Yoder v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

MICHAEL YODER, ) CASE NO. 1:18-CV-1831

)

Plaintiff, )

) MAGISTRATE JUDGE

v. ) JUDGE GEORGE J. LIMBERT

)

ANDREW M. SAUL1, )

COMMISSIONER OF SOCIAL ) MEMORANDUM OPINION &

SECURITY ADMINISTRATION, ) ORDER

)

Defendant. )

Michael Yoder (“Plaintiff”) requests judicial review of the final decision of the

Commissioner of Social Security Administration (“Defendant”) denying his applications for

Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). ECF Dkt.

#1. In his brief on the merits, Plaintiff asserts that the administrative law judge (“ALJ”) (1)

erred in his assessment of Plaintiff’s residual functional capacity (“RFC”) because he did not

properly evaluate certain medical opinions of record; and (2) failed in his duty to develop

the record when he declined to issue a subpoena to obtain the reports of Drs. Koricke and

Mease. ECF Dkt. #15. For the following reasons, the Court REVERSES the decision of the

ALJ and REMANDS Plaintiff’s case to the ALJ for reevaluation and further analysis of Dr.

Keppler’s opinion.

I. FACTUAL AND PROCEDURAL HISTORY

Plaintiff filed applications for DIB and SSI on October 20, 2015, alleging disability

beginning October 25, 2010 due to right hand crush injury, three fingers amputated on the

left hand, and lower back condition-disintegrated vertebrae. ECF Dkt. #11 (“Tr.”) at 113,

1On June 17, 2019, Andrew M. Saul became the Commissioner of Social Security, replacing

acting Commissioner Nancy A. Berryhill.

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125, 137-38.2 The Social Security Administration (“SSA”) denied his applications at the

initial level and upon reconsideration. Id. at 123-24, 136, 144, 152, 161, 168. Plaintiff

requested a hearing before an ALJ, and the ALJ held a hearing on October 13, 2017, where

Plaintiff was represented by counsel and testified. Id. at 30-31, 173, 179. A vocational expert

(“VE”) also testified. Id. at 30-31.

On February 22, 2018, the ALJ issued a decision denying Plaintiff’s applications for

DIB and SSI. Tr. at 8-23. Plaintiff requested that the Appeals Council review the ALJ’s

decision, and the Appeals Council denied his request for review on June 7, 2018. Id. at 1-5,

214-16. On August 9, 2018, Plaintiff filed the instant suit seeking review of the ALJ’s

decision. ECF Dkt. #1. He filed a merits brief on December 20, 2018 and Defendant filed

a merits brief on April 5, 2019. ECF Dkt. #15; ECF Dkt. #18. The parties consented to the

authority of the Magistrate Judge. ECF Dkt. #13.

II. RELEVANT PORTIONS OF ALJ’S DECISION

On February 22, 2018, the ALJ issued a decision finding that Plaintiff was not

disabled. Tr. at 8-23. The ALJ found that Plaintiff met the insured status requirements of the

Social Security Act (“Act”) through December 31, 2016. Id. at 14. He further found that

Plaintiff had not engaged in substantial gainful activity since October 25, 2010, the alleged

onset date. Id. Continuing, the ALJ determined that Plaintiff had the severe impairments of

carpel tunnel syndrome, degenerative disc disease, other and unspecified arthropathies, and

depression. Id. He further found that Plaintiff did not have an impairment or combination of

impairments that met or medically equaled the severity of one of the listed impairments in

20 C.F.R. Subpart P, Appendix 1. Id. After considering the record, the ALJ found that

Plaintiff had the RFC to perform light work, but with the following limitations: can handle

items occasionally with the left hand, and can handle items frequently with the right hand;

2All citations to the Transcript refer to the page numbers assigned when the Transcript was filed

in the CM/ECF system rather than when the Transcript was compiled. This allows the Court and the

parties to easily reference the Transcript as the page numbers of the .PDF file containing the Transcript

correspond to the page numbers assigned when the Transcript was filed in the CM/ECF system.

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can never finger with the left hand, but can frequently finger with the right hand; can never

feel with the left hand; can climb ramps and stairs occasionally, never climbs ladders, ropes,

or scaffolds; balance frequently; occasionally stoop, kneel, crouch, and crawl; can never

work at unprotected heights, never near moving mechanical parts; can perform simple tasks

with no strict production rate pace, and can tolerate routine workplace changes. Id. at 16.

The ALJ then stated that Plaintiff is unable to perform any past relevant work, was

a younger individual on the alleged disability onset date, had at least a high school

education, and could communicate in English. Tr. at 20-21. Next, the ALJ indicated that the

transferability of jobs skill was not material to the determination of disability because using

the Medical-Vocational Rules as a framework supports a finding that the Plaintiff is “not

disabled,” whether or not the Plaintiff has transferable job skills. Id. at 21. Considering

Plaintiff’s age, education, work experience, and RFC, the ALJ determined that jobs existed

in significant numbers in the national economy that Plaintiff could perform. Id. For these

reasons, the ALJ found that Plaintiff had not been under a disability, as defined in the Act,

from October 25, 2010 through the date of his decision. Id. at 22.

III. STEPS TO EVALUATE ENTITLEMENT TO SOCIAL SECURITY

BENEFITS

An ALJ must proceed through the required sequential steps for evaluating entitlement

to Social Security benefits. These steps are:

1. An individual who is working and engaging in substantial gainful

activity will not be found to be “disabled” regardless of medical

findings (20 C.F.R. §§ 404.1520(b) and 416.920(b) (1992));

2. An individual who does not have a “severe impairment” will not be

found to be “disabled” (20 C.F.R. §§ 404.1520(c) and 416.920(c)

(1992));

3. If an individual is not working and is suffering from a severe

impairment which meets the duration requirement, see 20 C.F.R. §

404.1509 and 416.909 (1992), and which meets or is equivalent to a

listed impairment in 20 C.F.R. Pt. 404, Subpt. P, App. 1, a finding of

disabled will be made without consideration of vocational factors (20

C.F.R. §§ 404.1520(d) and 416.920(d) (1992));

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4. If an individual is capable of performing the kind of work he or she

has done in the past, a finding of “not disabled” must be made (20

C.F.R. §§ 404.1520(e) and 416.920(e) (1992));

5. If an individual’s impairment is so severe as to preclude the

performance of the kind of work he or she has done in the past, other

factors including age, education, past work experience and residual

functional capacity must be considered to determine if other work can

be performed (20 C.F.R. §§ 404.1520(f) and 416.920(f) (1992)).

Hogg v. Sullivan, 987 F.2d 328, 332 (6th Cir. 1992). The claimant has the burden to go

forward with the evidence in the first four steps and the Commissioner has the burden in the

fifth step. Moon v. Sullivan, 923 F.2d 1175, 1181 (6th Cir. 1990).

IV. STANDARD OF REVIEW

Under the Social Security Act, the ALJ weighs the evidence, resolves any conflicts,

and makes a determination of disability. This Court’s review of such a determination is

limited in scope by § 205 of the Act, which states that the “findings of the Commissioner of

Social Security as to any fact, if supported by substantial evidence, shall be conclusive.” 42

U.S.C. § 405(g). Therefore, this Court’s scope of review is limited to determining whether

substantial evidence supports the findings of the Commissioner and whether the

Commissioner applied the correct legal standards. Abbott v. Sullivan, 905 F.2d 918, 922 (6th

Cir. 1990).

