Opinion
1:21-CV-00150
06-24-2022
DANA RENALDO OLDWINE, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
MEMORANDUM OPINION AND ORDER
Thomas M. Parker United States Magistrate Judge
Plaintiff, Dana Renaldo Oldwine, seeks judicial review of the final decision of the Commissioner of Social Security, denying his application for disability insurance benefits (“DIB”) under Title II of the Social Security Act. Oldwine challenges the Administrative Law Judge's (“ALJ”) negative findings, contending that the ALJ: (i) misevaluated the medical evidence in determining his residual functional capacity (“RFC”), (ii) improperly substituted his own medical determinations, and (iii) failed to properly question and resolve the conflicts between the vocational expert's (“VE”) testimony and the Dictionary of Occupational Titles (“DOT”). Because the ALJ either applied the proper legal standards or harmlessly erred in their application, the Commissioner's final decision denying Oldwine's application for DIB must be affirmed.
I. Procedural History
On January 11, 2019, Oldwine applied for DIB. (Tr. 160-166). He alleged that he became disabled on February 9, 2011 due to (i) intervertebral disc displacement in the lumbar region of his spine, (ii) herniated discs, (iii) left leg tingling and numbness, and (iv) pain that required 24-hour use of a transcutaneous electrical nerve stimulation (“TENS”) device to be controlled. (Tr. 225, 243). The SSA denied his application initially and upon reconsideration. (Tr. 65-78, 80-92).
The administrative transcript appears at ECF Doc. 9.
ALJ George Roscoe heard Oldwine's case on March 5, 2020 and denied the claim in a March 16, 2020 decision. (Tr. 20-32, 38-57). At Step Four of the sequential evaluation process, the ALJ determined that Oldwine had the RFC to perform light work, with the following limitations:
[N]o climbing of ladders, ropes, or scaffolds; occasional climbing of ramps and stairs, balancing, stooping, kneeling, crouching, and crawling; and no exposure to hazards (heights, machinery, commercial driving).(Tr. 24). Based on VE testimony that a hypothetical individual with Oldwine's age, experience, and RFC could perform his past work as a security guard, the ALJ determined Oldwine was not disabled. (Tr. 31). On November 16, 2020, the Appeals Council denied further review, rendering the ALJ's decision the final decision of the Commissioner. (Tr. 6-8). And, on January 20, 2021, Oldwine filed a complaint to obtain judicial review. ECF Doc. 1.
This matter is before me pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3), and the parties consented to my jurisdiction under 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73. ECF Doc. 11.
II. Evidence
A. Personal, Educational, and Vocational Evidence
Oldwine was born on December 8, 1963 and was 47 years old on his alleged onset date. (Tr. 243). He graduated from high school and had past work experience as a delivery driver for an autobody supplier, a laborer for a waste collection company, and as a watchman for a security company. (Tr. 226).
B. Relevant Medical Evidence
On February 9, 2011, Oldwine went to a hospital complaining of a back injury. (Tr. 402). He reported that he was collecting trash cans when he pulled one from a snow bank and, in catching himself from falling, wrenched his lower back. Id. On physical examination, it was noted that his back had diffuse slight tenderness in the lower part of the lumbar spine, there was no tenderness in the paraspinal muscles, and he easily moved and bended. Id. The hospital diagnosed him with a lumbar sprain; he was given a work restriction and instructed not to do any heavy lifting, bending, or twisting. Id.
On February 14, 2011, Oldwine saw Stephen Bernie, M.D., for lower back pain that he described as being a 9 out of 10. (Tr. 310, 373). Dr. Bernie assessed him with a lower back strain or sprain and prescribed him medication. (Tr. 310, 328). The same day, Dr. Bernie completed an evaluation of Oldwine's condition. (Tr. 398-400). He recounted Oldwine's description of his injury, and, on physical examination, noted that Oldwine was generally normal, his cervical spine had a full range of motion without any tenderness or spasms but was held in the midline position, and he had tenderness and spasming in his paralumbar musculature. (Tr. 398-399). He recommended that Oldwine use a heating pad and hot showers, and he provided Oldwine with stretching exercises and prescriptions for passive physical therapy, medication, and hydrocollator packs. (Tr. 400).
On February 17, 2011, Oldwine had an initial evaluation for physical therapy. (Tr. 397). He described his injury, noting that it caused him severe lower back pain that radiated into his legs and caused him difficulty climbing steps. Id. On physical examination, he was observed to walk with a slightly impaired gait, have tenderness and muscle spasms on palpation, and have intact sensation. Id. The therapist noted that he had problems with pain, an impaired gait, poor posture, and decreased spinal range of motion and strength. Id.
From February 16 to April 13, 2011, Oldwine saw Dr. Bernie or one of his associates about twice a week. (Tr. 310-321). The notes varied in their descriptiveness, but generally, Oldwine reported pain that was an 8 to 10 out of 10. Id. In earlier notes, Dr. Bernie merely indicated that Oldwine was “OK to treat” and, in his February 23 appointment, noted that Oldwine reported tenderness with muscle spasms in his lumbar spine with some limited range of motion. (Tr. 310-313). Later notes, however, assessed Oldwine with tenderness and muscle spasms in his back and occasionally a limited range of motion. (Tr. 313-321). It was sporadically noted that he was improving, and, during his last appointment, Dr. Bernie ordered a chiropractic evaluation and MRI. (Tr. 312, 315-321). Oldwine was instructed to continue physical therapy and massotherapy, given pain medication, and occasionally instructed to use a TENS device and hydrocollator packs. (Tr. 310-321).
On April 21, 2011, Oldwine underwent an MRI of his lower back and legs, which indicated he had herniated discs. (Tr. 373). He also saw chiropractor Gregory Kempf, D.C., who noted on physical examination that Oldwine had pain, was vary taunt, and had decreased range of motion across his back but denied leg pain. (Tr. 381).
