IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Misty Elaine Kozlowski,

Plaintiff,

v. Case No. 2:12-cv-885

Carolyn W. Colvin,

Acting Commissioner of

Social Security,

Defendant.

ORDER

Plaintiff, Misty Elaine Kozlowski, brings this action under 42

U.S.C. §§ 405(g) for review of a final decision of the Commissioner

of Social Security (“Commissioner”) denying her applications for

disability insurance benefits and supplemental security income. 

This matter is before the court for consideration of defendant’s

July 19, 2013, objections to the July 5, 2013, report and

recommendation of the magistrate judge, recommending that the court

affirm the decision of the Commissioner. For the reasons stated

below, the court overrules plaintiff’s objections and adopts the

magistrate judge’s report and recommendation.

I. Standard of Review

If a party objects within the allotted time to a report and

recommendation, the court “shall make a de novo determination of

those portions of the report or specified proposed findings or

recommendations to which objection is made.” 28 U.S.C.

§ 636(b)(1); see also Fed. R. Civ. P. 72(b). Upon review, the

court “may accept, reject, or modify, in whole or in part, the

findings or recommendations made by the magistrate judge.” 28

U.S.C. § 636(b)(1).

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The court’s review “is limited to determining whether the

Commissioner’s decision ‘is supported by substantial evidence and

was made pursuant to proper legal standards.’” Ealy v. Comm’r of

Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010) (quoting Rogers v.

Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also,

42 U.S.C. § 405(g) (“The findings of the Commissioner of Social

Security as to any fact, if supported by substantial evidence,

shall be conclusive.”). Put another way, a decision supported by

substantial evidence is not subject to reversal, even if the

reviewing court might arrive at a different conclusion. Mullen v.

Bowen, 800 F.2d 535, 545 (6th Cir. 1986). “Substantial evidence

exists when ‘a reasonable mind could accept the evidence as

adequate to support a conclusion [and] . . . presupposes that there

is a zone of choice within which the decision-makers can go either

way, without interference by the courts.’” Blakley v. Comm’r of

Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (internal citation

omitted). Even if supported by substantial evidence, however, “‘a

decision of the Commissioner will not be upheld where the

[Commissioner] 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 of Soc. Sec., 582 F.3d

647, 651 (6th Cir. 2009) (quoting Bowen v. Comm’r of Soc. Sec., 478

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

II. Plaintiff’s Objections

A. Weight Given Opinion of Treating Physician

1. Applicable Standards

The Commissioner has implemented regulations concerning how

medical opinions, including those of a treating physician, are to

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be weighed. The Commissioner has also issued a policy statement,

Social Security Ruling 96-2p, 1996 WL 374188 (Soc. Sec. Admin. July

2, 1996), to guide an ALJ’s assessment of a treating-source

opinion. An opinion from a medical source who has examined a

claimant is generally given more weight than one from a source who

has not performed an examination. 20 C.F.R. §§404.1502,

404.1527(c)(1). An opinion from a medical source who regularly

treats the claimant is afforded more weight than one from a source

who has examined the claimant but does not have an ongoing

treatment relationship. 20 C.F.R. §§404.1502, 404.1527(c)(2).

Treating-source opinions must be given “controlling weight”

if: (1) the opinion “is well-supported by medically acceptable

clinical and laboratory diagnostic techniques”; and (2) the opinion

“is not inconsistent with the other substantial evidence in [the]

case record.” 20 C.F.R. §404.1527(c)(2). The term “substantial

evidence” denotes a quality of evidence amounting to “such relevant

evidence as a reasonable mind would accept as adequate to support

a conclusion that is contrary to the conclusion expressed in the

medical opinion.” Soc. Sec. Rul. No. 96-2p, 1996 WL 374188 at *3.

Even if the opinion of the treating doctor does not meet these

“controlling weight” criteria, this does not mean that the opinion

must be rejected; rather, it “may still be entitled to deference

and be adopted by the adjudicator.” Soc. Sec. Rul. No. 96-2p, 1996

WL 374188 at *1. If the Commissioner does not give a treatingsource opinion controlling weight, then the opinion is weighed

based on factors such as the length, frequency, nature, and extent

of the treatment relationship, the treating source’s area of

specialty, and the degree to which the opinion is consistent with

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the record as a whole and is supported by relevant evidence. 

C.F.R. §404.1527(c)(2)-(6); Gayheart v. Comm’r of Soc. Sec., 710

F.3d 365, 376 (6th Cir. 2013).

The Commissioner is required to provide “good reasons” for

discounting the weight given to a treating-source opinion. 

