UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

JANET FREEMAN, 

Plaintiff, 

 Civil Action 2:17-cv-764 

 Chief Judge Edmund A. Sargus, Jr. 

v. Magistrate Judge Chelsey M. Vascura 

 

COMMISSIONER OF SOCIAL SECURITY, 

Defendant. 

REPORT AND RECOMMENDATION

 

 Plaintiff, Janet Freeman (“Plaintiff”), 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 

application for social security disability insurance benefits. This matter is before the undersigned 

for a Report and Recommendation on Plaintiff’s Statement of Errors (ECF No. 10), the 

Commissioner’s Response in Opposition (ECF No. 13), Plaintiff’s Reply (ECF No. 14), and the 

administrative record (ECF No. 7). For the reasons that follow, it is RECOMMENDED that 

Plaintiff’s Statement of Errors be OVERRULED and that the Commissioner’s decision be 

AFFIRMED. 

I. BACKGROUND 

Plaintiff protectively filed her application for a Period of Disability and Disability 

Insurance Benefits on September 14, 2012. In her application, Plaintiff alleged a disability onset 

of February 14, 2012. Plaintiff’s application was denied initially on December 11, 2012, and 
2 

upon reconsideration on April 1, 2013. Plaintiff sought a hearing before an administrative law 

judge. Administrative Law Judge Thomas Wang (“ALJ”) held a hearing on June 18, 2014, at 

which Plaintiff, represented by counsel, appeared and testified. Thomas Nimberger, a vocational 

expert, also appeared and testified at the hearing. On July 17, 2014, the ALJ issued a decision 

finding that Plaintiff was not disabled within the meaning of the Social Security Act. On 

December 23, 2015, the Appeals Council granted Plaintiff’s request for review. The Appeals 

Council then remanded the case to the ALJ for further proceedings, ordering him to obtain 

additional evidence concerning all of claimant’s impairments in order to complete the 

administrative record, give further consideration to claimant’s maximum residual functional 

capacity, and obtain supplemental evidence from a vocational expert. 

On April 29, 2016, the ALJ held a second hearing, at which Plaintiff, represented by 

counsel, appeared and testified. Plaintiff amended her alleged onset date to September 3, 2013. 

On June 24, 2016, the ALJ issued a second decision finding that Plaintiff was not disabled within 

the meaning of the Social Security Act. On July 3, 2017, the Appeals Council denied Plaintiff’s 

request for review and adopted the ALJ’s decision as the Commissioner’s final decision. Plaintiff 

then timely commenced the instant action. 

In her Statement of Errors, Plaintiff raises a single issue: that the ALJ violated the treating 

physician rule. Specifically, Plaintiff asserts that the ALJ erred in his consideration and weighing 

of the opinion of Plaintiff’s treating physician, Dr. Shelby Raiser, D.O. According to Plaintiff, 

the ALJ failed to properly apply the controlling weight test and failed to offer good reasons for 

only giving “some weight” to Dr. Raiser’s opinions. In Plaintiff’s view, Dr. Raiser’s opinions 

support her application for disability. Plaintiff emphasizes that in the ALJ’s first decision, he 
3 

gave great weight to Dr. Raiser’s opinions, whereas in the second decision, he gave the opinions 

only some weight. 

II. HEARING TESTIMONY 

A. Plaintiff’s Testimony 

At the first administrative hearing, Plaintiff testified that she is divorced and that her oldest 

son, Brandon, 18, lives with her. (R. at 139.) When the ALJ asked Plaintiff why she was 

alleging her disability onset date as of February 14, 2012, Plaintiff testified that on that date, she 

was working, and upon her return from lunch, she had difficulty standing, talking, and breathing, 

at which time her supervisor called 911. (R. at 138-39.) When asked by the ALJ what she does 

during the day, Plaintiff indicated she “mostly lay[s] around.” (Id.) She also stated that she is on 

a significant number of medications and that she suffers near-daily bouts of diarrhea and vomiting, 

as well as occasional fainting. (R. at 142, 148.) When questioned by her attorney, Plaintiff 

indicated that she “barely” does house work or chores or goes to the grocery store and that she only 

cooks using a microwave. (R. at 150, 154.) She further testified that her pain causes spasms 

while driving, difficulty sleeping, and difficulty sitting or standing. (R. at 153.) 

At the April 29, 2016 administrative hearing, Plaintiff testified that she believed her doctor 

limited her to lifting and carrying only 5-pounds, but that she goes to 10-pounds because she is 

unsure if the limit was outdated. (R. at 79.) She testified further that she can only bend or stoop 

“once or twice a week at the most” due to significant pain lasting for days afterward. (R. at 80.) 