From May 2 to June 1, 2011, Oldwine saw Dr. Bernie three times. (Tr. 322-324). On his first appointment, Dr. Bernie reviewed Oldwine's MRI results and noted that the paralumbar region of Oldwine's spine was tender, had spasms, and had a decreased range of motion, but found that Oldwine could return to unrestricted work on June 2, 2022. (Tr. 322, 387). Across these appointments, however, Oldwine reported pain that was 10 out of 10, and Dr. Bernie noted that Oldwine had a reduced range of motion or that his condition had not changed. (Tr. 322-324).
From June 27 to August 1, 2011, Oldwine had aquatic and physical therapy. (Tr. 289-297). During his initial session, Oldwine reported that he had pain with prolonged activity and the pain was an 8 out of 10. (Tr. 290). It was indicated that he was functionally limited in the amount of time he could work, sit, and stand. Id. In an analysis of his movement, the therapist noted that movements involving his spine caused pain, he was unsteady on one leg, and he was sensitive to touch in the lumbar paraspinal area. Id. The therapist noted that Oldwine had limited range of motion in his legs, which limited his strength, and noted weakness, poor mobility, and a poor ability to perform a deep squat or single leg stance. Id. It was assessed that he would benefit from range-of-motion exercises and working on his strength and body mechanics. Id. During his following sessions, Oldwine continued to report pain that was generally 8 out of 10. (Tr. 291-295). Towards the end of his sessions, however, his pain lessened to 7.5 or 7 out of 10. (Tr. 295-297). His exercises focused largely on stabilizing his core, and the therapists routinely noted that he was challenged by the exercises or guarded in his movements. (Tr. 291-297).
On July 1 and August 1, 2011, in between Oldwine's therapy sessions, he met with Dr. Bernie and reported 7 or 10 out of 10 pain. (Tr. 325-327). Oldwine reported that there was no light work available at his job for him to do, and he was assessed with continued tenderness and spasms. Id. At his July appointment, he also noted paresthesia in his legs. (Tr. 325-326).
From September 2 to December 2, 2011, Oldwine saw Dr. Bernie or his associates once a month. (Tr. 285-287, 298). Oldwine continued to report pain (7 out of 10) in his lower back, stiffness, weakness, and radiating pain. Id. Initially, he was observed to have tenderness, with muscle spasms in his lower back, and weakness in his left foot; later appointments did not indicate any changes. Id. Dr. Bernie diagnosed him with acute spasms, a lumbar spine strain, and herniated discs and prescribed medication, physical therapy, and acupuncture. Id.
From June 4 to August 23, 2012, Oldwine had physical therapy. (Tr. 443-451). He underwent an initial evaluation that indicated his lower extremity strength was, generally, 3 out of 5; he had symmetrical posture when standing and walking; and he reported having paresthesia in his left thigh and numbness symptoms that increased occasionally when sitting and climbing. (Tr. 443-445). It was also noted that he had pain when extending and demonstrating his range of motion and could independently walk about 300 feet. (Tr. 444). During this evaluation, Oldwine completed a low back pain scale, which indicated he had severe, unvarying pain that caused him to be limited to: (i) lifting only very light weights; (ii) walking less than a mile without increasing his pain; (iii) sitting less than one hour; (iv) standing for less than one hour without increasing his pain; (v) reducing his sleep by less than three-quarters; and (vi) causing him to have “hardly any” social life. (Tr. 455-456). He also indicated his pain was gradually getting worse. (Tr. 456). The therapist found that Oldwine required therapy for his pain when walking and standing, and his treatment plan included aquatic therapy, posture re-education, gait training, manual therapy, and neuromuscular re-education. (Tr. 445).
In his following sessions, Oldwine generally reported pain that was equally as intense (8 to 10 out of 10) but later reported a reduction to 6 to 7.5 out of 10 and further reduced symptoms during his therapy. (Tr. 446-451). His assessments reflected his work on decreasing his back and left leg pain and progress in completing the exercises. Id. In his latter sessions, he reported benefiting from the TENS device. (Tr. 449-450). During one of these sessions, he noted an increase in pain to 9 out of 10, but the therapist did not observe any behaviors reflective of such pain. (Tr. 450).
On January 30, 2017, Oldwine saw a chiropractor. (Tr. 499). He reported episodic spasms in his lower back, which he had been able to work out through his home-based stretches and using a massage chair. Id. Anytime he had to engage his lower back his pain got worse, ranging from a 4 to 5 out of 10, and he had not noticed any radiating pain in his legs. Id. It was noted that while performing various extensions, pain was produced at all ranges of motion. Id.
On February 27, 2017, Oldwine returned to his chiropractor. (Tr. 502). He reported that he'd had one spasm since his last visit, but strenuous activity continued to be provocative, causing stiff pain. Id. He continued to find the home-based stretching helpful, and he had made a conscious decision to avoid taking pain medication. Id. On physical examination, the chiropractor noted that Oldwine had antalgic movement with lumbar extensions and pain in his lumbar spine during extensions and bilateral flexions. (Tr. 504). Further, lower back pain was produced with testing and some muscle fatigue and weakness of 4 out of 5. Id. The doctor recommended he return twice a month to maintain his current condition. (Tr. 502, 505).
On June 13, 2017, Oldwine was seen for a rash and given ointment. (Tr. 471-472).
On June 22, 2017, Oldwine was seen by Sharon Foster-Geeter, CNP, complaining of fatigue and requesting a vitamin B12 shot. (Tr. 469-470). On physical evaluation, it was noted that his gait was normal, his coordination intact, he had unremarkable pulses, and no swelling. (Tr. 471). It was also noted that he had high blood pressure. Id.
On July 6, 2017, Oldwine returned to Nurse Foster-Geeter. (Tr. 468). He was diagnosed with hypertension and provided educational material on managing the condition. (Tr. 469).
