Opinion
5:23-cv-00855
04-17-2023
CHRISTOPHER CONTOS, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
SARA LIOI DISTRICT JUDGE
REPORT AND RECOMMENDATION
AMANDA M. KNAPP UNITED STATES MAGISTRATE JUDGE
Plaintiff Christopher Contos (“Plaintiff” or “Mr. Contos”) seeks judicial review of the final decision of Defendant Commissioner of Social Security (“Commissioner”) denying his application for Disability Insurance Benefits (“DIB”). (ECF Doc. 1.) This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This matter has been referred to the undersigned Magistrate Judge for a Report and Recommendation pursuant to Local Rule 72.2. For the reasons explained herein, the undersigned recommends that the Court AFFIRM the Commissioner's decision.
I. Procedural History
Mr. Contos protectively filed his DIB application on April 21, 2021, alleging a disability onset date of May 5, 2018. (Tr. 14, 170-71.) He alleged disability due to bulging disc in back, arthritis in feet and knees, torn meniscus in both knees, back fusion surgery, and depression. (Tr. 53, 62, 79, 85, 185.) His application was denied at the initial level (Tr. 75-79) and upon reconsideration (Tr. 81-85). He then requested a hearing. (Tr. 86-87.) On February 24, 2022, a telephonic hearing was held before an Administrative Law Judge (“ALJ”). (Tr. 30-52.) The ALJ issued an unfavorable decision on April 27, 2022, finding Mr. Contos had not been under a disability from May 5, 2018, through the date of the decision. (Tr. 11-29.) He requested review of the decision by the Appeals Council. (Tr. 164-66.) The Appeals Council denied his request for review on March 6, 2023, making the ALJ's decision the final decision of the Commissioner. (Tr. 1-7.) Plaintiff filed the pending appeal on April 24, 2023 (ECF Doc. 1), and the matter is fully briefed (ECF Docs. 11, 13, 14).
II. Evidence
A. Personal, Educational, and Vocational Evidence
Mr. Contos was born in 1970. (Tr. 23, 36.) He was forty-eight years old on the alleged disability onset date and fifty-two years old at the time of the hearing. (Id.) At the time of the hearing, he lived with his wife and their two children, ages sixteen and eighteen, in a ranch-style home. (Tr. 36, 46.) He graduated high school and participated in a printing vocational program while in high school. (Tr. 23, 37.) He worked in the same printing job for thirty years, performing various job duties over the course of his employment, including supervisory work. (Tr. 37.) The last time he physically worked his job was in May 2018, and he was ultimately terminated from his job in August 2018 when his FMLA leave ran out. (Tr. 38.)
B. Medical Evidence
Although the ALJ identified physical and mental impairments (Tr. 16-17), Mr. Contos bases his appeal on the ALJ's decision as it relates to his physical impairments (ECF Doc. 11). The evidence summarized herein therefore focuses on Mr. Contos's physical impairments.
1. Treatment History
On May 9, 2018, Mr. Contos presented to Raymond Acus, M.D., at the Crystal Clinic for continued care of his bilateral knee pain. (Tr. 676.) He reported that two days earlier he missed the last step going down the basement stairs and “tweaked his right knee.” (Id.) He did not fall but he said he was hearing crunching and his knee was painful. (Id.) He said standing was the worst position, and he could not fully flex his right knee. (Id.) Examination of the right knee showed: moderate effusion with well localized medial joint line tenderness; some pain with hyperextension and pain with McMurray's testing; mild retropatellar crepitation; no lateral joint line tenderness; no ligamentous laxity; and his calf was soft and nontender with a negative Homan's. (Tr. 677-78.) Examination of the left knee showed: mild retropatellar crepitation; no joint tenderness; no pain with hyperextension; no pain with McMurray's testing; no ligamentous laxity; and his calf was soft and nontender with a negative Homan's. (Tr. 678.) He was diagnosed with bilateral evolving arthritis in the knees and possible right medial meniscus tear. (Id.) Dr. Acus ordered an MRI of the right knee and administered a gel injection in the left knee. (Id.) It was noted that Mr. Contos received no relief from a prior cortisone injection and was taking Aleve. (Id.)
Mr. Contos had his right knee MRI on May 11, 2018. (Tr. 253-54.) The impression was: small complex tear of the posterior root attachment medial meniscus with extensive degenerative signal within the body and posterior horn; mild degenerative change within the body of the lateral meniscus without definite MR signs of tear; mild medial compartment osteoarthritis and mild chondrosis in the patellofemoral and lateral compartments; and mucoid degeneration of the ACL and PCL. (Tr. 254.)
On May 16, 2018, Mr. Contos returned to Dr. Acus for a second gel injection in the left knee and to review the results of the right knee MRI. (Tr. 259.) He reported that he was hearing “clicking and popping” in his right knee. (Id.) His gait was unassisted and slow, but steady. (Id.) He reported that his pain was a six on a scale of zero to ten. (Id.) He said that his symptoms were aggravated with sitting and NSAIDs helped with his symptoms. (Id.) Examination of both knees showed: mild effusion; mild medial and lateral joint line tenderness; and minimal retropatellar crepitation. (Tr. 261.) There was full range of motion in both knees. (Id.) The right knee hurt with hyperextension and McMurray's testing; the left knee did not. (Id.) He was diagnosed with bilateral evolving knee degenerative joint disease and right small medial meniscal root tear. (Id.) Dr. Acus did not think arthroscopy would help the right knee. (Id.) Mr. Contos received a second gel injection in his left knee and a first gel injection in the right knee. (Id.)
On May 23, 2018, Mr. Contos returned to Dr. Acus for his third injection in the left knee and second injection in his right knee. (Tr. 255, 257.) He reported no relief at that point from the injections. (Tr. 255.) He was taking Tylenol Arthritis as needed for pain and rated his pain a four on a scale of zero to ten. (Id.) Mr. Contos was instructed to return in a week for his third injection in the right knee. (Tr. 257.)