Plaintiff again testified that she spends most of her time simply lying around, but added that she 

also uses a heating pad when lying down. (R. at 82.) On examination by her attorney, Plaintiff 

described her training and regular duties as a bank teller for PNC. (R. at 82-99.) Plaintiff also 
4 

described her duties as a cashier for TC Market. (R. at 99-100.) Plaintiff’s attorney then asked 

whether she had any improvement in her condition since the previous hearing, which she indicated 

she had not. (R. at 100.) Plaintiff added that back surgery was recommended as the only option 

to relieve her pain, but that her cardiologist did not want her to go through surgery. (R. at 

100-101.) 

B. Vocational Expert Testimony 

 The vocational expert (“VE”) testified at the administrative hearing that Plaintiff’s past 

jobs include bank teller and cashier checker. (R. at 103.) The VE then testified that a 

hypothetical individual of Plaintiff’s age, education, and vocational profile who retained the 

residual functional capacity (“RFC”)1

 that the ALJ ultimately assessed could not perform 

Plaintiff’s past work. (R. at 105.) The VE testified that the hypothetical individual could, 

however, perform approximately 184,400 light, unskilled jobs in the national economy 

(approximately 7,025 jobs locally) such as garment tacking machine tender, storage facility rental 

clerk, and label coder. (R. at 105-06.) The VE further opined that the work experience of the 

hypothetical individual imparted transferrable skills. In response to questioning by Plaintiff’s 

counsel, the VE testified that if Plaintiff were to miss more than two-days of work per month, she 

could not sustain competitive employment. (Id.) 

 

1. A claimant’s RFC is an assessment of “the most [she] can still do despite [her] limitations.” 

20 C.F.R. § 404.1545(a)(1). 
5 

III. RELEVANT MEDICAL RECORDS2

A. Shelby Raiser, D.O. 

On October 9, 2012, Dr. Raiser provided a medical opinion regarding Plaintiff’s physical 

abilities upon request by the Social Security Adjudicator. In her opinion, Dr. Raiser stated that 

“due to back pt unable to do physical activity. Especially stoop, bend, walk, stand for prolonged 

period of times.” (R. at 442.) Dr. Raiser also noted in her opinion that Plaintiff needed further 

evaluation of her back by a neurosurgeon. (Id.) 

On January 21, 2013, Dr. Raiser provided a second medical opinion regarding Plaintiff’s 

physical abilities upon request by the Social Security Adjudicator. In her opinion, Dr. Raiser 

stated: 

Pt has functional capacity for sedentary activities as follows. She must relieve 

position break every hour from a seated or standing position for 5-10 mins with 

walking and standing limited to 102 hours in a day but not consecutive. Lifting 

carrying pulling limited to 20 lbs on occasion. No squatting, bending, stooping, 

kneeling no upper extrem restriction. These may be re-reviewed after eval with 

neurosurgeon. 

(R. at 493.) 

 Plaintiff visited Dr. Raiser for a routine checkup on May 30, 2014. At that time, she stated 

that her back hurt constantly. (R. at 530.) Dr. Raiser noted that Plaintiff’s forearms were 

bruised. (Id.) When questioned about the bruises, Plaintiff told Dr. Raiser that she has been 

helping her son “do something on the boat.” (Id.) Although Plaintiff complained of back pain, 

physical exam testing revealed normal results, including a normal gait and range of motion. (R. at 

 

2. Plaintiff’s sole contention of error is that the ALJ erred in weighing the opinions of her treating 

physician, Dr. Raiser. Dr. Raiser’s opinions include only brief references to psychiatric 

impairments, focusing instead on limitations attributable to Plaintiff’s back pain. The 

undersigned therefore focuses the discussion on records relevant to Plaintiff’s alleged back pain 

symptoms and limitations. 
6 

531.) 

On September 9, 2014, Plaintiff saw Dr. Raiser for follow-up testing, during which she 

indicated that she was then smoking about 10 cigarettes per day. (R. at 676.) Dr. Raiser 

performed a physical exam with normal results. Importantly, Dr. Raiser noted a normal gait and 

no spinal abnormalities, symmetric and intact strength and sensation throughout, and +2 reflexes 

throughout. (R. at 677.) 

Plaintiff returned to Dr. Raiser on January 13th and 29th of 2015. Physical exam testing 

during the January 13th visit again yielded normal results. (R. at 680.) Physical exam testing 

during the January 29th visit yielded identical results. (R. at 685.) Dr. Raiser noted, however, 

that Plaintiff then had 10% clogging in one heart vessel and 30% in another. (R. at 683.) 

Plaintiff’s reported smoking remained unchanged. (R. at 679.) 

