IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Marsha D. Auflick, :

Plaintiff : Civil Action 2:12-cv-29

v. : Judge Frost

Michael J. Astrue, : Magistrate Judge Abel

Commissioner of Social Security,

Defendant :

REPORT AND RECOMMENDATION

Plaintiff Marsha D. Auflick brings this action under 42 U.S.C. §§405(g) and

1383(c)(3) for review of a final decision of the Commissioner of Social Security denying

her applications for Social Security Disability and Supplemental Security Income

benefits. This matter is before the Magistrate Judge for a report and recommendation

on the administrative record and the parties’ merits briefs.

Summary of Issues. Plaintiff Auflick maintains she became disabled in 2007, at

age 42, byback, hip and knee pain, anxiety, depression, high blood pressure, hepatitis C,

hyperlipidemia, edema and carpel tunnel syndrome. (PageID 233.) Plaintiff argues that

the decision of the Commissioner denying benefits should be reversed because:

• The administrative law judge failed to included obesity among plaintiff’s

“severe” impairments which further compromised her physical residual

functional capacity;

• The administrative law judge failed to accord the disability opinion of 

treating primary care physician, Dr. North the weight of rebuttable

presumption, and instead relied on the opinion’s of two State Agency

nonexamining physicians.

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Procedural History. Plaintiff Auflick filed her applications for disability

insurance benefits and supplemental security income on September 24, 2009, alleging

that she became disabled on August 30, 2007, at age 42. (PageID 196-99, 200-02.) The

applications were denied initially and upon reconsideration. Plaintiff sought a de novo

hearing before an administrative law judge. On March 9, 2011, an administrative law

judge held a video hearing at which plaintiff, represented by counsel, appeared and

testified. (PageID 86-111.) A vocational expert also testified. (PageID 109-20.) On May

12, 2011, the administrative law judge issued a decision finding that Auflick was not

disabled within the meaning of the Act. (PageID 66-77.) On November 20, 2011, the

Appeals Council denied plaintiff’s request for review and adopted the administrative

law judge’s decision as the final decision of the Commissioner of Social Security. 

(PageID 52-55.)

Age, Education, and Work Experience. Auflick was born on August 11, 1965.

(PageID 76, 228). She has a “limited” eleventh grade education. (PageID 240.) Auflick

previously worked as a housekeeper, service coordinator in the home health care

industry and a trainer at a mental health agency. (PageID 234, 262-69.) 

Plaintiff’s Testimony. The administrative law judge fairly summarized

Auflick’s testimony as follows:

[T]he claimant testified that even with medications and the use of ice and

heat, pain symptoms never goes away. She said that in the future, she will

require surgery for her hip and that she currently cannot lift more than 10

to 15 pounds and cannot lift such things as her laundry. She testified that

her pain symptoms are brought on by such things as sitting, standing

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and bending and she is most comfortable when she is lying in bed on her

right side. She also said that she does not want to be around others and

therefore does not like to go out in public and often gets agitated or upset

when she does so. The claimant further stated that she has trouble

sleeping because too many things are going on in her head at one time.

(PageID 72.)

Medical Evidence of Record. The administrative law judge’s decision fairly sets

out the relevant medical evidence of record. This Report and Recommendation will

only briefly summarize that evidence. Although Auflick underwent a consultive

psychological examination, plaintiff’s assignments of error relate entirely to her physical

impairments. Accordingly, the Court will focus its review of the medical evidence on

Auflick’s alleged physical impairments.

O’Bleness Memorial Hospital. Auflick was admitted to the hospital overnight in

March 2008 due to nausea, vomiting and abdominal pain. (PageID 358.) Her past

medical history included chronic pain, obesity, degenerative disc disease and

hypertension. (Id.) Extremity examination showed no significant edema. (Id.)

Auflick presented to the emergency room on December 22, 2008 complaining of a

five day history of vomiting. (PageID 337-53.) Musculoskeletal examination showed

full range of motion in all of Auflick’s extremities, with only some mild trace edema in

her lower extremities, and normal neurological findings with no appreciated weakness.

(PageID 343.) She was admitted overnight and discharged with diagnoses of intractable

nausea and vomiting, chronic back pain and recent urinary tract infections. (PageID

339.) 

