Jackson v. Commissioner for Social Security

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

DWAYNE JACKSON,

Plaintiff, Case No. 2:19-cv-4712

v.

Magistrate Judge Elizabeth P. Deavers

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

OPINION AND ORDER

Plaintiff, Dwayne Jackson, 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

applications for social security disability insurance and supplemental insurance benefits. With

the consent of the parties pursuant to 28 U.S.C. § 636(c) (ECF No. 6), this matter is before the

Court for consideration of Plaintiff’s Statement of Errors (ECF No. 9) the Commissioner’s

Memorandum in Opposition (ECF No. 15), Plaintiff’s Reply (ECF No. 16), and the

administrative record (ECF No. 8). For the reasons that follow, Plaintiff’s Statement of Errors is

OVERRULED and the Commissioner’s decision is AFFIRMED.

I. BACKGROUND

Plaintiff filed his applications for disability benefits on March 4, 2016 and for

supplemental security income on August 18, 2016, alleging that he has been disabled since July

23, 2015. (R. at 169-74; 178-79.) Plaintiff alleges disability from multiple sclerosis. Plaintiff’s

applications were denied initially and upon reconsideration. (R. at 98-104; 106-112.) Plaintiff

sought a de novo hearing before an administrative law judge.

Administrative Law Judge Nicki Hall (“ALJ”) held a video hearing on July 24, 2018, at

which Plaintiff, represented by counsel, appeared and testified. (R. at 29-70.) On September 26,

26, 2018, the ALJ issued a decision finding that the Plaintiff was not disabled within the meaning

of the Social Security Act. (R. at 10-19.) The Appeals Council denied Plaintiff’s request for

review and adopted the ALJ’s decision as the Commissioner’s final decision. (R. at 1-6.)

Plaintiff then timely commenced the instant action. (ECF No. 1.)

II. THE ADMINISTRATIVE HEARING

Plaintiff testified that, at the time of the hearing, he was 49 years old. (R. at 41.) He

lived in a mobile home with his girlfriend which required him to take three steps to get inside.

(R. at 42). He indicated that he was right hand dominant. (Id.) Plaintiff stated that he drove

locally and to his mother’s house about two miles away daily. (R. at 43.) He indicated that he

left school during the eleventh grade. (R. at 43.) He testified regarding his past work experience

driving heavy equipment. (R. at 45-47.) When questioned by his Attorney, Plaintiff related that

he could walk about a half hour before his right leg became a problem with his muscles getting

sore and tense. (R. at 48-49.) Plaintiff stated that he did not try to return to work after being

laid off as he had no feeling in his right hand and his leg was weak. (R. at 47.) He represented

that he believed he should use a cane, but had difficulty holding it with his right hand. (R. at 49.)

He testified that he used his left side for driving, had difficulty buttoning clothes and could not

cut his food by himself. (R. at 51, 52.) Plaintiff indicated that he has dull aches every day. (R.

at 55.)

Plaintiff clarified that, although one of his doctors noted that he had gone deer hunting,

he only watched the deer from his blind on his property about 150 yards from the house. (R. at

56.) He said that he was too shaky to fire a gun and that the last time he shot a deer was

probably six years earlier. (Id.)

The ALJ asked Plaintiff when he began experiencing the symptoms with his right hand to

which he replied that it was probably during the last year he worked. (R. at 58.) He stated that

he could not work the bulldozer and his employer put him on a rock truck. (Id.) Plaintiff

indicated it became worse to the point he could not do buttons two years prior to the hearing.

(Id.)

Vocational Expert (“VE”) Larry Bell also appeared and testified. The VE indicated that

Plaintiff’s past work as a bulldozer operator was heavy and skilled. The ALJ posed the first

hypothetical question as follows, which ultimately she adopted as Plaintiff’s residual fuctional

capacity:

Let’s assume a hypothetical individual the same age, education and work

background as the claimant, who’s capable of performing work at the medium

level as defined in the regulations. All posturals are frequently except unlimited

stooping but never climb ladders, ropes or scaffolds. Work should not require

greater than frequent use of the right upper extremity for pushing and/or pulling

and should not require greater than frequent use of the right lower extremity for

the operation of foot controls.