Plaintiff visited Dr. Raiser’s office on March 26, 2015, indicating that her pain had 

worsened and that her neurosurgeon, Dr. Uselman, was no longer available. (R. at 751.) Dr. 

Raiser referred Plaintiff to neurosurgeons Drs. Mullins and Lobel on April 15, 2015. (R. at 752.) 

Dr. Mullins refused to schedule Plaintiff due to a past due balance. (Id.) Dr. Lobel was available 

for consultation, and his office was willing to accept Plaintiff’s insurance. (Id.) Dr. Lobel’s 

office made repeated attempts to reach Plaintiff in order to schedule an appointment, including 

phone calls and a scheduling letter, but Plaintiff did not respond. (Id.) After the third attempt to 

leave a voice message requesting that Plaintiff schedule an appointment, Dr. Lobel’s office 

declined to make any further attempts to reach her. (Id.) 

Records from the Thornville Family Medical Center indicate that Plaintiff missed several 

appointments with Dr. Raiser in 2015. Specifically, Plaintiff cancelled an appointment on 
7 

February 25, 2015 (R. at 746 (“Pt stated something came up . . . .”)); missed an appointment on 

March 18, 2015, (R. at 747); and cancelled her appointment on June 30, 2015, (R. at 756). 

Moreover, on March 16, 2016, Plaintiff was advised by Dr. Raiser that her prescriptions could not 

be refilled because Dr. Raiser had last seen her seven months prior. (R. at 769.) 

On August 4, 2015, Plaintiff again visited Dr. Raiser’s office. Dr. Raiser noted that 

although Plaintiff continued to have fatigue and pain, “overall she has been ok.” (R. at 763.) Dr. 

Raiser performed a physical exam, which revealed only normal results, including normal gait, 

range of motion, and strength throughout. (R. at 760-61.) 

Plaintiff last visited Dr. Raiser’s office on March 22, 2016. At that visit, Dr. Raiser noted 

that “overall [Plaintiff] is doing ok . . . . She continues with pain on a daily basis. [I]f she sits too 

long, if she walks too long, if she stands too long.” (R. at 770) Plaintiff continued to report 

smoking approximately 10 cigarettes per day. (Id.) Dr. Raiser performed a physical exam, 

which reflected only normal results, including normal gait, range of motion, and strength 

throughout. (R. at 771-72.) 

B. James Uselman, M.D. 

In August 2012, Plaintiff saw Dr. Uselman for a neurological consultation regarding her 

lower back pain. Dr. Uselman performed a physical examination and noted normal gait, 5/5 

strength in all upper and lower extremities, +2 reflexes in all extremities, and a positive straight leg 

raise. (R. at 431.) After performing the exam, Dr. Uselman prescribed physical therapy and 

indicated if that was unsuccessful, he would like to order imaging. (R. at 428.) 

In March 2013, Plaintiff returned to Dr. Uselman for evaluation of a lumbar myelogram 

and post myelographic CT scan. Dr. Uselman observed that the testing showed no significant 
8 

nerve root compression and that the biggest concern was that Plaintiff’s intervertebral disc at the 

L5-S1 level was collapsed. (R. at 452.) Although the images reflected some abnormalities, Dr. 

Uselman did not “have a great explanation for why [Plaintiff’s] legs are bothering her.” (Id.) 

Dr. Uselman discussed the possibility of back surgery, but conceded that he could not guarantee 

that surgery would alleviate Plaintiff’s symptoms. (Id.) Dr. Uselman ordered EMGs and an 

abominopelvic CT to confirm there were no additional abnormalities causing Plaintiff’s 

symptoms. In September 2013, Dr. Uselman reviewed the results of Plaintiff’s EMG and 

abdominal CT and determined that the CT was “fairly benign” and that the EMGs were negative. 

(R. at 588.) Dr. Uselman again discussed the possibility of back surgery and advised that there 

was a 50/50 chance surgery would alleviate her pain. (Id.) 

C. State Agency Evaluations 

 On October 29, 2012, state agency physician, Lynne Torello, M.D., reviewed the record 

and assessed Plaintiff’s physical functioning capacity. (R. at 169-82.) Dr. Torello opined that 

Plaintiff could lift and/or carry twenty pounds occasionally and ten pounds frequently; stand 

and/or walk about six hours in a workday; and sit for about six hours in a workday. (R. at 

176-77.) According to Dr. Torello, Plaintiff could balance without limit; never climb ladders, 

ropes, or scaffolds; and occasionally climb ramps or stairs, stoop, kneel, crouch, and crawl. (R. at 

177.) Although Dr. Torello found Plaintiff to be fully credible, she concluded that Plaintiff has 

“good enough strength and movement to sit, stand, walk, and move around to complete some type 

of work.” (R. at 176, 182.) 

