# Siefert v. Commissioner of Social Security

> District Court, S.D. Ohio · May 20, 2020

URL: https://www.frixlaw.com/law-library/cases/10375559

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** May 20, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- concluding that ALJ reasonably discounted a doctor’s opined limitations where, among other things, the claimant was receiving conservative treatment

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

THOMAS C. SIEFERT,

Plaintiff,

v. Civil Action 2:19-cv-1344
Magistrate Judge Chelsey M. Vascura

COMMISSIONER OF SOCIAL
SECURITY,

Defendant.

OPINION AND ORDER
Plaintiff, Thomas C. Siefert (“Plaintiff”), brings this action under 42 U.S.C. § 405(g) for
review of a final decision of the Commissioner of Social Security (“Commissioner”) denying his
application for period of disability and disability insurance benefits. This matter is before the
Court on Plaintiff’s Statement of Errors (ECF No. 11), the Commissioner’s Memorandum in
Opposition (ECF No. 12), Plaintiff’s Reply Memorandum (ECF No. 3), and the administrative
record (ECF No. 8). For the reasons that follow, Plaintiff’s Statement of Errors is
OVERRULED, and the Commissioner of Social Security’s decision is AFFIRMED.
I. BACKGROUND
Plaintiff filed his application for Title II Social Security Benefits on May 14, 2013,
alleging, after amendment, that he had been disabled since May 16, 2013. (R. 193, 205.) On
December 8, 2014, following administrative denials of Plaintiff’s application initially and on
reconsideration, a hearing was held before Administrative Law Judge Jeannine Lesperance (the
“ALJ”). (Id. at 37–86.) On March 9, 2015, the ALJ issued a decision finding that Plaintiff was
not disabled within the meaning of the Social Security Act. (Id. at 12–31.) After the Appeals
Council denied Plaintiff’s request for review and adopted the ALJ’s decision as the
Commissioner’s final decision (Id. at 626–28), Plaintiff commenced an action in this Court,
which remanded the case to the Appeals Council for reconsideration of whether Plaintiff’s
impairments met the criteria for disability under Listing 1.02A of 20 C.F.R. Part 404, Subpart P,

Appendix 1. Siefert v. Comm’r of Soc. Sec., No. 2:16-cv-162, 2017 WL 2828733 (S.D. Ohio
June 30, 2017), report and recommendation adopted, 2017 WL 4083583 (S.D. Ohio Sept. 14,
2017).
Following remand, a second hearing was held before the same ALJ on December 4,
2018. (R. 554–98.) Plaintiff, represented by council, appeared and testified at the hearing. The
ALJ heard additional testimony from a vocational expert, Connie O’Brien (the “VE”), and an
independent medical expert, Jonathan Nusbaum, M.D. (the “ME”). On January 11, 2019, the
ALJ issued a second decision finding that Plaintiff was not disabled within the meaning of the
Social Security Act. (Id. at 398–446.) On March 13, 2019, the ALJ’s decision became the

Commissioner’s final decision. (Id. at 396.) Plaintiff then timely commenced the instant action.
(ECF No. 1.)
In his Statement of Errors (ECF No. 11), Plaintiff raises two contentions of error. First,
he contends that the ALJ failed to properly evaluate the opinions of his primary care physician,
Dr. Joseph Trapp, D.O. Second, Plaintiff asserts that the ALJ’s RFC is not supported by
substantial evidence.
II. THE ALJ’S DECISION
On January 11, 2019, the ALJ issued a second decision finding that Plaintiff was not
disabled within the meaning of the Social Security Act. (Id. at 398–446.) At step one of the
sequential evaluation process,1 the ALJ found that Plaintiff had not engaged in substantially
gainful activity since May 16, 2013, the alleged disability onset date, through the date last
insured of June 30, 2018. (Id. at 400.) The ALJ found that Plaintiff had the severe impairments
of right knee osteoarthritis, obesity, and chronic venous insufficiency. (Id. at 401.) She further
found that Plaintiff did not have an impairment or combination of impairments that met or

medically equaled one of the listed impairments described in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (Id. at 416.) At step four of the sequential process, the ALJ set forth Plaintiff’s
RFC as follows:
After careful consideration of the entire record, I find that from the amended alleged
onset date of disability through the date last insured, the claimant has the residual
functional capacity to perform light work as defined in 20 CFR 404.1567(b).
Climbing ramps and stairs, crouching, and kneeling, are each limited to no more
than occasionally. He cannot climb ladders, ropes, and scaffolds, and crawl, and
must avoid all exposure to hazards such as moving mechanical parts and
unprotected heights.
(Id. at 420.)

1 Social Security Regulations require ALJs to resolve a disability claim through a five-step
sequential evaluation of the evidence. See 20 C.F.R. § 404.1520(a)(4). Although a dispositive
finding at any step terminates the ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th
Cir. 2007), if fully considered, the sequential review considers and answers five questions:
1. Is the claimant engaged in substantial gainful activity?
2. Does the claimant suffer from one or more severe impairments?
3. Do the claimant’s severe impairments, alone or in combination, meet or equal the
criteria of an impairment set forth in the Commissioner’s Listing of Impairments, 20
C.F.R. Subpart P, Appendix 1?
4. Considering the claimant’s residual functional capacity, can the claimant perform his
or her past relevant work?
5. Considering the claimant’s age, education, past work experience, and residual
functional capacity, can the claimant perform other work available in the national
economy?
See 20 C.F.R. § 404.1520(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009);
Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001).
At step five of the sequential process, the ALJ, relying on the VE’s testimony, found that
considering Plaintiff’s age, education, past work experience, and RFC, he can perform his past
relevant work as a marine and vehicle salesperson and a marketing executive. (Id. at 445.) The
ALJ further noted that even if she had adopted the more restrictive RFC opined by Dr. Nusbaum,
Plaintiff could still perform these positions as he had actually performed them. (Id.)

