Shoults v. Commissioner of Social Security

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

ANNE M. SHOULTS,

Plaintiff,

v. Civil Action 2:19-cv-1425

Chief Judge Algenon L. Marbley

Magistrate Judge Kimberly A. Jolson

COMMISSIONER OF

SOCIAL SECURITY,

Defendant.

REPORT AND RECOMMENDATION

Plaintiff, Anne M. Shoults, brings this action under 42 U.S.C. § 405(g) seeking review of

a final decision of the Commissioner of Social Security (“Commissioner”) denying her

applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income Benefits

(“SSI”). For the reasons set forth below, it is RECOMMENDED that Plaintiff’s Statement of

Errors (Doc. 12) be OVERRULED and that judgment be entered in favor of Defendant.

I. BACKGROUND

Plaintiff filed her applications for DIB and SSI on February 26, 2015, alleging that she was

disabled beginning August 31, 2014. (Doc. 9, Tr. 412–424). After her applications were denied

initially and on reconsideration, the Administrative Law Judge (the “ALJ”) held a hearing on

September 28, 2017. (Tr. 183–195). The hearing was continued, and a second hearing was held

on March 13, 2018. (Tr. 196–220). On June 25, 2018, the ALJ issued a decision denying

Plaintiff’s application for benefits. (Tr. 10–36). The Appeals Council denied Plaintiff’s request

for review, making the ALJ’s decision the final decision of the Commissioner. (Tr. 1–9).

Plaintiff filed the instant case seeking a review of the Appeals Council’s decision on April

15, 2019 (Doc. 1), and the Commissioner filed the administrative record on September 3, 2019,

(Doc. 9). This matter is now ripe for review. (See Docs. 12, 14, 15).

A. Relevant Medical Evidence

In this matter, Plaintiff’s mental and physical limitations are at issue. The ALJ thoroughly

summarized Plaintiff’s medical records pertaining to both:

A. Physical

. . . The claimant had a history of complaints from her spinal impairment with a

history of back and leg pain with numbness and tingling. (Exhibits lF, 2F, 3F). She

had a L4-L5 laminectomy, fasciectomy, foraminotomy, fixation, and fusion on June

2013. (Exhibit lF, page 1).

Since the alleged onset date, the claimant had a significant gap in medical treatment

records. In November 2015, the claimant saw a treatment provider for the first time

in a year. She came to ask a doctor if he was “on board” with filling out paperwork

for her disability application. She also reported having tingling, which was a new

problem that started about six months ago. She claimed to constantly have this

tingling. She also reported fatigue and numbness in her feet and left hand. She was

on significant pain medication, which she reported provided no relief. (Exhibit 6F,

page 1).

In December 2015, she was seen at a panic management provider. She reported

having constant worsening low back pain. She reported an aching, burning,

cramping, shooting, and stabbing pain that would radiate down both legs to her feet.

She reported having stiffness all day. She indicated she had leg pain, numbness,

and tingling. She indicated she had no had physical therapy in a long time and

never gotten injections. She claimed she usually could not get out of the house and

could not go walking. She reported her pain medication made her foggy and loopy.

(Exhibit 7F, page 1).

In March 2016, she was being tapered off her Methadone . (Exhibit 9F, page 36).

However, she claimed she could not get out of bed with only a 10 mg dosage of it.

(Exhibit 9F, page 27). She reported occasional numbness and burning in her legs

and feet. (Exhibit 9F, page 29). She told her primary care provider she did not like

the new pain medications and wanted a different referral. Her primary care

provider told her though he could not prescribed controlled substances for her pain.

(Exhibit l0F, page 13). From April through June 2016, she continued to report low

back pain, stiffness, leg pain, numbness, and weakness. (Exhibit 9F, pages 11, 16,

21, 26). She was referred to physical therapy. (Exhibit 9F, page 20).

In July 2016, she reported having mid and low back pain radiating into her legs

with stiffness. She reported starting physical therapy, which increased her pain and

improved her activity tolerance. (Exhibit 9F, page 6). In August 2016, she reported

constant mid and low back pain that would radiate into her legs. She still reported

stiffness and leg pain. She reported intermittent, waxing and waning joint pain.

(Exhibit 9F, page 1). She reported her pain was a four out of ten with medications

and an eight out of ten without. (Exhibit 9F, page 2).

In October 2016, it was noted she had failed a drug screen and was discharged from

her pain clinic. (Exhibit 10F, page 8). Her pain management provider noted she

tested positive for a medication not prescribed to her and for missing appointments.

(Exhibit 1l F, page 1).

In November 2016, it was noted her back pain was gradually improving since it

started. She was scheduled to start seeing a new pain clinic. (Exhibit l0F, page 5).

Her primary care provider told her she was not getting any more narcotic

medications after that visit and that she must not fail this new pain management

clinic. (Exhibit l0F, page 6). In December 2016, she starting seeing a new pain

management provider. It was noted she had been discharged from her prior clinic

for using Suboxone. She admitted to using someone else’s Suboxone again in

December. (Exhibit 14F, page 8). She denied having any nausea or vomiting.

(Exhibit 14F, page 22).