The substantial-evidence standard requires the Court to affirm the Commissioner’s

findings if they are supported by “such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.” Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011)

(citing Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal citation omitted)).

Substantial evidence is defined as “more than a scintilla of evidence but less than a

preponderance.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234 (6th Cir. 2007). Accordingly,

when substantial evidence supports the ALJ’s denial of benefits, that finding must be

affirmed, even if a preponderance of the evidence exists in the record upon which the ALJ

could have found plaintiff disabled. The substantial evidence standard creates a “‘zone of

choice’ within which [an ALJ] can act without the fear of court interference.” Buxton v.

Halter, 246 F.3d 762, 773 (6th Cir. 2001). However, an ALJ’s failure to follow agency rules

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and regulations “denotes a lack of substantial evidence, even where the conclusion of the

ALJ may be justified based upon the record.” Cole, 661 F.3d at 937 (citing Blakely v.

Comm’r of Soc. Sec., 581 F.3d 399, 407 (6th Cir.2009)) (internal citations omitted).

Therefore, even if an ALJ’s decision is supported by substantial evidence, “a decision of the

Commissioner will not be upheld where the SSA 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)).

V. LAW AND ANALYSIS

A. RFC AND MEDICAL OPINIONS

Plaintiff first asserts that the ALJ’s RFC finding did not accurately depict Plaintiff’s

specific physical and mental limitations because the ALJ did not properly evaluate the

medical opinions of record. ECF Dkt. #15 at 13-19. Specifically, Plaintiff avers that the

opinions of Dr. Koricke and Dr. Dietz should have been afforded more weight with regard

to their opinions about Plaintiff’s mental impairments. Id. at 14-16. Also, Plaintiff avers that

the of Dr. Keppler, Dr. Frangiamore, and Dr. Hanicak should have been afforded more

weight with regard to their opinions about Plaintiff’s physical impairments. Id. at 16-19. For

the following reasons, the Court finds that the ALJ did not err in affording little or partial

weight to most of these opinions and substantial evidence supports that determination, except

for the opinion of Dr. Keppler.

A claimant’s RFC is an assessment of the most that a claimant “can still do despite

[his] limitations.” 20 C.F.R. § 404.1545(a)(1). An ALJ must consider all of a claimant’s

impairments and symptoms and the extent to which they are consistent with the objective

medical evidence. 20 C.F.R. § 404.1545(a)(2)-(3). The claimant bears the responsibility of

providing the evidence used to make a RFC finding. 20 C.F.R. §§ 404.1545(a)(3). However,

the RFC determination is one reserved for the ALJ. 20 C.F.R. § 404.1546(c); Poe v. Comm’r

of Soc. Sec., 342 Fed.Appx. 149, 157 (6th Cir. 2009) (“The responsibility for determining

a claimant’s [RFC] rests with the ALJ, not a physician.”). SSR 96-8p provides guidance on

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assessing RFC in social security cases. SSR 96-8p. The Ruling states that the RFC

assessment must identify the claimant’s functional limitations and restrictions and assess his

or her work-related abilities on a function-by-function basis. Id. Further, it states that the

RFC assessment must be based on all of the relevant evidence in the record, including

medical history, medical signs and lab findings, the effects of treatment, daily living activity

reports, lay evidence, recorded observations, effects of symptoms, evidence from work

attempts, the need for a structured living environment and work evaluations. Id.

The regulations require an ALJ to “consider” all the medical opinions in the record

as well as “evaluate” them considering the factors of § 404.1527(c). 20 C.F.R. § 404.1527(b)

& (c). These factors include the examining relationship; the treatment relationship, including

the length of the treatment relationship and the frequency of examination as well as the

nature and extent of the treatment relationship; supportability; consistency; specialization;

and other relevant factors that tend to support or contradict the medical opinion. 20 C.F.R.

§ 404.1527(c)(1)-(6).

1. Dr. Dietz

Plaintiff claims that greater weight should have been given to the opinion of State

agency consultant, Dr. David Dietz, Ph.D., whose opinion is dated June 26, 2016. ECF Dkt.

#15 at 14-16; Tr. at 89-91, 108-10. In relevant part, Dr. Dietz opined that Plaintiff was

moderately limited in his ability to complete a normal workday and workweek without

interruptions from psychologically based symptoms and to perform at a consistent pace

without an unreasonable number and length of rest periods. Tr. at 90, 109. In his explanatory

narrative about sustained concentration and persistence capacities and/or limitations, Dr.

Dietz explained that Plaintiff is “capable of routine 3 to 4 step tasks in an environment where

production standards and schedules are more flexible.” Id.

The ALJ afforded partial weight to Dr. Dietz’s opinion. Tr. at 19. The ALJ reasoned

that his opinion that the Plaintiff would be “capable of routine 3 to 4 step tasks in an

environment where production standards and schedules are more flexible” was a vague

limitation that was unsupported by the record. Id. (citing tr. at 90). The ALJ decided that a

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more accurate interpretation of this limitation, which is consistent with the Dictionary of

Occupational Titles (“DOT”), is “simple tasks with no strict production rate pace.” Id.

Plaintiff argues that it is irrelevant whether the ALJ’s limitation is consistent with the

DOT. ECF Dkt. #15 at 15. Contrary to Plaintiff’s assertion that the DOT is irrelevant, the

Social Security regulations provide that the SSA will take administrative notice of “reliable

job information” available from various publications, including the DOT. SSR 00-4p, 2000

WL 1898704, at *2 (citing 20 C.F.R. 404.4166(d)). In fact, “[i]n making disability

determinations, we rely primarily on the DOT ... for information about the requirements of

work in the national economy” at steps four and five of the sequential evaluation process.

SSR 00-4p (emphasis added). SSA also uses VEs as sources of occupational evidence for

complex vocational issues. SSR 00-4p, at *2 (citing 20 C.F.R. 404.4166(e)). Also, the

occupational evidence provided by a VE “generally should be consistent with the

occupational information supplied by the DOT.” Id. Therefore, the DOT is relevant.

During the VE’s testimony, the ALJ presented a hypothetical individual with certain

limitations, including “limited to performing simple tasks with no strict, production-rate

pace.” Tr. at 67. The VE testified that such an individual could not perform the past work

that Plaintiff performed, but could perform other jobs in the national economy. Id. at 67-68.

Later, Plaintiff’s counsel questioned the VE and the following exchange occurred:

Q (Plaintiff’s counsel): So if we went back to the first hypothetical and added

in that the individual would need to be in an environment where production

standards and schedules are more flexible, would that have any effect on your

answer?

A (VE): More flexible than what?

Q: More flexible than normal.

A: Sorry. I’m not sure exactly vocationally what you want me to answer to.

Q: Okay. Well, let me ask – put it this way. For unskilled jobs, is there

flexibility in production standards and schedules?

