KENNETH S. McHARGH, Magistrate Judge.
This case is before the Magistrate Judge pursuant to the consent of the parties. (Doc. 11). The issue before the undersigned is whether the final decision of the Acting Commissioner of Social Security ("Commissioner") denying Plaintiff Patrick Wright's ("Plaintiff" or "Wright") application for a Period of Disability ("POD"), Disability Insurance Benefits ("DIB"), and Supplemental Security Income ("SSI") under Title II and Title XVI of the Social Security Act ("Act"), 42 U.S.C. §§ 416(i), 423, 1381 et seq., is supported by substantial evidence and, therefore, conclusive.
For the reasons set forth below, this Court AFFIRMS the final decision of the Commissioner.
Plaintiff filed applications for POD, DIB, and SSI in October of 2011. (Tr. 169-173). Plaintiff alleged he became disabled on August 1, 2011. (Tr. 170). The Social Security Administration denied Plaintiff's application on initial review and upon reconsideration. (Tr. 96-101, 108-115).
At Plaintiff's request, an administrative law judge ("ALJ") convened an administrative hearing on April 10, 2014 to evaluate his application. (Tr. 15-22.) Plaintiff, represented by counsel, appeared and testified before the ALJ. (Id). A vocational expert ("VE") also testified. (Id).
On May 19, 2014, the ALJ issued an unfavorable decision, finding Plaintiff was not disabled. (Tr. 16-22). After applying the five step sequential analysis,
Plaintiff was born in February of 1965 and was 46 years old on the alleged onset date, making him a "younger person" for Social Security purposes. (Tr. 21); 20 C.F.R. §§ 404.1563(c) & 416.963(c). Plaintiff has past relevant work as a material handler. (Tr. 20). Plaintiff has a limited education. (Tr. 21).
On December 10, 2013, Plaintiff was first seen by Dallas J. Fleming, M.D., for the purpose of establishing care. (Tr. 458-60). Plaintiff was recorded as being 5'6" tall and weighing 173 pounds. (Tr. 458). Surgical changes of the left arm, hip, and ankle were noted. (Tr. 459). Dr. Fleming ordered x-rays, referred Plaintiff to an orthopedist and for physical therapy, and recommended regular aerobic exercise. (Tr. 459-461). Left elbow x-rays demonstrated degenerative changes but no fracture, dislocation, or joint effusion. (T. 416). Left hip and pelvis x-rays revealed post-surgical changes of open reduction internal fixation (ORIF) proximal left femur. (Tr. 417). The surgical hardware was noted as intact and in appropriate position. (Id.) There was no acute fracture or dislocation, and the left hip joint space was maintained with mild acetabular osteophytes. (Id.) Left ankle x-rays revealed post-surgical changes and degenerative/arthritic changes at the tibiotalar joint. (Tr. 419). Lumbar spine x-rays revealed moderate degenerative changes at L1-2 and L5-S1. (Tr. 420).
On December 17, 2013, Plaintiff was seen by physical therapist Judith David. (Tr. 463). Objective findings revealed "minimal limitation" in lumbar range of motion except for moderate limitation on extension, 4+/5 strength in all areas except 4-/5 with hip extension. (Tr. 464-465). Plaintiff's gait had a "[w]ide base of support, left hip held abducted secondary to limited left ankle ROM, decreased stance time on left." (Tr. 464). Plaintiff was not fully compliant with a home exercise program, as he was performing exercises only when his schedule permitted. (Tr. 428). Plaintiff reported improvement with symptom management and functional activities and had decreased pain intensity, but wanted to discontinue physical therapy until he addressed problems with his left hip and left ankle. (Tr. 431).
On January 10, 2014, Dr. Fleming noted that Plaintiff was doing well in physical therapy. (Tr. 477-78). He continued to recommend regular aerobic exercise and a cessation of smoking. (Id.)