Work should not require greater than occasional exposure to concentrated levels

of extreme vibration and work should not require exposure to hazards, such as

unprotected heights or dangerous unshielded moving mechanical parts.

(R. at 60.) In response, the VE indicated that such a person could not perform Plaintiff’s past

work but could perform jobs as a food service worker, kitchen helper, or laundry worker, which

existed in significant numbers in the economy. (R. at 61.)

III. THE ADMINISTRATIVE DECISION

On September 26, 2018, the ALJ issued her decision. (R. at 10.) The ALJ found that

Plaintiff met the insured status requirements through December 31, 2020. (R. at 12.) At step

one of the sequential evaluation process,1 the ALJ found that Plaintiff had not engaged in

substantially gainful activity since her alleged onset date of July 23, 2015. (Id.)

The ALJ found that Plaintiff had the severe impairments of multiple sclerosis and spastic

hemiplegia affecting right dominant side. (R. at 12.) The ALJ 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. (R. at 13.) At step

four of the sequential evaluation process, the ALJ found that Plaintiff had the following residual

functional capacity (“RFC”) to perform the following:

[M]edium work . . . except [Plaintiff] can perform all postural movements

frequently, except unlimited stooping and never climb ladders, ropes or scaffolds.

Work should not require greater than frequent use of the right upper extremity for

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. § 416.920(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. § 416.920(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).

pushing and/or pulling, and should not require greater than frequent use of the

right lower extremity for operations of foot ocntrols. Work should not require

greater than occasional exposure to concentrated levels of extreme vibration.

Work should not require exposure to hazards such as unprotected heights, or

dangerous unshielded moving mechanical parts.

(R. at 14.)

The ALJ determined that Plaintiff is unable to perform his past work. (R. at 17.) She

also found that Plaintiff was 46 years old at the alleged onset date “which is defined as a younger

individual age 18-49.” (R. at 18.) She noted that Plaintiff has a limited education and is able to

communicate in English. (Id.) The ALJ, relying on the VE’s testimony, then determined that

Plaintiff could perform the requirements at the medium exertional level, such as food service

worker, kitchen helper, and laundry worker, all of which VE identified as existing in significant

numbers in the regional and national economies. (R. at 18-19.) The ALJ, therefore, concluded

that Plaintiff is not disabled under the Social Security Act. (R. at 19.)

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 [Social Security Administration] fails to

follow its own regulations and where that error prejudices a claimant on the merits or deprives

the claimant of a substantial right.’” Rabbers, 582 F.3d at 651 (quoting Bowen v. Comm’r of

Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007)).

V. ANALYSIS

Plaintiff puts forward two assignments of error. Plaintiff contends that the ALJ failed to

properly evaluate the evidence by failing to consider the episodic nature of Plaintiff’s Multiple

Sclerosis and “failed to meet her burden at Step Five of the Sequential Evaluation.” (Pl’s Brief

at p. 1.) The Court addresses each issue in turn.

A. The ALJ’s Analysis the Evidence Regarding Plaintiff’s Multiple Sclerosis

Plaintiff contends that the ALJ failed to properly evaluate the episodic nature of his

Multiple Sclerosis (“MS”). In particular, Plaintiff asserts that the ALJ did not consider his

relapses and exacerbations or address various abnormal findings indicated by his treating

physician, Mohamed Al Jaberi, M.D., when evaluating his MS. He faults the ALJ for instead

focusing on an examination by consultative examiner Khalid Darr, M.D., in June 2016, and a

review by state agency reviewing physician Michael Hallet, M.D., in July 2016. (Pl’s Brief at

pp. 10-13.)