The ALJ therefore concluded that Plaintiff was not disabled under the Social Security
Act. (Id. at 445–46.)
III. RECORD EVIDENCE
Plaintiff applied for disability benefits on May 14, 2013, initially alleging an onset date of
May 10, 2010, but later amending his alleged onset date to May 16, 2013.
A. Dr. William H. Batten, M.D.
The record contains some records prior to Plaintiff’s May 16, 2013 alleged onset date,
including treatment records from treating physician Dr. William H. Batten, M.D., a genitourinary
specialist. Dr. Batten’s examination notes, dated between June 2010 and July 2012, revealed that
upon physical examination, Plaintiff displayed no musculoskeletal abnormalities, displayed
normal mobility, and did not require a wheelchair, cane, or walker. (R. at 271, 273, 275, 278.)

B. 2010 and 2013 X-Rays
In August 2010, x-rays of Plaintiff’s knees were taken. The x-ray of Plaintiff’s left knee
was unremarkable. The x-ray of his right knee showed “some spurring about the lateral
compartment,” as well as some spurring at the patellofemoral articulation with a diagnosis of
“[d]egenerative change of the right knee, particularly in the lateral compartment and the
patellofemoral articulation.” (R. at 329.)
Another x-ray of Plaintiff’s right knee was taken after his alleged onset date, on August
23, 2013. That x-ray revealed that Plaintiff had moderate osteoarthritis that had “slightly
progressed since 2010” and a “[s]mall supratellar joint effusion.” (R. at 339.) The record
contains no other x-rays or other diagnostic imaging of Plaintiff’s right knee.
C. Primary Care Physician Dr. Joseph Trapp, D.O.
The record also contains numerous treatment notes from Plaintiff’s primary care
physician, Dr. Trapp.

On January 10, 2013, Dr. Trapp noted that Plaintiff displayed “normal gait and station”
and denied sore muscles, neck pain, or back pain. (R. at 314.) On February 7, 2013, Dr. Trapp
noted that Plaintiff “[w]alks with a cane.” (R. at 309.) On February 22, 2013, and April 3, 2013,
Dr. Trapp noted that Plaintiff displayed “[n]ormal gait and station.” (R. at 303, 306, 346.)
On June 23, 2013, Dr. Trapp noted “[r]egional soft tissue swelling of both [of Plaintiff’s]
lower extremities,” but noted that he was in “no acute distress” and upon examination of
Plaintiff’s right knee observed “no tenderness on palpation,” his “[k]nee motion was normal,”
and “[n]o pain was elicited by motion of the knee.” (R. at 330–31.) Dr. Trapp diagnosed venous
insufficiency and osteoarthritis of the right knee and counseled Plaintiff to engage in “regular
exercise and lose weight.” (R. at 331–32.)

On September 30, 2013, Dr. Trapp completed a physical residual functional capacity
form. (R. at 333–338.) He opined that Plaintiff could occasionally lift or carry up to 10 pounds,
but never lift or carry weight above 10 pounds. Dr. Trapp further opined that Plaintiff could only
sit for 30 minutes at a time, stand for 10 minutes at a time with a cane, walk 5 minutes at a time
with a cane, stand only 30 minutes total out of an 8-hour workday, walk 25 minutes total out of
an 8-hour workday, and must lay down 4 hours out of the 8-hour workday. Dr. Trapp also
checked a box indicating that Plaintiff required a cane to ambulate and could only walk 15 feet
without a cane. In addition, Dr. Trapp checked boxes reflecting that Plaintiff could never reach,
handle, finger, feel, or push/pull with his right hand and could only occasionally perform these
duties with his left hand, explaining that Plaintiff “must use right hand continuously on cane
when walking or standing.” (R. at 335.) Dr. Trapp also opined that Plaintiff could only
occasionally use right foot controls and that his use of left foot controls was limited to
frequently. He opined that Plaintiff could occasionally climb stairs and ramps and balance with a
cane, but could never climb ladders or scaffolds, stoop, kneel, crouch, or crawl. Dr. Trapp

checked boxes reflecting that Plaintiff did not need two canes or a walker, that he could travel
without a companion for assistance, and that he could occasionally operate a motor vehicle, but
could not perform activities like shopping or using public transportation.
On June 20, 2014, Dr. Trapp prescribed Plaintiff a cane “not a 4-prong.” (R. at 343.)
On August 21, 2014, Dr. Trapp completed a form entitled “Listing § 1.02A – Major
Dysfunction of a Weight Bearing Joint.” (R. at 340–41.) Dr. Trapp opined that Plaintiff
satisfied Listing 1.02A because he experienced swelling and painful ambulation. He checked a
box reflecting that Plaintiff had limitation of his affective joint, adding below that Plaintiff could
not fully bend or straighten his right knee. Dr. Trapp also checked boxes indicating that Plaintiff

could not walk a block at reasonable pace on rough or uneven surfaces, that he could not use
public transportation, that he could not carry out routine activities such as grocery and clothes
shopping and banking, and that he could not climb several stairs at a reasonable pace with use of
a single hand rail. Dr. Trapp added that Plaintiff needed a cane to ambulate.
In January, June, September, and October 2014, Dr. Trapp examined Plaintiff’s right
knee. Plaintiff’s knee was not tender upon palpation, his knee motion was normal, and no pain
was elicited by motion. Dr. Trapp advised Plaintiff on cessation of tobacco use, regular exercise,
weight loss, and proper diet. Dr. Trapp diagnosed venous insufficiency and osteoarthritis of the
right knee, which was stable. (R. at 540–41, 543–44.) On October 23, 2014, Dr. Trapp
prescribed Plaintiff a walker. (R. at 394.) Dr. Trapp made similar observations throughout
2015. (R. at 998–1012.) In October 2015, Dr. Trapp discussed scheduling Plaintiff for an
injection of Synvisc, an injection that supplements the fluid in a knee to lubricate and cushion the
joint, and in July 2015, Dr. Trapp noted that the treatment plan involved scheduling an
appointment for Plaintiff to get such an injection. (R. at 1000, 1002.)