In late December 2016, she had a positive screening for Methadone. (Exhibit 14F,

pages 37, 44). Her new pain management provider gave her a warning. She

indicated she had taken medications from other people due to her pain. (Exhibit

14F, page 37). She had been asking for stronger medication. (Exhibit 14F, page

38). She still reported severe pain despite an increase in her Norco. (Exhibit 14F,

page 36).

In March 2017, she reported aquatic therapy did not help, but electrical stimulation

was helpful. (Exhibit 13F, page 7). It was noted she was sporadically attending

physical therapy. (Exhibit 14F, page 34). In April 2017, she reported her back pain

felt like a fist was in her back all the time. She was scheduled to get epidural

injections. (Exhibit l0F, page 2). She was hopeful her back would improve with

this. (Exhibit l0F, page 3). She reported standing for ten minutes caused increased

pain and that she could only lift very light weight. She claimed any walking caused

increased pain. She indicated she could sit for two hours. (Exhibit 13F, page 3). She

did not think physical therapy had helped her pain at all. (Exhibit 14F, page 18).

She was discharged from physical therapy, having attended eleven of twelve

sessions. She had cancelled three sessions. She was independent with her home

exercise programs. (Exhibit 13F, page 1).

In May 2017, she reported that since her gabapentin was increased, she had trouble

staying away. She indicated her Norco was not helping, and wanted to know what

else she could take. (Exhibit 14F, page 32). In July 2017, she got a warning letter

from her pain management provider for missing two appointments. (Exhibit 14F,

page 17). She had missed an appointment due to car trouble and was requesting a

refill of medication. She would not be given more medications until she was seen.

(Exhibit 14F, page 32).

In September 2017, she reported low back pain radiating to her legs with ankle pain

and burning in her feet. (Exhibit 14F, page 3). She reported her pain medications

took the edge off and made her more functional. (Exhibit 14F, page 14). In October

2017, she reported her medications were not working. She had been scheduled for

procedures, but was denied by her insurance due to lack of conservative therapy.

(Exhibit 14F, page 1). She continued to report low back pain with numbness,

tingling, paresthesias, and weakness in her legs. She denied any motor problems

with her legs. She denied any daytime sleepiness due to her pain medications.

(Exhibit 14F, page 11).

In January 2018, she reported having a burning pain and tingling in her legs. She

denied any numbness. (Exhibit 15F, page 1). In February 2018, she started another

round of physical therapy. She reported having difficulty getting in and out of chairs

and often needing her boyfriend’s help to get out of bed. (Exhibit 18F, page 1).

On examination since the alleged onset date, she had some decreased range of

motion in her lumbar spine. (Exhibit 9F, pages 4, 9, 19, 24, 29, 35; Exhibit 14F,

pages 11, 14). At times, she had normal range of motion. (Exhibit 17F, page 2).

She also had some lumbar spinal tenderness. (Exhibit 9F, pages 4, 9, 19, 24, 29,

35; Exhibit 14F, pages 18, 23). She had some sensory deficit with reduced sensation

to pinprick in the right leg. (Exhibit 9F, pages 4, 9, 19, 24, 29, 35). Her reflexes

were reduced. (Exhibit 9F, pages 4, 9, 19, 24, 29, 35; Exhibit 14F, page 11). At

times, her reflexes were intact. (Exhibit 17F, page 2). She had reduced strength in

her lower extremities. (Exhibit 9F, pages 19, 24, 29, 35; Exhibit 14F, pages 18,

23). Her gait was normal. (Exhibit 9F, pages 4, 9, 19, 24, 29, 35). She had a

positive straight leg raise test. (Exhibit 9F, pages 4, 9, 19, 24, 29, 35; Exhibit 14F,

pages 11, 14, 18, 23).

Imaging did show a spinal impairment. A January 2013 MRI of the lumbar spine

showed grade one spondylolisthesis at L4-L5 with severe foraminal stenosis and

degenerative disc disease and disc bulge at L5-Sl with formainal stenosis.

(Exhibit IF, page 1; Exhibit 2F, pages 8-9). August 2013 X-rays showed no

surgical hardware complications. She had stable anterolisthesis at L4- L5 and

pedicle screws at L4, L5, and Sl. (Exhibit 2F, pages 5, 7).

A February 2016 CT scan of the lumbar spine showed stable grade one L4-15

anterolisthesis and stable vascular L4-L5 disc interspace narrowing. There was

lucency around the S1 pedicle screws suggesting loosening. The posterior bone

graft at S1 was not mature or had been partially resorbed. (Exhibit 9F, page 43).

Additionally, the claimant had hypertension, which was treated with medications.

(Exhibit 3F). In November 2015, her hypertension was noted to be benign.

(Exhibit 6F, page 3). Her hypertension continued to be benign. (Exhibit l0F,

pages 3, 9). Her hypertension was uncontrolled. (Exhibit l0F, pages 5, 11). She

was to start home monitoring of her blood pressure. (Exhibit l0F, page 9). She

believed her agoraphobia caused her blood pressure to be elevated at examination,

and stated her blood pressure was normal when at home. (Exhibit 15F, page 4).