As the Court of Appeals for the Sixth Circuit has found, “Multiple Sclerosis is an

incurable, progressive disease subject to such periods of remission and exacerbation.” Parish v.

Califano, 642 F.2d 188, 193 (6th Cir. 1981). While MS “is a progressive disease for which there

is no cure,” it is not per se disabling. Jones v. Sec’y of HHS, No. 93-1958, 1994 WL 468033, at

*3 (6th Cir. Aug. 29, 1994) (citations omitted). When evaluating MS, “consideration should be

given to the frequency and duration of the exacerbations, the length of the remissions, and the

evidence of any permanent disabilities.” Wilcox v. Sullivan, 917 F.2d 272, 277 (6th Cir. 1990).

With these standards in mind, the Court concludes that the ALJ thoroughly considered the

medical evidence relating to Plaintiff’s MS, accommodated his limitations related to his right-

sided symptoms of relapse or exacerbations in the RFC, and that substantial evidence supports

the conclusions.

Plaintiff’s assertion that the ALJ failed to consider the episodic nature of his MS is not

borne out in the decision. To the contrary, the ALJ exhaustively discussed the record evidence

and provided sound explanations, supported by substantial evidence, in evaluating the limiting

effects of Plaintiff’s MS. By way of example, the ALJ considered that prior to the date Plaintiff

alleged his disability began, his MS was stable, and he was working on a full-time basis. (R. at

13; 189, 273.) The ALJ noted that in June of 2015, Plaintiff went to a new examiner for

complaints of left shoulder pain and right hip pain during the past month, which Plaintiff

indicated felt different than his regular achy pain from MS. (R. at 253.) X-rays were ordered,

and Plaintiff was advised to use ibuprofen. (R. at 254.)

The ALJ reviewed and discussed the records from Plaintiff’s treating physician Dr. Jaberi

when he followed-up for MS in November 2015. (R. at 14; 268.) The ALJ acknowledged that

Dr. Jaberi had been treating Plaintiff for 11 years. (Id.) Dr. Jaberi noted that “over the past three

years, [Plaintiff] has been stable clinically and radiologically.” (Id.) Dr. Jaberi noted that

Plaintiff’s main problem was right hemiparesis (weakness) and increased tone of the lower

limbs, especially on the right. (Id.) As of the date of this visit, however, Plaintiff was

independent with ambulation and with his daily activities, had no other symptoms whether visual

or oculobulbar, and no paresthesis. (R. at 14; 268). After considering all of this information, the

ALJ noted that Dr. Jaberi wrote that Plaintiff had “lost his job again,” indicating “[t]hey have

downsized and he is unable to find another job.” (Id.) In considering and discussing Dr. Jaberi’s

entry, the ALJ found that Plaintiff’s lack of success in securing employment, however, did not

lead to the conclusion that he was disabled. (R. at 14.) This determination is supported by

substantial evidence. See 20 C.F.R. § 404.1566(c) (“We will determine that you are not disabled

if your [RFC] and vocational abilities make it possible for you to do work which exists in the

national economy, but you remain unemployed because of—(1) Your inability to get work; (2)

Lack of work in your local area; . . . (6) No job openings for you[.]”).

In evaluating the limiting effects of Plaintiff’s MS, the ALJ reviewed and discussed an

MRI taken of Plaintiff’s brain on June 11, 2016, to determine whether the disease had

progressed. The ALJ noted that the results showed no abnormal enhancement to suggest active

demyelination. (R. at 15; 357.) The ALJ also took note that five days later, on June 16, 2016,

Plaintiff presented for a consultative examination with Dr. Darr. (R. at 15; 284-92.) Noting the

results on examination, Plaintiff had normal 5/5 grip strength bilaterally, and was able to write

and pick up coins with either hand without difficulty. (R. at 15; 286.) His muscle strength was

normal at 5/5 in both the upper and lower extremities bilaterally with no evidence of atrophy; he

was able to tandem gait and squat without difficulty; and he was able to walk on the heels and

toes, though Dr. Darr noted occasional right leg weakness (R. at 15; 286-87.)

