United States District Court, N.D. Ohio, Eastern Division
KIMBERLY R. MARKS, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
CHRISTOPHER BOYKO JUDGE.
REPORT AND RECOMMENDATION
A. Ruiz United States Magistrate Judge.
Kimberly R. Marks challenges the final decision of Defendant
Commissioner of Social Security (“Commissioner”),
denying her application for Supplemental Security Income
(“SSI”) under Title XVI of the Social Security
Act, 42 U.S.C. §§ 416(i), 423, 1381 et
seq. (“Act”). This court has jurisdiction
pursuant to 42 U.S.C. § 405(g). This case is before the
undersigned United States Magistrate Judge pursuant to an
automatic referral under Local Rule 72.2(b) for a Report and
issue before the court is whether the final decision of the
Commissioner is supported by substantial evidence and,
therefore, conclusive. For the reasons set forth below, the
Magistrate Judge recommends that the Commissioner's final
decision be affirmed.
August 5, 2013, Marks filed an application for SSI benefits,
alleging disability beginning May 28, 2013. (R.7, PageID #:
54, 188-191, 221-233.) Marks's application was denied
initially and upon reconsideration. (R.7, PageID #: 54,
113-128, 129, 130-142, 143.) Thereafter, Marks filed a
request for a hearing before an administrative law judge
(“ALJ”). (R.7, PageID #: 159-160.) The ALJ held a
hearing on October 30, 2015. (R.7, PageID #: 69-112.) Marks
appeared at the hearing, was represented by counsel, and
testified. (Id. at 71-72, 76-103.) A vocational
expert (“VE”) also attended the hearing and
provided testimony. (Id. at 72, 104-111.) On January
28, 2016, the ALJ issued the decision, applying the standard
five-step sequential analysis to determine whether Marks was
disabled. (R.7, PageID #: 51-63; see generally 20
C.F.R. § 416.920(a).) The ALJ concluded Marks was not
disabled. (R.7, PageID #: 54, 63.) The Appeals Council denied
Marks's request for review, thus rendering the ALJ's
decision the final decision of the Commissioner. (R.7, PageID
now seeks judicial review of the Commissioner's final
decision pursuant to 42 U.S.C. § 405(g). The parties
have completed briefing in this case. Marks presents the
following legal issues for the court's review: (1) the
ALJ erred when weighing the medical opinion evidence and (2)
the ALJ erred when evaluating Marks's credibility. (R. 8,
PageID #: 1017.)
PERSONAL BACKGROUND INFORMATION
was born on December 4, 1973, and was 39 years old, which is
defined a younger individual age 18-49, on the application
date. (R.7, PageID #: 62, 188, 207.) She has a college
education, and is able to communicate in English. (R.7,
PageID #: 62, 221, 223.) Marks had past work as a bookkeeper,
and in counter sales (R.7, PageID #: 104-105.)
RELEVANT MEDICAL EVIDENCE
issues will be discussed as they arise in Marks's brief
alleging error by the ALJ. As noted earlier, Marks applied
for SSI on August 5, 2013. (R.7, PageID #: 54, 188-191.)
Marks listed her physical or mental conditions that limit her
ability to work as: “fibromyalgia, anxiety, migraines,
insomnia, tremors, chronic fatigue, neuropathy,
temporomandibular joint disorder (TMJ), autoimmune system
problems.” (R.7, PageID #: 222.)
2, 2013, Marks was seen by Nicholas J. Ksenich, M.D.,
following up from an E.R. visit for a fall several days
earlier. (R. 7, PageID #: 594, see also PageID #:
605 (fall at home, sprained knee).) Marks complained of hip,
back and knee pain. Id. She also reported weakness
in her arms and legs, pain in her thighs, and insomnia.
Id. Dr. Ksenich's assessment noted migraine
headache, neuropathy, left arm pain, chronic pain, TMJ
(dislocation of temporomandibular joint), insomnia, anxiety,
and right knee pain. Id. at 596.
13, 2013, Marks presented to Heather Scullin, D.O., for an
evaluation of anxiety. (R. 7, PageID #: 597-598.) Dr. Scullin
reported that Marks had the following anxiety symptoms:
“chest pain, difficulty concentrating, dizziness,
fatigue, feelings of losing control, insomnia, irritable,
palpitations, paresthesias, psychomotor agitation, [and]
racing thoughts.” Id. at 598. Marks reported
chronic back pain for more than a year and moderate pain in
the lumbar spine and thoracic spine, which radiates from her
thighs into her groin. Id. Dr. Scullin reported that
Marks's vital signs were normal, that she did not appear
ill, or have a “sickly appearance, ” and that
Marks was in no distress. Id. at 601. On
examination, Marks's neck was supple, with a normal range
of motion. Id. Marks exhibited some decreased range
of motion in her left shoulder, with tenderness there, and in
both knees. Id. at 602. She also exhibited a
decreased range of motion, tenderness and pain, in her
cervical back and lumbar back. Id. Her arms, wrists,
elbows, hands, hips, legs, and ankles were normal.