A: Well, you know, I think we talk about production standards and

production schedules in fast-paced production work. I think jobs that are not

production jobs have general performance standards, and I think a certain

amount of work has to get done in a certain period of time, but not really

production standards and fast-paced things. Is there flexibility in how much

work needs to get done and how much time? Not really. But they’re not

scheduled as a production line might be.

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Q: No, I understand. That’s – we’re not talking about production lines.

A: Right.

Q: We’re talking about–

A: Well, but you used the–

Q: –production standards and–

A: –word production. I wanted to be clear about–

Q: Right. And schedules, so is there flexibility generally in unskilled jobs for

scheduling or production standards, I guess? So maybe, you know–

A: Keep the word production out. I think for unskilled work, there’s only a

very small degree of flexibility typically. Most of it is do it when it’s

scheduled.

Q: Okay. So if somebody needed flexibility in scheduling, would they be

able to do the jobs that you cited?

A: I think it would be difficult for that person to sustain employment.

Tr. at 70-71. Plaintiff’s counsel tried incorporating the exact limitation that Dr. Dietz noted

in his opinion. See id. at 90, 109. However, the exact wording from Dr. Dietz’s opinion

caused some confusion for the VE, which led Plaintiff’s counsel to rephrase the question

more than once to get a satisfactory answer before moving on. Id. at 70-71. Accordingly, the

Court finds that the ALJ did not err in characterizing Dr. Dietz’s limitation as vague.

Due to the “vague” limitation, the ALJ interpreted the language in a way he stated

was consistent with the DOT. Tr. at 19. However, Plaintiff asserts that the ALJ’s

interpretation is not consistent with Dr. Dietz’s limitation. ECF Dkt. #15 at 15. He reasons

that “[t]he ALJ’s interpretation completely omits any flexibility regarding an individual’s

production standards or schedule.” Id. Plaintiff then cites to the VE’s testimony from the

October 13, 2017 hearing to illustrate that Dr. Dietz’s assessment is more limiting than the

ALJ’s interpretation because the VE testified that it would be difficult for an individual to

sustain employment if that individual needed flexibility in scheduling. Id. (citing tr. at 71).

Given the fact that the ALJ afforded partial weight to Dr. Dietz’s opinion because the

aforementioned limitation was vague and unsupported, the ALJ was free to interpret that

particular limitation using DOT terminology. See Williams v. Comm’r of Soc. Sec., No.

1:10-CV-02583, 2012 WL 1066778, at *3 (N.D. Ohio Mar. 28, 2012) (citing Poe v. Comm’r

of Soc. Sec., 342 Fed.Appx. 149, 157 (6th Cir. 2009)) (“Although the ALJ may not substitute

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his opinion for that of a physician, he is not required to recite the medical opinion of a

physician verbatim in his residual functional capacity finding.”) (emphasis added); see also

ECF Dkt. #15 (Plaintiff does not argue that Dr. Dietz’s limitation was supported by the

record). The Sixth Circuit has stated that “[e]ven where an ALJ provides ‘great weight’ to

an opinion, there is no requirement that an ALJ adopt a state agency psychologist’s opinions

verbatim; nor is the ALJ required to adopt the state agency psychologist’s limitations

wholesale.” Reeves v. Comm’r of Soc. Sec., 618 Fed.Appx. 267, 275 (6th Cir. 2015) (internal

citation omitted); see also Majors v. Colvin, 2014 WL 1238477, at *7 (N.D. Ohio Mar. 25,

2014) (“[A]n ALJ is not required to adopt every opinion expressed by a nonexamining

medical expert, even when an ALJ overall accords that opinion great weight.”). As such, the

Court find that substantial evidence supports the ALJ’s decision to afford partial weight to

Dr. Deitz’s opinion.

2. Dr. Koricke

Plaintiff contends that greater weight should have been given to the opinion of

consultative psychologist, Dr. Deborah Koricke, Ph.D. ECF Dkt. #15 at 14-16. Dr. Koricke

examined Plaintiff on June 7, 2016 for a disability assessment report. Tr. at 317-23. Dr.

Koricke extensively reviewed Plaintiff’s history. Id. at 317-20. She noted that Plaintiff was

adopted, has 13 adoptive siblings, and was raised in an Amish household. Id. at 318. As a

child, he observed his father beat his mother and he remembered that his adoptive father

abused him, breaking his leg when he was an infant. Id. He also only recently discovered he

was adopted, which made him feel “angry and deflated.” Id. He had behavioral difficulty in

school, and received special education instruction due to dyslexia. Id. Plaintiff was married

twice. He has one daughter from his first wife of 14 years, but his first wife, while pregnant,

was killed in a train accident in 2004. Id. His second wife of 2 years reportedly stole all of

his money when they divorced. Id. Plaintiff reported that he last worked for J&S

Environmental/Yoderscapes, and the government contracted the company for clean up

services after the September 11 terrorist attacks. Id. He remembers cleaning up 500 bodies

after 9/11. Id. Dr. Koricke also noted Plaintiff’s physical impairments, including 3 lost

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fingers on his left hand and that his right hand was crushed in a work accident. Id. at 319.

He underwent back surgery on May 15, 2016 to remove 3 disks. Id. At the time of this

assessment, he had been prescribed Cymbalta, Flexerall, and Percocet. Id. Plaintiff admitted

to past alcohol use and a long history of Cannabis use and abuse. Id. He was also a frequent

user of K2/Spice. Id. Plaintiff further reported that he completed a court ordered drug

program after being arrested on drug-related charges. Id. at 319-20.

Dr. Koricke’s mental status examination revealed that Plaintiff presented a good

appearance and appeared to understand all questions posed to him, despite refusing to

perform the serial 3’s. Tr. at 320. His speech was clear, flow of conversation was slow, and

his thinking appeared logical and linear. Id. He presented with blunted affect, cried several

times, was cooperative, and reported feelings of hopelessness. Id. Plaintiff also reported

consistently high levels of anxiety, flash backs to tragic events in his life, and panic attacks.

Id. at 320-21. Dr. Koricke observed that Plaintiff did not appear to be distracted, delusional,

or paranoid. Id. at 321.

After examining Plaintiff, Dr. Koricke diagnosed Plaintiff with Post-Traumatic Stress

Disorder (“PTSD”); Alcohol Use Disorder, moderate (in early remission); Cannabis Use

Disorder, severe (in early remission); and Major Depressive Disorder (“MDD’), moderate.

Tr. at 321. She noted that Plaintiff demonstrated average abilities in understanding,

remembering, and carrying out instructions. Id. at 322. She found he was persistent for

mental status tasks but was easily frustrated and refused to complete some tasks. Id. at 322.

She opined he would need much assistance and supervision to ensure accuracy when

completing assigned tasks in other environments. Id. Further, she observed that Plaintiff was

depressed, but he remained cooperative; exhibited some difficulty interacting due to blunted

affect and depressed mood, but he appeared articulate; and he engaged in several crying

spells throughout the examination. Id. Dr. Koricke found that Plaintiff presented as having

insight and judgment regarding his current situation and that he appeared depressed, but not

psychotic. Id. She concluded that he has limitations in his ability to respond appropriately

to work pressures and task completion in an employment setting due to symptoms associated

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with mood instability as a result of PTSD and MDD, as well as his physical limitations due

to his physical deformities. Id.