The ALJ took into account that in August 15, 2016, Plaintiff reported to Dr. Jaberi that he

had no relapses since his last visit. (R. at 15; 358.) Plaintiff also indicated that he did not feel

that there had been any change to his functional level since his last visit. (Id.)

The ALJ considered that when Plaintiff next saw Dr. Jaberi, about six months later in

February 2017, he reported no new medical concerns. (R. at 15; 361.) The ALJ also

acknowledged that Plaintiff reported continued difficulty with the right side of his body with

intermittent right arm numbness. (Id.) Plaintiff, however, indicated he had not fallen and that he

was able to complete his activities of daily living. (Id.) On examination during this February

2017 visit, Plaintiff’s motor strength was 5/5 with normal tone, and his gait was noted to be

spastic hemiplegia, right side. (R. at 15; 363.)

The ALJ recounted that in April 2017, Plaintiff presented to Jodi Gottardi, PA-C, with

complaints of tiredness and left leg numbness and tingling. (R. at 15; 367.) On examination,

Plaintiff had full range of motion of the left lower extremity, intact sensations, warm to touch,

and capillary refill was normal. (R. at 15; 368.) He had normal motor strength in the upper and

lower extremities. (Id.)

The ALJ discussed that Plaintiff underwent another brain MRI in August 2017 which

indicated two lesions in the right periventricular white matter that were described as stable from

the description on the previous MRI report from June 2016. (R. at 15; 381.) There was no focus

of active demyelination seen on this MRI. (R. at 381.)

The ALJ noted that three weeks later, on September 14, 2017, Plaintiff was examined by

Andrew Stalker, M.D., for MS. (R. at 15; 387-90.) The ALJ recognized that Plaintiff

complained of intermittent numbness in his right arm and of ongoing issues with his right leg but

denied any falls. (R. at 15; 387). Dr. Stalker assessed Plaintiff with MS and spastic hemiplegia

affecting the right dominant side. (R. at 15; 390.) He recommended that Plaintiff continue

Avonex and Baclofen while they awaited the approval for Ocrevus. (Id.) Plaintiff started

Ocrevus infusions in October 2017. (R. at 385.) In December 2017, Plaintiff reported no

exacerbations or falls. (R. at 382.) The ALJ took specific note of all of this.

The ALJ took into account that on April 9, 2018, Plaintiff reported that he was walking

better and was able to go to the woods to deer hunt. (R. at 15; 393.) To this point, the ALJ

recognized that Plaintiff had attempted to explain at the hearing that he only went in the woods

to watch the deer. (R. at 15; 56.) The ALJ determined, however, that going into the woods, even

just to watch deer, still requires the ability to walk and navigate uneven terrain for a continuous

basis. (R. at 15.)

The ALJ discussed that on June 28, 2018, Plaintiff returned to Dr. Stalker, who noted that

Plaintiff had received his second infusion of Ocrevus in April. (R. at 16; 413.) During this visit,

Plaintiff’s motor strength was 5/5 with normal tone. (R. at 413.) Dr. Stalker assessed Plaintiff’s

gait and station as spastic hemiplegia affecting the right dominant side. (Id.)

This recitation of the ALJ’s discussion of Plaintiff’s MS makes clear that she considered

the record evidence relating to Plaintiff’s treatment for MS and right-sided problems, and she

evaluated the limiting nature of his MS in view of the overall record. In so doing, the ALJ amply

fulfilled her obligations under the regulations. See 20 C.F.R. § 404.1545(a)(3) (the ALJ is

responsible for assessing a claimant’s RFC based on all of the relevant evidence); see also Webb

v. Comm’r of Soc. Sec., 368 F.3d 629, 633 (6th Cir. 2004) (the ALJ is responsible for evaluating

the medical evidence and the claimant’s testimony to form an assessment of his RFC). The ALJ

ultimately found that, with continued treatment, Plaintiff’s functioning is not significantly

limited with respect to his impairments but that he does experience right-sided symptoms. (R. at

