Turner v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

James C. Turner, ) CASE NO. 1:22-CV-877

)

Plaintiff, ) JUDGE PATRICIA A. GAUGHAN

)

vs. )

)

Commissioner of Social Security, ) Memorandum of Opinion and Order

)

Defendant. )

INTRODUCTION

This matter is before the Court upon the Report and Recommendation of Magistrate

Judge Carmen E. Henderson (“R&R”) (Doc. 17) recommending that the decision of the

Commissioner be affirmed. Plaintiff has filed objections. For the following reasons, the

R&R is ACCEPTED, and the decision of the Commissioner is AFFIRMED.

STANDARD OF REVIEW

When objections are made to a Magistrate Judge’s Report and Recommendation, the

district court reviews the case de novo. Federal Rule of Civil Procedure 72(b) provides in

pertinent part:

The district judge to whom the case is assigned shall make a de

novo determination upon the record, or after additional evidence,

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of any portion of the magistrate judge’s disposition to which

specific written objection has been made in accordance with this

rule. The district judge may accept, reject, or modify the

recommended decision, receive further evidence, or recommit the

matter to the magistrate judge with instructions.

As stated in the Advisory Committee Notes, “When no timely objection is filed, the

court need only satisfy itself that there is no clear error on the face of the record in order to

accept the recommendation.” In Thomas v. Arn, 474 U.S. 140, 150 (1985), the Court held, “It

does not appear that Congress intended to require district court review of a magistrate judge’s

factual or legal conclusions, under a de novo or any other standard, when neither party objects

to those findings.”

PROCEDURAL HISTORY

Plaintiff James Turner (“Plaintiff”) filed this lawsuit seeking review of the

Commissioner’s April 26, 2021 decision denying his application for Supplemental Security

Income (“SSI”).

Turner filed an application for disability benefits in February 2014. In a decision

dated April 22, 2016, an ALJ denied Turner’s application. The Appeals Council denied his

request for review. On September 30, 2016, Turner filed a Complaint in this Court

challenging the Commissioner’s final decision. By joint stipulation of the parties, in March

2017, the Court remanded the case back to the Commissioner. Pursuant to the March 2017

Order of Remand, the Court directed the ALJ to “reweigh the treating source and examining

source opinions, consistent with Social Security’s regulations.” (Doc. 9, p. 1165).

A new hearing was held in November 2017, and the same ALJ issued a new decision

finding Turner was not disabled. Turner appealed the denial of benefits to the Appeals

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Council, which remanded the case back to the ALJ to “adequately evaluate” opinion evidence

in the record and further consider Turner’s subjective complaints. (Id. at 1168-70). After

another hearing, a new ALJ issued a third decision in November 2019 finding Turner was not

disabled. Turner appealed the denial of benefits to the Appeals Council for a third time, and

in November 2020, the Council again remanded the case back to the ALJ, on the basis that the

ALJ’s decision did not “contain an adequate evaluation of all the treating source opinions in

the record,” including the opinion of Dr. Blankfield, and contained “no substantive discussion

of the claimant’s past work.” (Id. at 1210).

In April 2021, a fourth hearing was held, and two weeks later the second ALJ issued a

decision finding Turner was not disabled. In April 2022, the Appeals Council denied his

request for review. On May 26, 2022, Turner filed a Complaint in this Court challenging the

Commissioner’s final decision.

FACTS

Plaintiff suffers from impairments including mild degenerative disc disease of the

lumbar spine; mild anterior wedge vertebral compression deformities at the thoracolumbar

junction; fibromyalgia; asthma; obesity; and sleep apnea. Two of plaintiff's treating

physicians opined, respectively, that plaintiff is “permanently disabled” and able to work zero

hours in a day.1 The Administrative Law Judge (“ALJ”) rejected these opinions, and, instead

relied on other medical record evidence and the opinions of the consultative examining

physicians and the state agency physicians in determining plaintiff was not disabled.

1 One of these physicians, Dr. Blankfield, authored five opinions

which consistently concluded plaintiff was unable to perform work

during the period between 2014 - 2021.

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ANALYSIS

Plaintiff objects to the R&R on two grounds. First he asserts that the ALJ erred in

evaluating the opinions of his two treating sources. Second, he asserts that both the ALJ and

the Magistrate Judge erred in the analysis of his pain and other symptoms. Each objection

will be addressed in turn.

1. Treating Source Opinions

Plaintiff first argues that the ALJ made an error of law in failing to follow the

Agency’s regulations for the evaluation of treating source opinions. At the time this claim

was filed, Agency regulations required that “an opinion from a medical source who regularly

treated the claimant (a ‘treating source’) be afforded more weight than that from a source who

has examined the claimant but does not have an ongoing treatment relationship (a

‘nontreating source’).” Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 375 (6th Cir. 2013),

citing 20 C.F.R. § 404.1502, 404.1527(c)(2). Under Sixth Circuit law, the opinion of a

treating physician is given controlling weight if such opinion (1) “is well-supported by

medically acceptable clinical and laboratory diagnostic techniques” and (2) “is not

inconsistent with the other substantial evidence in [the] case record.” Meece v. Barnhart, 192

F.App’x 456, 560 (6th Cir. 2006) (quoting 20 C.F.R. § 404.1527(d)(2)).

With regard to the element of supportability, “[t]he more a medical source presents

relevant evidence to support an opinion, particularly medical signs and laboratory findings,

the more weight we will give that opinion. The better an explanation a source provides for an

opinion, the more weight we will give that opinion.” 20 C.F.R. § 404.1527(c)(3). Regarding

consistency, the regulations state “the more consistent a medical opinion is with the record as

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a whole, the more weight we will give to that medical opinion.” 20 C.F.R. § 404.1527(c)(4).