On January 20, 2014, Plaintiff was seen by Ian Alexander, M.D., for ankle pain. (Tr. 480-83). On examination, Plaintiff walked with a severe antalgic gait, had mild ankle swelling, severe tenderness, intact sensation, strong pulses, and decreased range of motion. (Tr. 482). After reviewing x-rays, Dr. Alexander diagnosed left ankle osteoarthrosis. (Id.) He recommended arthroscopic evaluation, anterior debridement of of the ankle joint, and hardware removal. (Id.)
On February 13, 2014, Plaintiff was seen by Patrick Sziraky, M.D., chiefly for complaints of left hip pain. (Tr. 488). Plaintiff had normal gait and normal posture. (Tr. 489). Left hip examination demonstrated normal range of motion except for abduction/adduction, 5/5 strength, positive tenderness on palpation, and negative crepitance. (Tr. 489-90). Other examination findings revealed negative straight leg raise, normal lumbar spine motion, bilateral lower extremities had equal motion of the hips and knees as well as normal strength, tone and stability and intact neurological examination in both lower extremities. (Tr. 490). Examination of the left elbow revealed a well-healed surgical incision, decreased range of motion and flexion, and mild tenderness. (Tr. 490). Dr. Sziraky diagnosed left trochanteric bursitis and left elbow tendonitis. (Id.) He recommended hardware removal and a tennis elbow strap, and follow-up on an as needed basis. (Id.) Plaintiff declined corticosteroid injections for his elbow or any surgical intervention on his hip. (Id.)
On January 31, 2012, Will Graham, M.D., performed a consultative examination, at the request of the State Agency. (Tr. 246-53). Plaintiff had a history of multiple injuries and had developed chronic left hip, left ankle and lower back pain, as well as difficulty using his left hand. (Tr. 246-47). Plaintiff stated that he did not use any ambulatory aid, could sit for ten minutes, stand for thirty minutes and walk 100 feet without difficulty. (Tr. 247). He lived alone and performed all of his activities of daily living without assistance. (Id.) On examination, Dr. Graham noted that Plaintiff had a non-antalgic gait with no difficulty tandem, toe or heel walking, full range of motion of cervical spine, and 5/5 strength in his bilateral upper extremities except of the left upper extremity; and 4/5 strength of the left wrist, finger and thumb. (Tr. 247-48, 251). Plaintiff had full range of motion of the bilateral shoulders, right elbow, bilateral wrists and all digits; full extension and flexion of his left elbow but significant loss of pronation and supination. (Tr. 248, 250-52). Plaintiff could perform fine motor tasks with his left hand but with some difficulty.
On February 11, 2012, State Agency physician Leanne Bertani, M.D., opined that Plaintiff could perform a range of light work, including the ability to lift and/or carry 20 pounds occasionally and 10 pounds frequently; sit for six hours in an 8-hour workday; stand/walk for six hours in an 8-hour workday; frequently push/pull with the left upper extremity frequently; limited handling and fingering with the left upper extremity, and no climbing ladders, ropes or scaffolds. (Tr. 58-60, 67-69).
On June 14, 2012, John Kata, D.O., evaluated Plaintiff and completed a physical RFC assessment form. (Tr. 255-57). After a brief physical examination, Dr. Kata noted that Plaintiff's "right ankle reveals palpable hardware on both the lateral and medial malleoll and I advised the patient that he should consult an orthopedic surgeon in regard to this hardware. The patient's left femur showed an extensive scar from previous injury and surgery and examination of his left arm extensive scars involving the upper and lower left arm, again, from prior injury." (Tr. 256). Dr. Kata opined that Plaintiff, in an 8-hour workday, had the capacity to sit for two hours, stand for two hours, and walk for one hour. (Tr. 257). In addition, Dr. Kata found that Plaintiff could lift/carry 10 pounds continuously, 11 to 20 pounds frequently, and never lift more than 20 pounds. (Id.) He also noted Plaintiff had moderate restrictions in his ability to be around moving machinery or to be exposed to marked changes in temperature and humidity. (Id.) He noted Plaintiff could push/pull, perform fine manipulation, and simple grasping with the right hand, but could not perform any of these activities with the left hand. (Id.)