The ALJ afforded partial weight to Dr. Koricke’s opinion. Tr. at 20. In his decision,

he noted that although the record and Plaintiff’s testimony endorsed some mental limitations,

they are not as severe as Dr. Koricke opined. Id. The ALJ pointed out that Plaintiff testified

that he had not seen a psychiatrist in over a year, but was still able to function appropriately.

Id. He also noted that Plaintiff was able to perform simple tasks with no strict production rate

pace. Id.

Plaintiff argues that the ALJ did not cite to any evidence in the record that supports

a finding that Plaintiff is only limited to the performance of simple tasks with no strict

production rate pace. ECF Dkt. #15 at 15; tr. at 20. However, in his step three analysis of the

“paragraph B” criteria, the ALJ cited Dr. Koricke’s opinion exclusively. Tr. at 15-16. The

Sixth Circuit has endorsed supporting a conclusion in a particular step of the ALJ’s decision

by looking to factual findings elsewhere in that decision. See generally Forrest v. Comm’r

of Soc. Sec., 591 Fed.Appx. 359, 365-66 (6th Cir. 2014) (finding that the ALJ made

sufficient factual findings elsewhere in his decision to support his conclusion at step three);

Bledsoe v. Barnhart, 165 Fed.Appx. 408, 411 (6th Cir. 2006) (looking to findings elsewhere

in the ALJ’s decision to affirm a step three medical equivalency determination). In relevant

part, the ALJ found that Plaintiff has a mild limitation in understanding, remembering, or

applying information. Id. at 15. He cited Dr. Koricke’s opinion that Plaintiff demonstrated

average memory and ability to follow verbal instructions, his overall cognitive or intellectual

functioning appeared to be within an average range, and he understood verbal instructions.

Id. (citing tr. at 322). He also found Plaintiff had moderate limitation in the area of

concentrating, persisting, or maintaining pace. Id. (emphasis added). For support, the ALJ

cited Dr. Koricke’s opinion that Plaintiff had some difficulty completing multi-step tasks but

was persistent for mental status tasks. Id. (citing tr. at 322). Accordingly, the Court finds that

the ALJ cited to substantial evidence to support his conclusion that Plaintiff was limited to

simple tasks with no strict production rate pace.

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In addition, Plaintiff avers that the factors in the regulations support giving greater

weight to Dr. Koricke’s opinions. Id. (referring to the factors in 20 C.F.R. § 404.1527(c)).

Plaintiff is correct in that the factors of the examining relationship, consistency, and

specialization tend to favor giving more weight to her opinion. See ECF Dkt. #15 at 15-16;

20 C.F.R. § 404.1527(c). However, the ALJ only afforded partial weight to Dr. Koricke’s

opinion, relying on the fact that her opinion, dated June 7, 2016, was the first and only

available record3 of a visit. Tr. at 20 (citing only to Exhibit 1F); 20 C.F.R. §

404.1527(c)(2)(i).

The ALJ also relied on the supportability factor, stating that although the record and

testimony endorsed some mental limitations, they were not as severe as Dr. Koricke opined.

Id.; 20 C.F.R. § 404.1527(c)(3). The “severe” limitations appear to be Dr. Koricke’s

opinions that Plaintiff would need much assistance and supervision to ensure accuracy when

completing assigned tasks in other environments, as well as Plaintiff having limitations in

his ability to respond appropriately to work pressures and task completion in an employment

setting due to symptoms associated with mood instability. Id. (citing tr. at 322). In his step

three analysis, the ALJ noted that Dr. Koricke opined that Plaintiff demonstrated average

memory and ability to follow verbal instructions, his overall cognitive or intellectual

functioning appeared to be within an average range, and he understood verbal instructions.

Id. at 15 (citing tr. at 322). The ALJ also noted that, during their interview, Dr. Koricke

opined that the Plaintiff remained cooperative, utilized adequate speech, and had no

difficulty tracking their conversation. Id. (citing tr. at 320). Further, the ALJ considered Dr.

Koricke’s opinion that Plaintiff had some difficulty completing multi-step tasks but was

persistent for mental status tasks. Id. (citing tr. at 322). Despite Dr. Koricke’s opinion that

Plaintiff would have some limitations in his ability to respond appropriately to work

pressures, the ALJ found that he had no limitation in the area of adapting or managing

3 There is an issue regarding a second visit to Dr. Koricke that is not in the record. See infra. Part V(B).

Even considering that Plaintiff visited Dr. Koricke on two occasions rather than one, the frequency of the

examination factor would still not favor Plaintiff nor does Plaintiff allege that he visited Dr. Koricke on enough

occasions to afford her treating physician status. See 20 C.F.R. § 404.1527(c)(2)(i).

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oneself. Id. at 16 (citing tr. at 322). This evidence that the ALJ cited tends to internally

contradict the “severe” limitations in Dr. Koricke’s opinion and support the ALJ’s

conclusion to afford only partial weight to her opinion.

Finally, the ALJ noted that Plaintiff had not seen a psychiatrist in over a year and that

despite the lack of treatment, he was still able to function appropriately. Id.; see also id. at

17; 20 C.F.R. § 404.1527(c)(6). However, the only mention of a psychological evaluation

in the ALJ’s decision was with Dr. Koricke, and the ALJ did not cite to any evidence of

mental functioning post-dating her June 7, 2016 examination. See tr. at 18, 20. Such

conclusory statements have no cited support in the ALJ’s decision. See generally Biestek v.

Berryhill, 139 S. Ct. 1148, 1159-60 (2019) (Gorsuch, J., dissenting) (“[C]learly mistaken

evidence, fake evidence, speculative evidence, and conclusory evidence aren’t substantial

evidence.”). Despite the apparent lack of support for this particular conclusion, the ALJ’s

decision regarding Dr. Koricke’s opinion, as a whole, illustrates that he adequately weighed

the relevant regulatory factors. The ALJ did not completely discount Dr. Koricke’s opinion

and, instead, afforded it partial weight. As such, the Court finds that there is substantial

evidence to support the ALJ’s decision to afford partial weight to Dr. Koricke’s opinion.

3. Dr. Keppler

Plaintiff argues that the ALJ should have afforded more than little weight to the

opinion of Plaintiff’s orthopedic surgeon, Dr. Louis Keppler, M.D. ECF Dkt. #15 at 16. In

March 2016, Dr. Keppler diagnosed Plaintiff with lumbar canalstenosis with

spondylolithesis at L4-L5, spondylolithesis with spina bifida occulta at L4-L5. Tr. at 480-81,

564, 568. Subsequently, on May 11, 2016, Dr. Keppler operated on Plaintiff, performing a

lumbar laminectomy at L4 and L5 with lumbar diskectomy L4-L5 with posterior interbody

fusion at L4-L5 with segmental spinal instrumentation and bilateral lateral fusion. Id. at 568.

Plaintiff presented for a postoperative follow up visit on June 20, 2016, in which Plaintiff

noticed a dramatic improvement in both his low back pain and leg symptoms. Id. at 479, 574.

Dr. Keppler noted that Plaintiff ambulated with the use of a cane and continued to wear a

lumbar back support. Id. Plaintiff’s X-rays also demonstrated that the posterior

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instrumentation and interbody fusion were in good alignment without any signs of

displacement. Id.

