” Tr. 37. The ALJ also noted, negatively,
that Dr. Panovec’s residual functional capacity assessment appears on
a check-off form:
While the form includes space for the doctor to explain his
conclusions, none are provided. There is no accompanying
report completed by the doctor listing any of his
laboratory diagnostic techniques and explanations for his
opinion. The only assessments in the doctor’s treatment
records were for the symptoms of back pain without an
explanations of the doctor’s observations and no record of
any underlying clinical and laboratory testing to support
the doctor’s conclusions, the credibility of this medical
opinion is particularly suspect inasmuch as it is based on
incomplete evidence. An opinion such as this, that is based
primarily on the claimant’s description of her symptoms is
of little probative weight.
Tr. 37. See Ellars v. Comm’r of Soc. Sec., 647 Fed. Appx. 563, 566-67
(6th Cir. 2016)(finding that ALJ did not err in not giving significant
weight to treating physician opinion where the opinion consisted of a
two-page Physical Capacity Evaluation form, without any explanation or
citation to clinical test result, observations, or other objective
findings). Accord, Brady v. Soc. Sec. Admin., No. 3:14-CV-1977, 2017
WL 2376864, at *12 (M.D. Tenn. May 31, 2017).
As an initial matter, the Commissioner suggests that Dr. Panovec,
who appears to have seen Plaintiff on only one occasion prior to
rendering his assessment, does not qualify as a treating physician.
Indeed, the United States Court of Appeals for the Sixth Circuit has
declined to find that an ongoing treatment relationship exists after
only two or three examinations.
See, e.g., Yamin v. Comm’r of Soc.
Sec., 67 F. App’x 883, 885 (6th Cir. 2003) (“These two examinations
did not give [the physician] a long term overview of [the claimant’s]
condition.”); Boucher v. Apfel, No. 99-1906, 2000 WL 1769520, at *9
(6th Cir. Nov. 15, 2000) (finding that a doctor did not qualify as a
treating source and did not have an ongoing treatment relationship
with the claimant even though the doctor had examined claimant three
times over a two-year period).
See also Helm v. Comm’r of Soc. Sec.,
No. 10-5025, 2011 WL 13918, at *3 n.3 (6th Cir. Jan. 4, 2011) (noting
that “it is questionable whether a physician who examines a patient
only three times over a four-month period is a treating source – as
opposed to a nontreating (but examining) source”). However, the ALJ
characterized Dr. Panovec as a “treating source,” Tr. 37, and this
Court will therefore evaluate the ALJ’s evaluation of Dr. Panovec’s
opinions by reference to the standards applicable to treating source
The opinions of treating physicians must be accorded controlling
weight if they are “well-supported by medically acceptable clinical
and laboratory diagnostic techniques” and not “inconsistent with the
If the administrative law judge finds
that either of these criteria have not been met, he is then required
to apply the following factors in determining the weight to be given a
relationship and the frequency of examination, the nature and extent
specialization of the treating source. ...”
Wilson v. Comm’r of Soc.
administrative law judge is required to look at the record as a whole
to determine whether substantial evidence is inconsistent with the
treating physician’s assessment.
See 20 C.F.R. §§ 404.1527(c)(2),(4);
reasons” for discounting the opinion of a treating source, and those
reasons must both enjoy support in the evidence of record and be
sufficiently specific to make clear the weight given to the opinion
and the reasons for that weight.
Gayheart v. Comm’r of Soc. Sec, 710
F.3d 365, 376 (6th Cir. 2013); Rogers v. Comm’r of Soc. Sec., 486 F.3d
234, 242 (6th Cir. 2007)(citing Soc. Sec. Rul. 96-2p, 1996 WL 374188,
at *5). However, a formulaic recitation of factors is not required.
See Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 551 (6th Cir.
2010) (“If the ALJ’s opinion permits the claimant and a reviewing
court a clear understanding of the reasons for the weight given a
sometimes be excused.”).
In the case presently before the Court, the ALJ found that Dr.
Panovec offered no support for his findings and found, further, that
those findings were inconsistent with the underlying clinical testing.
Tr. 37. Plaintiff disagrees, arguing that Dr. Panovec’s opinions are
supported by and consistent with those of Horace E. Watson, M.D., a
specialist in orthopedics who performed a consultative evaluation of
Plaintiff on April 15, 2014. Tr. 793-803. Upon clinical examination,
Dr. Watson noted the claimant had a normal spinal curvature
and a full range of motion of the cervical and thoracic
He wrote the claimant has limited motion of the
lumbar spine with 30 degrees flexion, 20 degrees extension,
and 20 degrees lateral bend to each side. The claimant had
a full range of motion of all joints of the four
extremities, and was 5/5 in motor function in all four
extremities. She had excellent grip strength in both hands.
The sciatic stretch test was negative bilaterally. The deep
tendon reflexes are 2 plus, and equal in the upper and
Tr. 34. As did Dr. Panovec, Dr. Watson completed a “check-off form”
assessment of Plaintiff’s residual functional capacity, in which he
opined that Plaintiff would be extremely limited in her ability to
perform work-related activities. However, the ALJ gave “little weight”
to Dr. Watson’s assessment, because that assessment was not supported
by his own examination or by the objective medical record. Id. In
examination of Plaintiff, there is substantial support in the record
for that determination.
revealed degenerative changes of the cervical spine, most severe at
C5-C6 and C6-C7, and posterior disc protrusion with annular tear at
C5-C6 resulting in moderated central canal stenosis with effacement of
the lateral recess bilaterally; and mild left neuroforaminal stenosis
findings were “essentially similar” to those seen on an MRI performed
in July 2009. Tr. 759. Based on this MRI, Dr. Gray Stahlman, who has
treated Plaintiff since 2004, see Tr. 758, agreed with Plaintiff’s
request for treatment by medication only. Id. In any event, even Dr.