On examination, her blood pressure was often elevated. (Exhibit 3F, page 2;

Exhibit 7F, page 3; Exhibit 9F, pages 9, 13, 19, 23, 29, 35; Exhibit 12F, page 3;

Exhibit 14F, pages 1, 3, 5, 8, 11, 14, 18, 23; Exhibit 15F, pages 2, 5; Exhibit 17F,

pages 3, 5). Rarely, her blood pressure was normal. (Exhibit 6F, page 1; Exhibit

9F, page 4; Exhibit 13F, page 7). Her heart had a regular rate and rhythm with

no gallops. (Exhibit 3F, page 3; Exhibit 6F, page 3; Exhibit 9F, pages 9, 35;

Exhibit l0F, pages 2, 5, 8, 11, 13; Exhibit 15F, page 4; Exhibit 17F, pages 2, 4).

She had normal heart sounds. (Exhibit 3F, page 3; Exhibit 14F, pages 11, 14, 18,

23). Her pulses were intact. (Exhibit 6F, page 3; Exhibit 9F, page 35). She had

no edema. (Exhibit 6F, page 3; Exhibit l0F, pages 2, 5, 8, 13; Exhibit 14F, page

23; Exhibit 15F, page 1).

A January 2014 venous Duplex ultrasound of the right lower extremity showed no

evidence for deep venous thrombosis. (Exhibit 3F, page 72). Chest X-rays

showed the mediastinal silhouette was within normal limits. (Exhibit 3F, page

73).

As for the claimant’s asthma, she was a long-term smoker. (Exhibit 9F, page 7).

In October 2014, she had a non-productive cough for a week along with a fever

and ear congestion. Her symptoms were aggravated by lying down. Her oxygen

levels were low. She felt less short of breath after a nebulizer treatment, but was

still wheezing and tachypneic. She received two more treatments. She was found

to have pneumonia and status asthmaticus. (Exhibit 3F, pages 2-3). She still had

wheezing and rales after her treatments and was told to go to the emergency room.

(Exhibit 3F, page 4).

In April 2017, she reported having sinus pressure for a month with congestion.

She had no cough and her symptoms were worse while smoking. (Exhibit l0F,

page 2). In January 2018, she reported having a productive cough for two to three

weeks that waxed and waned. (Exhibit 15F, page 4).

On examination, at times, she had normal breath sounds. (Exhibit 6F, page 3;

Exhibit 9F, page 35; Exhibit l0F, pages 2, 5, 8, 11, 13; Exhibit 17F, page 5). Her

lungs were clear. (Exhibit 14F, pages 11, 14, 18, 23). She had normal respiratory

effort. (Exhibit 9F, pages 4, 9, 35; Exhibit 17F, page 2). Once, she had tachypnea

and respiratory distress with wheezes and rales. (Exhibit 3F, page 3). Chest X-

rays showed the lungs were well expanded and clear. (Exhibit 3F, page 73).

On May 11, 2015, the claimant had a consultative examination with Dr. Ellen

Offutt. The claimant reported she could not stand or walk for long due to her back

pain. She indicated she could not work because her legs and low back would not

allow her to stand for long, which was required by her job. She reported her pain

would start in her low back and run down the front of her legs. She described the

pain as a burning and tightening. She reported having twinges in her muscles.

She reported sitting made her pain better, but her back would become stiff. She

also reported having muscle spasm and pain in her neck for the past few weeks.

She claimed she needed to sleep in a chair to be comfortable. She claimed her pain

medication and physical therapy did not relieve her pain. She would also use an

inhaler twice a week. She indicated her asthma was worse in heat and humidity

and during pollen season. She did not believe her hypertension was well

controlled. She reported having ankle swelling since her back surgery. (Exhibit

4F).

On examination with Dr. Offutt, her blood pressure was elevated. Her oxygen

saturation level was good. She walked with a slight limp without an assistive

device. She had normal intellectual functioning. She had a slight decrease in

excursion and a slight increase in AP diameter. Her lung had a right upper quadrant

rhonchi. Her heart had a regular rate and rhythm without murmurs, gallops, or

rubs. Her pulses were intact. She had 1 + edema. She had tenderness and muscle

spasms in the spine. She had positive straight leg raise testing. She had normal

grasp, manipulation, pinch, and fine coordination. She had normal reflexes and no

muscle atrophy. She had reduced range of motion in her lumbar spine, hip, and

knees, but otherwise normal range of motion. She had decreased pinprick

sensation in the thumb and two fingers in both hands, but otherwise her sensation

was intact. She could walk on her heels with difficulty. She had no difficulty

walking on her toes or doing a tandem gait. She could squat with difficulty.

(Exhibit 4F).

(Tr. 21–24).

B. Mental Health

Turning to the claimant’ s mental health treatment, she had some history of

treatment with a primary care provider. (Exhibit 3F). In November 2015, she

was still being given medication for her mood and sleep issues. (Exhibit 6F, page

3). In March 2016, she replied being severely depressed with some suicidal

thoughts. She reported was tired of living with her pain. (Exhibit 9F, page 29). In

April 2016, she reported her depression was gradually worsening and she was

fatigued. She claimed she had not left the couch in three months. (Exhibit 10F,

page 13). In May 2016, she reported having fatigue and that one of her

medications made her too sedated. (Exhibit l0F, page 10).