On August 8, 2016, Dr. Keppler referred Plaintiff to physical therapy. Tr. at 575. On

that same day, Dr. Keppler opined that Plaintiff was doing reasonably well following his

surgery and his X-rays looked “excellent.” Id. at 541, 576. Dr. Keppler did not see much

bone consolidation and recommended the use of a bone growth stimulator. Id. Dr. Keppler

also provided some answers to a questionnaire regarding Plaintiff’s disability and included

answers, not on the questionnaire form, but rather in a letter or note. See id. Only part of the

questionnaire was provided in the record, starting with question #8 through to the signature

page, and the form itself was left blank. See id. at 542-43. Dr. Keppler opined that Plaintiff

“had preoperative leg and back pain,” and that an “MRI and plain films demonstrate

spondylolisthesis at L4-5.” Id. at 541, 576. He noted that corresponding depression and

anxiety are common emotional factors associated with lumbar spine disease. Id. Dr. Keppler

limited Plaintiff to: never lifting, never carrying, occasional handling, occasional grasping,

and frequent fingering. Id. He further stated that Plaintiff was in an early postoperative

period and required narcotic analgesics, which limited his ability to function in any type of

gainful employment. Id. He opined that Plaintiff, being in the early stages of rehabilitation,

was not a candidate for any form of gainful employment, and his ultimate functional capacity

will not be able to be evaluated until one year after his operation. Id.

On January 30, 2017, Plaintiff presented again to Dr. Keppler for a follow up visit.

Tr. at 577. Dr. Keppler felt that the fusion site would show some knitting and wanted

Plaintiff to continue on the bone growth stimulator. Id. He further noted that Plaintiff’s

preoperative symptoms were relieved by the surgery and that Plaintiff reported feeling much

better than he did prior to the surgery, especially regarding his back pain. Id. They

anticipated another follow up visit after three months. Id.

The ALJ heeded Dr. Keppler’s note of August 8, 2016, which stated that Plaintiff

was in an early postoperative period and limited his function in any type of gainful

employment. Tr. at 20 (citing tr. at 541). The ALJ stated that “[w]hile this might have been

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true at that time, the claimant recovered in such a manner that within one year, he was able

to return to substantial gainful activity at a less than light exertional level, which he is still

capable of performing.” Id. The ALJ afforded little weight to Dr. Keppler’s opinion. Id.

Specifically, Plaintiff contends that the ALJ failed to cite to any evidence in the

record to support his conclusion that Plaintiff recovered within one year and was capable of

substantial gainful activity at a less than light exertional level. ECF Dkt. #15 at 16 (citing

tr. at 20). Defendant points to the fact that the ALJ discussed Dr. Keppler’s January 2017

follow up notes for support. ECF Dkt. #18 at 12; Tr. at 19, 541, 577. The only other records

the ALJ discussed during the relevant time period between Dr. Keppler’s August 2016

opinion and January 2017 treatment notes were: an EMG showing neuropathy on September

26, 2016; carpal tunnel related records during November and December of 2016; and further

hand treatment notes from January 5, 2017. Id. at 19. None of these other records the ALJ

cited concern Plaintiff’s spinal issues that Dr. Keppler treated.

Although Dr. Keppler’s January 2017 treatment notes discuss some improvement in

Plaintiff’s symptoms, Dr. Keppler did not give an opinion as to Plaintiff’s capacity to work.

Id. at 577. As Dr. Keppler noted in his August 8, 2016 opinion, Plaintiff’s ultimate

functional capacity could not be determined until a year after the surgery, which would have

been around May 2017. Id. at 541, 576. The ALJ appears to conclude that by January 2017,

Plaintiff could perform substantial gainful activity at a less than light exertional level, but

he cited to no evidence, and no support exists elsewhere in his decision. Id. at 20. As such,

the Court finds that there is a lack of substantial evidence in affording little weight to Dr.

Keppler’s opinion.

4. Dr. Frangiamore

Plaintiff contends that the ALJ should have afforded more than partial weight to the

opinion of consultative examiner, Dr. Salvatore Frangiamore, M.D. ECF Dkt. #15 at 16. Dr.

Frangiamore evaluated Plaintiff on January 16, 2016 and noted his history of hand and back

problems. Tr. at 351-62. He found that Plaintiff had the following probable diagnoses: (1)

lumbago with possible sciatica on the right without any gross motor or lower extremity

15

deficits; and (2) bilateral chronic hand pain with hypersensitivity at his amputated DIP joints

in his second, third, and fourth digits on the left hand and pain with grip or range of motion

on his right hand due to a previous injury without any gross motor or sensory deficits. Id. at

355. Dr. Frangiamore opined that Plaintiff had the following limitations:

The claimant has mild limitations with sitting, standing, and walking due to

lumbago and sciatica. The claimant does not need an assistive device with

regards to short and long distances and uneven terrain. The claimant has mild

to moderate limitations with lifting and carrying weight due to fingertip

hypersensitivity and bilateral hand pain and weakness. There are limitations

on bending, stooping, crouching, squatting and so on and the claimant will

be able to perform these occasionally due to lumbago and sciatica. There are

manipulative limitations on handling, feeling, grasping, fingering and the

claimant will be able to perform these occasionally due to bilateral hand pain

and amputation. There are no manipulative limitations on reaching and the

claimant will be able to perform this frequently. There are no relevant

communicative or work place environmental limitations. There may be some

relevant visual limitations due to decreased visual acuity bilaterally.

Tr. at 355-56.

The ALJ afforded partial weight to Dr. Frangiamore’s opinion and described his

report as “vague.” Tr. at 19. He stated that since Dr. Frangiamore’s opinion was generated

in January of 2016, before Plaintiff’s surgeries and recoveries, it did not have the benefit of

the entire record. Id. For support, the ALJ cited to Plaintiff’s records from June 20, 2016,

which noted that Plaintiff noticed a dramatic improvement in both his low back pain and leg

symptoms. Id. (citing tr. at 479). The ALJ also cited to hand treatment notes from January

5, 2017, which showed Plaintiff no longer required any narcotic pain medication and that he

noticed some difference with decreased pain and increased sensation in his hand, which he

was very happy about. Id. (citing tr. at 745). For further support, the ALJ cited to treatment

notes from January 30, 2017, which showed that Plaintiff’s preoperative symptoms were

relieved by surgery and that he felt much better than he did prior to the surgery, especially

with regard to his back pain. Id. (citing tr. at 577).

Plaintiff argues that the ALJ unreasonably determined that Plaintiff’s bilateral

chronic hand pain improved with carpal tunnel surgery. ECF Dkt. #15 at 16. He contends

that although the carpal tunnel surgery may have provided some relief with the numbness

and tingling in his hands, the surgeries did nothing to alleviate the pain from the amputations

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in his left hand and the crush injury to his right hand. Id. at 16-17. For support, Plaintiff cited

to an August 2017 report from Dr. Hanicak, noting Plaintiff’s subjective complaints that he

continued to struggle with daily pain, especially in his back and neuropathic pain in his

upper extremities since his carpal tunnel surgery. Id. at 17 (citing tr. at 657).