On August 14, 2012, Kourosh Golestany, M.D., a state agency physician, reviewed the evidence of record and affirmed Dr. Bertani's opinion. (Tr. 79-81, 89-91).
On March 20, 2014, physical therapist Karin Kleppel, P.T., performed a Functional Capacity Evaluation (FCE) "to assist the physician in making recommendations regarding client's application for disability." (Tr. 438-51). Plaintiff reported that he lived alone, had difficulty donning pants and socks, was unable to tie his shoelaces, had difficulty cutting food due to lack of sensation in the left hand, had difficulty with all shopping activities, had difficulty with laundry due to the need to bend and lift, and had difficulty with all cleaning. (Tr. 442). Plaintiff's own estimate of his functional tolerances included the ability to sit for sixty minutes at a time without a break, stand for sixty minutes at a time without a break, and walk 4 to 5 minutes at a time without a break. (Tr. 442). His observed functional tolerances at one time without a break included sitting for 34 minutes, and standing and walking 51 minutes.
On April 24, 2014, Dr. Fleming completed a "Medical Source Statement of Ability To Do Work-Related Activities (Physical)." (Tr. 452-57). Dr. Fleming opined that Plaintiff could lift or carry up to 10 pounds frequently, 16 to 18 pounds occasionally, and could never lift more than 21 pounds. (Tr. 452). He explained that these limitations were caused by decreased range of motion and strength in both arms and the left leg, as well as by difficulty grasping and decreased balance. (Id.) Dr. Fleming further opined that Plaintiff, in an 8-hour workday, could sit one hour at a time for a total of three hours; stand one hour at a time for a total of two hours; and walk ten minutes at a time for a total of one hour. (Tr. 453). Plaintiff did not need a cane to ambulate. (Id.) He indicated that Plaintiff could never reach overhead with either hand, but could occasionally reach in all other directions while seated; could never handle, finger, or feel with the non-dominant left hand, but with the right hand he could occasionally handle, frequently finger, and continuously feel; and, could frequently operate foot controls with the right foot, but never with the left. (Tr. 454). With respect to postural activities, Dr. Fleming believed that Plaintiff could never climb ladders or scaffolds, balance, stoop, crouch, kneel, or crawl, but could occasionally climb stairs and ramps. (Tr. 455). Dr. Fleming found Plaintiff could occasionally operate a motor vehicle, but could never be near unprotected heights or moving mechanical parts. (Tr. 456). He concluded that Plaintiff was "unable to lift, carry, push/pull or bend to pick up, required weights for his job . . . [and] [u]nable to sit for 4 hours." (Tr. 457).
The ALJ posed the following hypothetical question to the VE:
(Tr. 49).
The VE testified that such an individual could perform a number of jobs and identified the following three examples: ticket seller, Dictionary of Occupational Titles ("DOT") § 211.467-030 (20,000 jobs locally, 60,000 in Ohio, 1.3 million nationally); assembler of electrical components, DOT § 729.687-010 (3,200 jobs locally, 8,500 in Ohio, 200,000 nationally); sales clerk, DOT § 299.677-010 (10,000 jobs locally, 30,000 in Ohio, 500,000 nationally). (Tr.49-50). The VE testified that her testimony was consistent with the DOT. (Tr. 50). Plaintiff's counsel posed a question to the VE as well, asking "[i]f we were to take the [ALJ's] hypothetical and modify it by saying that [the hypothetical person] could only do sedentary work, and could only use the one hand, would there be any jobs that you could find for him to do?" (Tr. 50). The VE testified there would be no jobs for such an individual. (Id.)
The ALJ made the following findings of fact and conclusions of law in his May 19, 2014 decision:
(Tr. 17-22).
A claimant is entitled to receive a Period of Disability, Disability Insurance Benefits or Supplemental Security Income benefits only when he establishes disability within the meaning of the Social Security Act. See 42 U.S.C. §§ 423, 1381. A claimant is considered disabled when he cannot perform "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 12 months." See 20 C.F.R. §§ 404.1505, 416.905(a).