 Jan Gorniak, D.O., reviewed the record upon reconsideration on March 30, 2013, and 

opined that Plaintiff could lift and/or carry twenty pounds occasionally and ten pounds frequently; 
9 

stand and/or walk for four hours in a workday; and sit for about six hours in a workday. (R. at 

193.) She agreed with and affirmed the remainder of Dr. Torello’s assessment. (Id.) 

 Drs. Torello and Gorniak both found that Dr. Raiser’s opinion was “partially consistent 

with the MER findings because it indicates the claimant is unable to do physical activities,” 

although the MER “findings indicates that she is able to do some physical activities on a restricted 

basis.” (R. at 176, 192.) 

IV. THE ADMINISTRATIVE DECISION 

 On June 24, 2016, the ALJ issued his decision. (R. at 49-68.) The AJL first found that 

Plaintiff meets the insured status requirements through December 31, 2017. At step one of the 

sequential evaluation process,3

 the ALJ found that Plaintiff had not engaged in substantial gainful 

activity since September 3, 2013, the amended alleged onset date. (R. at 16.) The ALJ found 

 

3. Social Security Regulations require ALJs to resolve a disability claim through a five-step 

sequential evaluation of the evidence. See 20 C.F.R. § 416.920(a)(4). Although a dispositive 

finding at any step terminates the ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th 

Cir. 2007), if fully considered, the sequential review considers and answers five questions: 

1. Is the claimant engaged in substantial gainful activity? 

2. Does the claimant suffer from one or more severe impairments? 

3. Do the claimant's severe impairments, alone or in combination, meet or equal 

the criteria of an impairment set forth in the Commissioner's Listing of 

Impairments, 20 C.F.R. Subpart P, Appendix 1? 

4. Considering the claimant's residual functional capacity, can the claimant 

perform his or her past relevant work? 

5. Considering the claimant's age, education, past work experience, and residual 

functional capacity, can the claimant perform other work available in the 

national economy? 

See 20 C.F.R. § 416.920(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009); Foster 

v. Halter, 279 F.3d 348, 354 (6th Cir. 2001). 
10 

that Plaintiff had the severe impairments of degenerative disc disease of the lumbar spine with 

lumbar stenosis, tachycardia, anxiety, and major depressive disorder. (Id.) He further found that 

Plaintiff did not have an impairment or combination of impairments that met or medically equaled 

one of the listed impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id.) At 

step four of the sequential process, the ALJ set forth Plaintiff’s RFC as follows: 

After careful consideration of the entire record, [the ALJ] find[s] that [Plaintiff] has 

the residual functional capacity to lift and/ or carry twenty pounds occasionally and 

ten pounds frequently; stand and/or walk four hours out of an eight hour day; sit six 

hours out of an eight hour day; occasionally push or pull; occasionally climb ramps 

or stairs; never climb ladders, ropes, or scaffolds; occasional balancing, stooping, 

kneeling, crouching or crawling; no use of hazardous machinery and no exposure to 

unprotected heights; work in a low stress job defined as only occasional changes in 

the work setting; work allowed to be off task for 5 percent of the workday. 

(R. at 18.) In reaching this determination, the ALJ followed a two-step process. First, the ALJ 

found that “[a]fter careful consideration of the evidence, . . . [Plaintiff’s] medically determinable 

impairments could reasonably be expected to cause the alleged symptoms.” (R. at 19.) Second, 

the ALJ found that Plaintiff’s “statements concerning the intensity, persistence, and limiting 

effects of [her] symptoms are not entirely consistent with the medical evidence and other evidence 

in the record.” (Id.) 

 In calculating Plaintiff’s RFC, the ALJ relied upon the opinions of Drs. Raiser, Torello, 

and Gorniak. The ALJ gave some weight to Dr. Torello’s opinion and more weight to Dr. 

Gorniak’s opinion on reconsideration. (R. at 61.) However, the ALJ “found the claimant 

slightly more limited physically then determined by the State agency medical consultant on 

reconsideration based on the objective findings on exam and imaging.” (Id.) The ALJ also gave 

some weight to Dr. Raiser’s opinions, which placed significant limitations on Plaintiff’s physical 

abilities. (Id.) 
11 

 Relying on the VE’s testimony, the ALJ found that even though Plaintiff is unable to 

perform her past work, she can perform jobs that exist in significant numbers in the national 

economy. (R. at 73-74.) He therefore concluded that Plaintiff was not disabled under the Social 

Security Act. (R. at 74.) 