Plaintiff saw Dr. Trapp for three visits in 2016 and five visits in 2017. Treatment notes
from these visits in 2016 and 2017 reflect that Plaintiff’s knee was not tender upon palpation, his
knee motion was normal, and no pain was elicited by motion. (R. at 981–88, 1130–1141.) Dr.
Trapp diagnosed venous insufficiency and osteoarthritis of the right knee, which was stable and
continued to counsel Plaintiff on cessation of tobacco use, regular exercise, weight loss, and
proper diet. (Id.) In October 2017, Dr. Trapp noted that he was checking with Plaintiff’s
insurance regarding scheduling an appointment for an injection of Synvisc. (R. at 1132.)
The record also contains treatment records for three visits to Dr. Trapp in 2018. In
February 2018, Dr. Trapp first noted that Plaintiff was “taking Excedrin [over-the-counter] for

intermittent knee pain” and also that Plaintiff “refuse[d] orthopedics appointment for his knee.”
(R. at 1126–28.) His examination notes reflect that Plaintiff was in no acute distress, that he had
normal knee motion, and that no pain was elicited by motion. In March 2018, Plaintiff reported
to Dr. Trapp for treatment of hypertension. During that visit, Dr. Trapp observed that Plaintiff
had no swelling in either of his lower extremities (R. at 1124–1125), but his notes do not reflect
that he otherwise examined Plaintiff’s right knee. In June 2018, as in February 2018, Dr. Trapp
noted that Plaintiff was “taking Excedrin [over-the-counter] for intermittent knee pain” and also
that Plaintiff “refuse[d] orthopedics appointment for his knee.” (R. at 1121–23.) Dr. Trapp’s
examination of Plaintiff’s knee in June 2018 again revealed normal knee motion and that no pain
was elicited by motion. Dr. Trapp diagnosed venous insufficiency and “[l]ocalized primary
osteoarthritis of right knee which is stable.” (R. at 1123.) As he had done in the past, he
continued to counsel Plaintiff on regular exercise, weight loss, cessation of tobacco use, and
proper diet.
In December 2018, Dr. Trapp drafted the following letter relating to Plaintiff’s condition:

Mr. Seifert has a long standing history of osteoarthritis of the right knee, treated by
myself primarily, starting in 2013. Evidence of arthritis of the knee dates back to
August 23, 2010.
Mr. Siefert has shown progression of his arthritis per x-ray on August 21, 2013
showing more moderate osteoarthritis. He has tried viscosupplementation
injections and cortisone injections over the past several years without much
success. He states he missed several days at work in 2013 and sometimes leaving
work at noon due to pain and discomfort. Mr. Siefert also states he missed on
average three (3) days a week at that time due to the fear of falling and frequently
used a cane at work.
Due to the arthritis he was forced to stop working for the past several years and still
uses a walker outside the home and a cane to this day.
He is most recently being treated with Mobic, an anti-inflammatory, with minimal
relief of his pain. He has quit driving, and he is mostly homebound at this time.
(R. at 1256.)
D. Fairfield Healthcare Records
In January 2015, Plaintiff sustained a wound while fixing a tractor that became infected,
prompting Plaintiff to seek wound care treatment from Wound Clinic at Fairfield Medical
Hospital. (R. at 460.) He was observed to be in no apparent distress, prescribed antibiotics, and
educated on compression, cleaning, and changing the dressing on his wound. Plaintiff also
reported smoking and drinking 16 beers per day, and was advised to smoke less or quit, but
Plaintiff reported that he did not want to quit. (R. at 477–79.) On January 15, 2015, Plaintiff
complained of “intermittent” “joint swelling and pain,” but was observed to be in no apparent
distress. (R. at 961.) Thereafter, Plaintiff sought regular wound care treatment, and until July
2015, reported only mild pain upon palpation around the wound in his left extremity. On July 2,
2015, however, Plaintiff’s “main complaint [was] pain in right knee,” which Plaintiff advised
was “awaiting a replacement” and was observed to be swollen. (R. at 832.) Plaintiff was
observed to be in no apparent distress and acknowledged that he was not wearing compression
stockings as directed. (Id.) Approximately two weeks later, on July 23, 2015, it was observed

that Plaintiff’s “r[igh]t knee [was] better.” (R. at 840.) Plaintiff was again observed to be in “no
apparent distress,” he was not wearing his compression stockings as directed, and he reported
only “mild” pain in his left lower extremity, rating it at a 0/10. (R. at 840, 845.) In August and
September 2015, it was again noted that Plaintiff was in no acute distress and that he was not
wearing his compression stockings as directed. (R. at 813–14, 819.)
In November 2015, Plaintiff underwent laser ablation to treat varicose veins and a
chronic venous stasis ulcer in his left lower extremity.
E. Mental Health Treatment Records
On June 14, 2013, Dr. Kevin J. Edwards, PhD., who treated Plaintiff for mental health
issues “for about 18 sessions” opined that Plaintiff “suffers mild symptoms” from his mental

health diagnoses and that his alcohol dependence complicates his treatment progress. (R. at
319.) Dr. Edwards noted that Plaintiff reported “performing all personal care, scheduling of
appointment and driving independently,” and also that Plaintiff “maintained his home and
performed household chores as physically able.” (Id.) Dr. Edwards continued to see Plaintiff for
a few more sessions. In August 2013, Plaintiff continued “to talk about disability and how much
he paid into the system and thus deserves the allowance,” and Dr. Edwards discussed with
Plaintiff “his need and desire to be honest in the assessment of his functional abilities.” (R. at
362.) In September 2013, Dr. Edwards noted that Plaintiff continued to complain of financial
problems and that they discussed options such as selling his business. Dr. Edwards further noted
that Plaintiff continues to smoke, drink, overeat, and not exercise despite his efforts to get him to
stop. (R. at 363.) In November and December 2013, Plaintiff complained of severe depression
and anxiety, but Dr. Edwards opined that Plaintiff was not depressed or anxious to the extent that
he claimed and noted that Plaintiff was “essentially arguing that he had to be anxious and
depressed.” (R. at 365–66.)

