Bhamidipati v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

MADHAVI BHAMIDIPATI, Case No. 1:18-cv-443

Plaintiff, Litkovitz, M.J.

vs.

COMMISSIONER OF ORDER

SOCIAL SECURITY,

Defendant.

Plaintiff Madhavi Bhamidipati brings this action pursuant to 42 U.S.C. § 405(g) for

judicial review of the final decision of the Commissioner of Social Security (Commissioner)

denying her application for disability insurance benefits (“DIB”). This matter is before the

Court on plaintiff's statement of errors (Doc. 15), the Commissioner’s response in opposition

(Doc. 23), and plaintiff's reply (Doc. 29),

I. Procedural Background

Plaintiff protectively filed her application for DIB on November 9, 2014, alleging

disability since June 26, 2013, from dizziness due to motion of objects, vertigo of central origin,

nerve pain in lower extremities, balance issues, convergence insufficiency and oscillopsia, and

tendonitis in both feet. The application was denied initially and upon reconsideration. Plaintiff,

through counsel, requested and was granted a de novo hearing before administrative law judge

(“ALJ”) Anne Shaughnessy. Plaintiff and a vocational expert (“VE”) appeared and testified at

the ALJ hearing on March 22, 2017. On August 2, 2017, the ALJ issued a decision denying

plaintiff's DIB application. This decision became the final decision of the Commissioner when

the Appeals Council denied review on June 1, 2018.

II. Analysis

A. Legal Framework for Disability Determinations

To qualify for disability benefits, a claimant must suffer from a medically determinable

physical or mental impairment that can be expected to result in death or that has lasted or can be

expected to last for a continuous period of not less than 12 months. 42 U.S.C. § 423(d)(1)(A).

The impairment must render the claimant unable to engage in the work previously performed or

in any other substantial gainful employment that exists in the national economy. 42 U.S.C. §

423(d)(2).

Regulations promulgated by the Commissioner establish a five-step sequential evaluation

process for disability determinations:

1) If the claimant is doing substantial gainful activity, the claimant is not disabled.

2) If the claimant does not have a severe medically determinable physical or mental

impairment — 7.e., an impairment that significantly limits his or her physical or

mental ability to do basic work activities — the claimant is not disabled.

3) If the claimant has a severe impairment(s) that meets or equals one of the listings

in Appendix 1 to Subpart P of the regulations and meets the duration requirement,

the claimant is disabled.

4) If the claimant’s impairment does not prevent him or her from doing his or her

past relevant work, the claimant is not disabled.

5) If the claimant can make an adjustment to other work, the claimant is not

disabled. Ifthe claimant cannot make an adjustment to other work, the claimant

is disabled.

Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 652 (6th Cir. 2009) (citing 20 C.F.R. §§

404.1520(a)(4)(i)-(v), 404.1520(b)-(g)). The claimant has the burden of proof at the first four

steps of the sequential evaluation process. Jd.; Wilson v. Comm’r of Soc. Sec., 378 F.3d 541,

548 (6th Cir. 2004). Once the claimant establishes a prima facie case by showing an inability to

perform the relevant previous employment, the burden shifts to the Commissioner to show that

the claimant can perform other substantial gainful employment and that such employment exists

in the national economy. Rabbers, 582 F.3d at 652; Harmon v. Apfel, 168 F.3d 289, 291 (6th

Cir. 1999),

B. The Administrative Law Judge’s Findings

The ALJ applied the sequential evaluation process and made the following findings of

fact and conclusions of law:

1. The [plaintiff] meets the insured status requirements of the Social Security Act

through December 31, 2018.

2. The [plaintiff] has not engaged in substantial gainful activity since June 26, 2013,

the alleged onset date (20 CFR 404.1571 ef seq.).

3. The [plaintiff] has the following severe impairment: Persistent postural

perceptual dizziness (20 CFR 404.1520(c)).

4. The [plaintiff] does not have an impairment or combination of impairments that

meets or medically equals the severity of one of the listed impairments in 20 CFR

Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).

5. After careful consideration of the entire record, the [ALJ] finds that the

[plaintiff] has the residual functional capacity [(“RFC”)] to perform light work as

defined in 20 CFR 404.1567(b) except for the following restrictions: She can

stand and walk for four hours. She can never climb ladders, ropes or scaffolds.

She can occasionally crouch and crawl. She cannot read fine print. She should

avoid all exposure to hazards.

6. The [plaintiff] is unable to perform any past relevant work (20 CFR 404.1565),

7. The [plaintiff] was born [in] ... 1978 and was 35 years old, which is defined as

a younger individual age 18-49, on the alleged disability onset date (20 CFR

404.1563).

*Plaintiff’s past relevant work was as a quality assurance analyst and a teller, both light, skilled

jobs. (Tr. 31,75).

8. The [plaintiff] has at least a high school education and is able to communicate in

English (20 CFR 404.1564).

9. Transferability of job skills is 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 (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).

10. Considering the [plaintiff]’s age, education, work experience, and residual

functional capacity, there were jobs that exist in significant numbers in the national

economy that the [plaintiff] can perform (20 CFR 404.1569 and 404.1569(a)).°

11. The [plaintiff] has not been under a disability, as defined in the Social Security

Act, from June 26, 2013, through the date of this decision (20 CFR 404.1520(g)).

(Tr. 17-32).

C. Judicial Standard of Review

Judicial review of the Commissioner’s determination is limited in scope by 42 U.S.C. §

405(g) and involves a twofold inquiry: (1) whether the findings of the ALJ are supported by

substantial evidence, and (2) whether the ALJ applied the correct legal standards. See Blakley v.