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Doctor’s Hospital - Nelsonville. While seen in the emergency room, A CT scan

was performed on December 20, 2008 due to Auflick’s history of left flank pain. The CT

scan showed bilateral pars defects at L5-S1 with facet hypertrophic changes, but no

evidence of anterior listhesis. (PageID 429.) 

In January 2009, Auflick received treatment from Stephen Voto, M.D. for a

closed injury fracture of her right distal fibula. (PageID 470-78.) By April 2009, her

fracture was almost healed. (PageID 470, 478.)

Philip North, M.D. Auflick began treating with Dr. North, a primary care

physician at the Columbus Southern Medical Center, in January 2009. Initially, Auflick

complained of constant aching in her lower back, which was aggravated by activity. 

She noted significant relief from medication and rated her pain at 6/10 on an analog

pain scale. Dr. North noted a history of moderate back pain starting several years

earlier that began without injury or obvious cause. He noted Auflick was 5' 7" tall and

weighed 184 lbs. (PageID 375.) The following month, Dr. North found moderate

tenderness in her lumbar paraspinal muscles with mild decreased range of motion, and

moderate tenderness of the left hip with decreased range of motion. (PageID 378.) 

Auflick’s weight was recorded at 189 lbs. (Id.) On March 31, 2009, Auflick reported that

her back pain occurred daily and she described the pain as aching. (PageID 383.) 

Auflick’s weight was recorded at 193 lbs. (Id.) In April 2009, Auflick complained

primarily of constant left hip pain which she described as aching and aggravated by

movement. She noted that her hip was relieved with medication. (PageID 386.) 

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Musculoskeletal examination revealed moderate tenderness of the lumbar spine

paraspinal muscles, mild decreased range of motion of her lumbar spine, negative

straight leg raise and moderate tenderness of the left hip with range of motion. (Id.) 

Auflick’s weight was recorded at 199 lbs. (Id.) By June 2009, Auflick’s weight had

increased to 200 lbs. and her complaints of daily back pain continued. (PageID 391.)

In July and September 2009, Auflick again complained of left hip pain

aggravated by activity, standing and sitting; she reported significant relief with

medication. (PageID 394-98.) During these visits she rated her pain at 3-6/10. (Id.) In

September, Auflick’s weight was recorded at 206 lbs. (PageID 396.) 

In August 2009, Dr. North completed a Basic Medical form listing Auflick’s

diagnoses as lumbar disc displacement with radiculopathy, hip pain, high blood

pressure, hyperlipidemia, and weight gain. He reported his findings as moderate

tenderness in the lumbar spine and left hip. He opined that Auflick was limited to

standing/walking less than three hours total in an eight-hour day and less than 20

minutes at one time, and sitting less than 30 minutes total in an eight-hour day and for

less than 30 minutes without interruption. Dr. North also opined that Auflick could

only lift/carry six to ten pounds. He concluded that Auflick was unemployable for 12

months or more. (PageID 372-74.)

Auflick continued to be seen at the Columbus Southern Medical Center

approximately 16 more times for back and hip pain through March 2011. (PageID 513-

62.) Auflick generally reported her pain was in the 3-7/10 range; she reported that

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medication and rest provided some relief, while increased activity worsened it. (Id.) 

Examination findings throughout 2010 showed a mildly decreased range of motion of

her lumbar spine and negative straight leg raising, with moderate tenderness in her hip

upon range of motion and in her lumbar spine. She exhibited symmetric deep tendon

reflexes. (PageID 518, 525, 527, 533, 536.) In November 2009, Auflick’s weight was

recorded at 213 lbs. (PageID 513.) No focal neurological deficits were noted in June and

July 2010. (PageID 533, 536.) Her diagnoses throughout this period included lumbar

disc displacement, lumbar radiculopathy on the left, back pain, hip pain and weight

gain. (See, PageID 514, 517, 519, 521, 523, 526, 528, 531.) By March 2010, Auflick’s

weight was recorded at 233 lbs. (PageID 525.) 