Also on May 23, 2018, Mr. Contos saw surgeon Jeffrey Tharp, D.O., for follow up regarding his back pain. (Tr. 777-80.) He reported that his back pain had increased over the past four to six weeks. (Tr. 777.) He rated his pain a seven out of ten. (Id.) He said that his pain improved if he was in a recumbent position. (Id.) He was using anti-inflammatories and doing home exercises to treat his back pain. (Id.) On examination, Mr. Contos's gait was normal, and he had good strength with heel to toe ambulation and good coordination. (Tr. 779.) There was no pain to palpation in the shoulders, cervical, thoracic, or lumbar spine. (Id.) He had some reduced range of motion with pain in the back, but good range of motion in the shoulders, elbows, wrists, hips, knees, and ankles without pain. (Id.) He had full strength in the upper and lower extremities in all myotomes. (Id.) Pinprick sensation was intact in the upper and lower extremities. (Id.) Straight leg raise, Hoffman's, and Fabre testing were negative. (Id.) Pulses were palpable in the upper and lower extremities and there was no gross edema or lymphadenopathy. (Id.) Mr. Contos was diagnosed with degenerative disc disease and degenerative arthritis of the lumbar spine. (Id.) Dr. Tharp did not recommend surgical intervention. (Tr. 780.) He recommended anti-inflammatories and therapeutic exercises, and referred Mr. Contos for pain management and chiropractic evaluation and treatment. (Id.)
On May 30, 2018, Mr. Contos returned to the Crystal Clinic for a third injection in his right knee. (Tr. 250.) He reported 50% relief in his knees bilaterally from the injections and rated his pain level a four out of ten. (Id.)
On June 6, 2018, Mr. Contos presented for a consultation with Syed Ali, M.D., at the Center for Pain Medicine White Pond. (Tr. 545-47.) He reported low back pain that started twenty years earlier, explaining he had three lumbar surgeries over the past ten years, including one fusion. (Tr. 545, 546.) He reported that facet and foraminal epidural injections had not helped and physical therapy had made his pain worse. (Tr. 546.) He had not tried a TENS unit. (Id.) The only medication he was taking at the time was Tylenol. (Id.) He had tried Norco and said it had been helpful. (Id.) He rated his pain a seven that day. (Tr. 545.) He described his pain as aching with associated weakness. (Id.) He also said his pain interfered with working and his activities of daily living. (Id.) His pain was exacerbated by reaching and sitting, and improved with medication. (Id.) On examination, he demonstrated mild tenderness over the lumbar paraspinal muscles and incisional scar, with increased back pain on extension and rotation. (Tr. 546.) His gait was normal and straight leg raise testing was negative. (Id.) He did not demonstrate significant neurological weaknesses. (Id.) He was diagnosed with post laminectomy syndrome, chronic pain syndrome, lumbago with sciatica, and myalgia. (Id.) Dr. Ali prescribed Norco and Gralise (gabapentin). (Id.)
On June 14, 2018, Mr. Contos presented to the emergency room after a motor vehicle accident. (Tr. 277-78.) He complained of a headache. (Id.) He said he was not sure what had happened. (Tr. 278.) He was at the park watching his son play ball, started to drive his car, and crashed. (Id.) He woke up and had bitten his tongue. (Id.) He had no prior history of seizures. (Id.) There was minor bruising on his left arm, but no significant bony tenderness in the extremities and no back tenderness. (Id.) He had full range of motion in all joints, and he was alert and oriented. (Id.) A CT of the head showed no acute intracranial abnormality. (Id.) A CT of the cervical spine showed no acute osseous abnormality. (Tr. 279.) There was moderate cervical spondylosis. (Id.) A chest x-ray showed no acute process. (Id.) The emergency room impression was syncope and collapse. (Tr. 280.) Emergency room physician Jeffrey Lebowitz, M.D., advised against driving until he was seen and cleared neurology. (Id.)
On June 25, 2018, Mr. Contos presented to primary care physician Anita Amlani, M.D., at Pioneer Physicians Network for follow up after his motor vehicle accident. (Tr. 509.) He reported seeing neurology and said he was scheduled for an EEG, MRI, and 14-day Holter study. (Id.) His prescriptions included Norco and Meloxicam. (Id.) He was not taking his Norco. (Id.) Physical examination findings were unremarkable. (Tr. 511.) Dr. Amlani advised Mr. Contos to continue taking Norco as prescribed. (Tr. 511.) Holter monitor results from June 29, 2018, to July 12, 2018, were unremarkable, with one episode of sinus rhythm. (Tr. 276-77.)
On June 18, 2018, Mr. Contos presented to podiatrist Kimberly Kemper, D.P.M., at Pioneer Physicians Network. (Tr. 477-78.) He reported heel pain in both feet which had been ongoing for six months. (Tr. 477.) He said he worked on concrete which made his pain worse. (Id.) He said the onset of his pain was gradual. (Id.) He rated the severity of the pain moderate to severe, and described the pain as aching. (Id.) The pain was aggravated by physical activity and relieved by rest. (Id.) He was diagnosed with right and left foot pain, plantar fasciitis, and equinus contracture of both ankles. (Id.) Dr. Kemper taped Mr. Contos's feet and ordered x-rays. (Tr. 478.) She also prescribed Meloxicam for plantar fasciitis. (Id.) X-rays of the feet taken on June 18, 2018, showed arthritic changes. (Tr. 307-10, 480-81.)
Mr. Contos returned to Dr. Kemper on June 26, 2018. (Tr. 474.) He reported that his feet hurt “much less” with taping. (Id.) He said he was stretching and icing, but “not as often as he should be.” (Id.) He said he had been wearing comfortable flip flops for the past week. (Id.) He had not yet returned to work. (Id.) Dr. Kemper advised Mr. Contos to continue Meloxicam, and recommended custom orthotics. (Tr. 475.) On July 24, 2018, Mr. Contos returned to Dr. Kemper's office to pick up his orthotics and he was instructed to return for follow up in four weeks. (Tr. 470.)