From September 18, 2018 to January 6, 2020, Oldwine received chiropractic treatment. (Tr. 507-565). On his first examination, Oldwine reported having increased pain the prior two weeks, which radiated into his left leg. (Tr. 507). His left leg felt numb and tingly, which went past his knee and got worse as the day went on. Id. He could not lean backwards without additional pain and tried to avoid lifting anything over 10 pounds. Id. On physical examination, the most pain was noted with extension but was also reported with bilateral lateral bending. Id. It was also noted that he generally had 4 out of 5 strength across his lower back muscles and into his upper leg muscles and pain was produced when testing the muscles on his left leg. Id. The chiropractor requested he be seen twice a month for four months to address his current complaints and prevent future regression. (Tr. 508).
Throughout his subsequent visits, Oldwine reported pain, which was unmeasured, but also that he had gotten relief from his treatment. (Tr. 510-565). Those times when Oldwine reported increased pain, it was generally associated with aggravating factors such as a poor suspension on his truck or a break in treatment. (See e.g., Tr. 513, 522, 526, 529-532). During this time, his examination results consistently noted muscle spasms, hypertonicity, and tenderness in the lumber region paraspinals, piriformis, and left hamstrings. (Tr. 510-565). When noted, his strength testing was minimally reduced (4 out of 5), and his range of motion was improving. (Tr. 519, 530, 533, 544, 552, 561). It was occasionally noted that he had slow movement or gait, or that he reported trouble with his leg supporting him. (Tr. 533-535, 541, 549, 557).
C. Relevant Opinion Evidence
1. Work History Report - Dana Oldwine
On January 29, 2019, Oldwine complete a work history report, detailing his prior experience and the physical requirements of each position. (Tr. 234-239). He identified that he had previously worked as a security guard and a garbage collector and currently worked as a delivery truck driver. (Tr. 235, 237-238). He reported that he drove a pick-up truck delivering “minor light supplies.” Id. In 10-to-15-minute increments throughout his 4 to 4.5-hour shifts, he would switch between walking, standing, and sitting. Id. He added that he walked 5 minutes at a time and sit or stood 10 to 15 minutes at a time. Id. He did not lift anything over 10 pounds. Id.
2. Medical Evaluation - Ewen McEwen, M.D.
On February 9, 2011, Oldwine was seen by Ewen McEwen, M.D., at St. Vincent Charity Hospital for his back injury. (Tr. 402). On physical examination, Dr. McEwen found that Oldwine was generally normal, but his back was slightly tender diffusely in the lower part of the lumbar spine. Id. He provided Oldwine with a work restriction, which prevented him from doing any heavy lifting, bending, and twisting, and provided him a prescription for pain medication. Id.
3. Consultative Evaluation - Kiva Shtull, M.D., C.I.M.E.
On May 10, 2011, certified independent medical examiner Kiva Shtull, M.D., C.I.M.E., evaluated Oldwine's physical condition. (Tr. 375). After reviewing his subjective complaints and treatment, Dr. Shtull noted that Oldwine reported that he was sleeping better, his lower back was improving, and he was taking fewer pills than before. (Tr. 376). He also indicated that he did not have any paresthesia in his legs but that the condition of his back varied. Id. On physical examination, Dr. Shtull observed that Oldwine's flexion was inconsistent with the fact that he did not appear to move stiffly, his gait was normal and comfortable, and he got up from the seated position and on and off the exam table with ease. (Tr. 377). His muscle group strength was normal and there was no pain on palpation. Id. Dr. Shtull noted that Oldwine did appear to have some difficulty standing on his left heel and toes. Id.
Dr. Shtull also noted that Oldwine had reached the maximum medical improvement for the allowed condition, stating that the “ongoing treatment is markedly excessive and inappropriate” and his medications were unjustified for a lumbar sprain. Id. Dr. Shtull reported that Oldwine's complaints about his left leg were vague, non-dermatomal, and he could not attribute them to Oldwine's injury. Id. He also indicated that Oldwine's subjective symptom complaints were markedly inconsistent with the physical findings and opined that Oldwine could return to his work without any work restrictions or modifications. (Tr. 378).
4. Functional Capacity Evaluation - Jim LaMastra, PT, DPT
On May 17, 2011, physical therapist Jim LaMastra completed a functional capacity evaluation for Oldwine. (Tr. 361-371). On observation, LaMastra noted that Oldwine demonstrated a reliable effort in the evaluation and noted Oldwine's perceived limitations. (Tr. 363-364). LaMastra noted that Oldwine's overall lifting strength fell within the SSA's “light” physical demand level. (Tr. 365). He indicated that Oldwine could perform at or above a competitive-employment standard in his stooping, reaching in the immediate area, and fingering. (Tr. 366). Oldwine could frequently walk, kneel, climb stairs, reach overhead, handle items, or stand/sit. Id. He could occasionally carry 20-pound items. Id. On physical examination, LaMastra noted that Oldwine had normal upper extremities, normal range of motion in his cervical spine, normal but occasionally guarded active range of motion in his lumbar spine (with reported numbness), and a normal active range of motion in his lower extremities. (Tr. 362, 367). LaMastra also identified that Oldwine's lifting and carrying were all limited to the light level, while his pushing and pulling ability were at the medium physical demand level. (Tr. 362).
In summary, LaMastra opined that Oldwine “did not demonstrate the ability to meet the job demand categories for lifting, walking, carrying, and squatting/crouching related tasks.” (Tr. 361). He noted that Oldwine reported increased symptoms during these tasks, but only exhibited occasional muscular guarding. Id. Additionally, “[a]ll of the dynamic lifting activities were terminated due to psychophysical related reasons.” Id.