In the event the ALJ concludes that the medical opinion is unsupported or inconsistent

with the other substantial evidence, the opinion may be given less than controlling weight, but

should not be rejected. Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 408 (6th Cir. 2009)

(Soc. Sec. Rul. 96 2p). Furthermore, “[t]reating source medical opinions are still entitled to

deference and must be weighed using all of the factors provided in 20 C.F.R. § 404.1527 and

416.927.” Id. In the event the treating physician’s opinion is not given controlling weight, the

ALJ must determine how much weight is appropriate for the opinion and must consider: (1)

the length, frequency, nature, and extent of the treatment relationship; (2) consistency of the

physician’s conclusions; and (3) any specialization of the treating physician. Rogers v.

Comm’r of Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007). Because of the significance of this

requirement, the Sixth Circuit has held that the failure to articulate “good reasons” for

discounting a treating physician’s opinion “denotes a lack of substantial evidence, even where

the conclusion of the ALJ may be justified based upon the record.” Id., 486 F.3d at 243.

Plaintiff’s objection focuses on opinions that two of his treating physicians, Dr.

Blankfield and Dr. Juguilon, rendered in 2014.2 Each of these opinions will be addressed

separately.

A. Opinions of Dr. Blankfield

The Court will first address the two opinions of his long-time primary care physician,

Dr. Blankfield. Plaintiff argues that the ALJ and the Magistrate failed to follow the proper

2 In his objection, Plaintiff discusses additional opinion evidence in

his analysis of the evaluation of his pain and other symptoms.

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legal criteria for evaluating his treating source’s opinions because they focused only on the

issue of whether the ALJ’s conclusions were supported by substantial evidence, and failed to

address the other factors provided in 20 C.F.R. § 404.1527 and 416.927.3 Therefore, plaintiff

asserts that the ALJ failed to articulate “good reasons” for discounting Dr. Blankfield’s

opinions.

Plaintiff’s objection focuses primarily on opinions that Dr. Blankfield authored in

May and June 2014, both of which were accorded “scant weight” by the ALJ. The first

opinion was submitted on a form entitled “Medical Source Statement: Physical Abilities and

Limitations.” (Doc. 9, p. 588-89). It identified numerous physical limitations, including a

limitation to working one to two hours on a typical day due to “neck, back, shoulder and hip

pain.” (Id.). The second opinion was a terse statement that plaintiff “is unable to work or

volunteer 20 hours per week due to his disability. His disability is permanent.” (Id. at 686).

The ALJ gave these opinions “scant weight” for the following reasons:

[The restrictions] are not well supported from the medical evidence (9F).

Similar to the opinions from Dr. Juigulon (sic) on the same pre-printed form,

Dr. Blankfield’s opinions regarding standing/walking, sitting, lifting/carrying,

working hours, and work attendance, reference subjectively reported

symptoms but did not identify specific diagnostic testing4 or objective findings

3 The Court notes that plaintiff does not challenge the Magistrate

Judge’s finding that the ALJ’s conclusions are supported by

substantial evidence.

4 Here, the ALJ made an overbroad statement. Although Dr.

Blankfield’s opinion did not specifically reference it, the records

he provided show that he ordered diagnostic testing including

imaging. However, the results of this testing did not support the

extreme limitations in his opinion. In contrast, Dr. Juigulon’s

initial examination documented specific diagnostic testing that

established the presence of fibromyalgia. The ALJ was clearly

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to suppothrte limitations offered from the medical evidence or treatment records (8F; 9F;

27F; 32F). Moreover, there are other findings in the record which contradict the limits

offered in Dr. Blankfield’s opinions, specifically, Dr. Gostkowski noted normal

neurological exam findings and the MRI study showed no more than minimal changes

(3F/30-38; 5F/30-31; 9F/29-30). Ongoing treatment records from Dr. Blankfield failed

to document appropriate physical examinations of all body systems, but simply noted

“multiple trigger points of pain” in the thoracolumbar spine and some tenderness in

the first CMC joint of the right thumb (27F; 32F). Dr. Blankfield’s treatment records

of follow up appointments approximately once every three months for medication

refills did not document any findings that would suggest he examined, evaluated,

tested, and/or concluded the functional status of the claimant for lifting/carrying,

walking, range of motion, strength, etc., on a routine basis (27F; 28F; 30F; 32F). With

regard to the opinions that the claimant has difficulty concentrating and focusing,

there is no objective testing or reference to diagnostic testing to support this statement

in Dr. Blankfield’s treatment records or the overall evidence of record, and the

undersigned notes that Dr. Blankfield does not opine to any specific limitations related

to concentration or focus (4F; 5F; 11F; 12F; 13F; 14F; 18F; 21F; 23F; 27F; 28F).

Furthermore, the opinion that the claimant would be absent more than 4 days per

month is not supported by any reference to treatment or medical records and is not

consistent with the overall evidence.

(Doc. 9, p. 911).

As the Magistrate Judge noted, this explanation addresses the two most critical

elements of the multi factor analysis set forth in the regulations: supportability and

consistency. First, the ALJ explains that Dr. Blankfield’s opinion is not supported by his own

treatment records, which “failed to document appropriate physical examinations of all body

systems,” because they “were generally limited to blood pressure, height, and weight, but did

not generally note areas that would be expected for assessment of impairments of

fibromyalgia and degenerative disc disease, such as range of motion, strength, sensation, or

aware of this testing, as she discussed it in detail earlier in her

decision and cited it as the basis for finding fibromyalgia was a

severe impairment. Therefore, the Court believes the poorly

chosen language in this sentence does not reflect a material error in

the ALJ’s analysis of the record.