Judicial review of the Commissioner's benefits decision is limited to a determination of whether the ALJ applied the correct legal standards, and whether the findings of the ALJ are supported by substantial evidence. Blakley v. Comm'r of Social Security, 581 F.3d 399, 405 (6
The Commissioner's determination must stand if supported by substantial evidence, regardless of whether this court would resolve the issues of fact in dispute differently, or substantial evidence also supports the opposite conclusion. See Kennedy, 247 Fed. App'x 761, 2007 WL 2669153, at *3; Mullen v. Bowen, 800 F.2d 535, 545 (6
Wright claims the ALJ erred by rejecting the opinions of multiple examining sources, including both treating and non-treating sources. (Doc. No. 14 at pp. 6-14).
While Plaintiff's sole assignment of error does not clearly differentiate between the weight accorded to treating sources versus examining but non-treating sources, the Court addresses the issues separately. Plaintiff argues that the ALJ erred by rejecting the opinion of Dr. Fleming, whom Plaintiff characterizes as a "treating source." (Doc. 14 at pp. 10-11.)
It is well-established that the ALJ must afford special attention to findings of a claimant's treating source. Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6
When a treating source's opinion is not entitled to controlling weight, the ALJ is required to establish the weight given to the opinion by applying factors found in the governing regulations. 20 C.F.R. §§ 416.927(c)(1)-(6), 404.1527(c)(1)-(6). These factors include: (1) the examining relationship; (2) the treatment relationship; (3) the length of treatment and frequency of examination; (4) the opinion's supportability and consistency; (5) the source's specialization; and (6) any other factors tending to support or contradict the opinion. Id. The regulations further require the ALJ to provide "good reasons" for the weight ultimately given to the opinion. See Wilson, 378 F.3d at 544 (quoting SSR 96-2p, 1996 SSR LEXIS 9, 1996 WL 374188 at *5). The reasons must be sufficiently specific to make clear to any subsequent reviewers the weight given to the treating physician's opinions and the reasons for that weight. Id.
The Sixth Circuit emphasized in Gayheart v. Commissioner of Social Security that the above standard requires two distinct analyses when assessing the treating source's opinion. Gayheart, 710 F.3d 365, 375-77; Aiello-Zak v. Comm'r of Soc. Sec., 47 F.Supp.3d 550, 555 (N.D. Ohio 2014) (Baughman, M.J.) First, the ALJ must determine whether a treating source's medical opinion is entitled to controlling weight. Gayheart, 710 F.3d at 376. Under this first step, the ALJ must consider whether the opinion is (1) well-supported by clinical and laboratory diagnostic techniques, and (2) consistent with other substantial evidence. Id. at 376. If the ALJ determines the treating physician's opinion is not entitled to controlling weight, he or she must then specify the weight given that opinion, based on consideration of the factors outlined in the regulations. Id. ("[T]hese factors are properly applied only after the ALJ has determined that a treating-source opinion will not be given controlling weight."). However, the text of the regulations guiding the ALJ's review of a claimant's treating source opinions only requires the ALJ to "consider" the factors set forth when making his decision. 20 C.F.R. §§ 416.927, 404.1527. A factor-by-factor analysis is not required so long as the ALJ's decision clearly conveys why the opinion was credited or rejected. See Francis v. Comm'r of Soc. Sec., 414 Fed. App'x 802, 804 (6
Courts have established that an erroneous treating source analysis may not, in some circumstances, automatically require remand where the substantive aspects of the standard are met, supported by good reasons that are discernible from the opinion. For instance, remand may not be necessary where an ALJ fails to "strictly follow the Gayheart template, as long as the ALJ adequately addresses the required factors and articulates good reasons for discounting the treating source's opinion. Aiello-Zak, 47 F. Supp. 3d at 558 (citing Dyer v. Soc. Sec. Admin, 568 Fed. App'x 422 (6
Coldiron v. Comm'r of Soc. Sec., 391 Fed. App'x 435, 440 (6
Here, the ALJ addressed Dr. Fleming's opinion as follows:
(Tr. 31-32).