5. State Disability Evaluation - Steve Saheda
Around March 6, 2019, Oldwine's physical therapist, Steve Saheda, P.T., evaluated Oldwine's functional limitations. (Tr. 404, 406-407). He reported that Oldwine had been diagnosed with a lumbar disc herniation, which caused 8 out of 10 pain, elevated blood pressure, and pain when moving. (Tr. 406). Saheda did not report any diagnostic testing and clinical interventions. Id. He noted that Oldwine had had aquatic and traditional therapy, but that Oldwine's pain limited his movements, bending, and lifting. (Tr. 407).
6. Treating Source Disability Evaluation - Curtis Riffle, D.C.
Around February 7, 2019, one of Oldwine's chiropractors, Curtis Riffle, D.C., evaluated Oldwine's functionality based on his treatment. (Tr. 495-497). He noted that Oldwine had been diagnosed with a lumbar disc herniation, which caused chronic lower back pain, and had numbness and tingling in his left leg. (Tr. 496). Clinically, he found that Oldwine had reduced range of motion and strength and was positive on orthopedic tests. Id. Dr. Riffle found that Oldwine would continue to require chiropractic care twice a month, noting that he responded well to such care and it helped maintain his status and prevent regression. (Tr. 496-497). He opined that Oldwine could not sit or drive without increased pain and other provocative factors included leaning backwards and lifting. (Tr. 497).
7. State Agency Consultants
On March 17, 2019, Steve McKee, M.D., reviewed the medical evidence to evaluate Oldwine's physical limitations. (Tr. 74-75). He found that Oldwine was limited to occasionally lifting or carrying 20 pounds; frequently lifting or carrying 10 pounds; standing or walking for 4 hours, and sitting for 6 hours in an 8-hour workday; and was unlimited in his pushing or pulling (aside from the lifting restrictions). (Tr. 74). Further, he found that Oldwine could occasionally climb ramps or stairs; never climb ladders, ropes, or scaffolds; and could occasionally stoop, kneel, crouch, and crawl. (Tr. 74-75). Dr. McKee also found that Oldwine was limited in avoiding even moderate exposure to hazards. (Tr. 75). He identified that Oldwine was limited to sedentary work. (Tr. 77). On April 24, 2019, Anne Prosperi, D.O., reconsidered Oldwine's limitations based on the medical record and affirmed Dr. McKee's findings, including his finding that Oldwine was limited to sedentary work. (Tr. 88-91).
D. Relevant Testimonial Evidence
1. Dana Oldwine
Oldwine testified at the hearing. (Tr. 42-47). He worked part-time delivering supplies to autobody stops and the heaviest thing he lifted was a gallon of paint, which he guessed was about 10 pounds. (Tr. 43, 47). He was working as much as he believed he could because his minimum range of motion, herniated discs, use of a TENS unit, and use of a cane prevented him from working full-time. (Tr. 43). He always had a cane with him but used it for balancing and walking on bad days, which occurred several times a week. (Tr. 43-44). He also had back spasms about three or four times a day. (Tr. 44). His conditions limited him to lifting or carrying 10 to 15 pounds, sitting for 30 minutes, and walking 10 to 20 feet before his leg would give out. (Tr. 45). He felt the most pain in his lower back and left leg, and he would have numbness and tingling in his leg. (Tr. 46). He did not do any household chores. Id. When he went home, he propped his legs up. Id.
2. Vocational Expert
Paula Zinsmeister, a VE, also testified. (Tr. 47-57). The VE testified that Oldwine's past work as a trash collector had a “very heavy” physical demand level and his work as a security guard was a light demand level. (Tr. 48-49). The VE testified that a hypothetical individual with Oldwine's experience, age, and the ALJ's proposed physical limitations could perform Oldwine's past work as a security guard, but not as a trash collector. (Tr. 49). The ALJ asked whether his current work would be characterized as a delivery driver, which the VE agreed and asserted it would be performed at a medium level. (Tr. 49-50).
The VE testified that if Oldwine was limited to walking only 3 hours, he would still be able to perform his past work but being restricted to lifting 15 pounds would preclude it, as that restriction would limit him to sedentary work. (Tr. 50-51). The VE agreed, however, that a security guard did not normally require lifting 15 pounds and, when asked whether he could still perform his past work as a security even with such a restriction, the VE stated “[y]es. The light level is primarily for walking.” (Tr. 51). Further, even if postural changes between sitting, standing, and walking were needed in the workplace, the VE testified that Oldwine would still be able to perform his past work. (Tr. 51-52).
III. Law & Analysis
A. Standard of Review
The court reviews the Commissioner's final decision to determine whether it was supported by substantial evidence and whether proper legal standards were applied. 42 U.S.C. § 405(g); Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). Under this standard, the court cannot decide the facts anew, evaluate credibility, or re-weigh the evidence. Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003). And, even if a preponderance of the evidence supports the claimant's position, the Commissioner's decision still cannot be overturned “‘so long as substantial evidence also supports the conclusion reached by the ALJ.'” O'Brien v. Comm'r of Soc. Sec., 819 Fed.Appx. 409, 416 (6th Cir. 2020) (quoting Jones, 336 F.3d at 477); see also Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (Substantial evidence “means - and means only - ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'”).
But, even if substantial evidence supported the ALJ's decision, the court will not uphold that decision when the Commissioner failed to apply proper legal standards, unless the legal error was harmless. Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2006) (“[A] decision . . . will not be upheld [when] the SSA fails to follow its own regulations and [when] that error prejudices a claimant on the merits or deprives the claimant of a substantial right.”). And the court will not uphold a decision when the Commissioner's reasoning does “not build an accurate and logical bridge between the evidence and the result.” Fleischer v. Astrue, 774 F.Supp.2d 875, 877 (N.D. Ohio 2011) (quoting Sarchet v. Charter, 78 F.3d 305, 307 (7th Cir. 1996)); accord Shrader v. Astrue, No. 11-13000, 2012 U.S. Dist. LEXIS 157595 (E.D. Mich. Nov. 1, 2012) (“If relevant evidence is not mentioned, the court cannot determine if it was discounted or merely overlooked.”).