On August 6, 2018, Mr. Contos returned to the Center for Pain Medicine White Pond for his low back pain, seeing Greg Carpenter, PA-C. (Tr. 541.) He rated his pain a nine out of ten, and described it as aching and constant. (Id.) On examination, he demonstrated: mild lumbar paraspinal tenderness in the upper and mid lumbar region; lower lumbar paraspinal tenderness; pain with lumbar flexion, but minimal pain with extension; tenderness to palpation over the left greater than right SIJ/PSIS; mild lateral hip tenderness, right greater than left; unequal pelvis; lower back/buttock pain with internal and external rotation of the bilateral hips; no significant range of motion restriction, except internal rotation slightly restricted; and no significant groin pain. (Tr. 542-43.) Sensation and strength were intact throughout the lower extremities and deep tendon reflexes at the Achilles and patella were symmetric. (Tr. 543.) PA Carpenter continued Mr. Contos on low dose Norco and switched him from Gralise to gabapentin because Gralise was cost prohibitive. (Id.) Mr. Contos inquired about work restrictions and an FCE requested by his disability attorney. (Id.) PA Carpenter provided Mr. Contos with a referral to Dr. Scheatzle for an FCE and instructed him to discuss work restrictions with his primary care physician and/or neurology. (Id.) PA Carpenter also ordered imaging of the hips and pelvis. (Tr. 543-44.) The x-rays of Mr. Contos's hips and pelvis taken on August 31, 2018, revealed mild symmetric degenerative changes in both hips. (Tr. 548.)
On September 6, 2018, Mr. Contos returned to the Center for Pain Medicine White Pond, seeing Samer Narouze, M.D. (Tr. 537.) He rated his pain an eight and described it as aching, constant, and stiff. (Id.) He reported gaining fifteen pounds in four months due to his pain and inactivity. (Tr. 538.) He reported no relief from the steroid injections that Dr. Tharp recommended, and he expressed interest in getting a second opinion from another surgeon. (Id.) Dr. Narouze discussed different treatment options and encouraged Mr. Contos to seek a second opinion. (Id.) Examination findings were similar to those from Mr. Contos's August 6, 2018 pain management visit with PA Carpenter. (Compare Tr. 538-39 with Tr. 542-43.) Dr. Narouze refilled prescriptions for Norco and gabapentin and provided Mr. Contos with a referral to orthopedic surgeon Richard Brower for evaluation and treatment. (Tr. 539.)
On November 5, 2018, Mr. Contos returned to PA Carpenter for a two-month follow up. (Tr. 536.) No examination findings were recorded. (Id.)
There was a gap in treatment from November 2018 to May 12, 2020, when Mr. Contos presented to Katherine Guran, M.D., at Akron General Health & Wellness for a telemedicine visit. (Tr. 583.) He complained of progressively more severe back and hip pain. (Id.) He denied numbness, tingling, or weakness radiating into the lower extremity, but said his right hip pain radiated into his groin. (Id.) He said that his pain was worse with walking, prolonged standing, and bending. (Id.) He said opioids/gabapentin had not helped and he had not taken them since October 2018. (Id.) The video examination showed Mr. Contos to be alert, happy, smiling, and interactive. (Tr. 584.) His back was normal in appearance. (Id.) He demonstrated pain with range of motion in the spine with extension. (Id.) There was full range of motion in the lower extremity, but pain on range of motion in the right hip. (Id.) Strength was at least 4/5 throughout. (Id.) Figure four testing was positive on the right. (Id.) Straight leg raise testing performed in a seated position was negative bilaterally. (Id.) No edema was noted. (Id.) Gait was normal with intact sensation and no obvious deficit. (Id.) Mr. Contos was diagnosed with chronic midline low back pain without sciatica, post laminectomy syndrome, and right hip pain. (Id.) Dr. Guran prescribed Mobic in place of ibuprofen and advised Mr. Contos to continue to use Tylenol as needed. (Id.) She recommended that Mr. Contos work with chiropractor Dr. Martin to improve functional movements and for possible acupuncture; she also ordered updated x-rays. (Tr. 584.)
Hip and pelvis x-rays taken on June 9, 2020, showed no acute fracture or dislocation; joint spaces were maintained; soft tissues appeared normal; and there was lower lumbar spinal surgical fusion. (Tr. 597-600, 617.) Lumbar x-rays taken on June 9, 2020, showed that Mr. Contos was status post L4-L5 posterior fusion with intact surgical hardware. (Tr. 594, 617.) There was no compression fracture or subluxation. (Id.) There was moderate narrowing of L4-L5 and L5-S1 disc spaces and mild narrowing of the remainder of the lumbar disc spaces. (Id.)
On June 11, 2020, Mr. Contos presented to Matthew Martin, D.C., at the Cleveland Clinic. (Tr. 615.) On examination, he demonstrated moderate hypertonicity through the bilateral lumbar paraspinal muscles and right gluteal muscles; range of motion was reduced with pain flexion, extension, side bend and rotation; and motor strength was normal. (Tr. 616.) Orthopedic testing of the right SI joint was positive for reproduction of ongoing low back pain. (Id.) Dr. Martin also noted “[h]ypomobility on motion palpation of the right sacroiliac joint.” (Id.) Mr. Contos was diagnosed with sacroiliitis and somatic dysfunction of the sacral region. (Id.) Dr. Martin explained that he felt that Mr. Contos's symptoms were likely due to right SI joint dysfunction and recommended chiropractic care consisting of spinal manipulation and acupuncture. (Id.) He also recommended a right SI joint injection. (Id.)