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straight leg raise tests,” and “fail to include an analysis or evaluation of the claimant’s

response to treatment or potential improvement in the number or location of signs of

fibromyalgia.” (Id. at 902, 911). For example, the June 2014 visit note reports states, “He

has fibromyalgia. The cyclobenzaprine makes his mouth dry.” (Id. at 675). Therefore, the

ALJ determined Dr. Blankfield’s treatment notes “did not include testing that would provide a

basis for the physical limitations in his opinion.” (Id. at 911). This neither states nor implies

the ALJ was unaware that Dr. Blankfield provided diagnostic testing.

Second, the ALJ explained that Dr. Blankfield’s opinion was not consistent with other

record evidence, specifically the MRI results and Dr. Gostkowski’s neurological exam

findings,5 as well as the findings of consultative examiner Dr. Tran, who performed a

functional evaluation.6 The ALJ detailed both the “length and frequency” and the “nature and

extent” of Plaintiff’s treating relationship with Dr. Blankfield. She noted that “Dr. Blankfield

stated in the form that he has been treating Claimant since December 17, 1998,” and

explained treatment records showed Dr. Blankfield treated Plaintiff “once every three months

5 Due to plaintiff’s history of back pain, Cleveland Clinic

neurologist Dr. Gostkowski examined him in April and August

2013 (Doc. 9, plaintiff. 469-72, 474-78). His notes document

largely normal examination findings, with the exception of “mild

pain related weakness in the left hand.” Dr. Gostkowski noted

plaintiff “is not concerned about ambulation or mobility,” had

normal gait including arm swing, and was able to tandem, heel and

toe walk “without difficulty” at both examinations.

6 Dr. Tran examined plaintiff in May 2014, and performed manual

muscle testing and range of motion testing. He opined plaintiff

had moderate limitations with sitting, standing, walking, lifting

and carrying due to low back pain and left arm numbness. He

opined that plaintiff could occasionally bend, stoop, crouch, squat,

reach, handle, finger, and grasp. (Doc. 9, p. 578).

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for his ongoing reported pain and symptoms related to fibromyalgia, lower back pain, and

other reported join pain in his shoulders, knee, and hips” as well as “medication refills.” (Id.

at 902, 910-11). Finally, the ALJ discussed Dr. Blankfield’s area of specialization, noting

that Dr. Blankfield “is not a specialist in infectious disease, neurology or rheumatology,” and

therefore she gave greater weight to the examination findings of a neurologist, Dr.

Gostkowski.7 Thus, contrary to plaintiff’s assertion, the ALJ addressed every factor set forth

in 20 C.F.R. § 404.1527(d) and provided good reasons for her determination that Dr.

Blankfield’s 2014 opinions were entitled to “scant” weight.

Plaintiff also argues that the ALJ erred in describing the treating relationship and

treatment records provided by Dr. Blankfield. He asserts that the ALJ’s description of Dr.

Blankfield’s treatment notes as “devoid of any functional examinations, tests, or evaluations,”

is inaccurate. He also notes that in the two years prior to the opinion, Dr. Blankfield “ordered

testing, including cervical spine x-ray, thoracic spine x-ray, and bone density scan.” (Doc. 18,

p.5). The ALJ’s statement is inaccurate if the reader assumes that the adjective “functional”

applies only to the first item in the list: examinations. The ALJ was clearly aware that Dr.

Blankfield ordered diagnostic tests and evaluations, but that diagnostic imaging is distinct

from functional examination, functional evaluation, or functional testing.8 This failure to

7 Although this analysis is not in the section of the ALJ’s decision

discussing Dr. Blankfield’s opinion, the Court is permitted to

consider the decision as a whole. See, e.g., Lecea v. Comm'r of

Soc. Sec., 2017 WL 941832 at * 9 (E.D. Mich. Feb. 22, 2017).

8 The 2012 imaging revealed normal bone density, some narrowing

of foramina in the cervical spine, and mild vertebral compression

with deformities at the thoracolumbar junction. (Doc. 9, p. 559-

61). An MRI of plaintiff’s lumbar spine taken in 2013 revealed

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provide support for his opined functional limitations is the issue at the heart of the ALJ’s

assessment, and therefore, even though she did not repeat the word “functional” before “tests,

or evaluations,” her meaning is clear. Further, Dr. Blankfield’s notes do not indicate he was

performing full physical examinations at plaintiff’s visits, but state that he prescribed

fentanyl, oxycodone, gabapentin, and cortisone injections for plaintiff’s back and hip pain (id.

at 533-35, 667, 672, 705). He recommended physical therapy and a consult with a

neurologist (id. at 535, 545). Neither plaintiff nor, more importantly, Dr. Blankfield, offers

any explanation for how this imaging and treatment record, showing mild abnormalities

conservatively treated with medication, support the extreme limitations in Dr. Blankfield’s

2014 opinion.

Finally, plaintiff asserts that the ALJ should have specifically discussed fibromyalgia

when explaining her assessment of Dr. Blankfield’s opinions. Dr. Blankfield did not identify

that impairment as a cause for his opined limitations in either of the 2014 opinions, nor do

these opinions discuss trigger points or use any other terminology relating to fibromyalgia.