In October 2016, she reported she did not want to leave the house unless she had

to. (Exhibit l0F, page 8). In November 2016, she reported constant depression

with sweating. She reported having nervous and anxious behavior when she went

out in public, but that she was fine at home. (Exhibit l0F, page 5).

In April 2017, she reported her anxiety had been waxing and waning with

excessive worry and nervous and anxious behavior. She reported her medication

was really helping. (Exhibit l0F, page 2). She was making some progress on her

mood. (Exhibit l0F, page 3). In September 2017, she reported wanting to try a

different medication, but had to taper off one of her existing medications first.

She claimed she did not leave home except for her medical appointments. She

claimed she would not sleep for days and then take her medication and sleep “for

days”. (Exhibit 17F, page 4). In January 2018, she wanted a referral to a mental

health provider. (Exhibit 15F, page 1).

On examination, she was alert and oriented. (Exhibit 3F, page 3; Exhibit 9F,

pages 4, 9, 19, 24, 29, 35; Exhibit 14F, pages 11, 14, 18, 23; Exhibit 17F, pages

1-2). She had some memory loss. (Exhibit 7F, page 3). Her speech was normal.

(Exhibit 6F, page 3; Exhibit 9F, pages 4, 9, 19, 24, 29; Exhibit l0F, page 14;

Exhibit 15F, page 1; Exhibit 17F, page 5). Her behavior was normal. (Exhibit

9F, pages 4, 9, 19, 24, 29, 35; Exhibit 15F, page 1; Exhibit 17F, pages 2, 5). At

times, she was agitated. (Exhibit l0F, page 14). Her thought content was normal.

(Exhibit 6F, page 3; Exhibit 9F, pages 4, 9, 19, 24, 29, 35; Exhibit 17F, pages 2,

5). She reported having hallucinations when she did not sleep. (Exhibit 17F,

page 4). She had slowed psychomotor activity. (Exhibit 6F, page 3). She had

decreased concentration. (Exhibit 7F, page 3; Exhibit 9F, pages 4, 8, 13, 19, 23,

29, 35; Exhibit 17F, page 4). At times, she had suicidal ideas. (Exhibit 9F, pages

23, 29; Exhibit l0F, page 13; Exhibit 15F, page 1). Other times, she had no suicidal

ideas. (Exhibit l0F, page 8; Exhibit 17F, page 4). At times, she was nervous,

anxious, dysphoric, or tearful. (Exhibit 6F, page 3; Exhibit 7F, page 3; Exhibit

9F, pages 4, 8-9, 13, 19, 23-24, 29, 35; Exhibit l0F, pages 2, 5, 8, 13-14; Exhibit

15F, pages 1, 4; Exhibit 17F, pages 4-5). She sometimes had a normal mood and

affect. (Exhibit 9F, page 35; Exhibit 17F, page 2). Her judgment was intact.

(Exhibit 6F, page 3; Exhibit 9F, pages 4, 9, 19, 24, 29, 35; Exhibit 15F, page 1;

Exhibit 17F, page 2).

On September 23, 2015, the claimant had a consultative examination with Dr.

Sarah Barwick. The claimant reported having depression. She indicated she

would either want to do nothing but sleep or not sleep at all. She would feel

fatigued and tired and want to be alone. She reported having a problem with

alcohol. She reported struggling with focus, task completion, and managing stress

due to her physical issues. She indicated she avoid public places. She claimed to

have poor sleep because she worried a lot. She reported having panic attacks and

indicated she avoided crowds and the outdoors because of them. She indicated

she no longer went to the store. She indicated that sometimes she would not

shower for a week. She reported reduced involvement with her chores and

difficulty managing her finances due to her emotions. She would spend time

watching television. She claimed to have no social interaction with friends for a

few years. (Exhibit 5F).

On examination with Dr. Barwick, she was tearful. She reported passive suicidal

ideation. She was polite and cooperative. She was neat and clean with adequate

grooming and hygiene. She walked with a slow gait and breathed heavily. Her

speech was normal. She was not easily distracted. She was nervous and had

limited eye contact during the mental status exam, but had good eye contact during

questioning. She was alert and oriented. She recalled six digits forward. She

could recall three of three words after a brief delay. She made two errors with the

serial sevens. She could do the serial threes without errors. She could do basic

arithmetic. She was estimated to have average intellectual functioning. Her

judgment and insight were intact. (Exhibit 5F).

(Tr. 24–26).

B. The ALJ’s Decision

In his decision, the ALJ found that Plaintiff met the insured status requirements of the

Social Security Act through September 30, 2017, (Tr. 15), and had not engaged in substantial

gainful activity since August 31, 2014, the alleged onset date, (Id.). He found that Plaintiff suffers

from the following severe impairments: degenerative disc disease, hypertension, asthma, major

depressive disorder, generalized anxiety disorder, and panic disorder with agoraphobia. (Tr. 16).