§404.1527(c)(2). These reasons must be “supported by the evidence

in the case record, and must be sufficiently specific to make clear

to any subsequent reviewers the weight the adjudicator gave to the

treating source’s medical opinion and the reasons for that weight.” 

Soc. Sec. Rul. No. 96-2p, 1996 WL 374188 at *5; Rogers v. Comm’r of

Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007). This procedural

requirement “ensures that the ALJ applies the treating physician

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

rule.” Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir.

2004).

Plaintiff objects to the finding of the magistrate judge that

the administrative law judge (“ALJ”) properly found that the

opinion of Dr. Trent Mason, plaintiff’s treating primary care

physician, should not be given controlling weight. The magistrate

judge concluded:

The administrative law judge’s decision gives good

reasons for rejecting Dr. Mason’s opinion and carefully

reviewed the medical record to conclude that Dr. Mason’s

clinical examinations, the examinations by treating

specialists, and the medical tests were consistent with

Kozlowski retaining the ability to perform a reduced

range of sedentary work.

Doc. 14, p. 20. This court agrees.

In his decision of June 30, 2011, PageID 76-93, the ALJ

reviewed Dr. Mason’s treatment notes from May 2008 to May 2011,

noting that Dr. Mason prescribed medication for and/or noted

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plaintiff’s various ailments, including gastroesophageal reflux

symptoms, gastritis, coronary artery disease, hyperlipidemia,

hypertension, anxiety, irritable bowel syndrome, and back pain. 

The ALJ reviewed and thoroughly summarized numerous records from

plaintiff’s treating specialist physicians. The ALJ considered the

opinions of state agency medical and psychological experts who

evaluated plaintiff at the initial and reconsideration levels of

appeal. At a hearing held on June 6, 2011, the ALJ heard

plaintiff’s testimony and testimony from Larry G. Kontosh, a

vocational expert.

2. Neurological Complaints Following a Concussion in 2008

The ALJ noted that on November 21, 2008, Dr. Mason saw

plaintiff for various neurological complaints, including headaches,

visual changes and short-term memory loss, after plaintiff hit her

head on an air conditioning unit. Dr. Mason recommended a

neuropsychological evaluation. PageID 85. The ALJ further

observed that plaintiff was seen on December 4, 2008, by Dr.

Movassaghi, a neurologist, at which time plaintiff complained about

headaches and a left facial droop similar to a previous episode of

Bell’s palsy she had experienced in the past. Dr. Movassaghi

stated that there was no indication for treatment of Bell’s palsy

at that time, and prescribed medication for the headaches. The ALJ

noted that there “are no further records regarding the claimant’s

Bell’s palsy or post-concussive symptoms, which apparently have

resolved.” PageID 85.

3. Gastritis

The ALJ further stated that on May 8, 2008, Dr. Mason saw

plaintiff following a stomach biopsy that revealed mild chronic

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gastritis and mild fibrosis of musoca propria. Plaintiff was

evaluated by Dr. Sanjay Chaudhry, a gastroenterologist, on January

23, 2009, for complaints about reflux and noted that plaintiff had

a moderate-sized hiatal hernia, non-erosive reflux and gastritis. 

PageID 85-86. When Dr. Chaudhry saw plaintiff on July 27, 2009,

she stated that the burning was much better since she had stopped

smoking. On January 14, 2010, plaintiff complained to Dr. Chaudhry

about chronic diarrhea. Dr. Chaudhry diagnosed irritable bowel

syndrome and prescribed medication. A colonoscopy on February 9,

2010, revealed diverticula and hemorrhoids, and a high fiber diet

was recommended. PageID 86. After summarizing this course of

treatment, the ALJ stated that “there is no indication that the

claimant has any work-related limitation of function due to her

gastrointestinal symptoms/impairments” and that there was no

indication that her symptoms substantiated by the endoscopic

findings of mild chronic gastritis and a moderate-sized hiatal

hernia are severe enough to prevent plaintiff from working. PageID

86, 91.

4. Anxiety and Depression

The ALJ next noted that in September and October of 2008,

plaintiff complained to Dr. Mason about anxiety. Dr. Mason’s notes

for March 26, 2009, reflect that plaintiff was placed on Celexa for

her symptoms of depression. When he saw plaintiff on May 21, 2009,

plaintiff stated that she was doing fine on Celexa. PageID 86. 

Dr. Mason noted that on December 16, 2009, plaintiff told him that

she was doing better on an increased dosage of Celexa. PageID 87.

The ALJ also summarized a psychological evaluation performed

on June 1, 2009, by David R. Bousquet, M.Ed., a psychologist. Mr.