Comm of Soc, Sec., 581 F.3d 399, 406 (6th Cir. 2009); see also Bowen v. Comm'r of Soc. Sec.,

478 F.3d 742, 745-46 (6th Cir. 2007).

The Commissioner’s findings must stand if they are supported by “such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales,

402 U.S. 389, 401 (1971) (citing Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229

(1938)). Substantial evidence consists of “more than a scintilla of evidence but less than a

preponderance... Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). In

3 The ALJ relied on the VE’s testimony to find that plaintiff would be able to perform the requirements of

representative light, unskilled jobs such as packager, with 50,000 jobs in the national economy; sorter,

with 50,000 jobs in the national economy; and bench assembler, with 50,000 jobs in the national

economy. (Tr. 32, 76).

deciding whether the Commissioner’s findings are supported by substantial evidence, the Court

considers the record as a whole. Hephner v. Mathews, 574 F.2d 359 (6th Cir. 1978).

The Court must also determine whether the ALJ applied the correct legal standards in the

disability determination. Even if substantial evidence supports the ALJ’s conclusion that the

plaintiff is not disabled, “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, 582 F.3d at 651 (quoting Bowen, 478 F.3d at 746).

See also Wilson, 378 F.3d at 545-46 (reversal required even though ALJ’s decision was

otherwise supported by substantial evidence where ALJ failed to give good reasons for not

giving weight to treating physician’s opinion, thereby violating the agency’s own regulations).

D. Medical Evidence

On June 21, 2013, plaintiff consulted with neurologist Dr. Omar Mulla-Ossmann, M.D..,

for nausea, vertigo, headaches, and ataxia. (Tr. 418-20). The doctor reported that plaintiff had

spent a few days at the Smoky Mountains and became sick. After she returned home, she had

persistent symptoms of vertigo and headaches. Dr. Mulla~Ossmann indicated that plaintiff

experienced “two particular episodes of severe vertigo in the beginning, twenty days ago, and

four days ago. The headache [wa]s spreading around her head and neck, she could barely keep

her balance, she ha[d] no appetite, [and] she was seen by ENT and no abnormalities were seen.”

(Tr. 418). Dr. Mulla-Ossmann found plaintiffs gait was slow and cautious but still steady with

no ataxia. (/d.). Dr. Mulla-Ossmann assessed a probable viral syndrome causing cerebellar

myelitis. (Tr. 420).

On June 25, 2013, plaintiff presented to the emergency department with dizziness,

nausea, shortness of breath, left neck pain, and a sensation that she had no control of her body

parts above her waist. (Tr. 1072-74). She was admitted for a neurological concern that had yet

to be determined. Diagnostic studies, including x-rays and MRIs, yielded no acute findings.

Dr. Mulla-Ossmann suspected viral syndrome cerebral myelitis, but he noted test results were

normal. Plaintiff was hospitalized until June 29, 2013. (Tr. 1074-95).

Plaintiff was seen again on July 9, 2013, by Dr. Mulla-Ossmann. Plaintiff complained

that she was feeling shaky and her legs and thighs were preventing her from standing up and

walking. Dr. Mulla-Ossmann noted that plaintiff's gait was cautious but not steady and that she

was using a walker. (Tr. 416-17). When seen on July 23, 2013, plaintiff reported to Dr. Mulla-

Ossmann that she was “walker dependent.” (Tr. 414).

Plaintiff was again hospitalized from July 23 to July 27, 2013 with progressive weakness

over the last two months. (Tr. 1102). She was diagnosed with weakness of both arms and

lower limbs and “functional weakness.” (Tr. 1107). She was discharged to a rehabilitation

facility.

Plaintiff was admitted to Drake Hospital for rehabilitation from July 27, 2013 through

August 10, 2013 due to difficulties with muscular fatigue and chronic dizziness with activity.

(Tr. 422-580). She received inpatient physical and occupational therapy to address weakness in

her extremities. Over time plaintiff was able to improve her functioning. (/d.)

In February 2014, Mark Goddard, M.D., plaintiff’s treating physical medicine and

rehabilitation specialist, assessed that plaintiff continued to have weakness and fati gue and he

was uncertain of the cause. (Tr. 2434). Dr. Goddard reported in May 2014 that plaintiff could

not do much in the way of close computer work or reading because of her visual problems. (Tr.

2474-75).

Plaintiff underwent her first functional capacity evaluation with Rick Wickstrom, P.T., in

April 2014. (Tr. 1480-99). Mr. Wickstrom found plaintiff was completely cooperative and

provided a consistent performance during functional capacity testing. She demonstrated

objective findings that were consistent with an unspecified neurological disorder. Plaintiff

exhibited mild right foot drop and increased right greater than left lower extremity extensor tone

that was classic for a neurological disorder of the upper motor neurons. She fatigued easily in

response to prolonged conversation and got very dizzy in response to atypical head movements,

such as turning her head from side to side or attempting tasks such as keyboarding. Plaintiff had

to take frequent breaks with her eyes closed during the exam. When she focused on Mr.

Wickstrom’s finger closer to her nose, he observed plaintiff had “significant nystagmus (rapid

side to side eye movements),” which was consistent with her report of dizziness and her near

vision impairment with both eyes open. She demonstrated normal near vision when either eye

was occluded, suggesting that her symptoms of dizziness may be reduced and performance on

near vision tasks improved with the use of an eye patch. (Tr. 1499). Mr. Wickstrom concluded

that plaintiff could lift up to five pounds, occasionally stand, frequently sit, seldom reach high

above the shoulders, seldom forward bend or stoop, and seldom do low work such as kneeling or

squatting. (/d.).