Dr. Blankfield’s treatment notes from February 2014 indicate that plaintiff “states another

physician dx him [with] fibromyalgia.” (Doc. 9, p. 533).9 In his June 2014 treatment note,

“mild degenerative disc disease.” (Id. at 557-58).

9 In a 2017 opinion Dr. Blankfield stated that plaintiff “has a

long-standing fibromyalgia-like condition that is most likely the

result of the West Nile Virus meningitis. The fibromyalgia should

have qualified him for disability years ago.” (Doc. 9, plaintiff.

1648-49). However, even in this later opinion, Dr. Blankfield did

not explain how plaintiff’s fibromyalgia affected his functional

ability. Instead, the 2017 opinion focuses on Dr. Blankfield’s

belief that neurological examination would demonstrate

“advancing neurological deterioration” including symptoms of

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Dr. Blankfield’s discussion of plaintiff’s fibromyalgia is limited to the observation that

“cyclobenzaprine makes his mouth dry.” (Id. at 675). In August 2014, Dr. Blankfield’s notes

state that “[f]or the fibromyalgia and low back pain, I recommend trying fentanyl 50mcg

every 3 days,” with no further discussion. (Id. at 705, 713). While Dr. Blankfield’s later notes

- from 2019 and 2021 - did indicate the presence of “multiple discrete trigger points of pain

involving the thoracolumbar spine,” these more complete examination notes still do not

identify the number or specific location of the trigger points, and treatment is still limited to

the prescription of fentanyl patches. (Id. at 1706, 1740, 1743.) Other examination notes from

the same period do not mention any trigger points. (Id. at 1757). Further, plaintiff had other

conditions documented in Dr. Blankfield’s records, including mild degenerative disk disease,

which can have common symptoms including “neck, back, shoulder and hip pain.” Plaintiff

fails to demonstrate that, as of the time the opinion was issued in 2014, the ALJ had sufficient

evidence to determine how Dr. Blankfield believed plaintiff’s fibromyalgia affected his

functional capacity. Any such analysis would have been improperly speculative.

As the Sixth Circuit made clear, if “the treating physician’s opinion is ‘unsupported by

sufficient clinical findings and is inconsistent with the rest of the evidence,’” that is a “good

reason” for giving that opinion less than controlling weight. Conner v. Comm’r of Soc. Sec.,

658 F. App’x 248, 253 (6th Cir. 2016) (citing Morr v. Comm’r of Soc. Sec., 616 F. App’x

210, 211 (6th Cir. 2015) (citing Bogle v. Sullivan, 998 F.2d 342, 347 48 (6th Cir. 1993))).

This identification of inconsistent evidence does not need to be contained in the discussion of

ataxia, dysphasia, and dysarthria that are “late complications

resulting from a case of West Nile Virus that occurred in 2001.”

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the opinion. See Nelson v. Comm’r of Soc. Sec., 195 F. App’x 462, 472 (6th Cir. 2006)

(ALJ’s discussion of the other evidence “implicitly provided sufficient reasons for not giving

... controlling weight” to the treating physicians); Coldiron v. Comm’r of Soc. Sec., 391 F.

App’x 435, 440 441 (6th Cir. 2010) (“An ALJ may accomplish the goals [of the “treating

physician” rule] by indirectly attacking the supportability of the treating physician’s opinion

or its consistency with other evidence in the record.”). Here, the ALJ identified inconsistent

evidence such as the MRI results and functional evaluations performed by neurologists Dr.

Gostkowski and Dr. Kumar, and clearly explained why Dr. Blankfield’s medical records were

insufficient to support his opined limitations. The ALJ’s opinion as a whole addresses the

relevant statutory factors, and therefore this objection is without merit.

B. Opinion of Dr. Juguilon

Dr. Juguilon, another of Plaintiff’s treating physicians, also offered two opinions in

2014. In March 2014, Dr. Juguilon filled in a short answer questionnaire. She identified

eleven conditions, including fibromyalgia, viral syndrome, and chronic fatigue, as the source

of plaintiff’s impairment.10 She set forth the date and summarized the examination results

supporting plaintiff’s fibromyalgia diagnosis, and attached lab testing relating to his viral

syndrome. She stated that plaintiff “is not able to perform any type of sustained physical

activity” due to his “random and unpredictable” symptoms of dizziness, “very low energy and

stamina,” and joint and muscle pain in both upper and lower parts of his body. (Doc. 9, p.

10 Other diagnoses listed by Dr. Juguilon include hypo gamma

globulinemia, hypolipidemia, insulin resistence, vitamin D

deficiency, history of West Nile meningitis, history of obstructive

sleep apnea, history of hypertension, and history of

hypothyroidism. (Doc. 9, p. 570).

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570-71).

The ALJ explained her assessment of this opinion in a brief paragraph:

On March 6, 2014, Dr. Juguilon opined, “He (the claimant) is not able to

perform any type of sustained activity” due to his symptoms of dizziness, low

energy and stamina, and joint and muscle pain (4F/3-5; 6F/3-5). No weight is

given to this opinion, as it is conclusory and reserved to the Commissioner as

to the claimant’s ability to engage in work activities. Further, the findings of

the examining neurologist, Dr. Gostkowski contradict this opinion (3F/30-34).

(Doc. 9, p. 910). In this form, Dr. Juguilon clearly identifies the diagnoses which support her

opined limitations, including the diagnosis of fibromyalgia. She also attaches the diagnostic

report which supports the diagnosis of fibromyalgia.