Mr. Contos also saw Dr. Guran on June 11, 2020, for follow up regarding his low back and right hip pain. (Tr. 616-19.) He also complained of left heel pain that was worse in the morning, which started after he had been walking barefoot for a while. (Tr. 616.) He said he was doing home exercises and treating with Dr. Martin. (Id.) He rated his pain a six out of ten and described his pain as achy. (Id.) He reported discomfort with housework, twisting, and bending. (Id.) He said that the pain radiating from his hip into his groin was not as bad as it had been. (Id.) He was not using Mobic because he felt it did not provide relief when he tried it in the past. (Id.) On examination, Mr. Contos's gait was normal. (Tr. 618.) He demonstrated full flexion, extension, internal and external of the hips bilaterally and full strength in the hips bilaterally, with no tenderness to palpation in the hips. (Id.) He demonstrated bony tenderness along the lumbar vertebrae and sacroiliac joints, greater on the left than right, with mild bilateral paraspinal muscle tenderness. (Id.) Range of motion was full with flexion, extension, side bending, and rotation of the back, but he demonstrated pain with extension and positive sacral thrust. (Id.) Strength was 5/5 and sensation was intact in the lower extremities. (Id.) There was negative straight leg raise and femoral stretch testing. (Id.) There was tenderness to palpation over the left plantar fascia origin, but range of motion was normal in the foot bilaterally. (Tr. 618-19.) There was normal muscle tone with 5/5 strength in the ankle bilaterally. (Tr. 618.) There was no edema and peripheral pulses were 2+ in the extremities. (Tr. 619.) Dr. Guran recommended sacroiliac joint injection as planned. (Id.) She also recommended ice, stretches, and arch support for the left foot and that Mr. Contos start diclofenac sodium for chronic sacroiliac joint pain and plantar fasciitis in the left foot. (Id.)
Mr. Contos returned to Dr. Martin on June 25, 2020, for chiropractic follow up. (Tr. 57576.) He reported not much improvement since his last appointment. (Tr. 576.) He said he was doing home exercises, but they did not help with pain relief. (Id.) He rated his pain a six out of ten. (Id.) Dr. Martin performed acupuncture treatments. (Id.) On July 1, 2020, Mr. Contos received a right SI injection. (Tr. 572-75.)
A July 31, 2020, CT scan of the lumbar spine (Tr. 587-93) showed postsurgical changes in the lumbar spine (Tr. 592). There were degenerative changes at the bilateral sacroiliac joints and mild lumbar spondylosis. (Id.)
During a video visit with Dr. Guran on August 4, 2020, Mr. Contos reported mild relief from the SI injection. (Tr. 569.) Dr. Guran recommended a medial branch block to target Mr. Contos's mechanical back pain. (Id.) On August 26, 2020, the medial branch block was administered at the L3-4 and L4-5 levels. (Tr. 561, 563-66.) During a virtual visit with Dr. Guran on September 8, 2020, Mr. Contos reported that he felt the SI injection in July helped more than the medial branch block in August. (Tr. 561.) He reported that he was continuing to work with Dr. Martin with mild relief. (Id.) His pain was reportedly worse with bending and extension, and heat helped a little with his pain. (Id.) On examination, Mr. Contos was alert, happy, smiling, and interactive. (Tr. 562.) There was full range of motion in the neck and extremities with observed strength at least 4/5 in the bilateral extremities. (Id.) He demonstrated pain in the back with flexion and extension. (Id.) Because Mr. Contos reported no relief from the medial branch block, Dr. Guran did not recommend a second medial branch block; she did recommend a repeat SI joint injection in October. (Id.) She also recommended that Mr. Contos continue working with Dr. Martin, and continue using heat, doing home exercises, and using Tylenol as needed. (Id.)
On October 21, 2020, Mr. Contos had a repeat SI joint injection. (Tr. 557-60.) When Mr. Contos presented for a follow-up visit with Joel Thorson, APRN, CNP at Akron General Health & Wellness on November 4, 2020, he reported “excellent short term relief from SI joint injection 80% for the first day” but only 20% after the first day. (Tr. 557.) CNP Thorson indicated that Mr. Contos would benefit from RFA on the right SI joint. (Id.)
2. Opinion Evidence
i. Consultative Examiner
On August 24, 2018, Paul Scheatzle, D.O., completed a Medical Assessment of Mr. Contos's work-related physical abilities. (Tr. 492-96.) While there are no records from Dr. Scheatzle relating to his examination or treatment of Mr. Contos, Dr. Scheatzle reported that he treated Mr. Contos for lumbar degenerative disc disease, lumbar spine arthritis, lumbar myalgia, post laminectomy syndrome, and meniscal tear of knee. (Tr. 492.) Dr. Scheatzle offered the following opinions regarding Mr. Contos's work-related physical abilities.
Dr. Scheatzle opined that Mr. Contos could lift and carry up to twenty pounds occasionally and up to ten pounds frequently. (Tr. 493.) He stated that Mr. Contos's lumbar degenerative disc disease supported the assessment. (Id.)
Dr. Scheatzle opined that Mr. Contos could stand and walk for a total of two hours in an eight-hour workday and he could stand and walk without interruption at any one time for five minutes. (Tr. 493.) He stated that Mr. Contos's chronic low back pain with degenerative disc disease supported the assessment. (Id.)
Dr. Scheatzle opined that Mr. Contos could sit for a total of four hours in an eight-hour workday and sit without interruption at any one time for fifteen minutes. (Tr. 494.) He indicated that Mr. Contos's chronic low back pain with degenerative disc disease supported the assessment. (Id.)
Dr. Scheatzle opined that Plaintiff could never climb, stoop, crouch or crawl, but could occasionally balance and kneel. (Tr. 494.) He indicated that the assessment was supported by Mr. Contos's flexed, guarded posture. (Id.) Dr. Scheatzle opined that Mr. Contos had no manipulative limitations. (Tr. 495.)