Plaintiff was examined by various specialists at the Cleveland Clinic beginning in June

2014 for complaints of imbalance and lower-extremity weakness. (Tr. 1660-69, 2596-2616,

2671-98). Her vestibular testing was normal. (Tr. 2610). The specialist who evaluated

plaintiff believed her symptoms were triggered by a viral infection which was slowly resolving

over time, and he believed continued conservative management and physical therapy would

result in the resolution of her symptoms. (Tr. 2599). In March 2015, plaintiff underwent a

battery of tests which disclosed no clear etiology of her persistent symptoms. (Tr. 2612):

Plaintiff was functionally improved and walked independently. (/d.). Multiple sclerosis was

ruled out after MRI and CSF testing. (/d.). Cardiovascular testing yielded normal results, with

no diagnostic evidence of a significant cardiovagal or cardiovascular adrenergic abnormality.

(Tr. 2685-86).

In January 2015, after reviewing plaintiff's file, state agency physician Steve McKee,

M.D., found that plaintiff could lift and carry 20 pounds occasionally and 10 pounds frequently;

stand and/or walk for about 4 hours in an 8-hour workday; and sit for about 6 hours in an 8-hour

workday. (Tr. 96). Dr. McKee also determined that plaintiff could occasionally climb ramps

or stairs, crouch, or crawl; frequently balance, stoop, or kneel; and never climb ladders, ropes, or

scaffolds. (/d.). Dr. McKee based his limitations on plaintiff's vertigo, imbalance, generalized

extremity weakness, fatigue, and lumbar degenerative disc disease. (Tr. 96-97). Plaintiff was

also found to be limited to no reading of fine print with both eyes, and she was to avoid all

exposure to hazards such as machinery and heights. (Jd.).

State agency physician William Bolz, M.D., reviewed plaintiff's file on reconsideration

and affirmed Dr. McKee’s assessment in May 2015. (Tr. 114-16). Dr. Bolz noted that the

Cleveland Clinic records showed plaintiff had a negative work-up on March 7, 2015; her

symptoms were improved and she was walking independently; and there was “no need for

further evaluation as she is functionally improved.” (Tr. 116, Tr. 2672).

Plaintiff consulted with specialists at the Mayo Clinic in February 2016. Plaintiff

underwent a battery of tests, including an autonomic reflex screen, MRI of the head, and

audiometry, all of which were normal. (Tr. 2783, 2785). A thermoregulatory sweat test was

normal, “arguing against an autonomic neuropathy.” (Tr. 2783). The impressions of the Mayo

Clinic were as follows:

1. There were no objective indications of peripheral vestibular system involvement

noted.

2. The delayed latencies leftward noted during saccade testing raise the possibility

of central vestibule-ocular pathway involvement; however, the patient reports weak

ocular muscles which is likely playing a contributing factor in this finding.

Clinical correlation [is] advised. There were no other objective indications for

central vestibulo-ocular pathway involvement noted.

3. [Plaintiff's] ability to maintain upright stance under a variety of changing sensory

input conditions was abnormal. However, the degree of difficulty exhibited was

inconsistent with her ability to ambulate down the hall and between test rooms.

4. The presentation of her symptoms suggests the development of Persistent

Postural-Perceptual Dizziness (3PD — former Chronic Subjective Dizziness

Syndrome — CSD).

(Tr. 2751). Plaintiff was prescribed Effexor and recommended as a candidate for a vestibular

and balance rehabilitation program. (Tr. 2751).

In April 2016, plaintiff resumed physical therapy for unspecified disequilibrium and

exercise tolerance. (Tr. 2982). Her goal was to decrease dizziness to “improve driving and

computer work tolerance.” (Tr. 2982). Plaintiff reported doing stretches and 30 minutes of

yoga each day, up to 30 minutes of riding a recumbent bike, and vestibular exercises as her

symptoms allowed. (Tr. 2986). In July 2016, plaintiff took a hiatus from physical therapy for

regulation of her medication. (Tr. 3034).

Mr. Wickstrom administered a second functional capacity evaluation in July 2016. (Tr.

2804-20). Plaintiff reported being disabled by nausea, dizziness, and headaches that she related

to her diagnosis of Persistent Postural Perceptual Dizziness. (Tr. 2806). During testing,

plaintiff took multiple rest periods during which she closed her eyes and put her head down on

her arms for 5-10 minutes. She consistently complained of dizziness and nausea in response to

tasks that required a near vision focus. Plaintiff's balance and functional lifting were improved

since her last functional capacity exam in 2014. She was no longer dependent on using an

assistive device for ambulation, and she no longer had physical exam findings of hyper-reflexia

or increased extensor tone in the lower extremities. She continued to have persistent fatigue and

limiting behaviors that prompted her to take frequent rest breaks in response to tasks that

required near vision or movement stimulus. Mr. Wickstrom opined that plaintiff could lift up to

twenty pounds, occasionally stand, and constantly sit. Mr. Wickstrom also opined that

plaintiff's visual limitations prevent her from working on a full-time basis, and she is unable to

perform work tasks that require near vision on more than an occasional basis due to visual

fatigue and nausea that prompts her to close her eyes and rest with her head down. (Tr. 2819).

On July 28, 2016, plaintiff established treatment with optometrist Brenda Montecalvo,

O.D. (Tr. 3068-75). Dr. Montecalvo reported in August 2016 that plaintiff experienced

extreme visual fatigue with much light sensitivity and eye discomfort during her evaluation. Dr.