Id. at 602-603.
Scullin assessed Marks with acute low back pain, radiating to
both legs, and noted that x-ray of the lumbar spine was
negative. (R. 7, PageID #: 604.) She also assessed left
shoulder pain, leg pain, right knee pain, and chronic pain of
her whole body, but the doctor noted that all x-rays were
normal. Id. Dr. Scullin identified a high risk of
medication use, anxiety, migraine headaches, and active
neuropathy of her hand. Id. Marks reported that she
had been diagnosed with fibromyalgia, but the record notes
that Marks suspected multiple sclerosis because of numbness.
13, 2013, Dr. Scullin reviewed stretching and relaxation
techniques, and recommended that Marks quit smoking, and
exercise three times per week, for thirty minutes at a time.
(R. 7, PageID #: 606.) Dr. Scullin also reviewed Marks's
medications. Id. at 605-606.
presented to Dr. Ksenich for a follow-up visit on June 25,
2013, complaining of migraines and pain in many areas. (R. 7,
PageID #: 607.) Dr. Ksenich referred her for a pain
management evaluation with rheumatology. Id. at
610-611. Marks had a follow-up visits with Dr. Ksenich on
July 26, 2013 and August 20, 2013, at which she complained of
insomnia, temporomandibular joint pain, and migraines.
Id. at 611, 615. Her medications were discussed, and
Marks requested a doctor's excuse for additional time off
work. Id. at 611. She had multiple tender spots, and
at the August exam, Savella was prescribed (for
fibromyalgia). Id. at 618-619. In August, Dr.
Ksenich again advised Marks to keep the appointment for pain
management evaluation and a specialist evaluation.
Id. at 615, 619.
returned to Dr. Scullin on December 5, 2013, complaining of
shoulder pain, worse in the left shoulder, worsening knee
pain, and right hip pain. (R. 7, PageID #: 642; 824.) Dr.
Scullin reported that Marks's vital signs were normal,
that she did not appear ill, or have a sickly appearance, and
that she was in no distress, although she appeared anxious.
Id. at 644. On examination, her neck was supple,
with a normal range of motion. Id. Marks exhibited
tenderness in both shoulders and in both knees. Id.
at 645. She also exhibited a decreased range of motion in her
left elbow. Id. Marks exhibited a decreased range of
motion in her lumbar back, and tenderness there as well as in
her cervical back and thoracic back. Id. She had
some decreased sensation in her hands. Id. at 646.
Her arms, wrists, hips, legs, feet, and ankles were normal.
Id. at 645-646.
Scullin assessed Marks with active TMJ (temporomandibular
joint disorder), chronic pain, left arm pain, migraine
headaches, neuropathy, and active back, neck, shoulder and
knee pain. (R. 7, PageID #: 647.) Dr. Scullin also noted
anxiety, vitamin D deficiency and active fibromyalgia muscle
pain. Id. Dr. Scullin again reviewed stretching and
relaxation techniques, and repeated her recommendation that
Marks quit smoking, and exercise three times per week, for
thirty minutes at a time. Id. at 650. The treatment
plan included follow-up with her primary care physician, and,
after OT, to discuss medicine and injection options.
returned to Dr. Ksenich and Estacia Cooper, N.P., on January
30, 2014, for an annual exam. (R. 7, PageID #: 826-827.)
Marks reported no complaints to NP Cooper that day.
Id. at 826. Marks denied regular exercise, and
reported smoking. Id. To Dr. Ksenich, however, Marks
reported back pain in the mid- to low spine, which was worse
with activity, and better with lying down. Id. at
827. Marks reported less migraines, but no improvement from
fibromyalgia medications. Id.
Ksenich noted she was “alert, well appearing and in no
distress, ” and she had multiple tender spots. (R. 7,
PageID #: 830.) The doctor referred Marks to neurosurgery for
chronic pain, neuropathy, tremors of the nervous system, and
back pain. Id. at 830-831. Dr. Ksenich's
assessment also noted insomnia, TMJ, left arm pain,
migraines, anxiety, and vitamin D deficiency. Id.
January 29, 2015, Marks presented to Bharat Shah, M.D., of
the Comprehensive Pain Center, for evaluation of joint and
muscle pain, on referral from Dr. Ksenich. (R. 7, PageID #:
873-877.) Marks reported to Dr. Shah that she had been in a
car accident in 2001. Id. at 873. She reported
problems with pain since 2012, which included symptoms in her
neck, back, and almost all the joints of her body.