In September and October 2010, an increase in muscle spasm and tenderness was

noted in Auflick’s lumbar spine. (PageID 542, 545.) Auflick had no focal neurological

deficits and deep tendon reflexes were symmetric. (Id.) By November 2010,

musculoskeletal examination revealed moderate pain in her lumbar spine. (PageID 548.) 

In March 2011, examined showed decreased range of motion, increased muscle spasm,

and increased tenderness in her hips. Auflick’s weight was recorded at 230 lbs. (PageID

560.)

W. Jerry McCloud, M.D./Dimitri Teague, M.D. On January 5, 2010, Dr.

McCloud, a state agency physician, conducted a physical residual functional capacity

assessment based on Auflick’s medical records. (PageID 503-10.) Dr. McCloud found

that Auflick retained the ability to occasionally lift 20 pounds, frequently lift 10 pounds,

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stand or walk about six hours in an eight-hour workday, sit for about six hours in an

eight-hour work day, and push or pull was unlimited. (PageID 504.) He found Auflick

would be limited to occasionally climb ramps and stairs, balance, stoop, kneel, crouch

and crawl, but could never climb ladders, ropes, or scaffolds. (PageID 505.) Dr.

McCloud concluded that Auflick’s symptoms were attributable to a medically

determinable impairment. (PageID 508.) Dr. McCloud found Auflick’s statements were

only partially credible, noting that even though Auflick reported that she could not

stand for a long time, the medical evidence supported that she could be on her feet for a

normal work day. (Id.) Another state agency physician, Dr. Teague affirmed Dr.

McCloud’s assessment in April 2010. (PageID 512.)

Administrative Law Judge’s Findings. The administrative law judge found

that:

1. The claimant meets the insured status requirements of the Social Security

Act through September 30, 2010.

2. The claimant has not engaged in substantial gainful activity since August

30, 2007, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).

3. The claimant has the following severe impairments: chronic back and hip

pain; a depressive disorder; and a generalized anxiety disorder (20 CFR

404,1520(c) and 416.920(c)).

4. The claimant does not have an impairment or combination of impairments

that meets or medically equals one of the listed impairments in 20 CFR Part

404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526,

416.920(d), 416.925 and 416.926).

5. After careful consideration of the entire record, the [administrative law

judge] finds that the claimant has the residual functional capacity to lift and

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carry 10 pounds frequently, to sit, with normal breaks, for a total of 6 of 8

hours per day, to stand and walk, with normal breaks, for a total of 2 of 8

hours per day and to push and pull within those limitations. The claimant

can never climb ladders, ropes or scaffolds and can only occasionally climb

ramps and stairs, balance, stoop, kneel, crouch and crawl. The claimant is

limited to simple, routine tasks and can have only occasional and superficial

contact with coworkers and supervisors. The claimant can have no

interaction with the public although she can be around the public.

6. The claimant is unable to perform any past relevant work (20 CFR 404.1565

and 416.965).

7. The claimant was born on August 11, 1965 and was 42 years old, which is

defined as a younger individual age 18-44, on the alleged disability onset

date. The claimant subsequently changed age category to a younger

individual age 45-49 (20 CFR 404.1563 and 416.963).

8. The claimant has a limited education and is able to communicate in English

(20 CFR 404.1564 and 416.964).

9. Transferability of job skills is not material to the determination of disability

because using the Medical-Vocational Rules as a framework supports a

finding that the claimant is “not disabled,” whether or not the claimant has

transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P,

Appendix 2).

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 (20 CFR 404.1569,

404.1569(a), 416.969, and 416.969(a)).

11. The claimant has not been under a disability, as defined in the Social

Security Act, from August 30, 2007, through the date of this decision (20

CFR 404.1520(g) and 416.920(g)).

(PageID 68-77.)

Standard of Review. Under the provisions of 42 U.S.C. §405(g), “[t]he findings

of the Commissioner as to any fact, if supported by substantial evidence, shall be

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conclusive. . . .” Substantial evidence is “‘such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.’” Richardson v. Perales, 402 U.S. 389,

401 (1971)(quoting Consolidated Edison Company v. NLRB, 305 U.S. 197, 229 (1938)). It is

“‘more than a mere scintilla.’” Id. LeMaster v. Weinberger, 533 F.2d 337, 339 (6th Cir.