16.) These reasonable findings are supported by substantial evidence. See 20 C.F.R. §

404.1529(c)(2) (objective medical evidence useful in assessing intensity and persistence of

symptoms on claimant’s ability to work). The ALJ accounted for the limitations caused by

Plaintiff’s MS as she found supported by the evidence by restricting Plaintiff to limited range of

medium work with postural limitations, restrictions on use of the right upper and lower

extremities, and environmental limitation. (R. at 13-14.)

Plaintiff maintains the ALJ failed to consider the episodic nature of his condition and

cites to evidence that he claims demonstrated varying symptoms, included right hemiparesis, gait

issues, right-sided numbness, and spastic speech. (Pl. Brief at 11-12.) As an initial matter, the

Court notes that, to the extent that Plaintiff refers to findings that the ALJ did not explicitly

discuss, an ALJ is not required to consider each and every piece of evidence in the record.

Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 496, 508 (6th Cir. 2006) (“an ALJ can consider

all the evidence without directly addressing in [her] written decision every piece of evidence

submitted by a party.”) (internal citations and quotations omitted); Van Der Maas v. Comm’r of

Soc. Sec., 198 F. App’x 521, 526 (6th Cir. 2006) (“Even though the ALJ did not discuss (or

maybe even consider) every piece of medical evidence relevant to CFS, the evidence that she did

consider was substantial.”). While here, the ALJ did not discuss every medical finding to which

Plaintiff refers, she clearly considered Plaintiff’s treatment for MS, which included many of the

records to which Plaintiff refers, including records that specify right-sided difficulties and gait

disturbance. (R. at 14-16.)

Plaintiff cites abnormal findings that the ALJ did not expressly discuss but fails to specify

the severity of those findings or demonstrate that his condition had reached a disabling level.

Nor does Plaintiff demonstrate that the abnormal findings limited him to only sedentary

exertional work with occasional handling and fingering limitations on the right. (See Pl’s Brief

at pp. 10-11, 15). Of course, Plaintiff bears the ultimate burden of proof on the issue of

disability. Bowen v. Yuckert, 482 U.S. 137, 146, n.5 (1987) (under the “settled allocation of

burdens of proof in disability proceedings,” the claimant must prove the extent of her

impairments). The agency’s regulations instruct, “[w]e need specific medical evidence to

determine whether you are disabled or blind. You are responsible for providing that evidence.”

20 C.F.R. § 404.1514. The Court of Appeals for the Sixth Circuit has repeatedly recognized that

“[a] social security disability claimant bears the ultimate burden of proof on the issue of

disability.” See, e.g., Richardson v. Heckler, 750 F.2d 506, 509 (6th Cir. 1984). Because

Plaintiff provides no explanation why the findings he cites support the level of limitation that he

alleges, he has failed to meet his burden. Plaintiff has not demonstrated that greater limitations

than those assigned by the ALJ were required.

Although the argument is not developed, Plaintiff seems to take issue with the ALJ’s

decision to give little weight to the opinions of his treating physician, Dr. Jaberi. (Pl’s Brief at p.

11 (“As for Plaintiff’s treating physician, the ALJ gave his multiple opinions little weight.”)) To

the extent Plaintiff intended to make this argument, the Court concludes that the ALJ provided

good reasons for not affording controlling weight to these opinions.

The ALJ must consider all medical opinions that he or she receives in evaluating a

claimant’s case. 20 C.F.R. § 416.927(c). The applicable regulations define medical opinions as

“statements from physicians and psychologists or other acceptable medical sources that reflect

judgments about the nature and severity of your impairment(s), including your symptoms,

diagnosis and prognosis, what you can still do despite impairment(s), and your physical or

mental restrictions.” 20 C.F.R. § 416.927(a)(2).