Plaintiff stopped receiving mental health treatment from Dr. Edwards in December 2013
and began treatment with a counselor, Annetta Macedonia, LPC, in August 2014. In October
2014, two months after Plaintiff’s initial visit, Ms. Macedonia drafted a letter in which she stated
that Plaintiff reported that his anxiety was so unstable that he was unable to leave his home at
times. She also stated that Plaintiff appeared “to be in a great deal of pain from his knee.” (R. at
391.) Ms. Macedonia noted that Plaintiff walked with a cane, and that in two months since their
initial session, “[h]is physical condition seems to have worsened” as “evidenced by [Plaintiff’s]
inability to rise from the chair, without [her] assistance” at the conclusion of their 60-minute
sessions. (Id.) Approximately three years later, in October 2017, Ms. Macedonia drafted a letter

in which she indicated that Plaintiff’s mental condition had worsened and made the following
statement regarding Plaintiff’s physical condition:
Mr. Seifert continues to be in a great deal of pain from both his right knee and his
lower left leg from an injury after falling. He is gingerly walking with a cane and
has a great deal of difficulty getting up after our sessions, which last approximately
60 minutes. His physical condition has not improved since our initial visit. This is
evidenced by his inability to rise from the chair, without my assistance, at the
conclusion of our sessions. Also, his condition has restricted him from participating
in all of the activities that in the past gave him self-confidence, a sense of self-
worth, and self-satisfaction.

(R. at 1027.) Approximately a year later, in October 2018, Ms. Macedonia drafted yet another
letter in which she made the following statements about Plaintiff’s physical condition:
His family physician is monitoring his physical condition and medications.
Mr. Seifert appears to be in a great deal of pain from his knee and from an injury to
his leg after falling several months ago. He is now requiring the aid of two walking
canes and has a great deal of difficulty getting up after our sessions, which last
approximately 50 minutes. His physical condition seems to have worsened over
this time period. This is evidenced by his slow and guarded gate [sic]; by his
inability to rise from the chair, without my assistance, and by the fact that he no
longer drives himself to my office.
(R. at 1250.)
F. State-Agency Reviewing Physicians
State-Agency reviewing physician Dr. Leon D. Hughes, M.D., reviewed Plaintiff’s
records at the initial level and rendered an opinion on July 3, 2013. Dr. Hughes opined that
Plaintiff could do a range of light work with the following postural limitations: occasional
climbing ramps/stairs; never climbing ladders/ropes/scaffolds; and frequent kneeling, crouching,
and crawling. Dr. Hughes commented that it was “unclear why [Plaintiff is] using a cane when
[his] gait and station is [within normal limits].” (R. at 100.) Dr. Hughes found Plaintiff’s
allegations to be only partially credible, citing his significant activities of daily living, the lack of
record evidence demonstrating impairment in gait/station, and his treatment other than
medication. (R. at 98.)
On September 16, 2013, state-agency physician Dr. Elizabeth Das, M.D., rendered an
opinion at the reconsideration level. Dr. Das noted that Plaintiff had reported using a cane for
three years and also observed that the record reflected that Plaintiff has normal gait, normal
musculoskeletal exams, and normal neuro exams. (R. at 108.) Like Dr. Hughes, Dr. Das
likewise found Plaintiff’s allegations to be only partly credible. (R. at 110.) Dr. Das, however,
concluded that Plaintiff was less limited than Dr. Hughes opined, concluding that Plaintiff could
perform work at the medium level of exertion with the following postural limitations: frequent
climbing ramps/stairs; frequent climbing ladders/ropes/scaffolds; frequent kneeling; frequent
crouching; and frequent crawling. (R. at 111–12.)
G. Medical Expert Nusbaum
Medical Expert Jonathan Nusbaum, M.D., testified at the December 4, 2018 hearing. (R.
at 554–598.) Dr. Nusbaum testified that notwithstanding Dr. Trapp’s “progressive opinion,” the
record did not contain “progressive evidence” following the August 2013 x-ray report to support
his statements. (R. at 564–65.) He concluded that Plaintiff did not meet or equal Listing 1.02.

Dr. Nusbaum acknowledged that although the 2013 x-ray showed progression from the 2010 x-
ray, the 2013 x-ray’s findings were “mild to moderate.” (R. at 561.)
Dr. Nusbaum testified that although it was reasonable to conclude that venous
insufficiency together with Plaintiff’s other symptoms might require the use of a cane, the record
contained insufficient evidence from which he could conclude that Plaintiff might require a
walker. (R. at 570–71.)
Dr. Nusbaum opined that as of June 2013, Plaintiff would have the following limitations:
lifting 10 pounds occasionally and five pounds frequently; sitting two hours at a time, a total of
six hours in an eight-hour work day; stand for no more than an hour at a time, a total of three
hours in an eight-hour work day; walking limited to 15 minutes at a time and a total of two hours

in an eight-hour work day; as a result of his knee issues, stooping, squatting, crouching, and
crawling all would be limited to less than occasional, defined as less than 10% of the time; and
no climbing ladders or stairs. (R. at 573.) Upon cross-examination, Dr. Nusbaum testified that
he did not believe the record supported excessive absenteeism. (R. at 574.)
H. The VE’s Testimony
Vocational expert Connie O’Brien (the “VE”) also testified at the December 4, 2018
hearing. When asked whether a hypothetical individual with the RFC the ALJ ultimately
assessed could perform any of Plaintiff’s past work as actually or generally performed, the VE
testified that such an individual could perform the positions of retail sales manager, marine
salesperson, marketing executive, and vehicle salesperson. (R. at 577, 590.)
The VE further testified that if the limitations Dr. Nusbaum opined were adopted, the
hypothetical individual could still perform Plaintiff’s past positions of retail manager, marketing
executive, vehicle sales, and marine sales as those positions were actually performed by Plaintiff.