B. Step Four: Medical Opinion Evaluation
Oldwine contends that the ALJ misevaluated the medical source opinions, asserting that his reasons for finding the opinions inconsistent with the record were erroneous, unsupported, or insufficient. ECF Doc. 13 at 12. Specifically, Oldwine asserts that the ALJ utilized the same inconsistency analysis for all of the medical opinions, which contained three errors: (i) a mischaracterization of Oldwine's left lower extremity strength; (ii) an unsupported finding that Oldwine had a “normal gait”; and (iii) a failure to discuss the objective findings indicating Oldwine had a disability. ECF Doc. 13 at 14-17. Further, as to LaMastra's opinion, Oldwine adds that the ALJ erred in finding the opinion inconsistent with his current work requirements. ECF Doc. 13 at 17-18.
The Commissioner disagrees. ECF Doc. 15 at 8-15. In his reply brief, Oldwine largely reiterates his arguments, adding that the Commissioner's justifications are improper post-hoc rationalizations. ECF Doc. 16 at 1-4.
At Step Four of the sequential process, the ALJ must determine a claimant's RFC after considering all the medical and other evidence in the record. 20 C.F.R. § 404.1520(e). In doing so, the ALJ is required to “articulate how [he] considered the medical opinions and prior administrative medical findings.” 20 C.F.R. § 404.1520c(a). At a minimum, the ALJ must explain how he considered the supportability and consistency of a source's medical opinion(s), but generally is not required to discuss other factors. 20 C.F.R. § 404.1520c(b)(2). According to the regulation, the more consistent a medical opinion is with the evidence from other medical and nonmedical sources, the more persuasive the medical opinion will be. This is the consistency standard. And the regulation specifies that the more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion, the more persuasive the medical opinion will be. This is the supportability standard. See 20 C.F.R. § 404.1520c(c)(1)-(2).
Other factors include: (1) the length, frequency, purpose, extent, and nature of the source's relationship to the client; (2) the source's specialization; and (3) “other factors,” such as familiarity with the disability program and other evidence in the record. 20 C.F.R. § 404.1520c(c)(3)-(5).
Because Oldwine challenges how the ALJ supported and articulated his consistency finding, rather than whether the ALJ complied with the basic supportability and consistency findings of the regulations, the court will focus on the ALJ's findings and his discussion of the findings, rather than whether he complied with the regulations themselves. Although a close call, the ALJ's analysis - despite its errors - must be affirmed because any errors were ultimately harmless in the RFC's determination and were not so egregious as to render meaningful review impossible. See 42 U.S.C. § 405(g); Rogers, 486 F.3d at 241; Bowen, 478 F.3d at 746.
The ALJ's consistency analysis leaves much to be desired. Across all of the opinions, the ALJ gave the same reasoning for finding them inconsistent with the medical record, stating:
[T]he opinion is not entirely consistent with the remaining evidence of the record, including recent examination findings of only occasionally, mild decreased left lower extremity strength, with full right lower extremity strength, intact coordination, normal pulses, not extremity swelling, and a normal gait with independent ambulation, despite extremely limited, conservative medical treatment.(Tr. 28-30). And in support, the ALJ summarily cited exhibits containing Oldwine's most recent chiropractic records (7F) and records from his visits the summer of 2017 when he sought treatment for a rash, fatigue, and hypertension (3F). Id.
Addressing Oldwine's allegations regarding this language first, the ALJ's copy-and-pasted consistency analysis highlights the concerns many claimants have that their claims will not be given a good-faith, substantive review. The SSA should not have to jump through meaningless or ineffectual hoops in efficiently administering its goals; but it does not seem too high a burden to expect the staff writers who assist the ALJ on behalf of the Commissioner to provide a more tailored consistency analysis, indicative of real engagement with the substance of each opinion.
Nevertheless, what any ALJ must do and what an ALJ should do are two different things. And here, Oldwine has not shown, nor does the record indicate, that his specific challenges to the ALJ's consistency analysis demonstrate that either legal error or harmful error occurred. Bowen, 478 F.3d at 746. Oldwine challenges two specific inconsistencies identified by the ALJ: (i) his occasional minimally reduced left lower extremity strength; and (ii) his allegedly “normal gait.” As to the ALJ's use of “occasional” to describe Oldwine's decreased left leg strength, the ALJ's description was appropriate given that, of the 26 appointments Oldwine had between September 18, 2018 to January 6, 2020, only 7 reported muscle testing. (See Tr. 507, 519, 530, 533, 544, 552, 561). Although those seven reports were consistent in their findings and the remaining notes were not clearly contrary to them, the ALJ's decision to descriptively refer to 7 out of 26 visits as “occasional” does not undermine his RFC determination. Further, the records themselves provided substantial evidence to support the ALJ's inconsistency findings because they indicate Oldwine had a minimal reduction in strength (generally noted as 4 out of 5), yet the various opinions generally asserted more restrictive walking/standing limitations. See 20 C.F.R. § 404.1520c(c)(1)-(2); Biestek, 139 S.Ct. at 1154; (Tr. 74, 88-90, 366, 407, 497).
Oldwine next contends that the ALJ's finding of an inconsistency based on his conclusion that the records showed Oldwine had a “normal gait” was not supported by the record. Here, Oldwine has a valid point. Each of the opinions identified limitations that would undermine the conclusion that Oldwine's gait was normal; (see Tr. 74, 88-90, 366, 407, 497), and Oldwine has cited other records indicating that he had slow movement or gait. See ECF Doc. 13 at 15; (Tr. 533-535, 541, 549, 557). The Commissioner largely cites records from years earlier, relying on only one from after 2012. See ECF Doc. 15 at 13. This argument leads us to two issues. First, the ALJ cited only one of the records noted by the Commissioner, that being Oldwine's June 22, 2017 appointment for fatigue where it was noted he had a normal gait. (See Tr. 27-30, 470). The remaining records cited by the Commissioner cannot be touted as support for the ALJ's consistency analysis because the ALJ never mentioned them. See Berryhill v. Shalala, 4 F.3d 993, at *18 (6th Cir. Sept. 16, 1993) [published in full-text format at 1993 U.S. App. LEXIS 23975] (unpublished opinion) (“[T]he courts may not accept appellate counsel's post hoc rationalizations for agency action. It is well-established that the agency's action must be upheld, if at all, on the basis articulated by the agency itself.”) (quoting Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983) (citation omitted)).