Dr. Scheatzle opined that Mr. Contos must avoid heights due to decreased mobility with chronic low back pain. (Tr. 496.) He also opined that Mr. Contos would need to be able to change positions as needed. (Id.)
ii. State Agency Medical Consultants
On July 16, 2021, state agency medical consultant Leon Hughes, M.D., completed a physical RFC assessment. (Tr. 57.) Dr. Hughes opined that Mr. Contos could occasionally lift and/or carry twenty pounds, frequently lift and/or carry ten pounds, stand and/or walk for up to six hours in an eight-hour workday, and sit for up to six hours in an eight-hour workday. (Id.) Dr. Hughes opined that Mr. Contos could frequently stoop, kneel, crouch and crawl and was not limited in his ability to balance or climb ramps, stairs, ladders, ropes, or scaffolds. (Id.) Dr. Hughes also opined that Mr. Contos had no manipulative, visual, communicative, or environmental limitations. (Id.)
On October 2, 2021, on reconsideration, state agency medical consultant Mehr Siddiqui, M.D., affirmed Dr. Hughes's findings. (Tr. 66-67.) As part of his review, Dr. Siddiqui found Dr. Scheatzle's opinion not fully supported by evidence in file, noting for example that his opinion regarding walking was not fully supported by gait and physical examinations. (Tr. 66.)
C. Hearing Testimony
1. Plaintiff's Testimony
Mr. Contos testified at the telephonic administrative hearing on February 24, 2022, in response to questioning by the ALJ and his representative. (Tr. 35-48, 51-52.) When asked why he was unable to work, Mr. Contos said he just could not function. (Tr. 39.) He could not lift anything, and he could not sit for long without having to get up and move about before he had to sit down again. (Id.) He explained that he had three back surgeries in the past. (Tr. 39-40.) In 2018, he was told by his doctor that there were no additional surgical options for his back and he was referred to pain management. (Tr. 40-41.) He said he was only at pain management for a few months because they would give him pain pills for a month and then take him off for a month and he did not feel it was helping. (Tr. 41-42.) He explained the pills made him feel better for a couple of hours, but then the pain would return. (Id.) He said he could not estimate how many injections and ablations he had had for his back. (Tr. 40.) He also tried acupuncture for his back. (Tr. 40.) His last injections were in 2021. (Id.) He described the injections as “just a Band-Aid” and felt they really did not do anything to help. (Id.) He said he could throw his back out getting in and out of the car, sitting the wrong way, or twisting his back the wrong way. (Tr. 44.) When he threw his back out, he said he was unable to function for five to ten days. (Id.) He just had to rest by sitting or lying down and wait for it to “calm down” and “straighten itself back out....” (Id.) He estimated throwing his back out at least once a month and maybe two or three times a month. (Id.) He would need to use a cane about once a month after throwing his back because it would be so bad. (Tr. 45.)
Mr. Contos explained that he also had problems with his knees and feet. (Tr. 42.) He had a torn meniscus in his knees. (Id.) His providers did not want to perform surgery right away so he had received injections in his knees, which he described as a “Band-Aid to cover up the pain for a few months....” (Id.) He had not seen a medical provider for treatment for his knees in a couple of years. (Id.)
At the time of the hearing, the only medication that Mr. Contos was taking for any of his medical conditions was blood pressure medication. (Tr. 43.) He was not taking pain medication. (Id.) He said he always had pain but was “just trying to live with it” at that time. (Id.) He could walk only a couple of hundred feet before he would need to rest because his back would stiffen up and his hips would start hurting. (Tr. 45.) He could stand in one place for only a couple of minutes before he would need to move or sit down, and he could sit for about thirty to forty-five minutes before he would have to get up and move around for a little bit. (Id.) He could not lift items up if they were on the floor. (Tr. 46.) He could lift and move an item a short distance if it weighed about ten pounds and was lifted from counter height. (Id.) Mr. Contos said he did not have any issues going up and down stairs, but he also indicated that they lived in a ranch, so he did not have to use stairs often. (Tr. 46-47.) He could dress himself without assistance but said that putting his socks on was “starting to get pretty bad” for him. (Tr. 47.)
Mr. Contos had a driver's license and drove his children to school. (Tr. 37, 42, 43.) He picked his son up from school, but his daughter usually got a ride home with one of her friends. (Tr. 43.) Aside from taking his children to or from school, he did not usually drive and did not go out often. (Tr. 37, 47.) Except for trips to and from his children's school, he estimated leaving the house five times the prior month. (Tr. 47.) He said his family might go out to eat or he might go watch his son play basketball. (Id.) He said he did not do much on a typical day other than take his children to school and sit with his wife “for a little bit” while she watched children at the daycare she ran out of their home. (Tr. 42.) During a typical day, he was usually sitting on the couch or lying down in bed. (Id.) As to household chores, he might load the dishwasher or cook once in a while, but his wife usually took care of everything around the house. (Tr. 42-43.)
2. Vocational Expert's Testimony
A Vocational Expert (“VE”) testified at the hearing. (Tr. 48-51.) The VE classified Mr. Contos's past work as machine operator, a skilled job generally performed at the medium exertional level and actually performed at the heavy exertional level. (Tr. 48-49.)
The ALJ and Mr. Contos's attorney asked a number of hypotheticals. (Tr. 49-51.) In response to a hypothetical describing an individual with the light RFC ultimately assessed by the ALJ (Tr. 18, 49), the VE said the described individual would be unable to perform Mr. Contos's past work (Tr. 49). However, there would be other work that the described individual could perform, including mail clerk, salesclerk, and ticket taker. (Id.)
III. Standard for Disability
Under the Social Security Act, 42 U.S.C. § 423(a), eligibility for benefit payments depends on the existence of a disability. Disability is defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).