1976). The Commissioner’s findings of fact must be based upon the record as a whole. 

Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366

(6th Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir. 1984). In determining

whether the Commissioner's decision is supported by substantial evidence, the Court

must “‘take into account whatever in the record fairly detracts from its weight.’” Beavers

v. Secretary of Health, Education and Welfare, 577 F.2d 383, 387 (6th Cir. 1978)(quoting

Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1950)); Wages v. Secretary of Health and

Human Services, 755 F.2d 495, 497 (6th Cir. 1985).

Plaintiff’s Arguments. Auflick argues that the decision of the Commissioner

denying benefits should be reversed because:

• The administrative law judge’s decision failed to include “obesity” among the

“severe” impairments. (Doc. No. 12 at PageID 572.) Auflick contends that she

gained 47 lbs. over a two year period. She attributed this to her inability to

exercise or take prolonged walking. Auflick notes that musculoskeletal

impairments are among those most adversely impacted by obesity in

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“Social Security Rulings do not have the force and effect of law, but are ‘binding on all

components of the Social Security Administration’ and represent ‘precedent final opinions and orders and

statements of policy and interpretations’ adopted by the Commissioner.” Ferguson v. Comm’r of Soc.

Sec., 628 F.3d 269, 273, n.1 (6th Cir. 2010) (quoting 20 C.F.R. § 402.35(b)(1)). Social Security Rulings

have been assumed to be binding on the Commissioner in the same way as Social Security Regulations.

See Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 549 (6th Cir. 2004); Ferguson, 628 F.3d at 273, n.1. In

this case, the Court makes the same assumption regarding Social Security Ruling 02-1p. 

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accordance with Social Security Ruling1 (SSR) 02-1p, yet the administrative

law judge’s decision failed to discuss the impact of Auflick’s obesity on her

musculoskeletal impairments and how it would impact her residual functional

capacity. Auflick also contends that the administrative law judge’s failure to

consider the impact of her obesity is not harmless error. (Id. at PageID 573.) 

• The administrative law judge failed to accord the disability opinion of 

treating primary care physician, Dr. North the weight of rebuttable

presumption, and instead relied on the opinion’s of two State Agency

nonexamining physician. (Id. at PageID 573.) Auflick argues that the

administrative law judge discounted the disability opinion of the treating

physician, discounted the light work residual functional capacity of the atate

agency reviewing physicians, and “split the difference” finding an residual

functional capacity for sedentary work. This amounted to the administrative

law judge not only failing to give the treating physician the weight of a

rebuttable presumption, but in playing doctor to reach an residual functional

capacity found by no one else. (Id. at PageID 575.)

Analysis. Obesity.

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Auflick argues that the administrative law judge improperly evaluated the

impact of her obesity on her other impairments and how it would affect her residual

functional capacity. She argues that the administrative law judge’s decision does not

contain a discussion of her obesity and that the administrative law judge failed to fully

evaluate her obesity in accordance with SSR 02-1p.

Obesity, as defined in SSR 02-1p, “is a complex, chronic disease characterized by

excessive accumulation of body fat.” Social Security Ruling 02-01p, 2000 WL 628049

(Sept. 12, 2002). SSR 02-01p further states that the National Institutes of Health has

established guidelines for classification of overweight and obese adults in its “Clinical

Guidelines on the Identification, Evaluation, and Treatment of Overweight and Obesity

in Adults” (“Clinical Guidelines”). (Id. at *4).

The Clinical Guidelines classify an overweight or obese individual based on that

person’s Body Mass Index (BMI). (Id.) An adult with a BMI of 30.0 or above is

considered “obese.” (Id.) Obesity is further divided by the Clinical Guidelines into

three levels: Level I (BMI of 30.0-34.9); Level II (BMI of 35.0-39.9); and, Level III (BMI

greater than or equal to 40.0). (Id.)

SSR 02-01p provides that at step two of the five step evaluation, obesity may be

considered severe alone or in combination with another medically determinable

impairment. It further provides that the Administration will do “an individualized

assessment of the impact of obesity on an individual’s functioning when deciding

whether the impairment is severe.” SSR 02-01p[6]. SSR 02-01p also explains that a

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claimant’s obesity must be considered not only at step two of the Commissioner’s five

step evaluation process, but also at the subsequent steps. The Ruling provides that:

The effects of obesity may not be obvious. . . . An assessment should also

be made of the effect of obesity has 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 RFC 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. 