The ALJ generally gives deference to the opinions of a treating source “since these

sources are likely to be the medical professionals most able to provide a detailed, longitudinal

picture of [a patient’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. §

416.927(c)(2); Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 375 (6th Cir. 2013); Blakley, 581

F.3d at 408.2 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).

If the ALJ does not afford 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 source’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

2 “Revisions to regulations regarding the evaluation of medical evidence went into effect on

March 27, 2017, and purport to apply to the evaluation of opinion evidence for claims filed

before March 27, 2017.” Smith v. Comm’r of Soc. Sec., No. 3:18CV622, 2019 WL 764792, at *5

n.2. (N.D. Ohio Feb. 21, 2019) (citing 82 Fed. Reg. 5844-5884 (Jan. 18, 2017)). Plaintiff’s claim

was filed before March 27, 2017, before the new regulations took effect.

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] your treating source’s opinion.” 20 C.F.R. §

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). The United States Court of Appeals for the Sixth

Circuit has stressed the importance of the good-reason requirement:

“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.” Snell v. Apfel, 177 F.3d 128,

134 (2d Cir. 1999). The requirement also ensures that the ALJ applies the treating

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

See Halloran v. Barnhart, 362 F.3d 28, 32–33 (2d Cir. 2004).

Wilson, 378 F.3d at 544–45. Thus, the reason-giving requirement is “particularly important

when the treating physician has diagnosed the claimant as disabled.” Germany-Johnson v.

Comm’r of Soc. Sec., 313 F. App’x 771, 777 (6th Cir. 2008) (citing Rogers, 486 F.3d at 242).

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).

Finally, the Commissioner reserves the power to decide certain issues, such as a

claimant’s residual functional capacity. 20 C.F.R. § 404.1527(d). Although the ALJ will

consider opinions of treating physicians “on the nature and severity of your impairment(s),”

opinions on issues reserved to the Commissioner are generally not entitled to special

significance. 20 C.F.R. § 404.1527(d); Bass v. McMahon, 499 F.3d 506, 511 (6th Cir. 2007).

Substantial evidence supports the ALJ’s decision not to afford controlling weight to Dr.

Jaberi’s opinion. For instance, in November 2015, Dr. Jaberi indicated, “I do not think that the

patient can further tolerate a job with ten hours daily work for seven days per week.” (R. at 269.)

This statement, however, as the ALJ noted, is akin to a statement of disability, which is a matter

reserved to the Commissioner. Opinions on an issue reserved for the Commissioner and not

entitled to any special deference. See 20 C.F.R. § 404.1527(d)(3) (“We will not give any special

significance to the source of an opinion on issues reserved to the Commissioner . . . .”); Turner v.

Comm’r of Soc. Sec., 381 F. App’x 488, 493 (6th Cir. 2010) (treating physician’s statement that a

claimant is “unable to work” is an opinion on an issue reserved to the Commissioner and not

entitled to any particular weight).

Further, in February 2015, Dr. Jaberi reported that Plaintiff remained at a “disability level

of 2.” (R. at 270, 314.) As the ALJ properly observed, this rating was based on the Kurtzke

Expanded Disability Status Scale (for multiple sclerosis) and a level 2 means “minimal disability

one FS ([F]unctional System).” (R. at 17.) Thus, substantial evidence supports the ALJ’s

conclusion that the level 2 rating does not support Plaintiff’s contention that he was significantly

functionally limited. Although Plaintiff insists that the ALJ discounted the opinion merely

because Dr. Jaberi did not provide a function by function analysis of Plaintiff’s specific abilities,

the ALJ clearly went further. In any event, “medical opinions are statements from acceptable

medical sources that reflect judgments about the nature and severity of your impairment(s),

including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s),

and your physical or mental restrictions.” 20 C.F.R. § 404.1527(a). Dr. Jaberi’s statements did

not explain how Plaintiff's symptoms prevented him from working or otherwise describe what

Plaintiff was able to do despite his limitations. Accordingly, the ALJ reasonably afforded Dr.