(R. at 591.)
Upon cross-examination from Plaintiff’s attorney, the VE testified that if the individual
was also required to lay down during the workday for two-to-four hours or elevate their feet for
two hours, no work would be available in the competitive work setting. (R. at 593–94.)
IV. STANDARD OF REVIEW
When reviewing a case under the Social Security Act, the Court “must affirm the
Commissioner’s decision if it ‘is supported by substantial evidence and was made pursuant to
proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009)
(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C.
§ 405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if supported by

substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial 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, 486
F.3d at 241 (quoting Cutlip v. Sec’y of Health & Hum. Servs., 25 F.3d 284, 286 (6th Cir. 1994)).
Although the substantial evidence standard is deferential, it is not trivial. The Court must
“take into account whatever in the record fairly detracts from [the] weight” of the
Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting
Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)).
Nevertheless, “if substantial evidence supports the ALJ’s decision, this Court defers to
that finding ‘even if there is substantial evidence in the record that would have supported an
opposite conclusion.’” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (quoting Key v.
Callahan, 109 F.3d 270, 273 (6th Cir. 1997)). Finally, even if the ALJ’s decision meets the
substantial evidence standard, “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.” Bowen v. Comm’r of Soc. Sec., 478 F.3d 742,
746 (6th Cir. 2007).
V. ANALYSIS
As set forth above, Plaintiff raises the following two contentions of error: (1) the ALJ
failed to properly evaluate the opinions of his primary care physician, Dr. Trapp; and (2) the
ALJ’s RFC is not supported by substantial evidence. The undersigned considers these
contentions of error in turn.
A. The ALJ did not err in her evaluation of the opinions of Plaintiff’s primary care
physician, Dr. Joseph Trapp, D.O.
An ALJ must consider all medical opinions that he receives in evaluating a claimant’s
case. 20 C.F.R. §§ 404.1527(c), 416.927(c). When a treating physician’s opinion is submitted,
the ALJ generally gives deference to it “since these sources are likely to be the medical
professionals most able to provide a detailed, longitudinal picture of [a claimant’s] medical
impairment(s) and may bring a unique perspective to the medical evidence that cannot be
obtained from the objective medical filings alone . . . .” 20 C.F.R. §§ 404.1527(c)(2),

416.927(c)(2); Blakley, 581 F.3d at 406 (internal quotations omitted). If the treating physician’s
opinion is “well supported by medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with the other substantial evidence in [the claimant’s] case record, [the
ALJ] will give it controlling weight.” 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
If the ALJ does not assign controlling weight to a treating physician’s opinion, the ALJ
must meet certain procedural requirements. Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544
(6th Cir. 2004). Specifically, if an ALJ does not give a treating physician’s opinion controlling