Id. Marks specifically reported “arthritis,
back pain, joint pain, joint stiffness, joint swelling,
limitations in ROM, muscle cramps, muscle pain, muscle
weakness, neck pain, pain between the shoulders, difficulty
walking and leg pain.” Id. at 875. Dr. Shah
noted that Marks appeared in no acute distress, with mild
examination, Dr. Shah noted that head and neck flexion and
rotation were painful. (R. 7, PageID #: 876.) There was
diffuse tenderness over the cervical spine, and multiple
tender points over both trapezius muscles and the upper part
of the cervical spine. Id. There was diffuse
tenderness in the spine, with no reduction of range of
movement. Id. Straight leg raising was painful
bilaterally. Id. Range of motion was normal for both
knees and both hips. Id. Strength, sensation, and
reflexes of the arms and legs were within normal limits.
Id. All muscle testing was also within normal
Shah diagnosed Marks with cervicalgia, lumbago, and
rheumatoid arthritis. (R. 7, PageID #: 877.) The doctor
adjusted her medications, discontinuing the narcotic Narco,
and several other drugs, but continuing her Klonopin and
Elavil, and starting Savella. Id. Dr. Shah also
ordered an x-ray of the lumbar spine. Id.
March 3, 2015, follow-up appointment with Osma Malak, M.D.,
of the Comprehensive Pain Center, Marks reported that
“she has been feeling significant improvement in the
pain of her whole body.” (R. 7, PageID #: 877.)
However, Marks still complained of diffuse body pain, mainly
in the neck, upper and lower back, and hips. Id. at
880. The treatment plan was to start an aquatherapy program.
Id. at 881. At an April 1, 2015, appointment with
Dr. Malak, Marks reported her fibromyalgia was continuing to
be painful, and that her pain had actually worsened.
Id. at 881, 884. Dr. Malak adjusted her medications.
Id. at 884.
addition to the home exercise program advised by Dr. Scullin,
above, treatment plans were recommended by Sameh R. Yonan,
M.D., of the Comprehensive Pain Center, and rheumatologist
Margaret Tsai, M.D., for decreasing Marks's pain in the
cervical spine and lumbar spine. (R. 7, PageID #: 890, 918,
940-941.) On January 15, 2014, Dr. Tsai recommended that
Marks exercise for thirty minutes, three times a week,
suggesting “weight-bearing aerobic exercises such as
walking, dancing, low impact aerobics, elliptical machine,
stair climbing, gardening, flexibility exercises and strength
training exercises.” (R. 7, PageID #: 940, see
also 935, 941-942.) On June 3, 2015, Dr. Yonan
recommended that Marks “undergo stretching,
strengthening, and resistance exercises for the back and
abdominal muscles.” Id. at PageID #: 915, 918;
see also 890 (same). In addition, a home exercise
program including “walking for 30 minutes twice daily
followed by walking stairs for 10 minutes” was
recommended. Id. at PageID #: 918.
parties have also identified the below medical opinions.
State agency reviewing physician, Maureen Gallagher, D.O.,
completed a Physical Residual Functional Capacity
(“RFC”) Assessment on October 24, 2013. (R. 7,
PageID #: 124-126.) Dr. Gallagher stated that Marks had
exertional limitations due to fibromyalgia, but assessed she
could lift or carry up to twenty pounds occasionally, and ten
pounds frequently. Id. at 124-125. Marks could stand
or walk for about six hours of an 8-hour workday, and sit for
six hours. Id. at 125. Concerning postural
limitations, the doctor opined that Marks could climb ramps
or stairs occasionally; could frequently balance, stoop,
kneel, crouch, or crawl; and could never climb ladders, ropes
or scaffolds. Id. Dr. Gallagher further opined that
Marks should avoid all exposure to hazardous machinery and
heights. Id. at 126. Dr. Gallagher noted that
claimant reported ongoing pain throughout her joints, but
that her x-rays and exams have been normal. Id.
reconsideration, Diane Manos, M.D., completed a Physical RFC
Assessment on June 7, 2014. (R. 7, PageID #: 138-139.) Dr.
Manos assessed the identical limitations as had Dr.
Gallagher. Id. Dr. Manos indicated “no
worsening alleged on reconsideration” and review of the
medical evidence of record does not support any material
functional changes. Id. at 139.
Ksenich completed a form entitled “Multiple Impairment
Questionnaire” (“questionnaire”) on July 1,
2014, indicating he began treating Marks in November 2012.
(R. 7, PageID #: 892-899.) Dr. Ksenich responded to the
second question in the questionnaire, “What is your
diagnosis of your patient's condition?” by simply
stating “See note.” Id. It is unclear
what “note” the doctor is referring to, because
there is no note attached to the questionnaire, as submitted
in the record. See generally R. 7, PageID #:
892-899. The doctor's entire description of the
claimant's prognosis is “guarded.”
Id. at 892. Moreover, the doctor responded
“see note” to the next three questions:
4. Identify the positive clinical findings that demonstrate
and/or support your diagnosis and indicate location where
5. Identify the laboratory and diagnostic test results which
demonstrate and/or ...