Montecalvo found that plaintiffs responses to these tests were not experienced by normal

patients. The tests are designed to simply gather information about eye health and vision and do

not normally create eye strain and fatigue. Dr. Montecalvo reported that plaintiff's visual

condition distorts how visual information is processed by localizing objects in closer areas of

space than they are actually located. Dr. Montecalvo also found that plaintiff's ability “to

process central vision and ignore peripheral is difficult which creates much discomfort, dizziness

and disorientation. The harder she tries to focus the worse the convergence excess becomes.”

(Tr. 2911). According to Dr. Montecalvo, plaintiff “currently will not be able to complete

sedentary work such as a receptionist.” (Jd.). Dr. Montecalvo stated that plaintiff's use of a

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computer “for any more than a minute will create extreme visual discomfort and disorientation.”

(/d.). She described plaintiffs visual disturbances as “complex.” (/d.). Dr. Montecalvo found

that plaintiffs visual disturbances are more intense when the stimulus is up close, such as when

working with her hands in front of her or reading for a long period of time. (/d.). Dr.

Montecalvo reported that during testing, plaintiff had to take frequent rest breaks to hide her eyes

from stimulus and the lighting in her office. Dr. Montecalvo opined that “[d]uring a work day,

in her present condition, I estimate that she would be unproductive over 60% of the time.” □□□□□

Plaintiff was diagnosed with esotropia (a condition in which one or both eyes turn inward):

unspecified subjective visual disturbances; diplopia (double vision); and convergence excess

(imbalance of eye muscles which leads to a tendency for eyes to turn inwards). (Tr. 2912).

She recommended that plaintiff wear specialized lenses and attend vision therapy. (/d.). Dr.

Montecalvo opined that “[p]ossibly with aggressive vision rehabilitation she may be able to

perform such tasks in 5 years.” (Tr. 2911).

In January 2017, Dr. Montecalvo reported that she is a “visual rehabilitation specialist

with over 20 years’ experience,” and she opined that plaintiffs vision problem “will not be

correctable to a point where it would allow her to work safely and without consequences for at

least the next 24 months, and possibly longer.” (Tr. 3066). Dr. Montecalvo also characterized

plaintiff's disability insurance carrier’s opinion that plaintiff could function better with an eye

patch as “not part of an appropriate treatment program and will not remediate the problem in any

way whatsoever.” (Tr. 3065-66).

E. Specific Errors

On appeal, plaintiff argues that: (1) the ALJ’s unfavorable decision is errant because of

an overreliance on a missing etiology or objective basis for plaintiff's medical disability; (2)

1]

plaintiff's minimal medical improvement is not consistent with the demands of full time work:

(3) the ALJ’s residual functional capacity is insufficient because it fails to consider plaintiff s

need for off-task periods or rest; and (4) the ALJ’s treatment of the opinion evidence makes little

sense when the “reasons given” are considered. (Docs. 15 and 29). The Court will address

plaintiff's assignment of errors in reverse order.

1. Weight to treating sources

It is well-established that the findings and opinions of treating physicians are entitled to

substantial weight. Medical opinions from treating sources are generally afforded more wei ght

than those from non-treating sources “since these sources are likely to be the medical

professionals most able to provide a detailed, longitudinal picture of [the claimant’s] medical

impairment(s)[.]” 20 C.F.R. § 404.1527(c)(2). See Walters v. Comm’ of Soc. Sec., 127 F.3d

525, 529-30 (6th Cir. 1997). “Treating-source opinions must be given ‘controlling wei ght’ if

two conditions are met: (1) the opinion ‘is well-supported by medically acceptable clinical and

laboratory diagnostic techniques’; and (2) the opinion ‘is not inconsistent with the other

substantial evidence in [the] case record.’” Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376

(6th Cir. 2013) (citing 20 C.F.R. § 404.1527(c)(2)).

If the ALJ declines to give a treating source’s opinion controlling weight, the ALJ must

weigh the factors specified in 20 C.F.R. § 404.1527(c) to decide what weight to give the opinion;

specifically, 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. Gayheart, 710 F.3d at

376. See also Shields v. Comm’r of Soc. Sec., 732 F. App’x 430, 437 (6th Cir. 2018) (citing

Wilson, 378 F.3d at 544) (emphasis added); see also Blakley, 581 F.3d at 408 (“Treating source

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medical opinions [that are not accorded controlling weight] are still entitled to deference and

must be weighed using all of the factors provided in 20 C.F.R. § 404.1527[(c)]”). The ALJ’s

decision “must contain specific reasons for the weight given to [a] treating source’s medical

opinion, supported by the evidence in the case record, and must be 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, 1996 WL 374188, at *5. See

Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011). This requirement serves two purposes: (1) “‘it

helps a claimant to understand the disposition of [his] case, especially ‘where a claimant knows

that his physician has deemed him disabled,” and (2) it “permits meaningful review of the ALJ’s

application of the [treating-source] rule.” Shields, 732 F. App’x at 438 (citing Wilson, 378 F.3d

at 544). The Sixth Circuit has made clear that remand is appropriate “when the Commissioner

has not provided ‘good reasons’ for the weight given to a treating physician’s opinion” and when

the ALJ has not “comprehensively set forth the reasons for the weight assigned to a treating

physician’s opinion.” Jd. (quoting Hensley y. Astrue, 573 F.3d 263, 267 (6th Cir. 2009))

(emphasis added).

The ALJ declined to give controlling weight to Dr. Montecalvo’s opinion and ultimately

afforded little weight to the opinion. (Tr. 30). The ALJ stated that while plaintiff's subjective

complaints of visual symptoms have remained consistent, the record contains virtually no

clinical or diagnostic techniques to corroborate those complaints. (Tr. 29).