weight:
[A]n ALJ must apply certain factors—namely, 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—in
determining what weight to give the opinion.
Id. Furthermore, an ALJ must “always give good reasons in [the ALJ’s] notice of determination
or decision for the weight [the ALJ] give[s] [a claimant’s] treating source’s opinion.” 20 C.F.R.
§§ 404.1527(c)(2), 416.927(c)(2). Accordingly, the ALJ’s reasoning “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.” Friend v. Comm’r of Soc. Sec., 375 F.
App’x 543, 550 (6th Cir. 2010) (internal quotation omitted). There is no requirement, however,
that the ALJ “expressly” consider each of the Wilson factors within the written decision. See
Tilley v. Comm’r of Soc. Sec., 394 F. App’x 216, 222 (6th Cir. 2010) (indicating that, under
Blakley and the good reason rule, an ALJ is not required to explicitly address all of the six
factors within 20 C.F.R. § 404.1527(c)(2) for weighing medical opinion evidence within the
written decision).
Plaintiff argues that the ALJ erred in rejecting Dr. Trapp’s opinions because his opinions
“are both well supported and not inconsistent with other substantial evidence.” (Pl.’s Statement
of Errors 6, ECF No. 11.) Plaintiff further maintains that the ALJ erred in failing “to provide
‘good reasons’ for granting less than controlling weight” and also failed to
properly apply the factors set forth in § 404.1527(c). (Id. at 9, 12.)
The ALJ provides the following lengthy discussion in support of her rejection of Dr.
Trapp’s opinions:
The opinions of the claimant’s primary care physician are entitled to no weight in
assessing his physical functional limitations, restrictions, and residual functional
capacity from the amended alleged onset date of disability through the date last
insured (Exhibits 7F/1-6, 9F1-2, 10F/2, 15F, and 28F/2). As noted above, Dr.
Nusbaum testified that there is no objective medical evidence documenting that the
claimant requires use of a walker. Although Dr. Nusbaum testified that the
evidence could possibly support that the claimant’s use of a cane is medically
necessary, he did not include usage of a handheld ambulatory aid in the physical
functional limitations and restrictions he assessed. These opinions are inconsistent
with and unsupported by the totality of the evidence, as discussed above, which
documents that the claimant repeatedly presented as well appearing (Exhibits
16F/6, 18F/7, 11, 14,16, 20, 22, 25, 33, and 35, and 24F/6, 11, 14, and 53). These
opinions are inconsistent with and unsupported by the totality of the evidence, as
discussed above, which documents that the claimant had good result from his
November 2015 ablation procedure, with no need to return for further treatment
after December 2015 (Exhibit 16F/2). These opinions are inconsistent with and
unsupported by the totality of the evidence, as discussed above, which documents
that the claimant does not experience claudication, deep vein thrombosis, and
peripheral arterial disease (Exhibits 16F/7, 17F/7 and 21, and 18F/42 and 45).
These opinions are inconsistent with and unsupported by the totality of the
evidence, as discussed above, which documents that the claimant has normal ankle
brachial index of 1.24 on the left and 1.25 on the right (Exhibit 17F/23). These
opinions are inconsistent with and unsupported by the totality of the evidence, as
discussed above, which documents that the claimant did not demonstrate muscle
atrophy, numbness, paresthesia, spasm, tingling or weakness, or extremity edema
or deformity at different times (Exhibit 3F/3, 6, 9 and 14). These opinions are
inconsistent with and unsupported by the totality of the evidence, as discussed
above, which documents that the claimant repeatedly had normal musculoskeletal
and neurological examinations (Exhibits 1F/2, 4, 7, 11, 13, and 15, 16F/5-6, 17F/85,
105, 113, 124, 152, 158, and 166, 18F/7, 10, 13, 16, 19, 22-23, 28, 30, 32, and 35,
and 24F/5, 8, 10, 14, 50, 52, and 59). These opinions are inconsistent with and
unsupported by the totality of the evidence, as discussed above, which documents
that the claimant did not require any prescribed ambulatory aid in May 2013
(Exhibit 7E/7). These opinions are inconsistent with and unsupported by the
totality of the evidence, as discussed above, which documents that the claimant had
normal gait and station at different times (Exhibit 3F/3, 6 and 14). These opinions
are inconsistent with and unsupported by the totality of the evidence, as discussed
above, which documents that the claimant’s right knee was repeatedly stable with
normal range of motion (Exhibits 6F/2, 13F/6, 9, 12, 15 and 18, 18F/9, 11-12, 14-
15, 17-18, 20-21, 23-24, 26-27, 33-34, and 36-37, and 24F/6-7, 11-12, 15-16, 53-
54, and 60). These opinions are inconsistent with and unsupported by the totality
of the evidence, as discussed above, which documents that the claimant reported
only intermittent right knee pain in February and June 2018 (Exhibit 24F/5 and 10).
These opinions are inconsistent with and unsupported by the totality of the
evidence, as discussed above, which documents that this source did not refer the
claimant for additional diagnostic imaging results of his right knee after August
2013. These opinions are inconsistent with and unsupported by the totality of the
evidence, as discussed above, which documents only one instance of the claimant
receiving a right knee injection, in November 2017 (Exhibit 24F/13). These
opinions are inconsistent with and unsupported by the totality of the evidence, as
discussed above, which documents that this source did not refer the claimant to an
orthopedist until June 2018, less than a month prior to the date last insured, and the
claimant notably refused the referral (Exhibit 24F/7). These opinions are
inconsistent with and unsupported by the totality of the evidence, as discussed
above, which documents that the most recent diagnostic imaging results reflect only
slight progression of the claimant’s right knee degenerative changes since 2010
(Exhibit 8F). These opinions are inconsistent with and unsupported by the totality
of the evidence, as discussed above, which documents that the claimant repeatedly
denied back and neck pain (Exhibit 3F/3, 6, 9 and 14). These opinions are
inconsistent with and unsupported by the totality of the evidence, as discussed
above, which documents that the claimant had normal x-ray results of the chest and
left ankle (Exhibits 5F/5 and 8, and 22F/3 and 6). These opinions are inconsistent
with and unsupported by the totality of the evidence, as discussed above, which
documents that the claimant repeatedly had negative and normal cardiovascular,
endocrinal, gastrointestinal, genitourinary, and respiratory findings, including chest
and lungs clear to auscultation, equal and normal breath sounds, and no abdominal
and chest pain, claudication, constipation, cough, diarrhea, dizziness, goiters,
heartburn, nausea, palpitations, rales, rhonchi, shortness of breath, syncope,
vertigo, vomiting, and wheezing (Exhibits 3F/3, 5-6, 9 and 14, 6F/1, 13F/5-6, 8-9,
11-12, 14-15 and 17-18, 16F/5, 17F/152, 18F/7-8, 10-11, 13-14, 16-17, 19-20, 22-
23, 25-26, 28-33, and 35-36, and 24F/5-6, 8-11, 14-15, 50, 52, 55, 57, and 59-60).
These opinions are inconsistent with and unsupported by the totality of the
evidence, as discussed above, which documents that the claimant’s physical
impairments and related symptoms are not sufficiently severe to preclude him from
engaging in strenuous activities such as repairing tractors (Exhibit 17F/9). These
opinions are inconsistent with and unsupported by the totality of the evidence, as
discussed above, which documents that the claimant’s left lower extremity wound,
which had onset in January 2015 (Exhibit 7F/153, 156, and 164), resolved entirely
by September 2015 (Exhibit 17F/11). These opinions are inconsistent with and
unsupported by the totality of the evidence, as discussed above, which documents
that the claimant prepares meals on a daily basis and regularly performs household
chores and cleaning including dishes, laundry and loading the dishwasher (Exhibits
4F and 7E/2-3). These opinions are inconsistent with and unsupported by the
totality of the evidence, as discussed above, which documents that the claimant
cared for his elderly mother from the amended alleged onset date of disability until
she passed away in May 2014, including cooking for and feeding her and cleaning
her potty chair (Exhibit 7E/2 and testimony). These opinions are inconsistent with
and unsupported by the totality of the evidence, as discussed above, which
documents that the claimant also cares for two cats and dogs, including feeding
them and letting the dogs outside (Exhibit 7E/2 and testimony). These opinions are
inconsistent with and unsupported by the totality of the evidence, as discussed
above, which documents that the claimant drives multiple times a week and
receives rides from others to places he needs to go (Exhibits 4F and 7E/4, and
testimony). These opinions are inconsistent with and unsupported by the totality
of the evidence, as discussed above, which documents that the claimant testified to
picking up and driving a neighbor to places. These opinions are inconsistent with
and unsupported by the totality of the evidence, as discussed above, which
documents that the claimant regularly runs errands such as taking money to banks
and going to the post office (Exhibit 16E/2, and testimony). This evidence does
not reasonably justify greater physical functional limitations and restrictions, and
could support a determination that the claimant is less physically limited than set
forth above from the amended alleged onset date of disability through the date last
insured. Additionally, I note that this source is a doctor of osteopathic medicine
with certification in family medicine (Exhibit 29F/3-4). Therefore, I find that Dr.
Nusbaum as a Board Certified General Surgeon (Exhibit 21F), is more qualified by
training and experiencing in opining as to the claimant’s physical functional
limitations, restrictions, and residual functional capacity than this source.
Accordingly, the opinions of the claimant’s primary care physician are entitled to
no weight in assessing his physical functional limitations, restrictions and residual
functional capacity from the amended alleged onset date of disability through the
date last insured.