The ALJ, however, found that none of Plaintiff’s impairments, either singly or in combination,

met or medically equaled a listed impairment. (Id.).

As for Plaintiff’s residual functional capacity (“RFC”), the ALJ concluded:

[T]he claimant has the residual functional capacity to perform light work as defined

in 20 CFR 404.1567(b) and 416.967(b) except sit for a total of six hours in an eight-

hour day, stand and/or walk for a total of four hours in an eight-hour day;

occasionally climb ramps and stairs; never climb ladders, ropes, or scaffolds;

occasionally stoop, kneel, crouch, and crawl; no exposure to moving machinery or

unprotected heights; occasional exposure to dust, fumes, gases, and extreme cold;

no commercial driving; retains the ability to remember and carry out simple

repetitive tasks; able to respond appropriately to supervisors and coworkers in a

task oriented setting with only occasional public contact and occasional interaction

with coworkers; able to adapt to simple changes and avoid hazards in a setting

without strict production quotas.

(Tr. 18–19).

II. STANDARD OF REVIEW

The Court’s review “is limited to determining whether the Commissioner’s decision is

supported by substantial evidence and was made pursuant to proper legal standards.” Winn v.

Comm’r of Soc. Sec., 615 F. App’x 315, 320 (6th Cir. 2015); see also 42 U.S.C. § 405(g).

“[S]ubstantial evidence is defined as ‘more than a scintilla of evidence but less than a

preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.’” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (quoting Cutlip v. Sec’y

of HHS, 25 F.3d 284, 286 (6th Cir. 1994)).

“After the Appeals Council reviews the ALJ’s decision, the determination of the council

becomes the final decision of the Secretary and is subject to review by this Court.” Olive v.

Comm’r of Soc. Sec., No. 3:06 CV 1597, 2007 WL 5403416, at *2 (N.D. Ohio Sept. 19, 2007)

(citing Abbott v. Sullivan, 905 F.2d 918, 922 (6th Cir. 1990); Mullen v. Bowen, 800 F.2d 535, 538

(6th Cir. 1986) (en banc)). If the Commissioner’s decision is supported by substantial evidence,

it must be affirmed, “even if a reviewing court would decide the matter differently.” Id. (citing 42

U.S.C. § 405(g); Kinsella v. Schweiker, 708 F.2d 1058, 1059–60 (6th Cir. 1983)).

III. DISCUSSION

Plaintiff asserts two assignments of error. First, she argues that the ALJ improperly

evaluated the opinion of her treating physician, Dr. Virostko. (Doc. 12 at 6–9). Second, Plaintiff

challenges how the ALJ considered the opinions of two consultative examiners, Drs. Offutt and

Barwick. (Id., at 9–13).

A. Dr. Virostko’s Opinion

Two related rules govern how the ALJ was required to analyze Dr. Virostko’s opinion.

Dixon v. Comm’r of Soc. Sec., No. 3:14-cv-478, 2016 WL 860695, at *4 (S.D. Ohio Mar. 7, 2016).

The first is the “treating physician rule.” Id. The rule requires an ALJ to “give controlling weight

to a treating source’s opinion on the issue(s) of the nature and severity of the claimant’s

impairment(s) if the opinion is well-supported by medically acceptable clinical and laboratory

diagnostic techniques and is not inconsistent with the other substantial evidence in the case

record.” LaRiccia v. Comm’r of Soc. Sec., 549 F. App’x 377, 384 (6th Cir. 2013) (quoting 20

C.F.R. § 404.1527(c)(2)) (internal quotation marks omitted).

Closely associated is “the good reasons rule,” which requires an ALJ always to give “good

reasons . . . for the weight given to the claimant’s treating source opinion.” Dixon, 2016 WL

860695, at *4 (quoting Blakely, 581 F.3d at 406 (alterations in original)); 20 C.F.R.

§ 404.1527(c)(2). In order to meet the “good reasons” standard, the ALJ’s determination “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.” Cole, 661 F.3d at 937.

The requirement of reason-giving exists, in part, to let claimants understand the

disposition of their cases, particularly in situations where a claimant knows that his

physician has deemed him disabled and therefore “might be especially bewildered

when told by an administrative bureaucracy that she is not, unless some reason for

the agency’s decision is supplied. The requirement also ensures that the ALJ applies

the treating physician rule and permits meaningful review of the ALJ’s application

of the rule.

Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004) (internal citation and quotation

marks omitted). The treating physician rule and the good reasons rule together create what has

been referred to as the “two-step analysis created by the Sixth Circuit.” Allums v. Comm’r of Soc.

Sec., 975 F. Supp. 2d 823, 832 (N.D. Ohio 2013).

The ALJ evaluated Dr. Virostko’s opinion in this way:

The undersigned has considered the opinion of Dr. Douglas Virostko and the

undersigned gives his opinion little weight. In November 2015, she came to her

primary care provider asking him to complete some forms for disability and asking

if he was “on board” with this. Dr. Virostko indicated in his treatment notes that

he did not “encourage disability” but thought her symptoms were markedly limiting

her ability to function and do gainful employment despite multiple medical and

surgical interventions. (Exhibit 6F, page 1). However, at that point, the claimant

had not been seen by that provider in over a year. (Exhibit 3F). Such minimal

treatment undermines his familiarity with the claimant’s functioning and

undermines his assertion that she had significant medical intervention at that time.