Plaintiff’s assertion that the ALJ failed to properly evaluate the factors set forth in 20

C.F.R. § 404.1527(d) and provide good reasons for her determination that Dr. Juguilon’s

2014 opinions were entitled to “scant” weight is without merit. As discussed below, the ALJ

explained that, while she accepted Dr. Juguilon’s diagnosis of fibromyalgia, the extreme

functional limitations in her opinion were not supported by her own treatment records, nor

were they consistent with other record evidence. The ALJ detailed both the “length and

frequency” and the “nature and extent” of Plaintiff’s treating relationship with Dr. Juguilon,

as well as discussing Dr. Juguilon’s area of specialization.

The ALJ clearly credited Dr. Juguilon’s diagnostic findings. She explained that these

findings are the sole record evidence supporting her conclusion that plaintiff has a severe

impairment of fibromyalgia.11 Further, she reasonably rejected the opinion that plaintiff could

11 Although plaintiff received infusion therapies at Dr. Juguilon’s

practice periodically until at least July 2015, Dr. Juguilon did not

note the presence or absence of tender points in any other

treatment notes.

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perform “no sustained physical activity” as conclusory. The limitations in Dr. Juguilon’s

opinion were both vague and overbroad. For example, Dr. Juguilon explained that plaintiff’s

“symptoms of dizziness occur at random and unpredictable” times, but neither her treatment

notes nor her opinion offer any detail regarding how frequently plaintiff experienced these

symptoms, or what measures he took to cope with them.12 Nor did Dr. Juguilon give any

indication of what she meant by “sustained physical activity,” either in terms of duration or

level of exertion. This type of information is critical to an ALJ in evaluating a claimant’s

functional capacity.

In May 2014, Dr. Juguilon completed the same form provided by Dr. Blankfield,

entitled “Medical Source Statement: Physical Abilities and Limitations.” On this form, she

was more specific in identifying the functional limitations but provided only terse

explanations for her conclusions. (Doc. 9, p. 584-85). For example, Dr. Juguilon opined that

plaintiff could work 0 hours in a day because “[h]e is on pain medication patches for muscle

and joint pains,” and would have absences due to “pain (joint & muscle) & fatigue, dizziness

with postural change.” (Id.) She opined that he could stand and walk for only 15 minutes at a

time due to “compression fractures of thoracic spine (2 levels) & slipped cervical disks.” (Id.)

Plaintiff again asserts that both the ALJ and the Magistrate Judge erroneously

evaluated Dr. Juguilon’s opinion only under the “substantial evidence” standard, and failed to

12 In January 2014, Dr. Juguilon noted that plaintiff’s “headache and

dizziness are less.” (Doc. 9, p. 499). In December 2014, nine

months after her first opinion, she noted plaintiff was “less dizzy”

and had “no headaches.” (Id. at 761). However, while these

notations are suggestive of improvement, they are vague,

especially given that she did not document the initial frequency or

severity of these symptoms.

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address the other factors set forth in 20 C.F.R. § 404.1527 and 416.927.13 This is inaccurate.

With regard to consistency, the ALJ explained why she found Dr. Juguilon’s treatment notes

inconsistent with other record evidence including the neurological examinations performed by

Dr. Gostkowski and Dr. Kumar,14 and MRI imaging. (Doc. 9, p. 910). Although plaintiff

argues that it was inappropriate for the ALJ to rely on neurological examination notes when

evaluating fibromyalgia, this overlooks the fact that Dr. Juguilon’s treatment records indicate

she treated him extensively for the viral syndrome related to his history of West Nile virus

infection, which was also the reason for his 2019 evaluation by Dr. Kumar. Neither the

opinions nor Dr. Juguilon’s medical records provided the ALJ with sufficient information to

determine what limitations were linked to fibromyalgia, and therefore the ALJ reasonably

relied on all record information relevant to the impairments for which Dr. Juguilon treated

plaintiff.

The ALJ also discussed Dr. Juguilon’s area of specialization, noting that Dr. Juguilon

“is a family practice physician, is not a neurologist or a specialist.” (Id.) With regard to the

“the length, frequency, nature, and extent” of plaintiff’s treating relationship with Dr.

13 In making this argument, Plaintiff acknowledges that the ALJ did

identify substantial evidence in support of her weighing of Dr.

Juguilon’s opinions.

14 Dr. Kumar examined plaintiff in 2019 in relation to his West Nile

virus infection and lingering neurological symptoms, including

tremors. (Doc. 9, p. 1713). He found normal results in the

neurological exam, with the exception of “some imbalance,” and

he noted plaintiff used a cane to walk safely. (Id. at 1714). Dr.

Kumar attributed the tremor to side effects of medications,

including bupropion, and assessed the imbalance as “multifactoral,

including osteoarthritis, degenerative joint disease of the spine,

medications such as gabapentin and fentanyl patch.” (Id.)

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Juguilon, the ALJ acknowledged Dr. Juguilon as a treating source and noted that she had

begun treating plaintiff in September 2013. (Id. at 909). Therefore, the factors set forth in 20

C.F.R. § 404.1527(d) were addressed and plaintiff’s objection is without merit.

The ALJ again explained that some of Dr. Juguilon’s opined limitations were too

vague to be useful in assessing plaintiff’s functional capacity. For example, the statement that

plaintiff would have difficulty sitting because he “has to shift position every 30 minutes” was

vague because it did not explain “whether this is shifting in his seat, shift to standing in one

place, or shift to moving or walking around.” (Id. at 910).