V. STANDARD OF REVIEW 

 When reviewing a case under the Social Security Act, the Court “must affirm the 

Commissioner’s decision if it ‘is supported by substantial evidence and was made pursuant to 

proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009)

(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 . . . .”). Under this standard, “substantial evidence is 

defined as ‘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.’” Rogers, 486 

F.3d at 241 (quoting Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994)). 

Although the substantial evidence standard is deferential, it is not trivial. The Court must 

“‘take into account whatever in the record fairly detracts from [the] weight’” of the 

Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting 

Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, “if substantial 

evidence supports the ALJ’s decision, this Court defers to that finding ‘even if there is substantial 

evidence in the record that would have supported an opposite conclusion.’” Blakley v. Comm’r of 

Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 

1997)). 
12 

Finally, even if the ALJ’s decision meets the substantial evidence standard, “‘a 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, 582 F.3d at 651 (quoting Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 

2007)). 

VI. ANALYSIS 

 In her Statement of Errors, Plaintiff asserts that the ALJ improperly weighted the opinions 

of Dr. Shelby Raiser in violation of the treating physician rule. Within this contention of error, 

Plaintiff argues that (1) the ALJ should have given res judicata effect to the weight he assigned to 

Dr. Raiser’s opinions in the first decision, and (2) the weight assigned to Dr. Raiser’s opinions in 

the second decision is not supported by substantial evidence. The undersigned considers each of 

these arguments in turn. 

A. Res Judicata

 As a threshold matter, the Court must determine whether the ALJ’s first decision should be 

given any res judicata effect. As Plaintiff indicates, the ALJ gave great weight to Dr. Raiser’s 

opinions in his first decision, whereas he gave them only some weight in the second decision. 

Plaintiff maintains that the ALJ erred by failing to address the difference in weight between the 

two decisions. Although not cited by Plaintiff, the Sixth Circuit held in Drummond v Comm’r of 

Soc. Sec’y, 136 F.3d 837, 842 (6th Cir. 1997), that res judicata applies to final decisions by the 

Commissioner, absent changed circumstances. Clarifying the rule in Drummond, the Sixth 

Circuit later held: 

Drummond addressed the question of when a claimant has filed two different 

applications and the ALJ’s decision on the first application has become final. The 
13 

court held in Drummond that absent evidence of an improvement in a claimant’s 

condition, a subsequent ALJ is bound by the findings of a previous ALJ. Id. at 

842. Thus, an ALJ addressing a claimant’s subsequent application is bound by the 

findings of a prior final decision. In this case, ALJ Cogan’s findings did not involve 

a different application nor a “final” decision. 

Wireman v. Comm’r of Soc. Sec., 60 F. App’x 570, 571 (6th Cir. 2003). Since Wireman, courts in 

the Sixth Circuit have consistently held that an ALJ is not bound by a prior decision that was 

vacated pursuant to remand. See Perkins v. Comm’r of Soc. Sec., No. 1:13-cv-102, 2014 WL 

619393, at *6 (S.D. Ohio Feb. 18, 2014) (collecting cases). In this case, the ALJ’s first decision 

never became final because it was vacated and remanded by the Appeals Council. Accordingly, 

Wireman, not Drummond, controls. Accordingly, the undersigned finds that res judicata cannot 

apply here such that only second decision is properly before this Court for review. 

B. The Treating Physician Rule 

The ALJ must consider all medical opinions that he or she receives in evaluating a 

claimant’s case. 20 C.F.R. § 416.927(c). The applicable regulations define medical opinions as 

“statements from acceptable medical sources that reflect judgments about the nature and severity 

of your impairment(s), including your symptoms, diagnosis and prognosis.” 20 C.F.R. § 

416.927(a)(1). 

 The ALJ generally gives deference to the opinions of a treating source “since these sources 

are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [a 

patient’s] medical impairment(s) and may bring a unique perspective to the medical evidence that 

cannot be obtained from the objective medical filings alone . . .” 20 C.F.R. § 416.927(c)(2); 

Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 408 (6th Cir. 2009). If the treating physician’s 

opinion is “well-supported by medically acceptable clinical and laboratory diagnostic techniques 
14 

and is not inconsistent with the other substantial evidence in [the claimant's] case record, [the ALJ] 

will give it controlling weight.” 20 C.F.R. § 404.1527(c)(2). The Court next turns to Plaintiff’s 

contention that the ALJ violated the treating physician rule. 

 If the ALJ does not afford controlling weight to a treating physician’s opinion, the ALJ 

must meet certain procedural requirements. Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 

(6th Cir. 2004). Specifically, if an ALJ does not give a treating source’s opinion controlling 

weight: 

[A]n ALJ must apply certain factors-namely, 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 source-in 

determining what weight to give the opinion. 