An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy....42 U.S.C. § 423(d)(2)(A).
In making a determination as to disability under this definition, an ALJ is required to follow a five-step sequential analysis set out in agency regulations. The five steps can be summarized as follows:
1. If the claimant is doing substantial gainful activity, he is not disabled.
2. If the claimant is not doing substantial gainful activity, his impairment must be severe before he can be found to be disabled.
3. If the claimant is not doing substantial gainful activity, is suffering from a severe impairment that has lasted or is expected to last for a continuous period of at least twelve months, and his impairment meets or equals a listed impairment, the claimant is presumed disabled without further inquiry.
4. If the impairment does not meet or equal a listed impairment, the ALJ must assess the claimant's residual functional capacity and use it to determine if the claimant's impairment prevents him from doing past relevant work. If the claimant's impairment does not prevent him from doing his past relevant work, he is not disabled.
5. If the claimant is unable to perform past relevant work, he is not disabled if, based on his vocational factors and residual functional capacity, he is capable of performing other work that exists in significant numbers in the national economy.20 C.F.R. § 404.1520; see also Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). Under this sequential analysis, the claimant has the burden of proof at Steps One through Four. Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997). The burden shifts to the Commissioner at Step Five to establish whether the claimant has the Residual Functional Capacity (“RFC”) and vocational factors to perform other work available in the national economy. Id.
IV. The ALJ's Decision
In her April 27, 2022 decision, the ALJ made the following findings:
The ALJ's findings are summarized.
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2023. (Tr. 16.)
2. The claimant has not engaged in substantial gainful activity since May 5, 2018, the alleged onset date. (Id.)
3. The claimant has the following severe impairments: lumbar degenerative disc disease, post-laminectomy syndrome, and meniscal tear of the knee. (Id.) The claimant also has the following non-severe impairments: plantar fasciitis of the bilateral feet, calcaneal spur, left foot osteoarthritis, cervical spondylosis, and adjustment disorder with mixed anxiety and depressed mood. (Tr. 17-18.)
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments. (Tr. 18.)
5. The claimant has the residual functional capacity to perform light work as defined in 20 C.F.R. § 404.1567(b) except he can frequently climb ramps and stairs, but can never climb ladders, ropes, or scaffolds; and he can frequently stoop, kneel, crouch, and crawl. (Tr. 18-23.)
6. The claimant is unable to perform any past relevant work. (Tr. 23.)
7. The claimant was born in 1970 and was 48 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date. (Id.) The claimant subsequently changed age category to closely approaching advanced age. (Id.)
8. The claimant has at least a high school education. (Id.)
9. Transferability of job skills is not material to the determination of disability. (Tr. 24.)
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform, including mail clerk, salesclerk, and ticket taker. (Tr. 24-25.)
Based on the foregoing, the ALJ found Mr. Contos had not been under a disability as defined in the Social Security Act from May 5, 2018, through the date of the decision. (Tr. 25.)
V. Plaintiff's Argument
Plaintiff presents one assignment of error. (ECF Doc. 11, pp. 2, 9-14.) He argues that the ALJ failed to properly evaluate the consistency factor when evaluating the opinion rendered by Dr. Scheatzle. (Id.)
VI. Law & Analysis
A. Standard of Review
A reviewing court must affirm the Commissioner's conclusions absent a determination that the Commissioner has failed to apply the correct legal standards or has made findings of fact unsupported by substantial evidence in the record. See Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 405 (6th Cir. 2009) (“Our review of the ALJ's decision is limited to whether the ALJ applied the correct legal standards and whether the findings of the ALJ are supported by substantial evidence.”).
When assessing whether there is substantial evidence to support the ALJ's decision, the Court may consider evidence not referenced by the ALJ. Heston v. Comm'r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). “Substantial evidence is more than a scintilla of evidence but less than a preponderance and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Besaw v. Sec'y of Health & Hum. Servs., 966 F.2d 1028, 1030 (6th Cir. 1992) (quoting Brainard v. Sec'y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989)). The Commissioner's findings “as to any fact if supported by substantial evidence shall be conclusive.” McClanahan v. Comm'r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006) (citing 42 U.S.C. § 405(g)). “'The substantial-evidence standard . . . presupposes that there is a zone of choice within which the decisionmakers can go either way, without interference by the courts.'” Blakley, 581 F.3d at 406 (quoting Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)). Therefore, a court “may not try the case de novo, nor resolve conflicts in evidence, nor decide questions of credibility.” Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). Even if substantial evidence supports a claimant's position, a reviewing court cannot overturn the Commissioner's decision “so long as substantial evidence also supports the conclusion reached by the ALJ.” Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003).
Although an ALJ decision may be supported by substantial evidence, the Sixth Circuit has explained that the “‘decision of the Commissioner will not be upheld where the SSA fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right.'” Rabbers v. Comm'r Soc. Sec. Admin., 582 F.3d 647, 651 (6th Cir. 2009) (quoting Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007) (citing Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 546-547 (6th Cir. 2004))). A decision will also not be upheld where 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. Chater, 78 F.3d 305, 307 (7th Cir. 1996)).
B. Sole Assignment of Error: Whether ALJ Properly Evaluated Medical Opinion of Dr. Scheatzle
In his sole assignment of error, Mr. Contos argues the ALJ failed to properly evaluate the consistency factor when evaluating the medical opinion of Dr. Scheatzle. (ECF Doc. 11, pp. 2, 9-14.) The Commissioner responds that the ALJ explicitly considered and addressed the consistency factor and reasonably concluded that Dr. Scheatzle's opinion was not persuasive. (ECF Doc. 13, pp. 8-15.)
Mr. Contos does not contend that the ALJ failed to adequately address or explain the supportability factor.