This opinion is also fairly vague and conclusory. In actually completing those

forms, he indicated the claimant was able to perform simple, repetitive tasks. He

indicated that the claimant could not perform work eight hours a day forty hours a

week for fifty weeks a year. When asked if he believed she could work on a regular

and continuing basis without an unusual number and length of rest periods

including standing and/or walking two hours in an eight-hour day, sitting six or

more hours in an eight-hour day, lifting and/or carrying ten pounds occasionally,

and a few pounds frequently, he indicated that she could not. (Exhibit 12F, pages

6-7). That question is somewhat vague, in that he does not indicate which of those

activities she could not perform. For instance, it is possible he believed she could

stand and/or walk for six hours a day, but not sit for six hours a day. Or he could

have thought that the claimant could lift and/or carry one hundred pounds

frequently and occasionally, but had problems standing and walking for two hours

a day. Or he could have thought she could do all those activities, but just needed an

unusual number and length of rest periods for any other reason. Simply believing

she was limited to that degree in only one of those areas, would result in him

answering the question with “no”. Without answering each limitation as a separate

question, it is not possible to determine what limitations he believed the claimant

actually had. He does not actually state what he believed the claimant could do.

The ultimate issue of determining disability is a finding reserved for the

Commissioner. (20 CPR 404.1527(d) and 416.927(d)). For all of these reasons,

this opinion is given little weight.

(Tr. 27–28).

Plaintiff argues that the ALJ failed to apply the controlling weight analysis. (Doc. 12 at 7).

The heart of the argument seems to be that the ALJ did not expressly articulate both steps of the

two-part analysis. (See, e.g., id. at 8–9). But if an ALJ provides valid reasons for refusing to

assign controlling weight to an opinion, “failure to adhere to a formal two-step analysis in doing

so is not grounds for reversal.” Sanders v. Berryhill, No. 3:16-CV-263, 2017 WL 10808813, at

*2 (S.D. Ohio Aug. 15, 2017), aff’d sub nom. Sanders v. Comm’r of Soc. Sec., No. 17-4079, 2018

WL 5099229 (6th Cir. 2018). Importantly, the written decision need not discuss each step in the

treating physician rule so long as the Court can understand clearly the weight granted to a treating

source opinion and the ALJ articulated good reasons for granting that weight. Martin v. Comm’r

of Soc. Sec., 658 F. App’x 255, 258 (6th Cir. 2016); see also Francis, 414 F. App’x at 805 (holding

that so long as a decision permits the claimant and a reviewing court a clear understanding of the

reasons for the weight given to a treating source opinion, a Court should look past any procedural

errors) (citing Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 551 (6th Cir. 2010)). And this

Court previously has held that “[l]ack of objective support (e.g., from treatment notes) for a treating

source’s opinion, and inconsistency of that opinion with other evidence of record, are valid reasons

for both refusing to assign controlling weight to an opinion at step one of the treating rule and for

discounting the opinion’s weight at step two. 20 C.F.R. § 404.1527(c)(2-4).” Sanders v. Berryhill,

No. 3:16-cv-263, 2017 U.S. Dist. LEXIS 221201, 2017 WL 10808813, *2 (S.D. Ohio Aug. 15,

2017). Consequently, the ALJ did not err by not expressly articulating the two-step process.

Further, the reasons the ALJ gave for discounting Dr. Virostko’s opinion were sound. In

brief, the ALJ assigned little weight to the opinion because Plaintiff had not seen Dr. Virostko in

over a year and the opinion was vague and conclusory. (Tr. 27). On the first point, the ALJ

specifically noted that he found Dr. Virostko’s opinion to be less credible because the gap in

treatment meant that the doctor was less familiar with Plaintiff’s treatment needs and functioning

“at that time.” (Id.). Plaintiff complains that this passage means that the ALJ did not appreciate

the long relationship between Plaintiff and Dr. Virostko. (Doc. 12 at 8). But the ALJ cited and

relied upon Dr. Virostko’s records in other portions of his opinion. (Tr. 21, 23–24 (citing 542–

625)). Of note, these records date back to 2009. (See Tr. 602–03).

Additionally, the ALJ determined that Dr. Virostko’s failure to provide details and

delineation for the opined limitations made the opinion less useful. That was not error. See Gaskin

v. Comm’r of Soc. Sec., 280 F. App’x. 472, 476 (6th Cir. 2008) (finding the ALJ properly

discounted the portion of a medical opinion that he characterized as vague).

B. Dr. Offutt’s Opinion

Plaintiff next challenges how the ALJ evaluated Dr. Offutt’s opinion. In May 2015, Dr.

Offutt performed a physical consultative evaluation of Plaintiff. (See generally Tr. 626–34).

Based upon her evaluation, Dr. Offutt opined that Plaintiff’s ability to bend, stoop, lift/carry, walk,

crawl, squat, and push/pull heavy objects would be severely impaired due to her current back, leg,

and neck pain. (Tr. 630).