Id. Furthermore, an ALJ must “always give good reasons in [the ALJ’s] notice of determination 

or decision for the weight [the ALJ] give[s] your treating source's opinion.” 20 C.F.R. § 

416.927(c)(2). Accordingly, the ALJ’s reasoning “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.” Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 550 (6th Cir. 

2010) (internal quotation omitted). The United States Court of Appeals for the Sixth Circuit has 

stressed the importance of the good-reason requirement: 

“The requirement of reason-giving exists, in part, to let claimants understand the 

disposition of their cases,” particularly in situations where a claimant knows that 

his physician has deemed him disabled and therefore “might be especially 

bewildered when told by an administrative bureaucracy that she is not, unless some 

reason for the agency’s decision is supplied.” Snell v. Apfel, 177 F.3d 128, 134 (2d 

Cir. 1999). The requirement also ensures that the ALJ applies the treating physician 

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

Halloran v. Barnhart, 362 F.3d 28, 32–33 (2d Cir. 2004). 

Wilson, 378 F.3d at 544–45. Thus, the reason-giving requirement is “particularly important when 
15 

the treating physician has diagnosed the claimant as disabled.” Germany-Johnson v. Comm’r of 

Soc. Sec., 313 Fed. App’x 771, 777 (6th Cir. 2008) (citing Rogers, 486 F.3d at 242). 

There is no requirement, however, that the ALJ “expressly” consider each of the Wilson factors 

within the written decision. See Tilley v. Comm’r of Soc. Sec., 394 F. App’x 216, 222 (6th Cir. 

2010) (indicating that, under Blakley and the good reason rule, an ALJ is not required to explicitly 

address all of the six factors within 20 C.F.R. § 404.1527(c)(2) for weighing medical opinion 

evidence within the written decision). 

 Finally, the Commissioner reserves the power to decide certain issues, such as a claimant’s 

residual functional capacity. 20 C.F.R. § 404.1527(d). Although the ALJ will consider opinions 

of treating physicians “on the nature and severity of your impairment(s),” opinions on issues 

reserved to the Commissioner are generally not entitled to special significance. 20 C.F.R. § 

404.1527(d); Bass v. McMahon, 499 F.3d 506, 511 (6th Cir. 2007). 

 As discussed above, the ALJ assigned some weight to Dr. Raiser’s opinions as Plaintiff’s 

treating physician and assigned more weight to the opinion of State Agency Physician Gorniak on 

reconsideration. Although Plaintiff maintains that the ALJ failed to give good reasons for the 

weights assigned, the ALJ provided a lengthy discussion of how he arrived at his determinations. 

In discussing Dr. Raiser’s opinions, the ALJ stated as follows: 

I give only some weight to the opinions of Dr. Raiser[] . . . as the objective evidence 

of record does not support limitations suggested beyond those in the claimant’s 

residual functional capacity and some of the limitations suggested in these opinions 

are unsupported by the objective findings in the doctor’s own treatment records. 

The more recent records reveal treatment with large gaps and compliance issues 

with the claimant failing to attend appointments as advised. She also failed to 

pursue the recommended neurosurgeon consult and failed to respond to four 

attempts of contact by a neurosurgeon who accepted her insurance. Findings on 

objective exam have been mild to essentially normal, even at the most recent 

exams, and do not support her subjective complaints. While the earlier opinions 
16 

noted some positive findings on exam while awaiting an initial neurosurgeon 

consult, the claimant did not have such findings on later examinations and 

apparently improved with treatment based on normal objective findings on 

examinations. 

* * * 

 As noted, the claimant has failed to attend appointments with Dr. Raiser as 

instructed, but continued to ask Dr. Raiser to complete paperwork with regard to 

claimant’s continuing this party insurer benefits. Findings on exam however were 

essentially normal and not supportive of limitations suggested in these statements. 

For example, on August 5, 2015, Dr. Raiser completed a disability form for the 

claimant’s third party insurer, citing claimant’s cardiac condition as the reason the 

claimant is unable to return to work. Dr. Raiser wrote that the claimant’s 

neurosurgeon discussed surgery but wanted cardiac issues stable first. However, 

the claimant’s lack of continued treatment with neurosurgery has been discussed 

above with claimant’s lack of follow-up and generally stable findings on cardiac 

follow-up. The claimant’s primary care physician completed another similar 

continuation of disability form for the claimant’s this party insurer on March 25, 

2016. The doctor wrote that the claimant was limited from physical labor due to 

her cardiac condition and do due [sic] spinal stenosis “cannot bent/sit/stand/walk 

for prolong periods.” These limitations reflect the claimant’s subjective reports 

unsupported by the claimant’s normal physical findings on exams by this doctor. 