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. See also 20 C.F.R. §404.1523 (explaining that if the Administration finds “a

medically severe combination of impairments, the combined impact of the impairments

will be considered throughout the disability determination process.”) In sum, SSR 02-

01p “specifies that the administrative law judge must explain how conclusions

regarding a claimant’s obesity were reached.” Fleming v. Barnhart, 284 F.Supp.2d 256,

271 (D. Md. 2003). SSR 02-01p is binding on all components of the Administration. See

20 C.F.R. §402.35(b)(1); Blea v. Barnhart, 466 F.3d 903, 911 (10th Cir. 2006).

An adjudicator must consider the impact of a claimant’s obesity on her residual

functional capacity. At step five of the five step of the sequential analysis, the burden

shifts to the Administration to show that there are other jobs in significant numbers in

the economy that the claimant can perform consistent with her residual functional

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capacity, age, education, and work experience. See Wilson v. Commissioner of Social

Security, 378 F.3d 541, 548(6th Cir. 2004); 20 C.F.R. §404.1520 (a)(4)(v). When the

claimant is obese, the administrative law judge must consider this in his assessment.

SSR 02-01p; Young v. Barnhart, 282 F.Supp.2d 890, 897-898 (N.D. Ill. 2003).

The administrative law judge’s opinion did not assess Auflick’s obesity in the

manner contemplated by SSR 02-01p. The administrative law judge’s decision is devoid

of any discussion regarding the severity of Auflick’s obesity. The administrative law

judge also failed to consider the impact her obesity had in combination with her other

severe impairments. Specifically, the administrative law judge failed to consider the

extent to which plaintiff’s musculoskeletal impairments were exacerbated by her

obesity.

During the hearing, Auflick testified that she was told to lose weight and that it

would help her knees. (PageID 106.) She also testified that she had actually gained

weight and did not know why she had not lost weight, but attributed it to not being

able to exercise because she cannot walk very far. (Id.) Dr. North or a physician’s

assistant at Columbus Southern Medical Center recorded Auflick’s weight between 183

pounds and 233 pounds. See PageID 375-96, 513-60. Auflick was listed as obese when

seen in the hospital in March 2008. (PageID 358.)

Nowhere in the administrative law judge’s decision were any of the

aforementioned weights noted. The Commissioner argues that there is no diagnosis of

obesity and that no physician ever prescribed weight loss to relieve her muskuloskeletal

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pain. However, by March 2010 Auflick, who is 5' 7" tall, weighed over 230 pounds.

Because the administrative law judge never mentioned Auflick’s obesity and its impact,

if any, on her ability to perform sedentary work, it is impossible to determine whether

the administrative law judge actually followed SSR 02-01p when considering plaintiff’s

obesity in the sequential evaluation process.

At step three of the sequential process, therefore, the administrative law judge

erred by failing to perform “an individualized assessment of the impact of obesity” on

Auflick’s functioning, and deciding whether her obesity is severe. See SSR 02-1p at *12.

Although the mere failure of an administrative law judge to consider a claimant’s

medically determinable impairment as nonsevere, instead of severe, may be found to be

“legally irrelevant,” see Simpson v. Comm’r of Soc. Sec., 344 Fed. Appx. 181, 190-91 (6th

Cir. 2009), such is not the case here because there is no indication the administrative law

judge even considered Auflick’s obesity as an impairment – severe or nonsevere – nor

that he considered her obesity at any step in the sequential analysis. Simpson explains

the regulatory basis for this error:

Pursuant to 20 C.F.R. §[] 404.1523...: “In determining whether your

physical or mental impairment or impairments are of a sufficient medical

severity ... we will consider the combined effect of all your impairments

without regard to whether any such impairment, if considered separately,

would be of sufficient severity. If we do find a medically severe

combination of impairments, the combined impact of the impairments

will be considered throughout the disability determination process.”