The Social Security Administration's (“SSA”) regulations for evaluating medical opinion evidence require ALJs to evaluate the “persuasiveness” of medical opinions “using the factors listed in paragraphs (c)(1) through (c)(5)” of the regulation. 20 C.F.R. § 404.1520c(a); see Jones v. Comm'r of Soc. Sec., No. 3:19-CV-01102, 2020 WL 1703735, at *2 (N.D. Ohio Apr. 8, 2020). The five factors to be considered are supportability, consistency, relationship with the claimant, specialization, and other factors. 20 C.F.R. § 404.1520c(c)(1)-(5). The most important factors are supportability and consistency. 20 C.F.R. §§ 404.1520c(a), 404.1520c(b)(2). ALJs must explain how they considered consistency and supportability, but need not explain how they considered the other factors. 20 C.F.R. § 404.1520c(b)(2).
The ALJ found Dr. Scheatzle's August 2018 assessment was not persuasive. (Tr. 23.) In doing so, she explained:
As noted above, pain management referred the claimant to Dr. Scheatzle for purposes of a disability related functional assessment. (7F/8) Dr. Scheatzle never treated the claimant, but he did provide[] an assessment in August 2018. He listed lumbar and knee impairments. He opined the claimant could lift and carry up to 20 pounds occasionally and up to 10 pounds frequently. He could stand and/or walk up to two hours in a normal workday, in five-minute increments. He could sit for up to four hours in a normal workday, in 15 minute increments. Posture was flexed and guarded. The claimant could never climb, stoop, crouch or crawl. He could occasionally balance and kneel. He must avoid heights due to decreased mobility and pain. He would need to be able to change positions at will. Dr. Scheatzle was asked what medical findings support this assessment. He provided no answer, leaving that question blank. There were no associated examination or imaging cited in this opinion. (5F) Given the fact that Dr. Scheatzle never treated the claimant, his lack of any documentation of clinical or objective exam renders this opinion unsupported. The treating sources documented normal gait, strength (5/5 on all in person exams, estimated at least 4/5 on telehealth exam), sensation and reflexes, which are inconsistent with the high level of proposed limitation. (see e.g. 14F-treating spinal surgeon exam in May 2018). Treatment was very conservative with large gaps. For these reasons, this assessment from a non-treating source with no documented exam is not persuasive.(Tr. 23 (emphasis added).)
In finding Dr. Scheatzle's opinion “not persuasive,” the ALJ clearly addressed the issue of consistency. Under the regulations, a medical opinion is more persuasive when it is “more consistent ... with the evidence from other medical sources and nonmedical sources in the claim...” 20 C.F.R. § 404.1520c(c)(2). The ALJ specifically contrasted Dr. Scheatzle's “high level of proposed limitation” with records from treating sources that documented “normal gait, strength (5/5 on all in person exams, estimated at least 4/5 on telehealth exam), sensation and reflexes.” (Tr. 23.) The ALJ also found Dr. Scheatzle's opinion was not consistent with his conservative treatment and the large gaps in his treatment. (Id.)
Mr. Contos contends the ALJ's finding that the opinion was not persuasive was in error because there was evidence in the record that supported and was consistent with Dr. Scheatzle's opinions. (ECF Doc. 11, pp. 11-12.) He points to objective imaging, including: his 2018 MRI of the knee; August 31, 2018 hip imaging; a June 2020 x-ray of his lumbar spine; and a July 2020 CT scan of his lumbar spine. (Id. at p. 11 (citing Tr. 254, 548, 617).) He points to treatment he received for his conditions, including: repeated pain injections in his knees and back; taping of his feet to treat his bilateral foot pain; and being fitted for orthotics. (Id. (citing Tr. 250-62, 546, 777, 470, 478, 624).) Finally, he points to evidence of abnormal examination findings, including effusion in the knees, joint line tenderness, positive McMurray's testing, retro patellar crepitation, tenderness over the paraspinal muscles, increased pain with extension and rotation, and bony tenderness along the lumbar vertebrae and sacroiliac joints. (Id. at p. 12 (citing Tr. 261, 618).) He contends that “[w]hen such favorable evidence exists . . . case law demands that the ALJ discuss it” and asserts that the “ALJ's reference to normal examinations . . . cannot be considered a reviewable articulation of her consideration of the consistency factor” because she did not discuss the specific evidence highlighted by Mr. Contos in his brief. (Id. at p. 12.)
As an initial matter, the ALJ did not rest her persuasiveness determination solely on the existence of normal examination findings. She also found the opinion unsupported by any documentation of clinical or objective examination findings cited by Dr. Scheatzle. (Tr. 23.) The ALJ also found the opinion inconsistent with the evidence documenting conservative treatment and large gaps in treatment. (Id.) In support of this finding, the ALJ described two significant gaps in treatment. First, the ALJ observed that:
The claimant did not return to pain management after November 2018. There was a significant gap in treatment. There were no medical records from November 2018 until May 2020. The complete lack of treatment for approximately a year and a half is inconsistent with allegations that pain was so severe that it would preclude fulltime work.(Tr. 21.) Second, the ALJ observed that:
There is no record of treatment since November 2020. The evidence shows no treatment for about 17 months at the time this decision was written. The claimant indicated that he only uses blood pressure medication and over the counter pain relief. This second extended gap in treatment is inconsistent with allegations of a pain level that would preclude all full-time work. The claimant did not provide a written function report, and the evidence is limited regarding the extent of his activities. However, he testified that he is able to drive the children to school and perform household chores.(Tr. 22.) Mr. Contos does not challenge the ALJ's finding that there were significant gaps in treatment, and he does not contend that the ALJ erred in concluding that Dr. Scheatzle's opinion was inconsistent with these significant gaps. Moreover, the undersigned finds the ALJ's reasoning on this point is supported by substantial evidence and sufficiently explained.
As to Mr. Contos's argument that the ALJ erred by not addressing specific evidence he contends is consistent with Dr. Scheatzle's opinion, the undersigned finds his argument to be without merit for the reasons explained below.
As a preliminary matter, the ALJ was not required to identify or discuss all treatment records when addressing the persuasiveness of Dr. Scheatzle's opinion. To articulate a decision supported by substantial evidence, an ALJ is not “required to discuss each piece of data in [her] opinion, so long as [she] consider[ed] the evidence as a whole and reach[ed] a reasoned conclusion.” Boseley v. Comm'r of Soc. Sec. Admin., 397 Fed.Appx. 195, 199 (6th Cir. 2010) (citing Kornecky v. Comm'r of Soc. Sec., 167 Fed.Appx. 496, 507-08 (6th Cir. 2006)). An ALJ is also permitted to rely on previously articulated information to support her opinion analysis. Crum v. Comm'r of Soc. Sec., 660 Fed.Appx. 449, 457 (6th Cir. 2016) (citing Forrest v. Comm'r of Soc. Sec., 591 Fed.Appx. 359, 366 (6th Cir. 2014)); Bledsoe v. Barnhart, 165 Fed.Appx. 408, 411 (6th Cir. 2006).
Here, a review of the ALJ's decision reveals that she appropriately discussed and considered the same imagery, treatment modalities, and clinical findings highlighted in Mr. Contos's brief. As for objective imaging, she considered: the 2018 right knee MRI showing a “small complex tear of the posterior root attachment medial meniscus” with “extensive degenerative signal within the body and posterior horn” (Tr. 19); imaging of the hips in 2018 showing mild degenerative changes (Tr. 21); June 2020 imaging showing moderate narrowing of the L4-L5 disc spaces and mild narrowing of the remainder of the lumbar disc spaces (id.); and the July 2020 CT scan that showed lumbar spinal stenosis with neurogenic claudication and mild lumbar spondylosis (id.). As for treatment modalities, the ALJ considered: multiple knee and back injections (Tr. 20, 21-22); the taping of Mr. Contos's feet to relieve foot pain (Tr. 20); and his fitting for orthotics (id.). As for abnormal examination findings, the ALJ considered the clinical findings from Mr. Contos's May 16, 2018 office visit at Crystal Clinic (Tr. 20). The only evidence highlighted in Mr. Contos's brief that the ALJ did not specifically reference was Dr. Guran's June 11, 2020 physical examination finding of bony tenderness along the lumbar vertebrae and sacroiliac joints. (Tr. 618.) But the ALJ did discuss other abnormal lumbar examination findings, including evidence of mild tenderness over the lumbar paraspinal muscles and increased pain on extension and rotation at a June 2018 exam. (Tr. 20.) Although the ALJ did not discuss every piece of evidence, the undersigned finds she considered the evidence as a whole and reached a reasoned decision. Boseley, 397 Fed.Appx. at 199.
In addition to the medical evidence highlighted in Mr. Contos's brief, the ALJ also considered the opinions of the state agency medical consultants, who found Mr. Contos could perform light work with frequent stooping, kneeling, crouching, and crawling. (Tr. 22.) The ALJ found their opinions generally persuasive, explaining:
These opinions are generally persuasive and supportable, because they are consistent with clinical exams (reduced range of motion, tenderness, normal strength, normal sensation, normal gait and coordination) and the objective imaging noted throughout this decision. The very conservative treatment, gaps in treatment, and at least some relief from injections further support this opinion. The claimant's request to remain at his job at a light level is also consistent with this finding, although that request was denied by the employer. The undersigned finds that postural tasks are more limited including frequent climbing of ramps and stairs and no climbing of ladders, ropes or scaffolds based on the nature of the claimant's impairments. No further limitations are supported by the available evidence.(Id.) The ALJ's analysis of these opinions further explains and supports her persuasiveness finding as to Dr. Scheatzle's opinion.
Mr. Contos has not challenged the ALJ's persuasiveness finding as to the state agency medical consultants' opinions.
Importantly, the ALJ did not ignore Mr. Contos's physical impairments or fail to include RFC limitations to account for those impairments. Despite his largely normal clinical findings, conservative treatment, and significant gaps in treatment, the ALJ nevertheless found Mr. Contos was limited to performing light exertional work with no more than frequent stooping, kneeling, crouching, crawling, or climbing ramps or stairs, and no climbing of ladders, ropes, or scaffolds. (Tr. 18.)
Ultimately, Mr. Contos is arguing that the ALJ erred because there was medical evidence that was consistent with Dr. Scheatzle's opinion. (ECF Doc. 11, pp. 11-12.) This argument mistakes the question before this Court. Even if a preponderance of the evidence supports Mr. Contos's argument, this Court cannot overturn the ALJ's persuasiveness finding “so long as substantial evidence also supports the conclusion reached by the ALJ.” Jones, 336 F.3d at 477; Blakley, 581 F.3d at 406. To second-guess the ALJ's persuasiveness finding in this case would ultimately interfere with the recognized “‘zone of choice within which the decisionmakers can go either way, without interference by the courts.'” Blakley, 581 F.3d at 406 (quoting Mullen, 800 F.2d at 545).
For the reasons stated above, the undersigned finds the ALJ evaluated Dr. Scheatzle's opinion in accordance with the regulations, sufficiently articulated his reasons for finding the opinion not persuasive, and made findings that were supported by substantial evidence. Accordingly, the undersigned finds Mr. Contos's sole assignment of error to be without merit.
VII. Recommendation
For the foregoing reasons, the undersigned recommends that the Court AFFIRM the Commissioner's decision.
OBJECTIONS
Any objections to this Report and Recommendation must be filed with the Clerk of Courts within fourteen (14) days after being served with a copy of this document. Failure to file objections within the specified time may forfeit the right to appeal the District Court's order. See Berkshire v. Beauvais, 928 F.3d 520, 530 (6th Cir. 2019); see also Thomas v. Arn, 474 U.S. 140 Dated: April 17, 2023(1985).