Notably, the ALJ afforded partial weight to Dr. Frangiamore’s opinion despite the

fact that Plaintiff had carpal tunnel surgery after his examination. Tr. at 19. In relevant part,

the ALJ cited to certain improvements in Plaintiff’s hand condition post-surgery to support

his decision to afford only partial weight to this opinion. Id. (citing tr. at 750). Also, the ALJ

ultimately determined that Plaintiff has the RFC to perform only light work with the

following limitations on Plaintiff’s hands, namely, he can handle items occasionally with the

left hand, can handle items frequently with the right hand, can never finger with the left

hand, but can frequently finger with the right hand, and can never feel with the left hand. Id.

at 16. Accordingly, the Court finds that the ALJ cited to substantial evidence in giving only

partial weight to Dr. Frangiamore’s opinion by citing to certain improvements or changes

to Plaintiff’s relevant conditions that occurred after his examination with Dr. Frangiamore.

5. Dr. Hanicak

Plaintiff next argues that the ALJ should have afforded more than little weight to the

opinion of treating physician, Dr. John Hanicak, M.D. ECF Dkt. #15 at 17-18. Plaintiff

began treating with Dr. Hanicak on February 25, 2016. Tr. at 545, 551, 661, 664. During

Plaintiff’s first office visit, Dr. Hanicak noted Plaintiff’s subjective history and examined

him. Tr. at 551-52. The main reason for this initial visit was for Plaintiff’s low back pain due

to ongoing pain that radiated down both legs. Id. at 553. Dr. Hanicak found that Plaintiff

generally appeared well but noted diffuse muscle spasms, antalgic gait, and muscle weakness

(4/5) of the right lower extremity. Id. at 552. Dr. Hanicak diagnosed him with midline low

back pain with right-sided sciatica, other constipation, dental disease, intervertebral lumbar

disc disorder with myelopathy in the lumbar region, and chronic low back pain. Id. at 551-

53.

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On November 1, 2016, Dr. Hanicak completed a Medical Source Statement and

Mental RFC Assessment, but he did not provide answers to all of the questions on the forms.

Tr. at 545-50. In both forms, he provided the diagnosis of chronic or midline low back pain

with right-sided myelopathy or sciatica. Id. He opined that Plaintiff would be off task in an

eight hour work day greater than 25% of the time. Id. at 546, 549. He then filled out a check

box form for Plaintiff’s mental limitations and further estimated that as a result of his

physical impairments, Plaintiff’s functional limitations in an eight hour work day would be

limited to never lifting, carrying, handling, grasping, and fingering. Id. at 547-49. He further

opined that Plaintiff would be absent from work due to his impairments because of his severe

back pain, which makes it hard for him to get around. Id. at 550.

Plaintiff presented once again to Dr. Hanicak on August 2, 2017 due to back pain.

Tr. at 653-60. Dr. Hanicak examined Plaintiff and noted normal findings. Id. at 659. He also

found the following diagnoses: chronic midline low back pain with right-sided sciatica;

PTSD; neuropathy in his upper extremity, unspecified laterally; complete traumatic

metacarpophalangeal amputation of left index finger, subsequent encounter; complete

traumatic MCP amputation of left middle finger, subsequent encounter; complete traumatic

transphalangeal amputation of left ring finger, subsequent encounter; crushing injury of right

hand, sequela; carpel tunnel syndrome, bilateral; chronic neck pain; and generalized

osteoarthritis (“OA”). Id. at 659-60. Dr. Hanicak recommended for Plaintiff to consult to

physical therapy for all of the aforementioned diagnoses except for PTSD. Id.

On August 11, 2017, Dr. Hanicak again filled out a Medical Source Statement and

Mental RFC Assessment. Tr. at 661-66. As in his earlier opinion, Dr. Hanicak did not

provide answers to all of the questions. See id. His answers in the Medical Source Statement

were virtually the same as before. See id. at 545, 549-50, 661-63. His check box answers in

the Mental RFC form were different, with more boxes checked as “not significantly limited”

in his more recent August 2017 opinion. See id. at 547-48, 665-66.

The ALJ afforded little weight to Dr. Hanicak’s opinions. Tr. at 20 (citing tr. at 544-

59, 661-66). The ALJ stated that Dr. Hanicak completed check box-type opinions where he

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checked that the claimant would not be able to work, and never be able to lift or carry 10

pounds, or handle, grasp, or finger. Id. (citing tr. at 661-63). The ALJ also noted that Dr.

Hanicak completed a “mental” assessment where he only mentioned Plaintiff’s physical

limitations. Id. (citing tr. at 664-66). In affording only little weight to Dr. Hanicak’s

opinions, the ALJ reasoned that his opinions contained extreme and unsubstantiated

limitations and lacked cited evidence. Id. To note, the ALJ did not otherwise discuss Dr.

Hanicak’s opinions or examination findings elsewhere in his decision. See tr. at 8-23.

Plaintiff avers that the ALJ did not comply with the treating physician rule because

he failed to provide “good reasons” for affording less than controlling weight to Dr.

Hanicak’s opinions. ECF Dkt. #15 at 17-18. He argues that the ALJ’s one-sentence

conclusion was insufficient and he did not cite to any contrary or inconsistent evidence in

the record. Id. at 18. In addition, Plaintiff argues that the record supports a finding that

Plaintiff suffers from degenerative disc disease of the lumbar spine with myelopathy, an

impairment that the ALJ also found to be “severe” at step two of the sequential process. Id.

at 18; tr. at 14. Plaintiff avers that Dr. Hanicak’s opinion regarding the severity of

impairments was based upon his observations and clinical exams and is not an

“unsubstantiated” opinion. ECF Dkt. #15 at 18.

A treating source4 is a claimant’s own acceptable medical source who provides, or

has provided, medical treatment or evaluations and who has, or has had, an ongoing

treatment relationship with that claimant. See 20 C.F.R. § 404.1527(a)(2) (defining “treating

source”). An ALJ must give controlling weight to the opinion of a treating source if the ALJ

finds that the opinion is well-supported by medically acceptable clinical and diagnostic

techniques and not inconsistent with the other substantial evidence in the record. 20 C.F.R.

4 The undersigned notes that the SSA has changed the treating physician rule effective March 27, 2017.

The SSA will no longer give any specific evidentiary weight to medical opinions, including affording controlling

weight to medical opinions. Rather, the SSA will consider the persuasiveness of medical opinions using the factors

specified in their rules and will consider the supportability and consistency factors as the most important factors.

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§ 404.1527(c)(2)5; Price v. Comm’r Soc. Sec. Admin., 342 Fed.Appx. 172, 175-76 (6th Cir.

2009); Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). If an ALJ declines

to give controlling weight to the opinion of a treating source, he must determine the weight

to give that opinion based upon a number of regulatory factors. 20 C.F.R. § 404.1527(c)(2).

Such factors include “the length of the treatment relationship and the frequency of

examination, the nature and extent of the treatment relationship, supportability of the

opinion, consistency of the opinion with the record as a whole, and the specialization of the

treating source.” Wilson, 378 F.3d at 544, citing 20 C.F.R. § 404.1527(c); see also 20 C.F.R.