Further, Dr. Juguilon’s two opinions suggest considerable improvement during the

three months that elapsed between them. In March 2014, plaintiff was “unable to perform any

sort of sustained physical activity.” By May 2014, he could sit for four hours with

intermittent breaks, had no difficulty with fine manipulation or fingering, could “handle”

without difficulty unless he was required to open a tightly-closed bottle, and could reach

without difficulty as long as he did not need to bend at the torso. This impression is supported

by Dr. Juguilon’s March 2014 opinion and her treatment notes. In her March 2014 opinion,

she stated that the antiviral medication she prescribed had lessened his headache and

dizziness, although there is no baseline or specificity regarding the extent of the improvement.

(Id. p. 571). Her treatment notes from July 2014 state that plaintiff reported his medication

“seems to be working” and “headaches have resolved” (Id. p. 760), and in December 2014 she

noted that he was “less dizzy and no headaches.” (Id. p. 761).

Plaintiff also asserts that the ALJ failed to consider plaintiff’s fibromyalgia in

assessing Dr. Juguilon’s opinion. This, too, is without merit. Although Dr. Juguilon

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identified fibromyalgia as one of eleven relevant diagnoses in the March 2014 opinion, she

did not identify it as the cause of any of her opined limitations in the second opinion. Instead,

she based her opinion on other physical impairments which she identified. For example, she

identified plaintiff’s spinal compression fracture and “slipped cervical disks” as the cause of

his standing and walking limitations. She opined that he could work zero hours on a typical

day because “he is on pain medication patches for muscle and joint pains,” and would have an

unspecified number of work absences due to “pain (joint + muscle) and fatigue, dizziness with

postural change.” (Doc. 9, p. 584-85). Here, the ALJ would have to speculate whether Dr.

Juguilon believed these symptoms were side effects of the pain medication, or were due to

fibromyalgia or one of the other diagnoses that she identified on the opinion form which can

cause similar symptoms, including chronic fatigue, viral syndrome, insulin resistence, and

vitamin D deficiency. Such speculation would require the ALJ to improperly “play doctor” by

making independent medical findings.

Plaintiff asserts that the ALJ failed to consider the record as a whole in assessing this

opinion evidence. However, she fails to identify evidence other than the opinions of Dr.

Blankfield, discussed supra, that support the extreme limitations in Dr. Juguilon’s opinion.

Dr. Juguilon’s treatment notes document treatment for plaintiff’s viral syndrome, as well as

mitochondrial nutritional IV therapy, oral supplements, and recommendations for dietary

changes. She notes that plaintiff’s weight probably contributed to his joint pain (id. at 760),

and recommended dietary changes at nearly every appointment. She also repeatedly advised

him of the importance of using his prescribed CPAP machine to improve the quality of this

sleep. (Id. at 500, 503, 505). Neither her treatment notes nor her opinions provide insight

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into what role she believed fibromyalgia played in plaintiff’s functional impairment, nor does

she appear to have documented trigger points or provided treatment specifically for

fibromyalgia at any subsequent appointment. Further, although her March 2014 opinion lists

fibromyalgia as one of 11 diagnoses for which she is treating plaintiff, she never identifies it

as a cause of his disability. Her May 2015 opinion attributes his physical limitations to spinal

compression fractures, slipped cervical discs, and a variety of symptoms including joint and

muscle pain, fatigue, and dizziness with postural change. These symptoms are consistent with

fibromyalgia, but also consistent with the conditions that Dr. Juguilon discussed in her

treatment notes: viral infection, sleep apnea, and obesity.15

As discussed previously, the ALJ identified fibromyalgia as a severe functional

impairment based solely on Dr. Juguilon’s testing, and therefore clearly did not overlook this

aspect of the record. However, none of Dr. Juguilon’s subsequent treatment notes discuss

tender points or fibromyalgia. A single tender point examination and laboratory testing did

not give the ALJ the factual basis for a detailed assessment of how fibromyalgia, specifically,

affected plaintiff’s residual functional capacity. The ALJ’s conclusion that this limited

treatment record indicates that “the pain and other symptoms related to fibromyalgia do not

prevent [plaintiff] from performing the reduced demands of light work” in her residual

15 In his reply, plaintiff also asserts the ALJ should have provided a

more detailed analysis of the role of West Nile virus in his

functional limitations. However, the same issue applies to that

diagnosis. Although Dr. Juguilon more actively treated plaintiff’s

viral syndrome, neither her notes nor her opinions provide clarity

on how she believed it affected plaintiff’s functional abilities.

Neurologist Dr. Kumar, who assessed plaintiff for lingering effects

of his West Nile infection in 2019, did not identify it as having a

significant impact on plaintiff’s functional abilities.

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functional capacity determination is not error.

The crux of plaintiff’s argument appears to be that it is improper to require that a

physician’s opined limitations be supported by objective testing or medical findings where

there is a diagnosis of fibromyalgia, because that illness is “not amendable to objective

diagnosis.” (Doc. 16, p. 4). However, it is also true that the “a diagnosis of fibromyalgia does

not automatically entitle [a claimant] to disability benefits.” Vance v. Comm’r of Soc. Sec.,

260 F. App’x 801, 806 (6th Cir. 2008). Here, as in Vance, the ALJ acknowledged that

plaintiff had a severe physical impairment of fibromyalgia. Yet, “[w]hile it is undisputed that

[claimant] has the necessary objective medical conditions to support [his] claim, the contested

issue is the severity of the symptoms resulting from those conditions.” Id. at 806-07.