Jaberi’s opinions only little weight.

Plaintiff may also be faulting the ALJ’s decision to afford great weight to Drs. Darr and

Hallet, but again does not develop his arguments or indicate why the ALJ’s assessment of those

opinions was error. (See Pl’s Brief at p. 11 (referring to Drs. Darr and Hallet).) Nevertheless,

the Court concludes that the ALJ properly considered both doctors’ opinions and reasonably

afforded them great weight.

Substantial evidence supports the ALJ’s conclusion to afford these opinions great weight.

Dr. Darr examined Plaintiff in June 2016 at which point Plaintiff told Dr. Darr that he was

disabled due to MS. (R. at 284.) Even so, Dr. Darr found Plaintiff had 5/5 muscle strength

bilaterally in the both the upper and lower extremities with no evidence of atrophy; Plaintiff’s

hearing, speech, and sight were within normal limits; his communication skills were normal, as

were his nutritional status and vital signs. (R. at 286-87.) Plaintiff’s upper extremity functions

for reaching, handling, and fine and gross movements were intact and he did not require the use

of an ambulatory aid. (R. at 287.) He was able to push and pull objects and could manipulate

objects. (Id.) Dr. Darr indicated that Plaintiff could operate hand and foot control devices, was

able to drive a motor vehicle and travel without any difficulty, and was able to climb stairs

without much difficulty. (Id.) Dr. Darr indicated that Plaintiff had significant symptoms of

weakness in the right hand that significantly improved with Avonex and Baclofen, and that

Plaintiff reported that off and on he had some weakness in the right arm and right leg. (Id.)

Based upon his evaluation, Dr. Darr opined that Plaintiff was able to lift and carry

between 30 to 40 pounds frequently and over 41 to 60 pounds occasionally. (R. at 287.)

Plaintiff’s activities of daily living seemed intact to Dr. Darr. (R. at 287). The ALJ concluded

Dr. Darr’s opinion consistent with both his objective findings and the overall record. This

finding was reasonable and supported by substantial evidence. See 20 C.F.R. § 404.1527(c)(3)

(“The more a medical source presents relevant evidence to support an opinion, particularly

medical signs and laboratory findings, the more weight we will give that opinion.”); 20 C.F.R. §

404.1527(c)(4) (“Generally, the more consistent an opinion is with the record as a whole, the

more weight we will give to that opinion.”).

The ALJ also reasonably considered the opinion evidence from Dr. Hallet, the state

agency reviewing physician at the initial level. (R. at 16-17; 71-81.) Dr. Hallet reviewed the

evidence and opined that Plaintiff was capable of a restricted range of medium exertional work.

(R. at 77.) Dr. Hallet opined that Plaintiff could frequently climb ramps/stairs, kneel, crouch,

and crawl; never climb ladders, ropes, or scaffolds; occasionally overhead reaching with the left

upper extremity due to “AC DJD” (acromioclavicular degenerative joint disease), and had to

avoid all exposure to hazards. (R at 77-78.) The ALJ found Dr. Hallet’s assessment was largely

reliable because, among other factors, it was based on a review of the available case record,

including the Plaintiff’s statements regarding his daily activities, and it was reasonable and

consistent with the record as a whole. Again, these are proper bases upon which an ALJ may

rely to support assigning great weight to an opinion. See 20 C.F.R. § 404.1527(c)(4)

(consistency considered). The ALJ also properly noted and considered that state agency medical

consultants, such as Dr. Hallet, are highly qualified physicians who are experts in the evaluation

of the medical issues in disability claims under the Social Security Act. See 20 C.F.R. §

404.1513a(b)(1) (state agency medical consultants are highly qualified and experts in Social

Security disability evaluation.); see also SSR 17-2p (“MCs and PCs are highly qualified medical

sources who are also experts in the evaluation of medical issues in disability claims under the

Act.”). The ALJ reasonably afforded great weight to Dr. Hallet’s opinion and the determination

is supported by substantial evidence.