Plaintiff argues the ALJ did not provide good reasons for affording only little weight to

Dr. Montecalvo’s opinion. Plaintiff alleges that the ALJ misunderstood the problems,

symptoms, and limitations of plaintiff's vision impairment as discussed in Dr. Montecalvo’s

opinion letter which corroborated plaintiff's symptoms of dizziness and fatigue. Plaintiff asserts

13

that the ALJ’s discussion of an eye patch “begs the question: If the eye patch is of such

importance, why is it not part of the RFC create[ed] by ALJ Shaughnessy?” Plaintiff also

asserts that Dr. Montecalvo is a “rehabilitation specialist” who was qualified to opine on

plaintiff's functional capacity. (Doc. 15 at 26-27).

The ALJ’s decision giving little weight to Dr. Montecalvo’s opinion is supported by

substantial evidence, and the ALJ gave good reasons for this decision. The ALJ reasonably

noted that Dr. Montecalvo rendered her August 16, 2016 opinion after treating plaintiff only one

time. (Tr. 30). The length of the treatment relationship and frequency of examination is a valid

consideration in assessing the weight to give a treating physician’s opinion. 20C.F.R. §

404.1527(c); Wilson, 378 F.3d at 544. The ALJ noted that while Dr. Montecalvo’s

specialization lends some weight to her assessment, the medical evidence did not support or

comport with her assessment of plaintiff's limitations.* (Tr. 30). For example, Dr. Montecalvo

opined that plaintiff's use of a computer for more than one minute “will create extreme visual

discomfort and disorientation.” (Tr. 29, 2911). However, this opinion was inconsistent with

evidence generated both before and after Dr. Montecalvo rendered it. The record shows that as

early as October 2013, plaintiff was able to use a computer for up to two hours before she

became fatigued. (Tr. 1133). In addition, Dr. Montecalvo’s notes in November 2016, J anuary

2017, and February 2017, which post-date her August 2016 opinion, showed plaintiff was using

the computer anywhere from one to three hours. (Tr. 3085, 3093, 3101). Plaintiff also reported

in January 2017 that she could use a computer for up to 40 minutes at a time and could read up to

40 minutes □□ atime. (Tr. 3093). This evidence substantially supports the ALJ’s decision that

* Dr. Montecalvo is an optometrist and not a medical doctor. The ALJ mistakenly referred to Dr. Montecalvo as an

ophthalmologist, a medical or osteopathic doctor who specializes in eye and vision care.

14

Dr. Montecalvo’s extreme opinion was not adequately supported.

The ALJ also reasonably considered that Dr. Montecalvo’s opinion on plaintiffs physical

functioning exceeded the scope of her treating relationship, which was limited to plaintiff's

vision impairment. Dr. Montecalvo opined that plaintiff could not “complete sedentary work as

a receptionist,” and plaintiffs visual disturbances are more intense with up-close stimulus, such

as working with her hands in front of her or reading for a long period of time. (Tr. 2911).

However, as the ALJ pointed out, Dr. Montecalvo’s opinion letter does not address the effect of

plaintiff's vision impairment on a range of light work involving more distant visual stimuli. (Tr.

29). Further, the ALJ took into account Dr. Montecalvo’s failure to provide an “objective

etiology” for plaintiff's subjective visual symptoms. (Tr. 30,2911). Dr. Montecalvo described

plaintiff's subjective symptoms in detail but found plaintiffs “eye health” was “normal” and that

“eye health problems do not contribute to [plaintiffs] visual discomfort.” (Tr. 2911).

Finally, the ALJ reasonably considered that Dr. Montecalvo’s opinion that plaintiff will

remain disabled for years to come is a decision reserved for the Commissioner. (Tr. 31, 2911,

3066). In any event, Dr. Montecalvo’s opinion was undermined by the Mayo Clinic information

which indicates that plaintiff's PPPD is amenable to treatment in far less time. (Tr. 31, 3112),

The ALJ’s decision to give little weight to Dr. Montecalvo’s opinion is substantially supported

by the record.

Plaintiff also contends the ALJ erred in giving only “some weight” to the opinion of Rick

Wickstrom, P.T., who administered two separate functional capacity evaluations in April 2014

and July 2016, respectively. The ALJ gave “some weight” to most aspects of Mr. Wickstrom’s

assessments but “little weight” to his opinion on the functional impact of plaintiff's visual

limitations. (Tr. 29). Plaintiff alleges the ALJ failed to give “good reasons” to “Dr.”

15

Wickstrom’s assessments. (Doc. 15 at 27-28). Plaintiff argues that “Dr. Wickstrom purely

applied his direct clinical observations and objective methodology to determine [plaintiff] had

below sedentary capabilities.” (Doc. 29 at 13).

Contrary to plaintiff's assertion, Mr. Wickstrom is a physical therapist and not a

physician. Under the regulations and rulings applicable to plaintiff's claim, only “acceptable

medical sources” as defined under former 20 C.F.R. § 404.1513(a)> can provide evidence which

establishes the existence of a medically determinable impairment, give medical opinions, and be

considered treating sources whose medical opinions may be entitled to controlling weight. See

SSR 06-03p, 2006 WL 2329939, *2.° A physical therapist, like Mr. Wickstrom, is not an

“acceptable medical source” as defined under the applicable Social Security rules and regulations

but instead falls under the category of “other source.” Compare former 20 C.F.R. § 404.1513(a)

(listing “acceptable medical sources”) with former 20 C.F.R. § 404.1513(d)(1) (medical sources

not listed in § 1513(a), such as physicians’ assistants, chiropractors, and therapists, are

considered to be “other sources” rather than “acceptable medical sources”). See also Nierzwick

v. Comm'r of Soc. Sec., 7 F. App’x 358, 363 (6th Cir. 2001) (physical therapist’s report not

afforded significant weight because therapist not recognized as an acceptable medical source).

