United States District Court, S.D. Ohio, Eastern Division
Elizabeth A. Albert, Plaintiff,
Commissioner of Social Security, Defendant.
L. Graham United States District Judge.
Elizabeth A. Albert brings this action under 42 U.S.C.
§405(g) for review of the final decision of the
Commissioner of Social Security (“Commissioner”)
denying his applications for social security disability
insurance benefits. In her December 19, 2017, decision, the
administrative law judge (“ALJ”) found that
plaintiff had severe impairments consisting of lupus,,
fibromyalgia, degenerative disc disease of the cervical and
lumbar spine, cellulitis, osteoarthritis of the bilateral
knees; left shoulder rotator cuff tear, obesity, endometrial
cancer, Bell's palsy, bursitis, edema, plantar fascia,
heel spurs, hypertension, IBS, GERD, and affective disorder.
PAGEID 113. The ALJ concluded that plaintiff has the residual
functional capacity (“RFC”) to perform sedentary
work, with additional restrictions:
[S]he can stand/walk for four hours in an eight hour workday,
and sit for six hours in an eight hour workday; frequently
push or pull with the bilateral lower extremities; frequently
use foot controls with the bilateral lower extremities;
occasionally climb ramps and stairs; never climb ladders,
ropes, and scaffolds; frequently balance and stoop; avoid
kneeling and crawling; occasionally crouch; frequently reach
forward laterally and overhead with the left upper extremity;
avoid exposure to unprotected heights; would be off task 7%
of the day; must be allowed to prop feet up three to five
inches on foot stool; should be able to tolerate simple,
routine tasks; would need changes to be introduced slowly;
limited to frequent superficial interaction with the public,
co-workers, and supervisors; and should avoid high production
PAGEID 116. After considering the testimony of a vocational
expert, the ALJ concluded that plaintiff was capable of
performing work which existed in the national economy, and
that she was not disabled. PAGEID 123. This matter is before
the court for consideration of plaintiff's June 7, 2019,
objections to the May 24, 2019, report and recommendation of
the magistrate judge, recommending that the decision of the
Commissioner be affirmed. I. Standard of Review If a
party objects within the allotted time to a report and
recommendation, the court “shall make a de
novo determination of those portions of the report or
specified proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1); see
also Fed. R. Civ. P. 72(b). Upon review, the court
“may accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1).
court's review “is limited to determining whether
the Commissioner's decision ‘is supported by
substantial evidence and was made pursuant to proper legal
standards.'” Ealy v. Comm'r of Soc.
Sec., 594 F.3d 504, 512 (6th Cir. 2010) (quoting
Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241
(6th Cir. 2007)); see also, 42 U.S.C. § 405(g)
(“The findings of the Commissioner of Social Security
as to any fact, if supported by substantial evidence, shall
be conclusive.”). Even if supported by substantial
evidence, however, “‘a decision of the
Commissioner will not be upheld where the [Commissioner]
fails to follow its own regulations and where that error
prejudices a claimant on the merits or deprives the claimant
of a substantial right.'” Rabbers v. Comm'r
of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009) (quoting
Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746
(6th Cir. 2007)).
Opinion of Nurse Practitioner Samantha Meek
objects to the ALJ's failure to discuss the opinion of
Nurse Practitioner Samantha Meek, who saw plaintiff on a
regular basis for treatment. In an undated letter, Ms. Meek
set forth work restrictions applicable to plaintiff. PAGEID
1105. The magistrate judge acknowledged that the ALJ did not
discuss this document in her opinion, but concluded that the
ALJ's failure to do so was harmless error because the
more extreme limitations advanced in the letter were not
supported by the record. Doc. 17, pp. 6-8.
Meek is not an “accepted medical source;” rather,
her opinion falls within the category of evidence from
“other sources.” See SSR 06-3p, 2006 WL
2329939 at *2 (S.S.A. Aug. 9, 2006). The ALJ was not required
to provide good reasons for the weight given to her opinion
under §404.1527(d)(2), Mulkey v. Comm'r of Soc.
Sec., No. 1:10-cv-466, 2011 WL 4528485 at *6 (W.D.Mich.
June 14, 2011), adopted 2011 WL 4528479 (W.D.Mich.
Sept. 29, 2011), and a formulaic recitation of the factors
for weighing a nurse practitioner's opinion is not
required, see Starr v. Comm'r of Soc. Sec., NO.