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Bousquet reported that plaintiff was less depressed taking Celexa,

and that plaintiff denied any history of psychiatric

hospitalization. Page ID 86. Mr. Bousquet concluded that

plaintiff’s ability to relate to others, to maintain adequate

persistence and pace, and to deal with the stress of day-to-day

work activity was mildly impaired, while her ability to understand,

follow and remember simple or complex instructions, and to maintain

attention and concentration in the performance of simple,

repetitive tasks was not impaired. PageID 87.

The ALJ stated that he gave “significant weight” to Mr.

Bousquet’s opinions “as he is an expert in psychology, and his

opinion is well supported by the mental status evaluation and is

consistent with the other evidence of record.” PageID 87. The ALJ

further noted that although plaintiff complained to Dr. Madhu

Dharawat, her treating cardiologist, on November 16, 2010, about

stress and anxiety, and Dr. Dharawat told her that Dr. Mason might

want to refer her to a psychiatrist or psychologist, plaintiff “has

never sought treatment with a mental health professional, nor has

she required psychiatric hospitalization.” PageID 87. The ALJ

also accepted the opinion of the state agency psychologists that

plaintiff’s mental impairment was not severe. PageID 92.

5. Back Pain

The ALJ further observed that on April 29, 2010, Dr. Mason

diagnosed plaintiff with acute or chronic thoracic and lumbar

spasm. Dr. Mason noted that plaintiff had a herniated disc and

might require physical therapy, but that this was “a short-term

issue.” PageID 88. Dr. Mason prescribed pain medication. Dr.

Mason saw plaintiff again for low back pain on December 10, 2010,

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and February 24, 2011, and requested x-rays. Those x-rays

“revealed mild interspace narrowing from L1 to L5 and mild

degenerative changes from L4 to S1 and in the lower thoracic spine,

as well as interspace narrowing and degenerative changes from C5 to

C7. PageID 88. The ALJ then noted that “there are few positive

findings documented in regard to the claimant’s low back. X-rays

findings were mild, and there have been no documented neurological

abnormalities or findings indicative of nerve root or spinal cord

compression.” PageID 88.

6. Asthma

The ALJ also noted that Dr. Mason saw plaintiff on June 3,

2010, for an asthma attack. A previous chest x-ray on July 23,

2009, revealed no acute pulmonary process, and plaintiff’s heart

size was normal. Dr. Mason gave plaintiff a steroid shot and

prescribed an inhaler. He treated plaintiff on November 8, 2010,

for allergic rhinitis, which plaintiff usually developed twice a

year; a chest x-ray indicated that her lungs were clear. PageID

88. The ALJ also noted hospital records dated April 27, 2011,

which indicated that plaintiff had some COPD and chronic bronchitis

issues but no significant shortness of breath. He concluded by

stating:

The undersigned notes that the claimant was not treated

for any pulmonary problems prior to 2010. She has not

been treated for any frequent exacerbations of asthma or

COPD, and her lungs have generally been clear upon

examination. The undersigned finds no evidence of a

“severe” pulmonary impairment.

PageID 88. The ALJ also noted that “there are no x-ray finding or

pulmonary function studies that would support a diagnosis of COPD”

and that plaintiff was treated on only one occasion for an asthma

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attack, that she had not required treatment for frequent breathing

problems, and that her lungs had been clear except for one episode

of coarse breath sounds on November 29, 2010. Page ID 88, 91.

7. Coronary Disease

The ALJ also summarized the records concerning plaintiff’s

treatment for coronary disease. Plaintiff underwent coronary

bypass surgery in July of 2007, with no complications. PageID 82. 

A stress test on September 21, 2007, was negative for exerciseinduced ischemic changes. Dr. Dharawat, plaintiff’s treating

cardiologist, noted on November 8, 2007, that plaintiff had

episodes of chest discomfort for five minutes after exercising,

which usually resolved after five minutes. On November 30, 2007,

Dr. Dharawat noted that a cardiac catheterization performed on

November 27, 2007, had shown no significant obstructive disease

amenable to revascularization, that plaintiff’s grafts were open,

and that she was feeling well. PageID 82. Dr. Dharawat’s records

for February 17, 2009, disclosed that plaintiff took another

exercise stress test on February 9, 2009, which had shown no

significant reversible defect. PageID 82. Dr. Dharawat stated

that plaintiff seemed to be doing very well in terms of her

coronary artery disease, and her hypertension was fairly well

controlled. PageID 83. Dr. Dharawat’s records further revealed

that after complaining of episodes of chest discomfort and

shortness of breath, plaintiff underwent angioplasty with the

placement of four stents on November 18, 2010. A subsequent

ambulatory stress test on December 10, 2010, was negative for

exercise-induced ischemic EKG changes. Plaintiff was evaluated by

Dr. Dharawat on April 15, 2011, at which time her EKG was unchaged

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from the previous test. Dr. Dharawat reported that plaintiff was

currently pain-free, with occasional chest pressure not requiring

nitroglycerin, that her hypertension and blood pressure were low. 