It does point out, however, that the doctor was limiting bending, sitting, standing, 

and walking for prolonged periods. Thus, the record as a while, including the 

treating primary care physician’s opinions, support the claimant’s ability to engage 

in occasional climbing of ramps or stairs and occasional balancing, stooping, 

kneeling, crouching or crawling. The doctor’s opinion considered as a while and 

in comparison with the claimant’s treatment notes from this physician do not 

support a preclusion to these postural activities including stooping. . . . 

(R. at 22-23.) 

 The Court finds no error with the ALJ’s consideration and weighing of Dr. Raiser’s 

opinions. The ALJ articulated the weight he afforded Dr. Raiser’s opinions and properly declined 

to accord the opinions controlling weight on the grounds that they were inconsistent with other 

substantial evidence in the record, including examination findings, there were substantial gaps in 

treatment, and Plaintiff failed to comply with treatment recommendations. See 20 C.F.R. § 

404.1527(c)(2) (identifying “supportability” and “consistency” with the record as a whole as a 
17 

relevant consideration); Blakely, 581 F.3d at 406 (quoting SSR 96-2p, 1996 WL 374188, at *2 

(July 2, 1996)) (“‘[I]t is an error to give an opinion controlling weight simply because it is the 

opinion of a treating source if . . . it is inconsistent with the other substantial evidence in the case 

record.’”). 

 First, the ALJ reasonably discounted Dr. Raiser’s opinions due to the inconsistencies he 

identified and the absence of support in the record for the opined limitations. Although Plaintiff 

argues that Dr. Raiser’s opinions are consistent with the record as a whole, she bases much of her 

argument on (1) the ALJ’s first decision, and (2) the ALJ’s purported error in reading limitations 

into Dr. Raiser’s opinions. As discussed above, only the final decision is before this Court. 

Therefore, Plaintiff’s reliance on the ALJ’s findings in the vacated decision is misplaced. 

Moreover, the ALJ was within his authority to determine that Dr. Raiser’s opinions were limited in 

scope and duration, pending consultation with a neurosurgeon. 

 As in weighing a treating physician’s opinion, the ALJ must give good reasons for reading 

a limitation into the treating physician’s opinion itself. Cf. Coldiron v. Comm’r Soc. Sec., 391 F. 

App’x 435, 441 (6th Cir. 2010) (noting that an ALJ “may discredit that opinion, so long as he 

communicates a reasoned basis for doing so” (citations omitted)). Indeed, finding limitations in 

an opinion may well be a form of weighing, or discrediting, that opinion. Here, the ALJ properly 

noted that Dr. Raiser’s 2012 opinion limited Plaintiff’s ability to stoop, bend, walk, or stand “for 

prolonged periods of times.” (R. at 62. See also R. at 141.) Moreover, the ALJ noted that Dr. 

Raiser’s 2013 opinion included the caveat that the opinion “may be re-reviewed after eval with 

neurosurgeon.” (R. at 62. See also R. at 493.) In determining that this caveat limited the 

opinion, the ALJ did not rely simply on the language. Rather, he pointed to Exhibit 8F, where 
18 

“Dr. Raiser opines that although the claimant has ‘tight lumbar muscles,’ that range of motion of 

the lumbar spine was only mildly dec[r]eased.” (R. at 62.) The ALJ therefore concluded that the 

limitations were included “out of an abundance of caution” pending review by a neurosurgeon. 

(Id.) That both opinions contain such a limiting proviso substantially supports the ALJ’s 

determination that both opinions were made out of an abundance of caution, pending review by a 

specialist. Moreover, although not cited by the ALJ, the Court notes that Plaintiff herself 

indicated that she did not know if the limitations from Dr. Raiser’s opinions still applied. (R. 79 

(stating that Plaintiff believed Dr. Raiser had her limited to lifting or 5-10 pounds, but conceding 

that she goes to 10 because she believes that limit was from the past).) The Court therefore finds 

that the ALJ provided good reasons for his conclusion. 

 Second, in weighing Dr. Raiser’s opinions, The ALJ pointed to gaps in Plaintiff’s 

treatment and her failure to comply with doctors’ recommendations. Failure to comply with 

treatment recommendations and substantial gaps in treatment constitute good reason discredit the 

treating physician’s opinions. See Richendollar v. Colvin, No. 1:13-cv-495, 2014 WL 4910477, 

at *5 (S.D. Ohio Aug. 7, 2014) (“A claimant's failure to follow treatment can indicate that he is not 

as disabled as alleged.”) (citing Mullen v. Bowen, 800 F.2d 535, 547 (6th Cir. 1986)); Tate v. 