Plaintiff specifically argues that the ALJ erred by rejecting the sitting, standing, and walking limitations assessed by Dr. Fleming. (Doc. 14 at pp. 9-11). In his aforementioned opinion, Dr. Fleming limited Plaintiff to no more than 3 hours total of sitting, two hours of standing, and one hour of walking in an 8-hour workday. (Tr. 453). The ALJ clearly rejected these limitations assessed by Dr. Fleming.
First, the ALJ explained that one of the reasons Dr. Fleming's opinion was ascribed little weight was the "very short" treating relationship with the claimant. (Tr. 20). Plaintiff appears to suggest this is "irrelevant," and asserts that the lack of treatment was due to a lack of insurance. (Doc. No. 14 at p. 10). However, the number of times Plaintiff was seen by Dr. Fleming is very relevant to the issue of whether Dr. Fleming can even be considered a treating source. "The question is whether [the claimant] had the ongoing relationship with [the physician] to qualify as a treating physician
Here, the parties do not explicitly discuss the number of occasions Plaintiff was seen by Dr. Fleming for treatment. The parties' recitation of the facts cite to only two visits occurring one month apart — first on December 10, 2013 and again on January 10, 2014. (Tr. 458-62, 477-78). If the record documents additional visits, the parties do not identify them. As such, it is highly questionable whether Dr. Fleming's opinion should be accorded the weight due to a treating physician, and the ALJ does not explicitly designate him as a treating source. Nevertheless, even under the treating physician rule, the ALJ's decision is sufficient.
First, the length of treatment and frequency of examination is one of the factors specifically identified by the regulations which an ALJ should consider when weighing a medical opinion. The ALJ reasonably found that the brevity of the relationship weighed against ascribing great weight to Dr. Fleming's opinion. Supportability and consistency is another factor set forth in the regulations, and the ALJ pointed out that Dr. Fleming's treatment does not contain a diagnosis that would support the severe limitations assessed, nor did Dr. Fleming point to specific clinical findings that support the limitations assessed. (Tr. 20). Plaintiff counters that Dr. Fleming's opinion was not inconsistent with the opinions of several examining sources. (Doc. No. 14 at p. 10). However, the ALJ did not reject Dr. Fleming's opinions because it was inconsistent with the opinions of examining but non-treating sources, but rather because it was inconsistent with the lack of any prescribed treatment and the Plaintiff's daily activities. (Tr. 20). These "other factors" could reasonably be construed as contradicting Dr. Fleming's opinion. Earlier in the decision, the ALJ expressly noted that Plaintiff, despite his pain allegations, never received any prescription pain medications or injection therapy, a finding that Plaintiff does not challenge. (Tr. 19). Therefore, the Court cannot find that the ALJ did not give sufficiently good reasons for rejecting Dr. Fleming's opinion.
Finally, Plaintiff's reliance on Blakley v. Comm'r of Soc. Sec., 581 F.3d 399 (6
Plaintiff also takes issue with the ALJ's alleged rejection of the opinions of three nontreating physicians of record — Drs. Graham, Kata, and Alexander — all of whom examined him. (Doc. No. 14 at pp. 9-10). Plaintiff contends that these opinions should have been given greater weight than those of State Agency reviewing physicians who did not have the benefit of medical records submitted after 2012. (Id.)
Generally, more weight is given to the opinion of an examining versus non-examining source. See 20 C.F.R. §§ 404.1527(c)(1), 416.927(c)(1). With respect to non-examining sources, ALJs must consider them as opinion evidence. See 20 C.F.R. §§ 404.1527(e), 416.927(e). As for State Agency physicians, ALJs "are not bound by any findings made by State agency medical or psychological consultants, or other program physicians or psychologists," but because said consultants are "highly qualified physicians, psychologists, and other medical specialists" ALJs must also consider their findings. See 20 C.F.R. § 404.1527(e)(1) & (2), 416.927(e)(1) & (2). When considering these opinions, ALJs should look to factors such as the nature of the relationship (i.e. examining or non-examining or the frequency of examination), supportability, consistency, and other factors. 20 C.F.R. §§ 404.1527(e), 416.927(e). Moreover, the regulations mandate that "[u]nless the treating physician's opinion is given controlling weight, the [ALJ] must explain in the decision the weight given to the opinions of a State agency medical or psychological consultant or other program physician or psychologist as the [ALJ] must do for any opinions from treating sources, nontreating sources, and other nonexamining sources who do work for us." 20 C.F.R. § 404.1527(e)(2(ii), 416.927(e)(2)(ii).