Panovec recommended only extremely conservative treatment, consisting
of “gentle exercise, weight loss, and lifestyle modification.” Tr.
Plaintiff also contends that the affidavits of a friend and of
her mother, Tr. 386-87, support Plaintiff’s subjective complaints and
Dr. Panovec’s assessment, but that the ALJ improperly rejected those
statements. Memorandum in Support (Doc. No. 10, PageID# 891-92). With
regard to “non-medical sources,” the Commissioner’s rulings delineate
between those who have, and those who have not, seen the claimant “in
a professional capacity in connection with their impairments.”
SSR 06-03P, 2006 WL 2329939, at *5-6 (Aug. 9, 2006).
the reports and opinions of a “non-medical source” who has not seen
the claimant in a professional capacity, “it would be appropriate [for
the ALJ] to consider such factors as the nature and extent of the
relationship, whether the evidence is consistent with other evidence,
and any other factors that tend to support or refute the evidence.”
Id. at *5.
In either situation, the ALJ has “discretion to determine
the proper weight to accord opinions from ̔other sources.’”
Comm’r of Soc. Sec., 502 F.3d 532, 541 (6th Cir. 2007) (citing Walters
v. Comm’r of Soc. Sec., 127 F.3d 525, 530 (6th Cir. 1997)).
ALJ expressly considered the affidavits, noted the relationship of the
affiants to Plaintiff, and concluded that “significant weight cannot
be given the witness[es]’ evidence because it, like the claimant’s, is
not consistent with the preponderance of the opinions and observations
by medical doctors in the case.” Tr. 26. The ALJ did not abuse his
discretion in this regard.
The ALJ’s conclusion that Dr. Panovec’s extremely restrictive
assessment is inconsistent with the medical record enjoys substantial
support. For example, Dr. Swanson reported essentially normal findings
upon his consultative examination of Plaintiff in March 2011, Tr. 57173,
Plaintiff in March 2012. Tr. 633. Dr. Mangrum also reported relatively
Plaintiff in May 2014. Tr. 842-43.
assessment. Tr. 38. The ALJ gave good reasons for his evaluation of
Dr. Panovec’s opinions and that evaluation enjoys substantial support
in the record. Even if the record also contains substantial contrary
evidence, that fact does not either permit or require reversal of the
Commissioner’s decision. See Longworth, 402 F.3d at 595.
2. Step Three of the Sequential Evaluation
consider whether Plaintiff’s back impairments meet or equal Listing
1.04A. Memorandum in Support (Doc. No. 10, PageID# 893). At Step Three
of the sequential evaluation of disability, a claimant will be found
disabled, regardless of her age, education, or work experience, if she
listed impairments. See 20 C.F.R. Part 404, Subpart P, Appendix 1. The
claimant bears the burden of proof at this stage to establish that the
criteria of a listing are met or that her impairment is the medical
equivalent of a listing.
Reynolds v. Comm’r of Soc. Sec., 424 F.
App’x 411, 414 (6th Cir. 2011); Jones v. Comm’r of Soc. Sec., 336 F.3d
469, 474 (6th Cir. 2003).
In order to establish that an impairment
impairment. Sullivan v. Zebley, 493 U.S. 521, 531 (1990); Turner v.
Comm’r of Soc. Sec., 381 F. App’x 488, 491 (6th Cir. 2010) (citing 20
C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii)).
that manifests only some of those criteria, no matter how severely,
does not qualify.” Sullivan, 483 U.S. at 530. A claimant must “present
medical findings equal in severity to all the criteria for the one
most similar listed impairment.” Id. at 531. (emphasis in original).
disease, facet arthritis, vertebral fracture), resulting in compromise
of a nerve root.” The condition must be accompanied by additional
findings, including (as invoked by Plaintiff):
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
20 C.F.R. Part 404, Subpart P, Appendix 1, § 1.04A.
The ALJ stated that he considered “the claimant’s conditions,
[but] conclude[d] they do not satisfy the severity requirements of the
improperly failed to expressly consider Listing 1.04A. However, an ALJ
is not required to address every listing, nor is he required to “spell
out the weight he gave to each factor in his step three analysis. . .
.” Bledsoe v. Barnhart, 165 Fed. Appx. 408, 411 (6th Cir. 2006).
In any event, there is substantial support in the record for the
ALJ’s implicit conclusion that Plaintiff’s impairments do not satisfy
Listing 1.04A. Even Dr. Panovec’s findings of “strength 5/5 lower
gait,” Tr. 776, undermine Plaintiff’s contention in this regard, as do
muscle groups,” and deep tendon reflexes of “2+ bilaterally in the
upper and lower extremities,” Tr. 573, and Dr. Watson’s findings of
reflexes [of] 2 plus and equal in the upper and lower extremities.”
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.
In light of the foregoing, the undersigned RECOMMENDS that the
Motion for Judgment (Doc. No. 9) be DENIED, that the decision of the
Commissioner be AFFIRMED, and that final judgment be entered in favor
of the Commissioner pursuant to Sentence 4 of 42 U.S.C. § 405(g).
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.
28 U.S.C. § 636(b)(1); Fed. R. Civ. P.
Response to objections must be filed within fourteen (14) days
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
s/Norah McCann King
Norah McCann King
United States Magistrate Judge
July 12, 2017
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