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Albert v. Commissioner of Social Security

United States District Court, S.D. Ohio, Eastern Division

July 8, 2019

Elizabeth A. Albert, Plaintiff,
Commissioner of Social Security, Defendant.


          James L. Graham United States District Judge.

         Plaintiff 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 strict quotas.

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).

         The 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)).

         II. Plaintiff's Objections

         A. Opinion of Nurse Practitioner Samantha Meek

         Plaintiff 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.

         Ms. 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 other sources).

         The ALJ “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).

         The 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.

         Because 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).

         However, 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.

         The 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 ...

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