§416.927(c).

Although an ALJ must “consider” all of the factors in 20 C.F.R. § 404.1527(c) and

must “apply” the factors listed in 20 C.F.R. § 404.1527(c)(2), including its subsections,

through (c)(6) to determine the weight to give that opinion, he is not required to discuss

every factor in his decision as long as he provides “good reasons.” 20 C.F.R. §

404.1527(c)(2); Social Security Rule (“SSR”) 96-2p, 1996 WL 374188, at *5 (1996)6;

Francis v. Comm’r Soc. Sec. Admin., 414 Fed.Appx. 802, 804 (6th Cir. 2011) (“Although

the regulations instruct an ALJ to consider these factors, they expressly require only that the

ALJ’s decision include ‘good reasons ... for the weight ... give[n] [to the] treating source’s

opinion’—not an exhaustive factor-by-factor analysis.”) (internal citation omitted). Under

the “good reasons” rule, the ALJ must provide reasons that are “sufficiently specific to make

clear to any subsequent reviewers the weight the adjudicator gave to the treating source’s

medical opinion and the reasons for that weight.” SSR 96-2p, at *5. This allows a claimant

to understand how his case is determined, especially when he knows that his treating

physician has deemed him disabled and he may therefore “be bewildered when told by an

5 20 C.F.R. § 416.927 governs SSI determinations, while 20 C.F.R. § 404.1527 governs DIB

determinations. These regulations are virtually identical, and, for convenience, the Court will only cite to the DIB

regulations.

6 Effective March 27, 2017, SSR 06-03p, 96-2p, and 96-5p have been rescinded by Fed. Reg. Notice Vol.

82, No. 57, page 15263. These regulations are still effective for claims filed before March 27, 2017.

20

administrative bureaucracy that he is not, unless some reason for the agency’s decision is

supplied.” Wilson, 378 F.3d at 544 (quoting Snell v. Apfel, 177 F.3d 128, 134 (2d Cir.

1999)). Further, it “ensures that the ALJ applies the treating physician rule and permits

meaningful appellate review of the ALJ’s application of the rule.” Id. If an ALJ fails to

explain why he rejected or discounted the opinions and how those reasons affected the

weight afforded to the opinions, this Court must find that substantial evidence is lacking,

“even where the conclusion of the ALJ may be justified based upon the record.” Rogers v.

Comm’r of Soc. Sec., 486 F.3d 234, 243 (6th Cir. 2007) (citing Wilson, 378 F.3d at 544).

The Sixth Circuit has noted that, “while it is true that a lack of compatibility with

other record evidence is germane to the weight of a treating physician’s opinion, an ALJ

cannot simply invoke the criteria set forth in the regulations if doing so would not be

‘sufficiently specific’ to meet the goals of the ‘good reason’ rule.” Friend v. Comm’r of Soc.

Sec., No. 09-3889, 2010 WL 1725066, at *8 (6th Cir. 2010). The Sixth Circuit has held that

an ALJ’s failure to identify the reasons for discounting opinions, “and for explaining

precisely how those reasons affected the weight” given “denotes a lack of substantial

evidence, even where the conclusion of the ALJ may be justified based upon the record.”

Parks v. Social Sec. Admin., No. 09-6437, 2011 WL 867214, at *7 (6th Cir. 2011) (quoting

Rogers, 486 F.3d at 243 ). However, an ALJ need not discuss every piece of evidence in the

administrative record so long as he considers all of a claimant’s medically determinable

impairments and the opinion is supported by substantial evidence. See 20 C.F.R. §

404.1545(a)(2); see also Thacker v. Comm’r of Soc. Sec., 99 Fed.Appx. 661, 665 (6th Cir.

2004).

The ALJ does not state whether or not he considers Dr. Hanicak to be a treating

physician. See tr. at 20. As described above, Dr. Hanicak provided his first opinion after only

one visit, according to the record. See tr. at 545-59. He then provided a second opinion

shortly after what appears to be Plaintiff’s second visit, as evidenced in the record. See tr.

at 653-66. The Sixth Circuit has held that a single examination does not suffice to afford

treating physician status. Kornecky v. Comm’r of Soc. Sec., 167 Fed.Appx. 496, 506 (6th Cir.

21

2006) (also noting that “depending on the circumstances and the nature of the alleged

condition, two or three visits often will not suffice for an ongoing treatment relationship.”)

(citing Cunningham v. Shalala, 880 F.Supp. 537, 551 (N.D.Ill.1995) (where physician saw

claimant five times in two years, it was “hardly a foregone conclusion” that his opinion

should be afforded great weight)); Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994)

(finding treating physician rule did not apply to clinical psychologist who examined claimant

only once, was paid by SSA to examine claimant, and administered no treatment); Atterberry

v. Sec’y of Health & Human Servs., 871 F.2d 567, 572 (6th Cir. 1989) (“Dr. Zupnick is not

a treating physician given the fact that he evaluated the claimant on only one occasion.”).

Nevertheless, Defendant appears to concede that Dr. Hanicak is a treating physician and

makes no argument to the contrary. See ECF Dkt. #18 at 13 (“The ALJ also reasonably

concluded that the opinion of Plaintiff’s treating physician, John Hanicak, M.D., was only

entitled to little weight.”).

Even under the higher standard afforded to treating physicians, the ALJ provided a

“good reason” to afford only little weight to Dr. Hanicak’s opinion. The Court notes that the

ALJ’s first reason to discount this opinion would not meet the substantial evidence standard

and would also not be a “good reason” under the treating physician rule. As previously

mentioned, the ALJ did not discuss Dr. Hanicak’s examination findings anywhere in his

decision. See tr. at 8-23. The ALJ simply repeated Dr. Hanicak’s opinions, but he did not

explain why he found it to be “extreme and unsubstantiated” and provided no real discussion

of any contrary record or objective medical evidence to support why this opinion. The only

viable support in his decision is the ALJ’s reference that the opinion included check boxes.

However, the next reason is enough to meet the substantial evidence standard and

would also meet the “good reasons” requirement of the treating physician rule. The ALJ

correctly noted that Dr. Hanicak’s opinions included check boxes and Dr. Hanicak did not

specifically cite to evidence for support. Tr. at 20. The Sixth Circuit has explained that an

ALJ may properly discount a treating physician’s opinion when the opinion is in the format

of a conclusory checkbox questionnaire. Ellars v. Comm’r of Soc. Sec., 647 Fed.Appx. 563,

22

566 (6th Cir. 2016) (finding that ALJ may properly afford little weight to treating

physician’s two-page check-off form that did not cite to objective medical evidence);

Serrano v. Berryhill, No. 1:17CV2644, 2019 WL 691311, *23-24 (N.D. Ohio Jan. 30, 2019)

(Limbert, J.), report and recommendation adopted Serrano v. Comm’r of Soc. Sec., No.

1:17CV2644, 2019 WL 669634 (N.D. Ohio Feb. 19, 2019) (finding the same). Additionally,

ALJ’s are not bound by “conclusory statements of physicians, particularly where the

statements are unsupported by detailed objective criteria and documentation in the medical

record, and are inconsistent with the rest of the evidence.” Ellars, 647 Fed.Appx. at 565-66

(citing Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001)).