Pursuant to 20 C.F.R. §[] 404.1545(a)(2)...: “If you have more than one

impairment. We will consider all of your medically determinable

impairments of which we are aware, including your medically

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determinable impairments that are not ‘severe,’ as explained in §§

404.1520(c), 404.1521, and 404.1523, when we assess your residual

functional capacity.”

See Simpson, 344 Fed. Appx. at 191, n.1.

At step three of the sequential process, when looking at the listings, the

administrative law judge simply looked at the medical findings to determine whether

the listing was met. He did not consider whether Auflick’s obesity had an impact on

the severity of the particular listing. See PageID 70.

Similarly, when assessing Auflick’s residual functional capacity, the

administrative law judge simply states that he reduced Auflick’s capacity to sedentary

work without considering whether Auflick’s obesity in combination with her chronic

back and hip pain could reasonably result in further work restrictions. The Magistrate

Judge finds that the administrative law judge has failed to comply with the guidelines

for evaluating obesity as set forth in SSR 02-01p and has therefore failed to satisfy his

obligation of evaluating the severity and functional limitations resulting from Auflick’s

obesity.

Treating physician. Auflick next maintains that the administrative law judge

erred in rejecting the opinions of Dr. North, her treating physician, who had assessed

Auflick’s residual functional capacity. Within this contention of error, Auflick also

indicates that in reaching his decision, the administrative law judge substituted his own

medical judgment in place of not only Dr. North’s opinion, but also that of the state

agency reviewing physicians, Drs. McCloud and Teague.

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The treating physician rule, when applicable, requires the administrative law

judge to place controlling weight on a treating physician’s or treating psychologist’s

opinion rather than favoring the opinion of a nonexamining medical advisor or a onetime examining physician or psychologist or a medical advisor who testified before the

administrative law judge. Blakley v. Comm’r. of Social Security, 581 F.3d 399, 406 (6th Cir.

2009); See Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). A treating

physician’s opinion is given controlling weight only if it is both well supported by

medically acceptable data and if it is not inconsistent with other substantial evidence of

record. (Id.) 

Furthermore, the Commissioner’s regulations provide that he will generally

“give more weight to the opinion of a source who has examined you than to the

opinion of a source who has not examined you.” 20 C.F.R. § 404.1527(d)(1). When a

treating source's opinion “is well-supported by medically acceptable clinical and

laboratory diagnostic techniques and is not inconsistent with the other substantial

evidence in your case record, we will give it controlling weight.” 20 C.F.R. §

404.1527(d)(2). In determining the weight to assign a treating source's opinion, the

Commissioner considers the length of the relationship and frequency of

examination; nature and extent of the treatment relationship; how well-supported

the opinion is by medical signs and laboratory findings; its consistency with the

record as a whole; the treating source’s specialization; the source’s familiarity with

the Social Security program and understanding of its evidentiary requirements; and

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the extent to which the source is familiar with other information in the case record

relevant to decision. (Id.)

There is a rebuttable presumption that a treating physician’s opinion is entitled

to great deference. Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007). 

However, for the treating physician’s opinion to have controlling weight it must have

“sufficient data to support the diagnosis.” Kirk v. Secretary of Health and Human Services,

667 F.2d 524, 536, 538 (6th Cir. 1981); Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985). 

The Commissioner may reject the treating doctor’s opinions when “good reasons are

identified for not accepting them.” Hall v. Bowen, 837 F.2d 272, 276 (6th Cir. 1988); 20

C.F.R. § 404.1527(d)(2)(“We will always give good reasons in our notice of

determination or decision for the weight we give your treating source’s opinion”);

Wilson, 378 F.3d at 544 (6th Cir. 2004). 

The administrative law judge gave “very little weight” to the opinion of treating

physician, Dr. North, finding that Dr. North provided no documentation or reasoning

for his assessment that Auflick is limited to less than 20 minutes of standing and

walking at one time and less than 30 minutes of sitting at one time. (PageID 75.) The

administrative law judge also rejected Dr. North’s assessment on the basis that the

ultimate issue of whether an individual is disabled or unemployable is reserved for the

Commissioner of the Social Security Administration. (Id.) 

In formulating Auflick’s residual functional capacity, the administrative law

judge assigned “great” weight to the assessments of the state agency physicians, Drs.