PageID 83.

The ALJ also noted that plaintiff was seen at the hospital on

April 27, 2011, while complaining of chest pain, but that her

cardiac enzymes were negative, and an EKG showed no significant

changes from baseline, and no significant shortness of breath. 

PageID 84. The ALJ concluded:

The undersigned notes that the claimant’s coronary artery

disease has generally been stable since her myocardial

infarction in 2007. The evidence indicates that she has

not experienced frequent angina, shortness of breath or

dyspnea on exertion. Her EKGs have been stable. There

is no indication that the claimant’s coronary artery

disease would prevent her from performing a range of

light work on a sustained basis.

PageID 84.

8. Incontinence

The ALJ also reviewed the records of Dr. Cesar R. Pizarro, a

gynecologist, who diagnosed plaintiff with urinary incontinence on

March 26, 2007. Plaintiff underwent surgery, specifically, an

Obturator sling procedure, which was not successful. PageID 84. 

Plaintiff was further evaluated by Dr. George V. Jirak, a

gynecologist and urologist, on September 1, 2010, at which time

plaintiff reported that she leaked at least five times daily and

had to wear protective undergarments. On October 10, 2010, Dr.

Pizarro recommended that plaintiff undergo a TVT/mid-urethral sling

procedure to treat her recurrent stress urinary incontinence. 

PageID 84. The ALJ noted plaintiff’s testimony at the hearing that

she had not yet been cleared for this surgery. PageID 84. He

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further stated that plaintiff “did not testify to any work-related

limitation of function resulting from the incontenence, and the

evidence does not indicate that she would have any such

limitations.” PageID 91.

9. Additional Evidence

The ALJ also considered the opinion of the state agency

medical experts who evaluated plaintiff and limited her to a range

of medium work. PageID 91-92. However, the ALJ noted the

additional evidence received at the hearing, which included the

testimony of plaintiff and a vocational expert, as well as the

angioplasty and stent placement, which occurred on November 18,

2010, after the evaluation by the state agency experts, led him to

conclude that “claimant is somewhat more limited than was

originally thought by the State Agency medical experts,” and that

“while her coronary artery disease is now stable, the evidence

supports a finding that she should be limited to no more than light

work.” PageID 91-92.

10. Dr. Mason’s Opinion Regarding Disability

Plaintiff’s objection focuses on the ALJ’s consideration of a

letter authored by Dr. Mason, dated November 1, 2010, and addressed

“To Whom It May Concern” which stated:

[T]his letter is regarding my medical opinion that,

because of her chronic medical conditions, and how she

has been doing both physically and emotionally, at least

for the last couple of years, Misty cannot hold any

meaningful, gainful employment or job. She definitely

cannot do 40 hours of any type of work, which would not

matter if it was anything from a labor perspective, or

something nonlabor perspective. In my medical opinion,

she cannot do any meaningful work. Again, these are

chronic medical conditions, and she is unstable at this

time, certainly from an anxiety and depressive standpoint

as well, which we are working on.... Again, this letter

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is to strongly emphasize the point that it is my medical

opinion that Misty Kozlowski is totally disabled, per the

definition, and that she cannot do any gainful,

meaningful employment.

PageID 579. This is the only instance noted by plaintiff where one

of her treating physicians opined that she was totally incapable of

performing any meaningful employment.

Addressing Dr. Mason’s opinion letter of November 1, 2010, the

ALJ stated:

The undersigned has not given controlling weight to Dr.

Mason’s opinion, as it is not well supported by the

objective medical signs and findings, and is not

consistent with the evidence submitted by the claimant’s

other treating physicians. Dr. Mason’s opinion that the

claimant is totally disabled is an opinion on an issue

reserved to the Commissioner. The undersigned has

considered his opinion that the claimant is unable to do

any meaningful work on a full-time basis, but notes that

the objective signs and findings set forth in his

progress notes do not support this opinion. The medical

records show that the claimant’s coronary artery disease

is stable, and that she has had few episodes of angina

and no shortness of breath or dyspnea on exertion. The

evidence shows that her hypertension is well controlled

with medication. The claimant had a bout of Bell’s palsy

in 2007, but this has not recurred since that time. 