Because physical therapists are not considered acceptable medical sources under the regulations,

° Former § 404.1513 was in effect until March 27, 2017, and therefore applies to plaintiff's claim filed in 2014.

For claims filed on or after March 27, 2017, all medical sources, not just acceptable medical sources, can make

evidence that the Social Security Administration categorizes and considers as medical opinions. 82 FR 15263-01

2017 WL 1105348 (March 27, 2017).

° SSR 06-3p has been rescinded in keeping with amendments to the regulations that apply to claims filed on or after

March 27, 2017, and the rescission is effective for claims filed on or after that date. 82 FR 15263-01, 2017 WL

1105348 (March 27, 2017). Because plaintiff's claim was filed before the effective date of the rescission, SSR 06-

3p applies here.

16

the ALJ was not required to give “good reasons” under the treating physician rule or any special

deference to Mr. Wickstrom’s findings and reports.

Although information from “other sources” cannot establish the existence of a medically

determinable impairment, the information “may provide insight into the severity of the

impairment(s) and how it affects the individual’s ability to function.” SSR 06-03p, 2006 WL

2329939, at *2; former 20 C.F.R. § 404.1513(d). Factors to be considered in evaluating

opinions from “other sources” who have seen the claimant in a professional capacity include how

long the source has known the individual, how frequently the source has seen the individual, how

consistent the opinion of the source is with other evidence, how well the source explains the

opinion, and whether the source has a specialty or area of expertise related to the individual’s

impairment. SSR 06-03p. See also Cruse v. Comm'r of Social Sec., 502 F.3d 532, 541 (6th

Cir. 2007). The ALJ “should explain the weight given to opinions from these ‘other sources,’ or

otherwise ensure that the discussion of the evidence in the determination or decision allows a

claimant or subsequent reviewer to follow the [ALJ’s] reasoning, when such opinions may have

an effect on the outcome of the case.” SSR 06-03p, 2006 WL 2329939, at *6.

The ALJ’s assessment of Mr. Wickstrom’s evaluations is supported by substantial

evidence. The ALJ gave some weight to Mr. Wickstrom’s April 2014 assessment, which

indicated that plaintiff could lift and carry five pounds, occasionally stand, and frequently sit.

(Tr. 28). The ALJ considered this assessment was generally consistent with the RFC she

adopted and noted that evidence subsequent to Mr. Wickstrom’s assessment showed

improvement in plaintiff's functioning. (Tr. 29). The ALJ also found that Mr. Wickstrom’s

functional assessment in July 2016 was consistent with the performance of a range of work at the

light exertional level as Mr. Wickstrom opined that plaintiff could lift and carry between ten and

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twenty pounds, constantly sit, and occasionally stand/walk. (/d.). Nevertheless, the ALJ

properly gave little weight to Mr. Wickstrom’s assertion that plaintiff's visual limitations would

prevent her from working on a full-time basis because Mr. Wickstrom’s opinion amounts to an

issue reserved for the Commissioner. “A statement by a medical source that you are ‘disabled’

or ‘unable to work’ does not mean that we will determine that you are disabled.” 20 C.F.R. §

404.1527(d)(1); see also Amir v. Comm’ of Soc. Sec., 705 F. App’x 443, 448 (6th Cir. 2017)

(“[A] determination concerning whether a claimant is able to work is not a medical opinion, but

is instead a legal conclusion on an issue reserved for the Commissioner.”). Moreover, the ALJ

reasonably determined that as a physical therapist, Mr. Wickstrom’s specialized expertise does

not lend itself to evaluating the extent of plaintiff's vision impairment and its vocational impact.

Accordingly, the ALJ did not err by according little weight to Mr. Wickstrom’s opinion that

plaintiff's vision limitations would preclude her from full-time work. Plaintiff's assignment of

error is overruled.

2. Whether the ALJ’s RFC is substantially supported by the evidence.

Plaintiff contends the ALJ erred when she assessed an RFC that failed to incorporate

plaintiffs need for off-task periods or rest. Plaintiff alleges that her own statements and

testimony, as well as the opinion evidence of Mr. Wickstrom and Dr. Montecalvo, support a

finding for a more restrictive RFC. Plaintiff alleges the ALJ failed to consider plaintiff's

dizziness in any meaningful way by solely limiting the amount of walking plaintiff can perform

and excluding fine print reading from the RFC assessment. Plaintiff alleges she needs another

person to accompany her for security because of her dizziness, and she needs to close her eyes

and take a nap to regain her strength and stamina, neither of which the ALJ accommodated in her

RFC. Plaintiff also alleges the ALJ failed to accommodate plaintiffs absenteeism or the side

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effects from her medication. (Doc. 15 at 20-22).’

The ALJ is responsible for assessing a claimant’s RFC based on all of the relevant

medical and other evidence. 20 C.F.R. §§ 404.1527(d)(2), 404.1545(a)(3). See Bingaman vy.

Comm 'r of Soc. Sec., 186 F. App’x 642, 647 (6th Cir. 2006). This includes plaintiff's

allegations of her symptoms and limitations, which the ALJ is not required to accept. See Jones

v. Comm 'r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003) (“an ALJ is not required to accept a

claimant’s subjective complaints and may properly consider the credibility of a claimant when

making a determination of disability”).