(R. at 428–30.) The ALJ provided a similarly lengthy discussion in support of her conclusion
that Plaintiff did not meet or equal Listing 1.02 notwithstanding Dr. Trapp’s opinion to the
contrary. (See R. at 416–17 (concluding that Plaintiff does not meet or equal Listing 1.02A “as
there is no evidence documenting gross anatomical deformity, joint space narrowing, bony
destruction, or ankylosis,” citing, among other substantial evidence, Dr. Nusbaum’s testimony
that the moderate findings on the 2013 x-ray do not satisfy the listing requirements and that the
record contains no evidence documenting impingement or that Plaintiff requires two crutches or
canes or a walker to ambulate effectively).)
The Court finds no error with the ALJ’s consideration and weighing of Dr. Trapp’s
opinions. The ALJ properly considered that Dr. Trapp was Plaintiff’s primary care physician
and that he is a doctor of osteopathic medicine with certification in family medicine, and the
ALJ’s detailed discussion of Dr. Trapp’s treatment records reflects that she also considered the
nature and extent of Plaintiff’s treatment relationship with Dr. Trapp. See Wilson, 378 F.3d at
544. Moreover, the ALJ found that Dr. Trapp’s opinions were inconsistent with and unsupported
by a totality of the record evidence, including Dr. Trapp’s own treatment notes and

recommendations of only conservative treatment. The Court also notes that none of the other
sources who offered opinions relating to Plaintiff’s exertional limits (Drs. Hughes, Das, and
Nusbaum, all of whom had access to the entire record at the time they rendered their opinions)
offered opinions supporting or consistent with Dr. Trapp’s extreme opinions. See Blakley, 581
F.3d at 406 (quoting SSR 96-2p, 1996 WL 374188, at *2 (July 2, 1996)) (“[I]t is an error to give
an opinion controlling weight simply because it is the opinion of a treating source if . . . it is
inconsistent the with other substantial evidence in the case record.”); 20 C.F.R.
§§ 404.1527(c)(2)–(4) (providing that more weight will be given to medical opinions that are
consistent with the record as a whole and supported by medical findings); §§ 416.927(c)(2)–(4)

(same).
Plaintiff’s arguments to the contrary are unavailing. First, Plaintiff disputes the ALJ’s
findings, arguing that Dr. Trapp’s opined limitations are supported by “objective medical
imaging and 10 years of examinations and treatment notes.” (Pl.’s Statement of Errors 11–12,
ECF No. 11.) But Plaintiff fails to offer any discussion beyond this conclusory assertion. To the
contrary, as the ALJ observed, over the years he treated Plaintiff, Dr. Trapp repeatedly noted that
Plaintiff was in no acute distress, he described Plaintiff’s right-knee osteoarthritis as stable, and
upon examination, observed that Plaintiff had normal knee motion. (See also R. at 840 (Plaintiff
reported to his treatment providers at Fairfield Medical Hospital in July 2015 that his “r[igh]t
knee was better.”).) In addition, the 2013 x-ray of Plaintiff’s right knee shows only moderate
osteoarthritis that had “slightly progressed” since 2010, and neither Dr. Trapp, nor any other
physician who treated Plaintiff, referred him for additional diagnostic testing. (R. at 339.) And
in 2018, Dr. Trapp first noted that Plaintiff had begun “taking Excedrin [over-the-counter] for
intermittent knee pain” and that he had “refuse[d] orthopedics appointment for his knee.” (R. at

1121–25; 1126–28 (emphasis added).) See Rudd v. Comm’r of Soc. Sec., 531 F. App’x, 719, 727
(6th Cir. 2013) (minimal or lack of treatment is valid reason to discount severity); Despins v.
Comm’r of Soc. Sec., 257 F. App’x 923, 931 (6th Cir. 2007) (“The ALJ properly considered as
relevant the fact that [the claimant’s] medical records did not indicate that [claimant] received
significant treatment . . . during the relevant time period.”); Lester v. Soc. Sec. Admin., 596 F.
App’x 387, 389 (6th Cir. 2015) (concluding that ALJ reasonably discounted a doctor’s opined
limitations where, among other things, the claimant was receiving conservative treatment).
Plaintiff’s next assertion—that Dr. Trapp’s opinions are consistent with the record in
view of the letters Plaintiff’s mental health counselor Ms. Macedonia drafted—is equally

unpersuasive. As a threshold matter, the ALJ concluded that Ms. Macedonia’s statements
regarding Plaintiff’s physical function are entitled to “no weight,” a determination Plaintiff has
not challenged. (R. at 430–31.) Regardless, even assuming Ms. Macedonia’s statements are
consistent with Dr. Trapp’s opinions does not mean that Dr. Trapp’s opinions must be credited.
Rather, where the factual record could support two different conclusions, “the law obligates the
court to affirm the ALJ’s decision, because the ALJ is permitted to decide which factual picture
is most probably true.” Waddell v. Comm’r of Soc. Sec., No. 1:17-cv-1078, 2018 WL 2422035
at *10 (N.D. Ohio May 10, 2018), report and recommendation adopted, 2018 WL 2416232
(N.D. Ohio May 29, 2018). See also Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (“The
substantial-evidence standard allows considerable latitude to administrative decision makers. It
presupposes that there is a zone of choice within which the decisionmakers can go either way,
without interference by the courts. An administrative decision is not subject to reversal merely
because substantial evidence would have supported an opposite decision.”) (quoting Baker v.
Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984)).