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McCloud and Teague. (PageID 75.) However, the administrative law judge found that

although Dr. McCloud opined that Auflick is capable of light work, he reduced the

residual functional capacity to sedentary exertion. The administrative law judge also

opined that the portion of Dr. McCloud’s assessment limiting Auflick to only

occasionally climb ramps and stairs, balance, stoop, kneel, crouch and crawl and never

climb ladders, ropes or scaffolds was consistent with the other medical evidence. (Id.) 

The administrative law judge did not adopt all the exertional limitations described by

Dr. McCloud, but chose to adopt only some of those limitations. He provided no

explanation for his decision to reduce Auflick’s residual functional capacity from light

as found by Dr. McCloud down to sedentary. Auflick asserts that where the

administrative law judge “split the difference” between the treating physician and

another doctor, but failed to give treating physician either controlling weight or the

most weight in the record, such finding constitutes reversible error.

The Sixth Circuit has found that to be entitled to substantial deference an

administrative law judge’s non-disability finding must clearly articulate the rationale

underlying the decision. See Hurst v. Secretary of Health & Human Servs., 753 F.2d 517,

519 (6th Cir. 1985). In Hurst, the court discussed the articulation necessary to support

an administrative law judge’s decision regarding disability benefits. The Court stated:

“[i]t is more than merely ‘helpful’ for the administrative law judge to articulate reasons

... for crediting or rejecting particular sources of evidence. It is absolutely essential for

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meaningful appellate review.” Hurst, 753 F.2d at 519 (quoting Zblewski v. Schweiker, 732

F.2d 75, 78 (7th Cir.1984)).

Thus, an administrative law judge’s decision must articulate with specificity

reasons for the findings and conclusions that he or she makes. Similarly, Social Security

Ruling (“SSR”) 82-62, provides that the “rationale for a disability decision must be

written so that a clear picture of the case can be obtained.” SSR 82-62 at *4. The

administrative law judge’s decision must “follow an orderly pattern and show clearly

how specific evidence leads to a conclusion.” Id.; See also Morris v. Secretary of Health &

Human Servs., No. 86-5875, 1988 WL 34109, at * (6th Cir. Apr. 18, 1988) (per curiam)

(noting, in reliance upon Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981), that, when an

administrative law judge fails to mention relevant evidence in his or her decision, “the

reviewing court cannot tell if significant probative evidence was not credited or simply

ignored”). An administrative law judge may not ignore evidence favorable to plaintiff.

Rather, he must articulate the evidence accepted or rejected when making a disability

finding to enable the reviewing court to engage in meaningful judicial review. See Hurst

v. Secretary of H.H.S., 753 F.2d 517, 519 (1985). See also Bailey v. Commissioner of Social

Sec., 173 F.3d 428 (6th Cir. 1999)(unpublished), 1999 W.L. 96920.

Since Dr. North’s office notes record only mild limitations in range of motion,

moderate tenderness in the lumbar spine, no neurological deficits, and a good response

to medication, there is evidence supporting the administrative law judge’s decision to

discount his opinion about Auflick’s residual functional capacity. However, the

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administrative law judge’s decision does not reflect the rigorous analysis required by

the Commissioner’s regulations. On remand the administrative law judge should

consider both the impact of Auflick’s obesity on her muskuloskeletal pain and what

weight to give Dr. North’s opinion about her residual functional capacity. 

Conclusions. For the reasons set forth above, it is RECOMMENDED that the

decision of the Commissioner of Social Security be REMANDED to properly evaluate 

the medical source opinions of Dr. North and the state agency physicians under the

legal criteria set forth in the Commissioner’s Regulations and Rulings, and as required

by case law and properly consider plaintiff’s obesity in light of SSR 02-01p.

If any party objects to this Report and Recommendation, that party may, within

fourteen (14) days, file and serve on all parties a motion for reconsideration by the

Court, 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)(B); Rule 72(b),

Fed. R. Civ. P.

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 waiver of the right to appeal the judgment of the District Court. Thomas v.

Arn, 474 U.S. 140, 150-52 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). See

also, Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989).

 s/Mark R. Abel 

United States Magistrate Judge

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