The court acknowledges the ALJ's boilerplate representation that he gave “careful consideration [to] the entire record” (Tr. 24). Although, because of this representation, the court cannot necessarily find that the ALJ did not consider the records cited in the Commissioner's brief, such generic representations hardly build a logical bridge between the evidence and the ALJ's conclusions, sufficient to allow the claimant to understand why his claim was rejected.
Second, the Commissioner's single relevant cite was also the lone basis on which the ALJ grounded many of his inconsistency findings. The other records contained in 3F and those chiropractic records in 7F did not address Oldwine's coordination, pulses, extremity swelling, or gait. (See Tr. 466-473, 499-567). Although the substantial evidence test requires only a “mere scintilla” of evidence - this pushes the limits. See Biestek, 139 S.Ct. at 1154. The ALJ, however, scrapes by.
The problem for Oldwine is that the court cannot step into the ALJ's shoes and reweigh the evidence. See Jones, 336 F.3d at 476. So long as the ALJ's finding is supported by “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,” the court cannot disagree with the ALJ's factual findings without having a legal error to step back on. See Biestek, 139 S.Ct. at 1154; see also Hunter v. Comm'r of Soc. Sec., No. 3:19-CV-1977, 2021 U.S. Dist. LEXIS 112, at *6-7 (N.D. Ohio Jan. 5, 2021) (“it is well settled that this Court cannot and will not re-weigh evidence; in these cases, the Court exists solely to determine whether the ALJ's findings on initial review, are supported by substantial evidence.”) (citing Wright v. Massanari, 321 F.3d 611, 614-15 (6th Cir. 2003)). And in this case, it must be admitted that given the lack of recent records, a reasonable person may find the single but more recent treatment note sufficient to support the ALJ's inconsistency conclusions. See Johnson v. Astrue, 303 Fed.Appx. 543, 545 (9th Cir. 2008) (affirming the ALJ's rejection of opinions that were remote in time and relying more heavily on more recent opinions); see also Brusseau v. Comm'r of Soc. Sec., No. 2:20-CV-12445, 2022 U.S. Dist. LEXIS 29341, at *22 n.3 (E.D. Mich. Feb. 2, 2022) (noting that the reliance on older records over new ones did not automatically constitute an error, provided the ALJ gave some indication that he considered the more recent evidence (relying on Brooks v. Comm'r of Soc. Sec., 531 Fed.Appx. 636, 642 (6th Cir. 2013)). Thus, although we may dislike the citation of a single treatment record against a number of other records, the ALJ did discuss the earlier evidence, (see Tr. 25), and quantity alone is not the only factor to be weight and such balance remains squarely within the ALJ's discretion when. See 20 C.F.R. § 404.1527; Brusseau, 2022 U.S. Dist. LEXIS 29341, at *22 n.3.
Moreover, even assuming Oldwine's gait was impaired, the ALJ's error in finding otherwise was harmless because the ALJ found other inconsistencies between Oldwine's condition and the medical opinions which Oldwine has not challenged. See Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989) (“No principle of administrative law or common sense requires us to remand a case in quest of a perfect opinion unless there is reason to believe that remand might lead to a different result.” (citations omitted)); (Tr. 29-30).
Next, Oldwine contends that the ALJ's analysis was improper because he failed to discuss evidence that was consistent with his claimed disability. But it is well settled that an ALJ need not discuss every piece of evidence. See Kornecky v. Comm'r of Soc. Sec., 167 Fed.Appx. 496, 508 (6th Cir. 2006) (“[A]n ALJ can consider all evidence without directly address in his written decision every piece of evidence submitted by a party.”). Here, however, the ALJ did discuss every piece of evidence Oldwine has cited in the ALJ's summary of the medical evidence. (See Tr. 26). Although this discussion was not repeated as a part of the ALJ's consistency analysis, the court reads the decision as a whole and with common sense. Buckhanon ex rel. J.H. v. Astrue, 368 Fed.Appx. 674, 678-79 (7th Cir. 2010). With this broader reading, a reader can see that the ALJ considered the evidence Oldwine thinks supports his disability claim and, though the ALJ did not repeat that discussion in his consistency analysis, he necessarily found them insufficiently supported because he did not include them in his RFC finding. Further, the ALJ explained his decision by highlighting numerous inconsistencies he found between the evidence and the various opinions. (See Tr. 28-30). Although as indicated above, the sufficiency of that analysis is concerning at points, the ALJ provided reasons supporting his findings, and those reasons generally built a logical bridge between the evidence and the ALJ's finding. See Fleischer, 774 F.Supp.2d at 877.
Oldwine's final argument regarding the ALJ's consistency analysis contends that the ALJ erred by finding that LaMastra's opinions regarding how often Oldwine would be required to change positions conflicted with how Oldwine was performing his current part time job. This is a difficult question because there is evidence on both sides of the issue, and not all of the ALJ's referenced inconsistencies clearly related to LaMastra's postural limitation (e.g., intact coordination). Further, Oldwine's own statements about his delivery driver position appear to conflict; for example, he stated in his work history report that he alternated his position between sitting, standing, or walking about every 5 to 15 minutes, but he testified that he could sit for 30 minutes. (Tr. 45, 238).