An ALJ, when arriving at the RFC assessment, "must always consider and address medical source opinions [and] [i]f the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted." SSR 96-8p, 1996 SSR LEXIS 5 (July 2, 1996); see also Puckett v. Colvin, 2014 U.S. Dist. LEXIS 55079, 2014 WL 1584166 at * 9 (N.D. Ohio April 21, 2014) (Vecchiarelli, M.J.) (explaining that, although the ALJ was not required to evaluate opinions of consultative examiners with the same standard of deference as would apply to an opinion of a treating source, he was required to "acknowledge that [the examiners'] opinions contradicted his RFC finding and explain why he did not include their limitations in his determination of Plaintiff's RFC").
The ALJ addressed Dr. Graham and Dr. Kata's opinions as follows:
(Tr. 20).
Here, the ALJ not only clearly considered the opinions of Dr. Graham and Dr. Kata, but he explained his reasons for ascribing them little weight. The explanation requirement should not be construed as rigorously as the treating physician rule. See, e.g., Jefferson v. Colvin, 2015 U.S. Dist. LEXIS 94716 (N.D. Ohio 2015) (White, M.J.) (citations omitted). Furthermore, the Sixth Circuit Court of Appeals has held that "the regulation requiring an ALJ to provide `good reasons' for the weight given a treating physician's opinion does not apply to an ALJ's failure to explain his favoring of one non-treating source's opinion over another." Williams v. Colvin, 2015 U.S. Dist. LEXIS 117105 (N.D. Ohio, Sept. 2, 2015) (citing Kornecky v. Comm'r of Soc. Sec., 167 Fed. App'x 496 (6
With respect to Dr. Graham's opinion that Plaintiff would be "best suited to work in a sedentary capacity," the ALJ gave the opinion little weight because it was inconsistent with his own clinical observations and findings. (Tr. 20). While the ALJ's explanation could have been more detailed, the explanation is not inaccurate, as Dr. Graham's examination noted that Plaintiff had a "nonantalgic gait" with "no difficulty tandem walking, toe walking or heel walking," minimal tenderness in the lumbar spine, negative straight leg raising bilaterally, as well as 5/5 strength in the lower extremities. (Tr. 247). The ALJ also referred back to his earlier discussion wherein he noted the lack of any prescribed treatment for Plaintiff's alleged pain, and Plaintiff's daily activities such as shopping without the use of an assistive device or motorized cart, mowing the lawn on a riding tractor for three hours at a time, living independently without assistance, and the ability to walk a dog. (Tr. 19-20).
Turning to Dr. Kata's opinion, the ALJ's explanation employed several of the applicable factors. The ALJ noted that Dr. Kata's opinion was based on a one-time examination not performed for treatment purposes, the opinion's inconsistency with the record as a whole, and again referred to Plaintiff's lack of treatment for his primary allegation of pain and daily activities which were inconsistent with the assessed limitations. This explanation largely reiterates the explanations given for ascribing Dr. Graham and Dr. Fleming's opinions little weight. As such, it too is sufficient.
Plaintiff's argument — that the ALJ's reasoning is unclear or that the Court should require a more detailed explanation — essentially invites the Court to find that the explanation given by the ALJ for rejecting the opinions of non-treating sources are not sufficiently "good reasons" — much like the requirements of the treating physician rule. The Court declines to judicially expand the treating physician rule to non-treating sources.
For the foregoing reasons, the Court finds that the decision of the Commissioner is supported by substantial evidence. Accordingly, the decision is AFFIRMED.
IT IS SO ORDERED.
Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 548 (6