Finally, Plaintiff maintains that the ALJ erred in “mainly focus[ing] on the opinion of Dr.
Nusbaum in an attempt to distinguish it from Dr. Trapp’s opinions.” (Pl.’s Statement of Errors
12, ECF No. 11 at PAGEID # 1322.) A review of the ALJ’s decision, however, reveals this
assertion to be incorrect.
In summary, the ALJ offered good reasons for rejecting Dr. Trapp’s opinions, and those
reasons are supported by substantial evidence. Plaintiff’s contention of error relating to the
ALJ’s evaluation of Dr. Trapp’s opinions is therefore OVERRULED.
B. Substantial Evidence Supports the ALJ’s RFC Determination.
The determination of a claimant’s RFC is an issue reserved to the Commissioner. 20
C.F.R. §§ 404.1527(e), 416.927(e). Nevertheless, substantial evidence must support the

Commissioner’s RFC finding. Berry v. Astrue, No. 1:09-cv-411, 2010 WL 3730983, at *8 (S.D.
Ohio June 18, 2010). An ALJ must explain how the evidence supports the limitations that he or
she sets forth in the claimant’s RFC:
The RFC assessment must include a narrative discussion describing how the
evidence supports each conclusion, citing specific medical facts (e.g., laboratory
findings) and nonmedical evidence (e.g., daily activities, observations). In
assessing RFC, the adjudicator must discuss the individual’s ability to perform
sustained work activities in an ordinary work setting on a regular and continuing
basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule), and
describe the maximum amount of each work-related activity the individual can
perform based on the evidence available in the case record. The adjudicator must
also explain how any material inconsistencies or ambiguities in the evidence in the
case record were considered and resolved.
S.S.R. 96-8p, 1996 WL 374184, at *7 (internal footnote omitted).
Within this contention of error, Plaintiff maintains that “although the ALJ purported to
adopt Dr. Nusbaum’s testimony, the residual functional capacity that ultimately appeared in the
ALJ’s written decision failed to include all of the limitations opined by Dr. Nusbaum.” (Pl.’s
Statement of Errors 14, ECF No. 11.) In particular, Plaintiff points out that as a result of

Plaintiff’s knee issues, Dr. Nusbaum opined that Plaintiff could not climb stairs and that his
stooping, squatting, crouching, and crawling would be limited to less than occasional, defined as
less than 10% of the time, yet the ALJ limited Plaintiff’s climbing ramps, stairs, crouching, and
kneeling to “no more than occasionally.” (Id.; see also R. at 420 (finding Plaintiff to be more
limited than Dr. Nusbaum opined in concluding that he could never crawl or climb ropes or
scaffolds).) According to Plaintiff, “[t]he ALJ’s error is not harmless” because “[w]hether or not
an individual is able to perform these types of functions can have a significant impact on an
individual’s disability claim.” (Id. at 16.)
Plaintiff’s challenge to the ALJ’s RFC determination fails for a number of reasons.

Contrary to Plaintiff’s assertion, the ALJ did not “purport[] to adopt Dr. Nusbaum’s testimony.”
Rather, the ALJ’s decision makes clear that she assigned Dr. Nusbaum’s opinions “partial
weight,” with the exception of Dr. Nusbaum’s opinions relating to whether Plaintiff satisfied
Listing 1.02, which she assigned “significant weight.” (R. at 424.) Moreover, the ALJ made
clear that she adopted “most of the postural limitations Dr. Nusbaum assessed” and explained
that she assigned “little weight” to the particular limitations Dr. Nusbaum opined that were more
restrictive than the RFC she assessed because they were “inconsistent with and unsupported by
the totality of the evidence . . . .” (R. at 425.) The ALJ then proceeded to discuss the evidence
upon which she relied in making this determination. (R. at 425–27.) By way of example,
Plaintiff makes much of the fact that the ALJ declined to agree with Dr. Nusbaum’s opinion that
Plaintiff’s right-knee issues prevented him from “stooping” more than 10% of the workday. It is
unclear, however, how Plaintiff’s right-knee impairment would impact his ability to stoop given
that “stooping” is defined as “bending the body downward and forward by bending the spine at
the waist.” SSR 83-14, 1983 WL 31254, at *2. The Court finds that in rejecting a stooping

limitation, the ALJ reasonably pointed out that Plaintiff “repeatedly denied back and neck pain”
and also reasonably observed that Plaintiff “engag[ed] in strenuous activities such as repairing
tractors,” as well as engaged in other activities of daily living such as caring for his elderly
mother, caring for two cats and dogs, driving, and running errands. (R. at 426.)
Even assuming the ALJ erred in neglecting to include all of the limitations Dr. Nusbaum
opined in the RFC she assessed, contrary to Plaintiff’s assertion, such an error would not warrant
reversal in light of the VE’s testimony, which the ALJ cited in her decision. (See R. at 13, 445.)
In particular, the VE pointed out that with the limitations Dr. Nusbaum opined, Plaintiff could
still perform his past positions of retail manager, marketing executive, vehicle sales, and marine

sales as those positions were actually performed by Plaintiff. (R. at 13.) The ALJ noted this in
her decision, adding that it appears that Plaintiff could also perform the marketing executive job
as it is generally performed given that this particular position is generally performed at the
sedentary level of exertion. (See R. at 445.)
Finally, Plaintiff fails to acknowledge that in crafting Plaintiff’s RFC, the ALJ offered a
detailed discussion of the record evidence, which includes record citations to the evidence upon
which the ALJ relied. Plaintiff likewise fails to acknowledge that the ALJ considered and
accorded “significant weight” to Dr. Hughes’ opinions and only “partial weight” to the opinions
of Dr. Das, which were much less restrictive than those of Dr. Hughes. (R. at 98–100; 108–112;
and 423–24.) Notably, the RFC the ALJ assessed was more restrictive than Dr. Hughes’ opinion
as to crouching, kneeling, and crawling.
In summary, the ALJ did not err in failing to incorporate all of Dr. Nusbaum’s opined
limitations. Because substantial evidence supports the ALJ’s RFC determination, Plaintiff’s
second contention of error is OVERRULED.

VI. DISPOSITION
In sum, from a review of the record as a whole, the Court concludes that substantial
evidence supports the ALJ’s decision denying benefits. Accordingly, the Court Plaintiff’s
Statement of Errors is OVERRULED, and the Commissioner of Social Security’s decision is
AFFIRMED.
IT IS SO ORDERED.

/s/ Chelsey M. Vascura
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10375559. Public record. Not legal advice.