In this case, the ALJ fully and fairly evaluated plaintiff's allegations of dizziness and

fatigue in light of all of the record evidence and reasonably determined that plaintiff retains the

RFC to perform a range of light work subject to additional exertional limitations. In making this

determination, the ALJ conducted a thorough review of the record evidence of plaintiff's medical

history, beginning with the onset of her vertigo and imbalance symptoms in 2013. The ALJ

reviewed the many tests and procedures plaintiff underwent over the years to determine the

potential cause of, and to obtain treatment for, her symptoms. Plaintiff was ultimately

diagnosed with PPPD by the Mayo Clinic doctors, which the ALJ accepted as a severe

impairment that imposed work-related limitations on plaintiff. Nevertheless, a diagnosis of

PPPD is not per se disabling. See Hill v. Comm’r of Soc. Sec., 560 F. App’x 547, 551 (6th Cir.

2014) (“disability is determined by the functional limitations imposed by a condition, not the

mere diagnosis of it’) (citing Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988)). Nor are

” In her reply memorandum, plaintiff admits “there is not a clear connection between dizziness and the prescribed

medication.” (Doc. 29 at 11,n.5). Therefore, the ALJ did not err by failing to add restrictions in the RFC based on

side effects from medication. 19

plaintiff's statements about her symptoms alone sufficient to prove she is disabled. 20 C.F.R. §

404.1529(a).* Given the subjective nature of plaintiff's impairment, the ALJ reasonably

assessed the extent to which plaintiff's testimony and allegations of her limitations were

consistent with or corroborated by the record evidence. The ALJ reasonably determined that

plaintiff's complaints and limitations were not as severe as suggested by her testimony, and

therefore plaintiff did not require accommodations in the RFC for a personal assistant to

accompany plaintiff or rest periods, as plaintiff asserts. The ALJ found that as plaintiffs

clinical functioning improved, plaintiff engaged in physically demanding activities that

conflicted with her allegations of exertional and postural limitations. (Tr. 27). In this regard,

the ALJ noted that while plaintiff complained of extreme fatigue and limitations, she

nevertheless engaged in an exercise regimen that included yoga, walking, riding a recumbent

bicycle, traversing stairs, cardiovascular exercises several times per week, and vestibular

exercises, as well as performing some household chores. (Tr. 27, 1284, 1287, 2809, 2810, 2865,

2986, 3053, 3060). In addition, the ALJ noted that literature from the Mayo Clinic indicated

that 80% of people diagnosed with PPPD will get better with treatment and initial treatment lasts

only eight to twelve weeks. (Tr. 27). The ALJ further noted that plaintiff's use of devices, like

prism glasses, and coping mechanisms helped compensate for visual deficits and to mitigate her

symptoms such that she could perform the range of light work contemplated by the RFC. (Tr.

8 The regulation states, “There must be objective medical evidence from an acceptable medical source that shows

you have a medical impairment(s) which could reasonably be expected to produce the pain or other symptoms

alleged and that, when considered with all of the other evidence (including statements about the intensity and

persistence of your pain or other symptoms which may reasonably be accepted as consistent with the medical signs

and laboratory findings), would lead to a conclusion that you are disabled.” 20 C.F.R. § 404.1529(a) (emphasis

added).

20

28, 1365, 1499, 1839-40, 2305, 2858, 2953, 2960-61, 2978; see also Tr. 1484, 1743, 1745, 1857,

2789, 3085, 3093). Finally, the ALJ considered that more recent evidence showed improvement in

plaintiff's vision, including the ability to read for up to 40-minute increments and play a board game

that required close visual focus. (Tr. 24, 28, 3093). The ALJ reasonably determined that such

activities were inconsistent with plaintiff's allegations that dizziness and visual disturbances required

her to take excessive breaks. This evidence, taken as a whole, does not indicate that “rest periods

were necessary after exerting herself even in the smallest way,” as plaintiff alleges. (Doc. 15 at 22,

citing Tr. 1499, 2819, 2911).

To the extent plaintiff alleges the ALJ erred by not incorporating the opinions of Dr.

Montecalvo and Mr. Wickstrom into plaintiff's RFC, the ALJ committed no error in this regard for

the reasons stated above.

Plaintiff argues that the “record contains abundant evidence that proves [plaintiff]

complained of dizziness that was brought on by activity or therapy” and that the Commissioner

erred by “insist[ing] on the idea that plaintiff does not experience dizziness.” (Doc. 29 at 10).

Contrary to plaintiff's assertions, the ALJ accepted that plaintiff had persistent dizziness and

formulated an RFC to accommodate the level of impairment resulting from plaintiff's dizziness.

The ALJ limited plaintiff to work that involved no more than walking or standing for four hours,

no climbing of ladders, ropes, or scaffolds, no fine print reading, and no exposure to hazards.

However, the ALJ did not accept plaintiff's alleged “need to retreat from productive effort when

dizziness is overwhelming” (Doc. 29 at 12), as plaintiff testified, because the ALJ reasonably

determined that the extent of the limitations alleged by plaintiff was not supported by the record

and that finding is supported by substantial evidence. The undersigned notes that even if

substantial evidence would support a different conclusion or where a reviewing court would have

ZI

decided the matter differently, the ALJ’s decision must be affirmed if it is supported by

substantial evidence. See Her v. Commissioner, 203 F.3d 388, 389 (6th Cir. 1999). The ALJ

appropriately reviewed all of the relevant medical evidence and evaluated the consistency of that

evidence with plaintiff's alleged limitations in assessing the RFC. Accordingly, the ALJ’s RFC

determination is supported by substantial evidence and plaintiff's assignment of error is

overruled.