Therefore, the ALJ appropriately sought other record evidence to assess severity. As the ALJ

noted, neither Dr. Juguilon nor Dr. Blankfield prescribed therapies commonly used to lessen

the severity of fibromyalgia, such as physical or occupational therapy. Dr. Juguilon described

her plan for treatment as comprising antiviral medication, intravenous nutrient infusion for

liver detoxification, and oral nutritional supplements to boost immune resistence. (Doc. 9, p.

570).

Dr. Juguilon did not specifically attribute any of her opined limitations to

fibromyalgia, although she - like the ALJ - identified it as a contributing cause of plaintiff’s

limitations in her first 2014 opinion. Therefore, the ALJ’s omission of a specific discussion

of how fibromyalgia influenced Dr. Juguilon’s opinion is both understandable and proper, as

such analysis would necessarily have been speculative.

2. Assessment of pain and other symptoms

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Plaintiff’s second objection asserts that the Magistrate Judge erred in two ways: by

applying an outdated standard and by failing to realize that the ALJ had impermissibly

substituted her own judgment for that of plaintiff’s doctors. Specifically, plaintiff alleges a

violation of Social Security Ruling 16-3p, which instructs the ALJ to consider the claimant’s

credibility by comparing the claimant’s statements with the objective medical evidence. SSR

16-3p lists the factors relevant to the ALJ’s credibility determination concerning the

claimant's alleged disabling symptoms. Rogers, 486 F.3d at 247. These factors include the

individual’s daily activities; the location, duration, frequency and intensity of the individual’s

pain or other symptoms; any medication the individual takes or has taken to alleviate pain or

other symptoms; treatment, other than medication, the individual has received for relief of

pain or other symptoms; any measures other than treatment the individual uses or has used to

relieve pain, and, “[a]ny other factors concerning an individual’s functional limitations and

restrictions due to pain or other symptoms.” SSR 16-3p, 2017 WL 5180304, at *7-*8. An

ALJ is not required to discuss all the factors listed in SSR 16-3p, but should sufficiently

articulate her assessment of the evidence to assure the court that she considered all relevant

evidence. Cross v. Comm’r, 373 F. Supp. 2d 724, 733 (N.D. Ohio 2005).

Plaintiff asserts that the ALJ made a factual error by asserting that Dr. Blankfield

relied on Dr. Juguilon’s trigger point test rather than conducting his own examinations. He

also argues that the ALJ failed to consider the side effects of his medication in assessing his

residual functional capacity.

Some of Dr. Blankfield’s notes are illegible. Those that are legible support the ALJ’s

assertion that Dr. Blankfield relied primarily on another doctor’s diagnosis of fibromyalgia.

20

In a June 2014 record cited by plaintiff as demonstrating Dr. Blankfield’s independent

examination, he states plaintiff “[h]is [sic] been told in the past that he has fibromyalgia,”

before noting that plaintiff “has numerous trigger points of tenderness involving the anterior

chest wall and posterior back,” but “no tenderness to palpation of the elbows or knees.” (Doc.

9, p. 672, 674). None of Dr. Blankfield’s treatment notes record the number or location of

trigger points with the specificity necessary to support an independent diagnosis of

fibromyalgia.16 Dr. Blankfield’s examination notes report “multiple trigger points of pain

involving the thoracolumbar spine” and do not specify the number or location of the trigger

points. They also report no acute distress, no limitation to mobility except use of a cane, no

falls, full or 4/5 motor strength in all muscle groups, and normal sensation and movement in

both upper and lower extremities. (See, e.g., Doc. 9, p. 1685, 1691, 1706, 1740).

It is undisputed that Dr. Blankfield’s examination notes do not record the number or

specific location of plaintiff’s trigger points, nor do they include examination findings to

establish his functional abilities, such as range of motion testing, assessing grip strength, or

observation of his gait. They also do not document any subjective description of the effect of

plaintiff’s pain on his activities of daily living. Thus, the ALJ accurately described them as

“vague.” This makes these records of limited value to an ALJ seeking to understand the

effect of plaintiff’s fibromyalgia on his functional capacity. Further, while objective medical

16 Due to the pandemic, many of the later visits were virtual, and did

not include any physical examination. Later records cited by

plaintiff describe his medical visits with Dr. Blankfield as

“medication [follow up]” or “medication refills.” (Id. at 1679,

1682, 1685, 1688, 1691, 1706, 1715, 1723, 1730, 1740, 1743,

1746, 1753).

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evidence cannot measure a claimant’s pain, a medical examination can document the effect of

pain on a claimant’s functional abilities. Here, the ALJ’s reliance on the functional ability

findings of consultative examiner Dr. Tran and neurologists Dr. Gostkowski and Dr. Kumar17

is not error, particularly because other treatment records do not include complete physical

examinations or functional evaluations.