Comm’r of Soc. Sec’y, 467 F. App’x 431, 433 (6th Cir. 2012) (holding that substantial evidence 

supported ALJ’s weighing of treating physician’s opinion where there were substantial gaps in 

treatment). Here, the record supports the ALJ’s findings. The record indicates that Plaintiff 

missed several appointments with Dr. Raiser in 2015 without compelling reason; failed to continue 

her physical therapy without explanation, (R. at 434 (discharging Plaintiff from treatment due to 

expiration of care plan, as “Pt did not return for further treatment”); and had up to a seven-month 
19 

gap between visits with Dr. Raiser, to the point where Dr. Raiser could not refill Plaintiff’s 

prescriptions due to the time lapse. Moreover, Plaintiff failed to follow Dr. Raiser’s 

recommendations and orders by failing to undergo a colonoscopy for GI bleeding, (R. at 748); 

failing to see Dr. Lobel for consultation with a neurosurgeon, (R. at 752); continuing smoking 

(See, e.g., R. at 770); and failing to complete physical therapy, (R. at 434). The undersigned finds 

that Plaintiff’s failure to comply with treatment recommendations and the substantial gaps in 

treatment constitute good reasons to discredit Dr. Raiser’s opinions. 

 Finally, the ALJ determined that Dr. Raiser’s opinions are not supported by objective exam 

findings and are inconsistent with her own treatment records. As the ALJ correctly notes, early 

physical exams showed some positive findings related to Plaintiff’s back pain. (See, e.g., R. at 

431 (noting positive straight leg raise).) However, the record also reflects, as the ALJ discussed, 

that later objective exam results are mild to substantially normal, including results of physical 

exams by Dr. Raiser. Indeed, as discussed supra, in every physical examination performed by Dr. 

Raiser, results were normal. Moreover, the only time Dr. Raiser indicated tightness in Plaintiff’s 

lumbar muscles or decreased range of motion was in her 2013 opinion. In addition, the results of 

physical examinations by Dr. Uselman were largely normal. Although results of imaging show 

some abnormalities in Plaintiff’s lumbar spine, the images do not negate the remaining objective 

medical evidence adduced during physical examinations as recent as 2016. Review of these 

records reveal that Plaintiff’s pain and difficulty walking, standing, and sitting were largely 

self-reported. The undersigned therefore finds that the ALJ not only provided good reasons for 

assigning only some weight to Dr. Raiser’s opinions, but that his assessment is supported by 

substantial evidence in the record. 
20 

 Finally, Plaintiff’s assertion that the ALJ erred in performing the controlling weight test by 

beginning his discussion of medical opinions with the state agency physician’s opinions rather 

than the treating physicians’ opinions lacks merit. Plaintiff maintains that this structural 

deficiency results in the ALJ overruling the treating physician’s opinion “before even noting its 

existence.” (Statement of Errors 10, ECF No. 10.) Plaintiff does not cite any case law to support 

her argument that the mere structure of the ALJ’s decision can violate the treating physician rule. 

Likewise, the undersigned’s research has not revealed any authority supporting Plaintiff’s 

position. In the absence of controlling precedent to the contrary, the undersigned finds that the 

ALJ is not bound to a sequential order of analysis in evaluating the opinions of treating physicians. 

 In sum, the undersigned concludes that the ALJ did not violate the treating physician rule 

or otherwise err in his assessment of Dr. Raiser’s opinions. It is therefore RECOMMENDED

that Plaintiff’s sole contention of error be OVERRULED. 

VII. DISPOSITION 

From a review of the record as a whole, the undersigned concludes that substantial 

evidence supports the ALJ’s decision denying benefits. Accordingly, it is RECOMMENDED 

that the Court OVERRULE Plaintiff’s Statement of Errors and AFFIRM the Commissioner of 

Social Security’s decision. 

VIII. PROCEDURE ON OBJECTIONS 

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

(14) days of the date of this Report, file and serve on all parties written objections to those specific 

proposed findings or recommendations to which objection is made, together with supporting 

authority for the objection(s). A Judge of this Court shall make a de novo determination of those 
21 

portions of the Report or specified proposed findings or recommendations to which objection is 

made. Upon proper objections, a Judge of this Court may accept, reject, or modify, in whole or in 

part, the findings or recommendations made herein, may receive further evidence or may 

recommit this matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). 

The parties are specifically advised that failure to object to the Report and 

Recommendation will result in a waiver of the right to have the District Judge review the Report 

and Recommendation de novo, and also operates as a waiver 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); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 

 /s/ Chelsey M. Vascura 

CHELSEY M. VASCURA 

UNITED STATES MAGISTRATE JUDGE