The ALJ assigned this opinion some weight because the ALJ found Dr. Offutt’s opinion to

be somewhat vague. (Tr. 24, 27). More specifically, he determined that while Dr. Offutt indicated

that Plaintiff had limitations, she failed to express the degree of such limitations in vocationally

relevant terms. (Tr. 27). Plaintiff asserts that, given these circumstances, the ALJ should have re-

contacted Dr. Offutt for clarification, pursuant to 20 C.F.R. § 404.1519p. (Doc. 12 at 11).

Under 20 C.F.R. § 404.1519p(b), the agency will re-contact a consultative examiner for

clarification when the examiner’s report is “inadequate or incomplete.” Plaintiff, however, has

not demonstrated that Dr. Offutt’s report was inadequate or incomplete. Notably, the regulations

expressly state that a report is not rendered incomplete if it is missing a medical opinion, i.e., a

statement about what the claimant can do despite her impairments. 20 C.F.R. § 404.1519n(c)(6);

see Dooley v. Comm’r of Soc. Sec., 656 F. App’x 113, 122 (6th Cir. 2016) (“[A] consultative

examiner’s report is not rendered incomplete by the absence of a statement about what a claimant

can still do despite his limitations.”) (citing 20 C.F.R. §§ 404.1519n(c)(6); 416.919n(c)(6)).

Significantly, Dr. Offutt’s report included a discussion of Plaintiff’s subjective complaints, a

history of her impairments, objective findings, and diagnoses. (Tr. 626–34).

Consequently, the ALJ did not err by not re-contacting Dr. Offutt, despite finding her

opinion to be somewhat vague. See Dooley, 656 F. App’x at 122 (ALJ not required to contact a

consultative examiner when the ALJ found the opinion to be vague and unsupported by the

evidence); Ingram v. Berryhill, 1:17CV2163, 2019 WL 5634345, *12 (N.D. Ohio Aug. 17, 2018)

(finding that ALJ had no duty to request clarification from consultative examiner although he

found opinion vague); Hamilton v. Comm’r of Soc. Sec., 1:15-cv-945. 2016 WL 4771238, *5

(W.D. Mich. Sept. 14, 2016) (finding an ALJ did not have to contact a consultative examiner

whose opinion the ALJ found vague). Importantly, the ALJ’s decision demonstrates that he

considered the record as a whole and was able to assess Plaintiff’s RFC based on such without re-

contacting Dr. Offutt. (See Tr. 18–28).

C. Dr. Barwick’s Opinion

Finally, Plaintiff contends that the ALJ improperly evaluated Dr. Barwick’s opinion. In

September 2015, Dr. Barwick performed a psychological consultative evaluation of Plaintiff. (Tr.

635–42). Plaintiff reported symptoms relating to depression and anxiety (Tr. 636–37), but she

denied any involvement in mental health counseling and indicated that her primary care physician

managed her psychotropic medications. (Tr. 637). Plaintiff was tearful during examination, but

she was polite and cooperative; neat and clean with adequate grooming and hygiene; had normal

speech; was not easily distracted; was alert and oriented; recalled six digits forward; could recall

three of three words after a brief delay; did serial threes without errors; and performed basic

arithmetic. (Tr. 638). Dr. Barwick estimated Plaintiff had average intellectual functioning and

her judgment and insight were intact. (Tr. 639).

Ultimately, Dr. Barwick diagnosed severe major depressive disorder, generalized anxiety

disorder, and panic disorder with agoraphobia. (Id.). And Dr. Barwick expressed the opinion that

Plaintiff’s ability to understand, remember, and carry out instructions and her ability to respond

appropriately to supervision and to coworkers in a work setting were intact. (Id.). But Plaintiff’s

abilities in maintaining attention and concentration, maintaining persistence, and pace, and

performing simple and multi-step tasks was limited. (Id.). Likewise, Dr. Barwick opined that

Plaintiff’s ability to respond appropriately to work pressures in a work setting was limited. (Id.).

The ALJ gave Dr. Barwick’s opinion concerning Plaintiff’s mental limitations “some

weight.” (Tr. 25–27). The ALJ reasoned that Dr. Barwick’s opinion was consistent with her

examination findings, but the opinion was somewhat vague and non-specific in explaining the

extent of Plaintiff’s limitations in certain areas. (Tr. 27).

Plaintiff first argues that Dr. Barwick’s opinion was not vague, and the ALJ erred by

concluding otherwise. (Doc. 12 at 11–12). But, when asked to describe Plaintiff’s abilities and

limitations in “maintaining attention and concentration, maintaining persistence and pace, and

performing both simple and multi-step tasks,” Dr. Barwick generally indicated that Plaintiff’s

“abilities in this area are limited,” without further explanation. (Tr. 640–41). So it was not

unreasonable for the ALJ to classify this opinion as vague to the extent the opinion did not offer

the measure of Plaintiff’s limitations. Further, Plaintiff’s reliance on the state agency reviewing

psychologists, Cindy Matyi, Ph.D., and Carl Tishler, Ph.D., does her more harm than good. (See

Doc. 12 at 11–12). Plaintiff argues that these psychologists did not find Dr. Barwick’s opinion

vague; so the ALJ should have understood it, too. Although those reviewers gave great weight to

Dr. Barwick’s opinion, these psychologists opined that Plaintiff was not “significantly” limited in

her ability to carry out very short and simple instructions and further explained that Plaintiff could

carry out simple and occasionally complex tasks and make simple decisions. (Tr. 233–35, 252–

54, 269–71, 286–88). Importantly, those limitations are consistent with the ALJ’s RFC finding.