2:12-cv-290, 2013 WL 653280 at *6 (S.D.Ohio Feb. 21, 2013);
Brewer v. Astrue, No. 4:11-CV-00081, 2012 WL 262632
at *10 (N.D.Ohio Jan. 30, 2012)(SSR 06-3p has no express
requirement for a certain level of analysis of evidence from
“generally should explain the weight given to opinions
from these ‘other sources,' or otherwise ensure
that the discussion of the evidence in the determination or
decision allows a claimant or subsequent reviewer to follow
the adjudicator's reasoning.” SSR 06-3p, 2006 WL
2329939 at *6; Cruse v. Commissioner of Soc. Sec.,
502 F.3d 532, 540-42, n. 2 (6th Cir. 2007)(ALJ should discuss
factors relating to his treatment of nurse practitioner's
assessment to provide some basis for his rejection of her
opinion). However, an ALJ's failure to do so may be
harmless error where there is no reason to believe that a
remand might lead to a different result. Russell v.
Comm'r of Soc. Sec. Admin., No. 1:13-CV-291, 2014 WL
1333262, *9-11 (N.D.Ohio Mar. 31, 2014); Phillips v.
Comm'r of Soc. Sec., No. 1:07-cv-675, 2008 WL
4394274, *4-5 (W.D.Mich. July 2, 2008).
magistrate judge correctly found that any error due to the
ALJ's failure to specifically discuss Ms. Meek's
letter was harmless. The letter is undated and contains a
typed signature. PAGEID 1105. The only indication of when the
letter was drafted is a fax stamp date of September 28, 2015.
The letter states that plaintiff has limitations on the
duration for standing, walking, and sitting, a prohibition on
crawling or climbing ladders, and a lifting limit of twenty
pounds occasionally. The letter further indicates that
plaintiff can perform simple grasping, pushing and pulling
motions with fine manipulation, can use her feet in
repetitive movements for operating foot controls, can reach
above shoulder level, and can bend, squat and climb steps
occasionally. The letter states that plaintiff has the listed
restrictions for work “based on her functional capacity
exam[.]” However, the record contains no report of a
functional capacity exam or any indication of when such an
exam was conducted or by whom.
the letter contains no discussion of any specific record
evidence which would support the limitations suggested by Ms.
Meek, the ALJ would have been justified in disregarding it.
See Wilson v. Comm'r of Soc. Sec., 378 F.3d 541,
547 (6th Cir. 2004)(noting that the ALJ's failure to
explain the weight given to treating physician opinions can
be harmless error if the opinion is so patently deficient
that the Commissioner could not possibly credit it);
Carreon v. Massanari, 51 Fed.Appx. 571, 574 (6th
Cir. 2002)(ALJ may properly ignore statements of treating
physicians that are conclusory and unsupported by the
objective medical record).
the ALJ stated in her opinion that she considered opinion
evidence. PAGEID 116. There are many similarities between the
restrictions listed by Ms. Meek and the RFC formulated by the
ALJ, which suggests that the ALJ considered Ms. Meek's
letter. See Russell, 2014 WL 1333262, *10 (noting
that the majority of the limitations suggested by the other
source opinion were accounted for in the RFC). Both the
letter and the RFC state that plaintiff can perform work
involving pushing and pulling and the use of foot controls,
that she can occasionally squat or climb steps but can never
crawl or climb ladders, and that she can reach above shoulder
level. To plaintiff's advantage, the RFC's
restrictions are more severe in some respects than those
posed by Ms. Meek. The ALJ limited plaintiff to standing no
more than four hours, compared to the six hours posed in the
letter; placed a ten-pound limit on lifting compared to the
twenty-pound limit stated in the letter; and specified that
plaintiff reach above shoulder level with her left arm only
frequently, as opposed to the unlimited reaching stated in
the letter. The RFC also requires that plaintiff be allowed
to prop her feet up on a stool, and that she avoid exposure
to unprotected heights and the use of moving, hazardous or
heavy machinery. These restrictions were not mentioned in the
letter. Unlike the RFC, the letter stated that plaintiff
could stand, walk or sit for no more than thirty minutes at a
time. However, the ALJ did specify that plaintiff would be
off task for seven percent of the day, which would allow for
changes in posture.
ALJ's decision is also sufficient to permit review by
this court. The ALJ explained in detail how plaintiff's
various impairments supported the restrictions in the RFC.
PAGEID 119. The ALJ concluded that the record failed to
support plaintiff's allegations of disabling symptoms,
citing exam records frequently showing a normal range of
motion, normal sensory and motor exams, 5/5 strength in the
bilateral upper and lower extremities, normal coordination
and gait, and no acute distress. PAGEID 119-120. The ALJ
discussed plaintiff's daily activities, which included
preparing meals, performing housework, cleaning, doing
dishes, drawing, caring for pets, driving and shopping, as
support for her conclusion that plaintiff was capable of
working. PAGEID 120. The ALJ also gave great weight to the
July 29, 2015, opinion of Dimitri Teague, M.D., and the
October 6, 2015, opinion of Teresita Cruz, M.D., the state
agency consultants. PAGEID 121. See PAGEID 217, 233.
The RFC largely incorporates the restrictions posed by these
experts. However, unlike ...