There is no evidence that she has any symptoms related to

anemia or hyperlipidemia. The claimant’s symptoms of

GERD are also well controlled by medication. The

undersigned notes that there is no evidence to support a

finding that the claimant’s depression and anxiety are

severe enough to be disabling. The claimant reported

responding well to Celexa, and she has not required

treatment by a mental health professional.

PageID 89.

In his letter of November 1, 2010, Dr. Mason offered his

conclusory opinion that plaintiff was disabled and unable to work. 

The ALJ was correct in noting that he was not required to accept a

treating physician’s conclusory opinion on the ultimate issue of

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disability. 20 C.F.R. §404.1527(e)(1). The determination of

disability is ultimately the prerogative of the Commissioner, not

the treating physician. Warner v. Comm’r of Social Security, 375

F.3d 387, 391 (6th Cir. 2004). The ALJ may reject such

determinations when good reasons are identified for not accepting

them. Maple v. Apfel, 14 F.App’x 525, 536 (6th Cir. 2001)(citing

Duncan v. Secretary of Health & Human Servs., 801 F.2d 847, 855

(6th Cir. 1986)).

This court agrees with the magistrate judge’s conclusion that

the ALJ correctly applied the standards of the treating physician

rule in evaluating Dr. Mason’s opinions. The ALJ considered each

of the factors listed in 20 C.F.R. §§404.1527(c)(2)-(6) and

416.927(c)(2)-(6); a formulaic recitation of the factors is not

required. See Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 551

(6th Cir. 2010)(“If the ALJ’s opinion permits the claimant and a

reviewing court a clear understanding of the reasons for the weight

given a treating physician’s opinion, strict compliance with the

rule may sometimes be excused.”). In his thorough discussion of

the medical evidence in the record, the ALJ summarized Dr. Mason’s

treatment records from 2008 to 2011, and explained, with reference

to Dr. Mason’s treatment records and the records of plaintiff’s

other treating physicians, why he believed that Dr. Mason’s

opinions were not based on objective medical findings and were

contradicted by substantial evidence in the record to the contrary. 

The administrative law judge identified good reasons for

considering but not accepting Dr. Mason’s opinions in a manner

sufficient to permit an informed review by this court. Plaintiff’s

objection to the ALJ’s analysis of Dr. Mason’s opinions is denied.

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B. Failure to Obtain Clarification from Dr. Mason

Plaintiff further argues that the ALJ should have contacted

Dr. Mason for clarification of his opinions rather than assigning

them no weight, particularly because Dr. Mason’s letter of November

1, 2010, predated her angioplasty with the placement of four stents

on November 18, 2010. However, under the pertinent regulations,

claimants must prove their disability to the Commissioner. See

McClanahan v. Comm’r of Social Security, 474 F.3d 830, 837 (6th

Cir. 2006)(citing 20 C.F.R. §404.1512(a)). “Only under special

circumstances–when a claimant is without counsel, not capable of

presenting an effective case, and unfamiliar with hearing

procedures–does the ALJ have a special duty to develop the record.” 

Norman v. Comm’r of Social Security, 37 F. App’x 765 (6th Cir.

2002)(citing Lashley v. Secretary of Health & Human Servs., 708

F.2d 1048, 1051-52 (6th Cir. 1983)); see also Smith v. Comm’r of

Social Security, 473 F. App’x 443, 445 (6th Cir. 2012)(ALJ did not

err in failing to obtain testimony of medical advisor at hearing

where claimant was represented by counsel); Nabours v. Comm’r of

Social Security, 50 F. App’x 272, 275-76 (6th Cir. 2002)(ALJ had no

special duty to obtain MRI report which was not filed with the

record). Here, there is nothing in the record indicating that

plaintiff, who was represented by counsel at the hearing, would

have been precluded from obtaining and presenting a supplemental

letter from Dr. Mason. The ALJ had no obligation to solicit such

a letter, and this branch of plaintiff’s objection is denied.

III. Conclusion

Having reviewed the record de novo, the court determines that

plaintiff’s objections are not well taken, and that there is

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substantial evidence supporting the ALJ’s determination that

plaintiff is not disabled, as defined in the Social Security Act. 

Accordingly, the court overrules plaintiff’s objections (Doc. 15)

and adopts the magistrate judge’s report and recommendation (Doc.

14). The Commissioner’s decision is affirmed, and this action is

dismissed. 

Pursuant to Sentence 4 of 42 U.S.C. § 405(g), the clerk shall

enter final judgment affirming the decision of the Commissioner and

dismissing this action. 

It is so ordered.

Date: August 23, 2013 s/James L. Graham 

 James L. Graham

 United States District Judge

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