(See Tr. 19).

Plaintiff additionally contends that the ALJ should have re-contacted Dr. Barwick given

the conclusion that the opinion was vague. (See Doc. 12 at 11). This assertion again fails, and the

ALJ’s determination that Dr. Barwick’s opinion was somewhat vague and non-specific did not

render the doctor’s report inadequate or incomplete thereby requiring the ALJ to re-contact her.

See Dooley, 656 F. App’x at 122 (ALJ not required to contact a consultative examiner when the

ALJ found the opinion to be vague and unsupported by the evidence); Ingram, 2019 WL 5634345

at *12 (finding that ALJ had no duty to request clarification from consultative examiner although

he found opinion vague); Hamilton, 2016 WL 4771238 at *5 (finding an ALJ did not have to

contact a consultative examiner whose opinion the ALJ found vague). Notably, Dr. Barwick’s

report included a discussion of Plaintiff’s impairments and subjective complaints, the mental status

examination findings, and diagnoses and prognosis. (Tr. 635–41).

Further, in addition to considering Dr. Barwick’s opinion, the ALJ considered the other

record evidence relating to Plaintiff’s mental condition and reasonably assessed her mental RFC.

For instance, the ALJ considered that Plaintiff reported that her mental conditions improved with

medication. (Tr. 25, 697). According to medical records, Plaintiff’s antidepressants were helping.

(Tr. 697). The ALJ also considered that Plaintiff often demonstrated normal findings on

examinations. (Tr. 25). For instance, the ALJ considered that the record evidence indicated that

Plaintiff was alert and oriented. (Tr. 25, 545, 656, 661, 671, 676, 681, 687, 760, 763, 767, 772,

822). In addition, the ALJ noted examinations where Plaintiff demonstrated normal speech (Tr.

25, 645, 656, 661, 671, 676, 681, 709, 815, 825); normal behavior (Tr. 25, 656, 661, 671, 676,

681, 815, 822); normal thought content (Tr. 25, 645, 656, 661, 671, 676, 681, 687, 822); normal

mood and affect (Tr. 25, 687, 822); and intact judgment (Tr. 25, 645, 656, 661, 671, 676, 681, 687,

815, 822).

Further, the ALJ considered Plaintiff’s activities, specifically noting that Plaintiff was

focused enough to drive. (Tr. 17, 206). See Hill v. Comm’r of Soc. Sec., 560 F. App’x 547, 551

(6th Cir. 2014) (recognizing that the ALJ’s decision should be read as a whole). The ALJ also

considered that Plaintiff was able to do light household chores. (Tr. 18, 475). Thus, ALJ’s decision

demonstrates that he reasonably assessed Plaintiff’s mental RFC finding based on the overall

record evidence, and there was no need to re-contact Dr. Barwick.

IV. CONCLUSION

In sum, although Plaintiff contends that the ALJ should have assessed greater weight to the

opinions from Drs. Virostko, Offutt, and Barwick, she has not shown that the ALJ’s consideration

of those opinions was outside the ALJ’s permissible “zone of choice” that grants ALJs discretion

to make findings without “interference by the courts.” Blakley, 581 F.3d at 406. While the record

included opinion evidence that could support more than one conclusion, the ALJ considered the

evidence and explained his reasons for assessing the opinions as he did. See Jenkins v. Chater, 76

F.3d 231, 233 (6th Cir. 1996) (“[i]t is within the authority of the ALJ to resolve any conflicts

among” physicians’ opinions). The Commissioner’s decision must stand if supported by

substantial evidence, regardless of whether this Court would resolve the issues of fact in dispute

differently, or substantial evidence also supports the opposite conclusion. Bass v. McMahon, 499

F.3d 506, 509 (6th Cir. 2007); Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986). Consequently,

it is RECOMMENDED that that Plaintiff’s Statement of Errors (Doc. 12) be OVERRULED and

that judgment be entered in favor of Defendant.

V. PROCEDURE ON OBJECTIONS

If any party objects to this Report and Recommendation, that party may, within fourteen

(14) days of the date of this Report, file and serve on all parties written objections to those specific

proposed finding or recommendations to which objection is made, together with supporting

authority for the objection(s). A District Judge of this Court shall make a de novo determination

of those portions of the Report or specific proposed findings or recommendations to which

objection is made. Upon proper objection, a District Judge of this Court may accept, reject, or

modify, in whole or in part, the findings or recommendations made herein, may receive further

evidence or may recommit this matter to the Magistrate Judge with instructions. 28 U.S.C.

§ 636(b)(1).

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the district judge review the Report

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

IT IS SO ORDERED.

Date: March 16, 2020 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE