IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

STACY M. MORRIS,

Plaintiff,

vs. Civil Action 2:10-CV-902

Judge Frost

Magistrate Judge King

MICHAEL J. ASTRUE, Commissioner

of Social Security,

Defendant.

REPORT AND RECOMMENDATION

I.

Introduction and Background

This is an action instituted under the provisions of 42 U.S.C.

§§405(g), 1383 for review of a final decision of the Commissioner of

Social Security denying plaintiff’s applications for disability insurance

benefits and supplemental security income. This matter is now before the

Court on plaintiff’s Statement of Errors, Doc. No. 10, and the

Commissioner’s Memorandum in Opposition, Doc. No. 15.

Plaintiff Stacy M. Morris filed her applications for benefits

on May 16, 2007, alleging that she has been disabled since September 8,

2006, as a result of arthritis of both knees and a back injury. Page ID#

134-43, 144-46; 194. The applications were denied initially and upon

reconsideration, and plaintiff requested a de novo hearing before an

administrative law judge.

A video hearing was held on June 2, 2009, at which plaintiff,

represented by counsel, appeared and testified. Page ID# 52-62.1 In a

decision dated July 28, 2009, the administrative law judge, applying the

Medical-Vocational Guidelines, concluded that plaintiff is not disabled

1

William L. Tanzey appeared as a vocational expert, but did not testify. 

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within the meaning of the Social Security Act. Page ID# 38-47. That

decision became the final decision of the Commissioner of Social Security

when the Appeals Council declined review on August 7, 2010. Page ID# 25-

27.

Plaintiff was 39 years of age at the time the administrative

law judge issued her decision. Page ID# 46, 189. She has a high school

education and prior relevant work experience.

Plaintiff testified at the administrative hearing that she is

5'4" and weighed at the time 335 pounds, although her normal weight was

260 pounds. Page ID# 54, 59. She has tried to lose weight, but has

difficulty exercising because of her back and knee pain. Page ID# 59.

Plaintiff stopped working because of back pain. Page ID# 55. She also has

high blood pressure, high cholesterol, irregular menstrual cycles,

dizziness and migraine headaches, which last for two to three hours, two

to three times per month. Page ID# 56. Her medications, i.e., morphine

and Xanax, cause dizziness and sleepiness. Id. Her migraine headaches

cause forgetfulness and interfere with her ability to concentrate. Page

ID# 58. Plaintiff also testified to depression and anger relating to her

disability. Id.

Plaintiff estimated that she can sit for about 20 minutes at

a time, stand for 5 minutes, and walk less than 2 minutes because of her

knee, back and hip pain. Page ID# 61. Sometimes, her pain is so severe

that she fears that she will fall down, although she has never done so.

Id.

On a typical day, plaintiff spends most of the day sitting in

a chair with her legs elevated. Page ID# 60. She watches TV or reads and

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then naps for two to three hours. Id.; Page ID# 62. Plaintiff’s husband

does all of the housework and most of the shopping. Page ID# 61. If she

accompanies him to a store, she must use a scooter or a wheelchair. Id.

She does not drive. Id.

II.

The Medical Evidence of Record.

Plaintiff presented to the emergency room at Coshocton County

Memorial Hospital on June 26, 2006, with complaints of right knee pain.

Page ID# 282-83. She had undergone arthroscopic surgery of the right knee

in 2000. Id. X-rays of plaintiff’s right knee showed normal bone and

joint outlines and minor degenerative changes of the medial joint

compartment and the patellar articular surface. Page ID# 281. Plaintiff

was advised to apply ice and take Naproxen. Page ID# 283. 

On October 18, 2006, plaintiff sought emergency room treatment

for left knee pain which had begun the day before. She was diagnosed

with a popliteal cyst of the knee; she was advised to use aspirin to help

thin her blood and to continue using ibuprofen. Page ID# 306-07.

Sivaram Kollengode, M.D., a family practitioner, has treated

plaintiff for lower back pain, hypertension, colds, migraines and

abnormal menstrual cycles. Page ID# 317-346, 377-97, 410-22. Dr.

Kollengode has reported essentially normal muscular and neurological

findings, with only mild hip tenderness and sometimes mild tenderness in

the biceps. Id. Dr. Kollengode’s diagnoses include unspecified myalgias,

hypertension, insomnia and lower leg joint pain. Id.

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Initially, plaintiff complained to Dr. Kollengode of pain

behind the left knee, swelling of the left knee and left lower leg, and

sharp pain with weight bearing. Page ID# 346. Examination revealed left

knee tenderness, positive McMurray’s and fullness of the knee. Dr.

Kollengode diagnosed left knee arthralgia and a Baker’s cyst. He

recommended that plaintiff consult an orthopedist. Id.2 On November 27,

2006, plaintiff complained of headaches three times per day and continued

left knee pain. Page ID# 345. Dr. Kollengode diagnosed obesity (her

height was recorded at 64 inches and weight at 293 pounds), hypertension

and headaches. Id. 

During a January 30, 2007 visit to an emergency room,

plaintiff was diagnosed with sciatica and obesity. Page ID# 302-03.

On February 10, 2007, plaintiff reported to Dr. Kollengode

that Vicodin did not help her pain and made her sleepy. Dr. Kollengode

noted bilateral gluteal tenderness. He diagnosed low back/gluteal pain.

Page ID# 342. In June 2007, plaintiff reported sharp back pain and again

complained that pain medication was not helping. Page ID# 336. In July

2007, plaintiff reported that her back pain was better with a back brace;

she was “up walking a long time.” Page ID# 335.

Plaintiff presented to the emergency room on April 20, 2007,

with complaints of back pain. Plaintiff was able to sit and walk, and had

good pulses, sensation, motor tone and development in her legs. Deep

tendon reflexes in her legs were diminished. She was diagnosed with a

probable lower back herniation and was given a painkiller and a muscle

relaxant. Page ID# 294-96.

2

Plaintiff explained that she did not consult an orthopedist because of

financial concerns. Page ID# 345.

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In July 2007, a state agency reviewing physician opined that

plaintiff could lift and /or carry and push and/or pull up to 50 pounds

occasionally and 25 pounds frequently; could stand and/or walk about six

hours in an eight-hour workday; could sit about six hours in an

eight-hour workday; and could occasionally kneel, crouch, stoop, and

crawl. Page ID# 284-91. In December 2007, another state agency reviewing

physician affirmed that assessment. Page ID# 308.

On November 5, 2007, plaintiff was evaluated by pain

specialist Michael Sayegh, M.D. Plaintiff complained of pain in the

back, hips and knees on both sides and headaches. Examination revealed

lower back tenderness, a “mildly positive” right leg raising test,

tenderness in the knee joint bilaterally, limping while walking and

neurologically intact lower extremities. Dr. Sayegh diagnosed lumbago, 

strain/sprain, fibromyalgia, bilateral knee pain, osteoarthritis,

anxiety and sleep disturbance. He prescribed medication. Page ID# 357-58. 

An MRI of plaintiff’s lower extremities, taken on November 9,

2007, showed a possible vertical tear, mild bilateral bursitis and a

large Baker’s cyst. Page ID# 292-93.

On November 17, 2007, Dr. Sayegh reported that plaintiff “is

having fibromyalgia that is very bad problem with a lot of anxiety and

severe depression resistant to all kinds of treatment . . . . We

re-placed her on the fibromyalgia treatment.” Page ID# 356. He added, “I

think [plaintiff] is very difficult [sic] to work especially labor job

but she can take a chance of vocational rehabilitation and very light and

part-time duty job.” Id.

On February 1, 2008, plaintiff complained of severe muscle

spasms and tenderness throughout her body, severe depression and

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difficulty sleeping. Dr. Sayegh noted tenderness in the girdle muscles

of the upper and lower extremities. Her medications were renewed. Page

ID# 355. On March 27, 2008, plaintiff rated her pain as 9 on a 10-point

scale. Page ID# 362. Dr. Sayegh again noted tenderness in the girdle

muscles of the upper and lower extremities. Id.

X-rays of plaintiff’s pelvis and hips, taken in March 2008,

showed preserved joint spaces, intact bony structures and no fractures

or gross bony abnormalities. Page ID# 396.

On May 7, 2008, Dr. Sayegh completed a Lumbar Spine Impairment

Questionnaire, reporting that plaintiff had severe fibromyalgia with a

poor prognosis and constant pain all over, unrelieved by medication. Page

ID# 348, 350. His clinical findings included limited range of motion,

tenderness, muscle spasm, swelling, abnormal gait, muscle weakness,

trigger points, positive straight leg raising, severe depression and

sleeplessness. Page ID# 348-49. According to Dr. Sayegh, plaintiff could

stand/walk and sit for two hours in an eight-hour workday but would need

to get up and move around every hour when sitting. Plaintiff could

occasionally lift and/or carry over 50 pounds, but no weight frequently;

she could do no pushing, pulling, kneeling, bending or stooping. Page ID#

350-51, 353. Dr. Sayegh opined that plaintiff’s experience of pain or

other symptoms was severe enough to interfere with her attention and

concentration. Page ID# 352. She could not handle even low stress work.

Id. Dr. Sayegh also opined that other limitations would interfere with

plaintiff’s ability to sustain a regular job, including a need to avoid

wetness, noise, fumes, gases, temperature extremes, humidity, dust, and

heights. Page ID# 353. Plaintiff was likely to miss work more than three

times per month. Id.

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On June 24, 2008, Dr. Kollengode noted that plaintiff “has

been unable to work for the last year due to back and knee pain. She is

going through extensive testing to find the cause.” Page ID# 323.

On July 2, 2008, plaintiff complained to Dr. Sayegh of

increased pain, which she rated as 10 on a 10-point scale despite

medication. Page ID# 361. Physical examinations by Dr. Sayegh in July

2008, October and March 2009, showed tenderness in the neck, mid- and

lower-back areas bilaterally and in the paraspinal muscles. There was

also tenderness and swelling noted around the midline and tenderness in

the left knee. Page ID# 360, 361, 374.

An MRI of plaintiff’s lumbar spine performed on July 25, 2008,

showed a slight L5-S1 central disc bulge, but no evidence of herniation

or exit foramen stenosis. Page ID# 364-65.

Dr. Sayegh completed a Spinal Impairment Questionnaire on May

10, 2009. Page ID# 366-72. He diagnosed severe fibromyalgia, knee pain, 

severe depression and sleep deprivation. Her prognosis was guarded. Page

ID# 366. Dr. Sayegh opined that plaintiff could sit for only two hours

in an eight-hour workday, could stand/walk for two hours in an eight-hour

workday, could occasionally lift and/or carry up to 20 pounds, but could

frequently carry no weight, and could do no pushing, pulling, kneeling,

bending or stooping. Page ID# 369-72. Plaintiff was likely to miss work

more than three times per month. Page ID# 371.

III.

Administrative Decision

In her decision, the administrative law judge found that

plaintiff’s severe impairments consist of obesity, fibromyalgia and knee

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problems. Page ID# 40. The administrative law judge also found that

plaintiff’s back problems, migraine headaches and alleged mental

impairment are not severe impairments. Page ID# 41-42. According to the

administrative law judge, plaintiff’s impairments – whether considered

singly or in combination – neither meet nor medically equal any listed

impairment. Page ID# 42. The administrative law judge also found that,

although plaintiff’s medically determinable impairments could reasonably

be expected to cause subjective symptoms, plaintiff’s statements

concerning the intensity, persistence and limiting effects of those

symptoms are not credible to the extent that they are inconsistent with

a residual functional capacity for a full range of sedentary work. Page

ID# 43. Based on that residual functional capacity, and considering

plaintiff’s age, education and work experience, the administrative law

judge relied on the Medical-Vocational Guidelines, Rules 20l.28 and

20l.29, to conclude that plaintiff is “not disabled.” Page ID# 46-47.

VI.

DISCUSSION

Pursuant to 42 U.S.C. §405(g), judicial review of the

Commissioner’s decision is limited to determining whether the findings

of the administrative law judge are supported by substantial evidence and

employed the proper legal standards. Richardson v. Perales, 402 U.S. 389

(1971). Substantial evidence is more than a scintilla of evidence but

less than a preponderance; it is such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion. See Buxton v.

Halter, 246 F.3d 762, 772 (6th Cir. 2001); Kirk v. Secretary of Health

& Human Servs., 667 F.2d 524, 535 (6th Cir. 1981). This Court does not

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try the case de novo, nor does it resolve conflicts in the evidence or

questions of credibility. See Brainard v. Secretary of Health & Human

Servs., 889 F.2d 679, 681 (6th Cir. 1989); Garner v. Heckler, 745 F.2d

383, 387 (6th Cir. 1984).

In determining the existence of substantial evidence, this

Court must examine the administrative record as a whole. Kirk, 667 F.2d

at 536. If the Commissioner's decision is supported by substantial

evidence, it must be affirmed even if this Court would decide the matter

differently, see Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir.

1983), and even if substantial evidence also supports the opposite

conclusion. Longworth v. Comm’r Soc. Sec., 402 F.3d 591, 595 (6th Cir.

2005).

In her Statement of Errors, plaintiff contends that the

administrative law judge erred in finding that she retains the residual

functional capacity to perform sedentary work. Specifically, plaintiff

argues that the administrative law judge failed to properly evaluate the

opinions of her treating physicians and failed to consider her obesity

in determining her residual functional capacity. Plaintiff also argues

that the administrative law judge failed to properly evaluate her

credibility. Finally, according to plaintiff, the administrative law

judge erred in relying on the Medical-Vocational Guidelines to find that,

based on her residual functional capacity for a full range of sedentary

work, she is not disabled. 

OBESITY

Plaintiff argues that the administrative law judge improperly

evaluated the impact of her obesity and how it affects her residual

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functional capacity. “Obesity is a complex, chronic disease

characterized by excessive accumulation of body fat.” SSR 02-01p, 2000

WL 628049. The Ruling recognizes Body Mass Index (“BMI”) as one of the

indicia of an individual’s degree of obesity. Id. BMIs above 40, such as

plaintiff’s, are indicative of extreme obesity because of the potential

for developing obesity-related problems. Id. The Ruling specifically

recognizes that obesity increases the risk of developing impairments such

as osteoarthritis and may contribute to mental impairments such as

depression. Id.

The effects of obesity may not be obvious. For example, some

people with obesity also have sleep apnea. . . . An assessment

should also be made of the effect of obesity upon the

individual’s ability to perform routine movement and necessary

physical activity within the work environment. Individuals

with obesity may have problems with the ability to sustain a

function over time. . . . [O]ur residual functional capacity

assessments must consider an individual’s maximum remaining

ability to do sustained work activities in an ordinary work

setting on a regular continuing basis . . . . In cases

involving obesity, fatigue may affect the individual’s

physical and mental ability to sustain work activity. This may

be particularly true in cases involving sleep apnea.

The combined effects of obesity with other impairments may be

greater than might be expected without obesity. For example,

someone with obesity and arthritis affecting a weight-bearing

joint may have more pain and limitation than might be expected

from arthritis alone.

SSR 02-01p. In sum, SSR 02-01p “specifies that the ALJ must explain how

conclusions regarding a claimant’s obesity were reached.” Fleming v.

Barnhart, 284 F.Supp.2d 256, 271 (D. Md. 2003).

In the case presently before the Court, the administrative law

judge found that plaintiff’s obesity is a severe impairment, Page ID# 40,

and that her BMI of 50.8 is indicative of extreme obesity. Id. Rather

than expressly articulating the effect of plaintiff’s obesity on her

other impairments, however, the administrative law judge merely stated

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that “its effect on the claimant's other impairments has been considered

and evaluated pursuant to SSR 02-01p.” Page ID# 42. 

Treating physician opinions

Plaintiff also contends that the administrative law judge

should have accorded controlling weight to the opinion of Dr. Sayegh, her

treating pain specialist, in determining plaintiff’s residual functional

capacity. As discussed supra, Dr. Kollengode expressed an opinion of

disability, Page ID# 323, and Dr. Sayegh opined that plaintiff could sit,

stand or walk for only two hours in an eight-hour workday and could lift

and/or carry up to 20 pounds occasionally but no weight frequently. Dr.

Sayegh further indicated that plaintiff could do no pushing, pulling,

kneeling, bending, or stooping. Page ID# 369-72. 

The opinions of treating physicians must be accorded

controlling weight if they are “well-supported by medically acceptable

clinical and laboratory diagnostic techniques” and not “inconsistent with

the other substantial evidence in [the] case record.” Wilson v. Comm’r

of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004); Walters v. Commissioner

of Social Security, 127 F.3d 525, 530 (6th Cir. 1997); 20 C.F.R. §§

404.1527(d)(2); 416.927(d)(2). If the administrative law judge finds that

either of these criteria have not been met, she is then required to apply

the following factors in determining the weight to be given a treating

physician’s opinion: “The length of the treatment relationship and the

frequency of examination, the nature and extent of the treatment

relationship, supportability of the opinion, consistency of the opinion

with the record as a whole, and the specialization of the treating

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source. ...” Blakley v. Commissioner of Social Security, 581 F.3d 399 (6th

Cir. 2009); Wilson, 378 F.3d at 544. In this regard, the administrative

law judge is required to look at the record as a whole to determine

whether substantial evidence is inconsistent with the treating

physician’s assessment. See 20 C.F.R. §§ 404.1527(d)(2), (4);

416.927(d)(2),(4).

In rejecting the opinion of disability expressed by Dr.

Killengode, the administrative law judge merely stated:

As for the opinion evidence, on February 15, 2008,

Dr. Killengode opined that Ms. Morris had medical

problems that prevented her from working. However,

this is an opinion on an issue reserved to the

Commissioner of Social Security is [sic] given no

weight as it is conclusory, and is not supported by

the medical record as a whole. Furthermore, the

doctor’s opinion is inconsistent with his treatment

notes and is accordingly rendered less persuasive.

Page ID# 45. In rejecting the opinions and assessments of Dr. Sayegh,

the administrative law judge merely stated, “The opinion of Dr. Sayegh

is inconsistent with his treatment notes and is accordingly rendered less

persuasive.” Id. The administrative law judge failed to articulate, for

example, in what respect the opinions of these treating physicians were

inconsistent with their treatment notes.

Significantly, the administrative law judge also rejected the

only other medical assessment contained in the record, i.e., the state

agency physicians’ opinion that plaintiff is able to perform a reduced

range of medium work. Page ID# 46 (“The undersigned gives little weight

to the opinions of these state agency consultant physicians, as

inconsistent with the medical evidence of record.”) 

This Court concludes that the administrative law judge failed

to evaluate the opinions of plaintiff’s treating physicians by reference

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to the standards of the Commissioner’s own regulations and Blakley. 

Moreover, because the administrative law judge also rejected the only

other medical assessments reflected in the record, the Court must

conclude that, in finding that plaintiff has a residual functional

capacity for a full range of sedentary exertion, the administrative law

judge was improperly relying on her own lay opinion regarding a medical

issue.

Under these circumstances, the Court concludes that the

decision of the Commissioner is not supported by substantial evidence and

cannot be affirmed.3

It is therefore RECOMMENDED that the decision of the

Commissioner be REVERSED and that this action be REMANDED for further

consideration of the medical evidence.

If any party seeks review by the District Judge of this

Report and Recommendation, that party may, within fourteen (14) days,

file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and Recommendation,

and the part thereof in question, as well as the basis for objection

thereto. 28 U.S.C. §636(b)(1); F.R. Civ. P. 72(b). Response to objections

must be filed within fourteen (14) days after being served with a copy

thereof. F.R. Civ. P. 72(b).

3

Because the Court concludes that the matter must be remanded for

further consideration of plaintiff’s treating physician opinions and the

impact of plaintiff’s obesity, the Court will not consider plaintiff’s

contentions that the administrative law judge erred in evaluating plaintiff’s

credibility or in basing her finding of non-disability on the

Medical-Vocational Guidelines. On remand, however, the Commissioner is free to

consider those contentions.

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The parties are specifically advised that failure to object to

the Report and Recommendation will result in a waiver of the right to de

novo review by the District Judge and of the right to appeal the decision

of the District Court adopting the Report and Recommendation. See Thomas

v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Federation of Teachers,

Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States v. Walters,

638 F.2d 947 (6th Cir. 1981).

Date: February 1, 2012 s/Norah McCann King

Norah McCann King

United States Magistrate Judge

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