To support his inconsistency finding, the ALJ summarily cited Oldwine's testimony and earning query reports, (Tr. 30), but not his work history report. Because Oldwine's earnings history sheds no light on how he may have been required to change positions while working, it would appear that the ALJ rejected LaMastra's opinion even though it was consistent with Oldwine's testimony. (See Tr. 182-186, 188-189, 192-194, 196-197). The Commissioner defends the ALJ's conclusion, arguing that it was reasonable for the ALJ to conclude that Oldwine's 5-hour shift was almost entirely sitting. ECF Doc. 15 at 14. And the Commissioner also asks the court to find from Oldwine's statements that he had a 6-hour shift or spent a “prolonged” time on his feet, that he must have stood or sat without any breaks for those periods. ECF Doc. 15 at 14-15.
This argument fails because the assumptions called for do not necessarily follow from the evidence. Despite this, the court does not have to make such assumptions in order to affirm the ALJ's findings. That is because the VE testified that even if a limitation for postural changes was added to the hypothetical question, Oldwine would be still able to perform his past work as a security guard. See Seaman v. Astrue, No. 4:11-CV-988, 2012 U.S. Dist. LEXIS 59018, at *29 n.2 (N.D. Ohio Apr. 27, 2012) (noting that whether the ALJ's reason for rejecting limitations from an opinion constitute a “good reason” was immaterial because any error would be harmless because the VE testified that even with the adoption of such limitations the claimant would be able to work); Hanning v. Comm'r of Soc. Sec., No. 2:17-cv-545, 2018 U.S. Dist. LEXIS 117677, at *16 (S.D. Ohio July 16, 2018) (finding that even if an ALJ erred by failing to explain why he did not include a limitation, the error was harmless because the VE testified that even if such a limitation was included the claimant could perform his past work). Thus, the ALJ applied the proper legal procedures - or harmlessly erred in failing to do so - in reaching his RFC determination and, the ALJ's decision must be affirmed in this regard. See 42 U.S.C. § 405(g); Rogers, 486 F.3d at 241. Step Four: Substitution of Medical Judgment Oldwine contends that the ALJ substituted his opinion for that of the medical sources in finding that Oldwine could meet the standing and walking requirements for light work. ECF Doc. 13 at 19. The Commissioner disagrees. ECF Doc. 15 at 15-16. In his reply brief, Oldwine largely reiterates his arguments, adding that the Commissioner's contentions are improper post-hoc explanations of the ALJ's decision. ECF Doc. 16 at 4-6.
The RFC assessment requires an ALJ to walk a fine line. An ALJ must temper his duty to evaluate the medical and other evidence with the temptation to “play doctor” by substituting his own medical judgment for that of medical professionals. Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir. 1990); accord Meece v. Barnhart, 192 Fed.Appx. 456, 465 (6th Cir. 2006); Winning v. Comm'r of Soc. Sec., 661 F.Supp.2d 807, 823-24 (N.D. Ohio 2009) (“[A]n ALJ ‘does not have the expertise to make medical judgments.'”). An ALJ might cross this fine line when he rejects a medical opinion without relying on other evidence or authority in the record. See, e.g., Clifford v. Apfel, 227 F.3d 863, 870 (7th Cir. 2000) (“[A]n ALJ must not substitute his own judgment for a physician's opinion without relying on other evidence or authority in the record.”).
Here, the ALJ did not substitute his own medical opinion in finding that Oldwine could perform light work. Meece, 192 Fed.Appx. at 465; Clifford, 227 F.3d at 870. Oldwine points to the fact that the state agency consultants both found that Oldwine was limited to sedentary work, and LaMastra found a limitation for postural changes, implying the ALJ's decision cannot be justified because no medical professional made contrary findings. ECF Doc. 13 at 19. But the Sixth Circuit has rejected such reasoning as proof that the ALJ “played doctor.” See Mokbel-Aljahmi v. Comm'r of Soc. Sec., 732 Fed.Appx. 395, 401 (6th Cir. 2018) (rejecting the argument that an [RFC] determination cannot be supported by substantial evidence unless a physician offers an opinion consistent with that of the ALJ). And the ALJ rejected such opinions while relying on other evidence, citing not only the records identified above but also Oldwine's treatment notes from Dr. Bernie and records from Oldwine's physical therapy sessions. See Clifford, 227 F.3d at 870; (Tr. 27). Although Oldwine highlights a reason for skepticism because the ALJ rejected nearly all of the medical opinions and found less restrictive standing and walking limitations than were expressed in the rejected medical opinions, the ALJ identified evidence to support his RFC and also, as discussed above, explained his reasoning for rejecting the various opinions. Accordingly, the ALJ's did not substitute his own medical decision for that of the medical opinions provided, and Oldwine's argument to the contrary lacks merit. See 42 U.S.C. § 405(g); Rogers, 486 F.3d at 241.
D. Step Four: Vocational Expert's Testimony
Oldwine contends that the ALJ failed to meet his obligations in examining the VE by failing to question him on whether his testimony was consistent with the DOT and by failing to resolve two conflicts that arose when the VE testified that Oldwine could perform his past work as a security guard even if he was limited to lifting less than 15 pounds and could only walk three hours a day, neither of which fall within the light exertional level. ECF Doc. 13 at 20-24. The Commissioner contends that the ALJ's failure to ask the VE about the DOT was harmless because the ALJ did not rely on either portion of the VE's testimony in forming his RFC. ECF Doc. 15 at 16-18. In his reply brief, Oldwine reiterates his arguments. ECF Doc. 16 at 6-8.