Plaintiff also objects that the ALJ improperly questioned the “ongoing diagnosis of

fibromyalgia” at the hearing by asking plaintiff’s counsel, “where does the actual diagnosis

and the treatment mesh? .... where does Dr. Blankfield continue to document the persistent

existence of fibromyalgia, sufficient to continue to prescribe him fentanyl?” (Doc. 18, p. 10

(quoting Doc. 9, p. 956)). While the question could have been phrased differently, it is clear

that the ALJ was attempting to understand the connection between plaintiff’s self-report of

disabling pain and physical limitations and Dr. Blankfield’s care, which was largely limited to

measuring his height, weight, and blood pressure, screening for depression, and prescribing

pain medication. The ALJ explained to the plaintiff that “what’s more important than the

specific diagnosis it’s the function. How does the person function?” (Doc. 9, p. 956). She

was explaining that, when a petitioner’s impairments do not meet or equal a listing, she must

assess a claimant’s residual functional capacity to determine disability. She asked plaintiff

and his counsel whether any of the records they provided included “anything that ... identifies

more documentation of testing,” or of Dr. Blankfield’s observations of plaintiff’s functional

17 Dr. Kumar’s examination findings are not directly relevant to the

2014 opinions because he examined plaintiff in July 2019,

however, they were relied on by the ALJ in determining plaintiff’s

residual functional capacity at the time of the 2022 decision.

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abilities throughout the treatment period. (Id. at 956, 984). The ALJ’s attempt to determine

whether plaintiff or his counsel had relevant information which she had been unable to

identify was not improper.18

Plaintiff also asserts that “the ALJ’s decision makes clear that she held [plaintiff’s]

failure to obtain low-cost treatment as evidence that his pain and other symptoms were not

disabling.” (Doc. 18, p. 12). It is true that, at the 2019 hearing, the ALJ noted the lack of

recent medical evidence, and pressed plaintiff regarding why he had not obtained low-cost

care and treatment during the period between his November 2017 and October 2019 hearings.

As both the ALJ and Magistrate Judge noted, the degree of treatment a claimant pursued is

relevant to an ALJ’s inquiry. In the most recent ALJ decision, the ALJ briefly discussed

plaintiff’s 2019 testimony that he had not sought affordable medical care and noted that

certain treatments were affected by plaintiff’s inconsistent insurance coverage, such as the

physical therapy plaintiff received from November 2012 through June 2013, which ended

before he had reached his goals “due to limitations in insurance coverage.” (Doc. 9, p. 361).

However, the ALJ placed greater emphasis on the fact that, even when plaintiff had insurance

coverage “treatment plans during the relevant period were conservative in nature, involving

mainly outpatient office visits and medication management.” (Id. at 906).

Next, plaintiff objects that the ALJ “failed to consider” the effects of his medication in

her assessment of his residual functional capacity. Plaintiff acknowledges that the ALJ’s

18 Notably, in response the the ALJ’s query, plaintiff’s counsel

acknowledged that he could not determine, from the record,

whether Dr. Blankfield prescribed fentanyl “due just to

fibromyalgia, or a combination of some painful impairments,”

because “I can’t play medical doctor.” (Doc. 9, p. 957).

23

decision limited him to “frequent balancing” as a result of medical record information

showing that his use of fentanyl, bupropion, and asthma medications could exacerbate his

tremors and aggravate his balance issues.19 Nevertheless, he asserts that the ALJ “ignored”

the side effects of fentanyl. However, the only side effects that plaintiff discusses in his

objection are impaired balance and tremors. As late as 2019, when Dr. Kumar examined him

in relation to these issues, plaintiff “said that he would put up with the problem because it is

not interfering significantly with functionality.” (Doc. 9, p. 1714). Because it is undisputed

that the ALJ provided accommodation for plaintiff’s balance issues and tremors in her

determination of his residual functional capacity, it is not necessary for the Court to determine

whether these were properly categorized as side effects of medications or symptoms of illness.

Finally, plaintiff objects that the ALJ “did not understand the nature and extent” of his

West Nile Virus infection. The Magistrate Judge concluded that, because the ALJ considered

plaintiff’s “history of West Nile Virus in combination with [his] other impairments” when

determining her RFC, her analysis of this impairment was sufficient. Plaintiff focuses on the

Magistrate Judge’s use of the word “history” to indicate that the ALJ did not consider his

“post-West Nile virus syndrome” after his initial infection in 2002, or the re-emergence of the

virus in 2013.20 In July 2017, Dr. Blankfield opined that “It is my medical opinion that

19 Under Social Security Regulation 83-10, “frequent” means

occurring from one-third to two-thirds of the time.

20 Plaintiff’s objection calls the 2013 positive test for West Nile virus

a “re-emergence” of his 2002 infection and also implies it was a

second infection, stating the ALJ erred because she “clearly

believed the infection was on one occasion.” (Doc. 18, p. 14). He

provides no medical basis for the assertion that plaintiff was

infected with West Nile virus on two separate occasions.

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[plaintiff's] ataxia, dysphasia and dysarthria are late complications resulting from a case of

West Nile Virus meningitis that occurred in 2001. . .. He ought to be under the care ofa

neurologist.” (Doc. 9, p. 1648-49). However, as with his 2014 opinion, Dr. Blankfield failed

to explain the basis for this assertion, or identify relevant treatment records. Both plaintiff

and the ALJ acknowledged that Dr. Juguilon was the provider who treated plaintiff for West

Nile virus in the relevant period. As the ALJ noted, neither Dr. Juguilon’s opinions nor her

treatment records identify functional limitations arising from this issue. In addition, neither of

the neurologists who examined plaintiff identified limitations resulting from West Nile virus.

Therefore, the ALJ did not err in assessing West Nile virus, regardless of whether it was the

initial infection or a “re-emergence” in 2013.

CONCLUSION

For the foregoing reasons, the Report and Recommendation of Magistrate Judge

Carmen E. Henderson is ACCEPTED, and the decision of the Commissioner is AFFIRMED.

IT IS SO ORDERED.

/s/ Patricia A. Gaughan

PATRICIA A. GAUGHAN

Dated: 8/31/23 United States District Judge

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