Even if the record included evidence that could support greater limitations imposed by

Plaintiff’s MS, the Court would not reach a different result. Here, the ALJ considered the record

as a whole and provided a reasonable explanation, supported by substantial evidence, for

evaluating the limiting effects of Plaintiff’s MS. The Court will not disturb the Commissioner’s

decision if it is supported by substantial evidence, even if this Court would resolve the issues of

fact 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). Accordingly, Plaintiff’s first contention of error is OVERRULED.

B. Substantial Evidence supports the ALJ’s RFC Determination at Step Five

Plaintiff argues that the ALJ erred by not relying on a hypothetical question posed to the

VE which limited Plaintiff to sedentary-level work and occasional handling and fingering with

the right upper extremity, which Plaintiff contends was consistent with his MS symptoms. (Pl’s

Brief at 13-15.) Plaintiff’s argument, however, misses the mark. Plaintiff has failed to establish

that the ALJ erred. To the extent Plaintiff faults her on this basis, the Court finds that the ALJ

was not required to rely on the VE’s testimony in response to a hypothetical question that

included limitations she determined were not supported by the record evidence.

The ALJ=s hypothetical question incorporated all of the limitations the ALJ found

credible and supported by the evidence and, therefore, was proper. In formulating the

hypothetical, an ALJ is only Arequired to incorporate those limitations accepted as credible by the

finder of fact.” Casey v. Secy of Health & Human Servs., 987 F.2d 1230, 1235 (6th Cir. 1993).

The ALJ asked the VE to consider whether an individual with Plaintiff’s vocational

profile and RFC for a limited range of range of medium work could perform any work in the

national economy. (R. at 60-61.) The VE testified that an individual with those specified

characteristics was able to perform other jobs in the national economy as a food service worker;

kitchen helper; and laundry worker, all of which existed in substantial numbers nationally. (R. at

60-61.) Based on the VE’s testimony, the ALJ concluded at step five that Plaintiff was capable

of performing other work that existed in significant numbers in the national economy. (R. at 18-

19.) The ALJ relied upon the hypothetical question to the VE that incorporated all of the

limitations the ALJ found credible and supported by the evidence. The ALJ, therefore, properly

relied on the VE’s testimony as substantial evidence in finding that Plaintiff was capable of

performing jobs found in the national economy. See Smith v. Halter, 307 F.3d 377, 378-79 (6th

Cir. 2001) (VE’s testimony in response to accurate hypothetical question constitutes substantial

evidence).

Contrary to Plaintiff’s contention, the ALJ was not required to rely on the VE’s response

to a different hypothetical question or include in her RFC assessment limitations for sedentary

work with occasional right hand handling and fingering limitations, because those limitations

were not supported by the record. See Casey, 987 F.2d at 1235 (recognizing that the ALJ is

required to include only Plaintiff’s supported limitations).

Because the vocational exert identified jobs that Plaintiff could perform despite his

limitations, the ALJ reasonably concluded that Plaintiff was not disabled. Substantial evidence

supports the ALJ’s step-five finding. Plaintiff’s second contention of error is OVERRULED.

VI. CONCLUSION

In conclusion, from a review of the record as a whole, the Court concludes that

substantial evidence supports the ALJ’s decision denying benefits. Accordingly, Commissioner

of Social Security’s decision is AFFIRMED and Plaintiff’s Statement of Errors is

OVERRULED. The Clerk is DIRECTED to enter judgment in favor of the Commissioner.

IT IS SO ORDERED.

Date: March 30, 2021 /s/ Elizabeth A. Preston Deavers____

ELIZABETH A. PRESTON DEAVERS

UNITED STATES MAGISTRATE JUDGE