3. Etiology for plaintiff's complaints of dizziness and medical improvement

Plaintiff alleges the ALJ placed undue emphasis on the lack of a specific etiology for

plaintiffs complaints of dizziness and fatigue. Plaintiff alleges that some impairments, like

fibromyalgia, do not have an etiology but can nevertheless be disabling. Plaintiff alleges her

PPPD is similar. She points to the Mayo Clinic evidence in the record which defines persistent

postural-perceptual dizziness as:

e A feeling of dizziness or unsteadiness that you have most of the time.

You have this sensation almost every day.

e This sensation has lasted at least three months.

(Doc. 15, citing Tr. 3109). Plaintiff contends that the ALJ’s focus on a need for etiology or

causality of plaintiff's PPPD diminished all of the ALJ’s findings, including what the ALJ was

willing to believe about the impairment. (Doc. 15 at 16-17).

Plaintiff is correct that the ALJ noted that the medical testing performed over the years

failed to identify an etiology or cause for plaintiff symptoms. The ALJ’s decision states:

Although the claimant’s reported subjective symptoms have remained consistent,

medical evidence provides insufficient objective findings to corroborate her

allegations of exertional, postural and environmental limitations especially those

regarding weakness and her ability to ambulate. Although clinicians from the

Mayo Clinic classified many of the claimant’s reported symptoms as signs of

persistent postural-perceptual dizziness, they provided no insight into the etiology

or cause of these symptoms[.] 26F and 32F. Similarly, diagnostic evidence,

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including pathology testing, radiological studies and vestibular testing provided no

objective medical evidence to corroborate the claimant’s allegations.

(Tr. 26).

While the ALJ did note the absence of evidence identifying a cause for plaintiff's

symptoms, the ALJ nevertheless accepted that PPPD was a medically determinable severe

impairment that could reasonably be expected to cause plaintiff's alleged symptoms. (Tr. 17,

26). The ALJ applied the sequential evaluation process and determined that plaintiff had an

RFC for a reduced range of light work with additional restrictions to accommodate her

complaints of dizziness. In assessing plaintiff's RFC, the ALJ considered plaintiff's statements

about the limiting effects of dizziness and found that plaintiff's complaints were not fully

corroborated. As explained above, the ALJ properly evaluated the intensity, persistence, and

functional limitations of plaintiff's symptoms by considering objective medical evidence and

other evidence, including: (1) plaintiff's daily activities; (2) the location, duration, frequency,

and intensity of plaintiffs symptoms; (3) the precipitating and aggravating factors for her

symptoms; (4) the type, dosage, effectiveness, and side effects of any medication taken to

alleviate her symptoms; (5) treatment, other than medication, received for relief of her

symptoms; (6) any measures used to relieve or mitigate her symptoms; and (7) other factors

concerning functional limitations and restrictions due to plaintiff's symptoms. See 20 C.F.R. §

404.1529 and Social Security Ruling 96-7p, 1996 WL 374186 (July 2, 1996).° The ALJ noted

that after her initial hospitalizations in 2013, plaintiff was treated conservatively with various

Effective March 2016, SSR 96-7p has been superseded by SSR 16-3p, 2016 WL 1119029, which “provides

guidance about how [the SSA] evaluate[s] statements regarding the intensity, persistence, and limiting effects of

symptoms.” There is no indication in the text of SSR 16-3p that the SSA intended to apply SSR 16-3p

retroactively, and the Ruling therefore does not apply here. Accord Cameron v. Colvin, No. 1:15-cv-169, 2016 WL

4094884, at *2 (E.D. Tenn. Aug. 2, 2016).

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forms of physical therapy and medications for the majority of the time period under

consideration. (Tr. 26). The ALJ considered that plaintiff's ability to ambulate improved to the

point that she no longer needed ambulatory aids and could perform a reduced range of light

work, and that her activities demonstrated a greater functional capacity than she alleged. The

ALJ did not improperly focus on the lack of a clear cause for plaintiff's symptoms to the

exclusion of the other record evidence, which indicated that the severity of plaintiff's PPPD was

not so great so as to preclude substantial gainful activity. Contrary to plaintiff's contentions, the

ALJ properly considered plaintiffs subjective complaints in light of the record evidence and

determined that plaintiff was less than fully credible based on the inconsistencies between

plaintiff's testimony, the medical evidence, and other evidence of record. “[A]n ALJ’s findings

based on the credibility of the applicant are to be accorded great weight and deference,

particularly since an ALJ is charged with the duty of observing a witness’s demeanor and

credibility.” Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997). Though there

is some medical evidence supporting plaintiff's testimony, as the ALJ’s credibility determination

is substantially supported it should not be disturbed by this Court. Kinsella v, Schweiker, 708

F.2d 1058, 1059 (6th Cir. 1983).

Plaintiff also alleges that the ALJ erred by citing to the evidence of improvement in

plaintiff's condition when the minimal improvement plaintiff experienced was not consistent

with the demands of full-time work. (Doc. 15 at 18). This argument in essence challenges the

ALJ's RFC finding for a range of light work activity. The ALJ reasonably found that given the

improvements in plaintiffs vision and her ability to ambulate over the relevant time period,

considered in conjunction with the other record evidence, which included plaintiff's relatively

rigorous daily activities, plaintiff retained the RFC for a range of light work. The ALJ

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considered and discussed all of the relevant objective, clinical, and opinion evidence, as well as

plaintiff's subjective statements regarding her limitations, and in determining that plaintiff

retained the RFC for a range of light work. Plaintiff's first and second assignments of error are

overruled.

IT IS THEREFORE ORDERED THAT:

The decision of the Commissioner is AFFIRMED and this case be closed on the docket

of the Court.

Date: 2126 /) F Zs a □

Karen L. Litkovitz

United States Magistrate Judge

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