Dr. Hanicak had the opportunity to supplement his checkbox and written answers to

lend support to his opinion. He left several important questions blank and did not explain

anywhere the precise and objective reasons for his opinions. See tr. at 545-50, 661-66. For

example, the Medical Source Statement forms included a question asking the provider to

“[i]dentify any clinical findings, laboratory findings and diagnostic test results which support

[Plaintiff’s] diagnosis and the dates tests were performed.” See tr. at 545, 661. Although an

answer to this question would have provided authority for his opinion, Dr. Hanicak left this

question blank in both of his opinions. Id.

Accordingly, the Court finds that the ALJ’s treatment of Dr. Hanicak’s opinions is

supported by substantial evidence. Specifically, the ALJ’s reasoning that Dr. Hanicak’s

failure to cite to evidence to support his conclusory opinions constitutes substantial evidence,

and it would also constitute a “good reason” to afford little weight to his opinions.

B. DUTY TO DEVELOP RECORD

Plaintiff’s second main contention is that the ALJ failed in his duty to develop the

record when he declined to issue a subpoena to obtain the reports of Dr. Deborah Koricke

and Dr. Elizabeth Mease. ECF Dkt. #15 at 19-20. Plaintiff’s counsel sent a due diligence

letter dated September 28, 2017, stating that she was unable to gather medical records from

Dr. Koricke and Dr. Mease. Tr. at 11, 751-52. Consequently, Plaintiff’s counsel requested

the ALJ to subpoena those medical records. Id. Plaintiff specifically sought records of a

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psychological evaluation conducted by Dr. Koricke, dated August 3, 2016, and a physical

examination conduced by Dr. Mease, dated August 2, 2016. ECF Dkt. #15 at 19; Tr. at 752.

In her letter to the ALJ, Plaintiff’s counsel wrote “[w]e think these records are crucial for

Mr. Yoder’s case.” Tr. at 751. At the time of the October 13, 2017 hearing, Plaintiff was still

unable to gather those records. Id. at 11, 72-73.

In his decision, the ALJ characterized Plaintiff’s request as being for “one-time

examination reports.” Id. at 11; see also id. at 73. In denying the subpoena request, the ALJ

reasoned the following:

After further review, Dr. Deborah Koricke is a consultative examiner who

examined the claimant, whose report had already been exhibited at Exhibit

1F. Since these records are not likely to have any effect on the outcome of

the decision, I decline to subpoena these records.

Tr. at 11-12 (citing Dr. Koricke’s June 7, 2016 examination at tr. at 317-23). At the hearing,

the ALJ also stated that “since [the requested records are] just a one-time exam and no

treatment, no – nothing that could, you know, change the case one way or the other, I’m not

inclined to subpoena them.” Id. at 73.

The claimant has the burden of providing a complete record, defined as evidence

complete and detailed enough to enable the Secretary to make a disability determination.

20 C.F.R. §§ 404.1512, 416.913(d); Brown v. Sec’y of Health & Human Servs., 911 F.2d 731

(6th Cir. 1990) (citing Landsaw v. Sec. of Health & Human Servs., 803 F.2d 211, 214 (6th

Cir. 1986)). However, the Plaintiff’s duty to prove disability with a complete record must

be balanced against the ALJ’s duty to develop the record. The regulations provide the

following:

In general, you are responsible for providing the evidence we will use to

make a finding about your residual functional capacity. (See § 404.1512(c).)

However, before we make a determination that you are not disabled, we are

responsible for developing your complete medical history, including

arranging for a consultative examination(s) if necessary, and making every

reasonable effort to help you get medical reports from your own medical

sources. (See §§ 404.1512(d) through (e).)

20 C.F.R. § 404.1545(a)(3).

24

In certain circumstances, an ALJ has a special, heightened duty to develop the record,

but only when a claimant is “(1) without counsel, (2) incapable of presenting an effective

case, and (3) unfamiliar with hearing procedures.” Wilson v. Comm’r of Soc. Sec., 280

Fed.Appx. 456, 459 (citing Lashley v. Sec’y of Health & Human Servs., 708 F.2d 1048,

1051–52 (6th Cir.1983)). Absent such special circumstances, the claimant bears the ultimate

burden of proving disability. Id. (citing Trandafir v. Comm’r of Soc. Sec., 58 Fed.Appx. 113,

115 (6th Cir.2003)).

The ALJ cited the applicable rule regarding subpoenas, which is “[w]hen it is

reasonably necessary for the full presentation of a case, an [ALJ] may issue a subpoena on

his or her own initiative or at the request of a claimant or appointed representative.” Tr. at

11-12 (citing HALLEX I-2-5-78). The regulations also specifically state:

When it is reasonably necessary for the full presentation of a case, an

administrative law judge or a member of the Appeals Council may, on his or

her own initiative or at the request of a party, issue subpoenas for the

appearance and testimony of witnesses and for the production of books,

records, correspondence, papers, or other documents that are material to an

issue at the hearing.

20 C.F.R. § 404.950(d)(emphasis added). Although this rule contains discretionary language,

the Hearings, Appeals and Litigation Law Manual (HALLEX), which was cited by the ALJ,

interpreted this rule to require the ALJ to issue a subpoena on a claimant’s timely request if

the claimant shows (1) that an individual has evidence or can offer testimony that the

claimant cannot obtain without the subpoena, (2) the ALJ determines that the evidence or

testimony is reasonably necessary for the full presentation of the case, and (3) the ALJ has

exhausted other means of obtaining this evidence or testimony. See HALLEX I-2-5-

78(B)(2); see also 4 Soc. Sec. Law & Prac. § 52:37: Subpoenas—Issuance (2019).

Specifically, Plaintiff reasons that the ALJ could not have determined whether the

requested records would benefit Plaintiff’s claim or not without having examined such

records. Id. at 20. This argument fails for two reasons. First, this argument is illogical and

circular because it presumes that the ALJ must first examine the records before making a

determination to issue a subpoena. Second, Plaintiff has the burden to show why the records

25

are reasonably necessary for the full presentation of his case. Plaintiff does not, however,

explain how these records were reasonably necessary for the full presentation of his case or

how they were otherwise material to his case. See Shinseki v. Sanders, 556 U.S. 396, 409

(2009) (“[T]he burden of showing that an error is harmful normally falls upon the party

attacking the agency’s determination.”). Nor does he argue that the ALJ was under a special

duty to develop the record under Wilson. To note, Plaintiff was represented by counsel, and

therefore, the ALJ was under no special, heightened duty to develop the record. See

Trandafir v. Comm’r of Soc. Sec., 58 Fed.Appx. 113, 115 (6th Cir. 2003).

For the above reasons, the Court finds that the ALJ applied the proper legal standards

and set forth sufficient reasons for denying Plaintiff’s request to subpoena medical records

from Dr. Koricke and Dr. Mease.

VI. CONCLUSION

For the above reasons, the Court orders that the decision of the ALJ is REVERSED

and REMANDED for reevaluation of Dr. Keppler’s opinion.

Date: September 17, 2019 /s/George J. Limbert

GEORGE J. LIMBERT

UNITED STATES MAGISTRATE JUDGE

26