At Step Four, the claimant has the burden to establish that he is unable to perform his past relevant work in light of his RFC. 20 C.F.R. § 404.1520(a)(4)(iv); see also Wright-Hines v. Comm'r of Soc. Sec., 597 F.3d 392, 396 (6th Cir. 2010) (explaining that a claimant challenging a finding that she was able to perform past relevant work had “fail[ed] to provide [the court] with the factual record [the court] need[ed] to find in her favor”). In evaluating whether a claimant is able to perform his past relevant work, an ALJ: (1) will ask the claimant for information about the past work (duties, requirements, etc.); and (2) may consult other sources, such as VE testimony or the DOT. 20 C.F.R. § 404.1560(b); see also SSR 00-4p, 2000 SSR LEXIS 8, at *4 (Dec. 4, 2000) (“We may also use VEs and VSs at these steps to resolve complex vocational issues.”). “Occupational evidence provided by a VE . . . generally should be consistent with the occupational information supplied by the DOT.” SSR 00-4p, 2000 SSR LEXIS 8, at *4. At the hearing, the ALJ must ask the VE if her testimony is consistent with the DOT and, if it is not, ask the VE to explain that conflict. SSR 00-4p, 2000 SSR LEXIS 8, at *4-5. And, when such an explanation is given, the ALJ must explain how he resolved the conflict before relying on the VE's testimony. SSR 00-4p, 2000 SSR LEXIS 8, at *9.
Although the ALJ erred by failing to ask the VE whether her opinions were consistent with the DOT, the error was harmless because the ALJ did not adopt that aspect of the VE's testimony into his RFC. 42 U.S.C. § 405(g); Rogers, 486 F.3d at 241. Here, the ALJ did not asked the VE if her testimony was consistent with the DOT. (See Tr. 48-52). That in and of itself was undisputed error. See SSR 00-4p, 2000 SSR LEXIS 8, at *4-5; ECF Doc. 13 at 21; ECF Doc. 15 at 16-18. However, the issue is whether that had any impact on the ALJ's RFC.
The VE testified that the security guard position could be performed by someone limited to standing 3 hours during an 8-hour workday and who was limited to limited 15 pounds. (Tr. 50-51). This is inconsistent with the “light” exertional level definition. See SSR 83-10, 1983 SSR LEXIS 30, at *13-14. As a result, the ALJ erred. See Lindsley v. Comm'r of Soc. Sec., 560 F.3d 601, 603 (6th Cir. 2009) (recognizing the affirmative duty on ALJ's to ask the VE whether their testimony conflicts with the DOT an obtain a reasonable explanation for any apparent conflicts). However, “a violation of [SSR 00-4P] does not automatically require remand.” Bobo v. Berryhill, No. 1:16-CV-2722, 2017 U.S. Dist. LEXIS 216032, at *58 (N.D. Ohio, Sept. 21, 2017) (quoting Harrington v. Comm'r of Soc. Sec., No. 1:14-CV-1833, 2017 U.S. Dist. LEXIS 120567, at *18 (N.D. Ohio Sept. 10, 2015)).
Because neither hypothetical limitation (i.e., standing no more than 3 hours in an eighthour workday or lifting no more than 15 pounds frequently or occasionally) was adopted by the ALJ, the VE's responses regarding those limitations, which were discussed separately from the ALJ's hypothetical, were not part of the evidence supporting the ALJ's RFC. See Howard v. Comm'r of Soc. Sec., 276 F.3d 235, 238 (6th Cir. 2002) (stating that “substantial evidence may be produced through reliance on the testimony of a [VE] in response to a ‘hypothetical' question, but only ‘if the question accurately portrays [the claimant's] individual physical and mental impairments” (internal quotation marks omitted)).
Thus, the VE's testimony about these two limitations was irrelevant, and the failure for the ALJ to ask about or investigate the conflict was harmless. See Salyer v. Comm'r of Soc. Sec., 574 Fed.Appx. 595, 596 (6th Cir. 2014) (“[T]hough the VE testified that Salyer's job prospects would diminish if certain hypothetical conditions applied, that testimony lacks relevance because in fact the ALJ found that none of those conditions applied.”) (rejecting the argument that the ALJ erred by ignoring portions of the VE's testimony regarding unadopted limitations); see also Bittner v. Comm'r of Soc. Sec., No. 3:20-CV-02204, 2022 U.S. Dist. LEXIS 88401, at *82 (N.D. Ohio Jan. 18, 2022) (finding the ALJ's reliance on VE testimony that was “potentially inconsistent” with the DOT harmless because it “leaves undisturbed the ALJ's finding at Step Four”); Austin v. Comm'r of Soc. Sec., No. 3:09-CV-723, 2010 U.S. Dist. LEXIS 27160, at *7-8 (N.D. Ohio Mar. 23, 2010) (finding that the ALJ's reliance on a VE's inconsistent testimony about a position's skill level was harmless because the VE accurately testified to other positions).
Moreover, neither Oldwine nor his attorney raised the potential conflict (or the ALJ's failure to ask about the consistency with the DOT) during the hearing, which precludes him from raising it now. See Beinlich v. Comm'r of Soc. Sec., 345 Fed.Appx. 163, 168-169 (6th Cir. 2009) (“[T]he ALJ is under no obligation to investigate the accuracy of the VE's testimony beyond the inquiry mandated by SSR 00-4p, 2000 SSR LEXIS 8. This obligation falls to the plaintiff's counsel, who had the opportunity to cross-examine the VE and bring out any conflicts with the DOT.”); see also Gillman v. Comm'r of Soc. Sec., No. 2:16-CV-731, 2017 U.S. Dist. LEXIS 161579, at *12 (S.D. Ohio, Sept. 28, 2017) (finding that a claimant was “barred” from asserting that the ALJ erred in relying on VE testimony that was inconsistent with the DOT because the claimant had not raised the challenge to the VE's testimony during the ALJ hearing). And the ALJ's findings in that regard must be affirmed. See Bowen, 478 F.3d at 746.
IV. Conclusion
Because the ALJ applied proper legal standards and reached a decision supported by substantial evidence, and because any ALJ errors were harmless, the Commissioner's final decision denying Oldwine's application for DIB is AFFIRMED.
IT IS SO ORDERED.