Case Name in Social Security Case - Unavailable

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Cindy S.,
Plaintiff,
V.
Commissioner of Social Security,
Case No. 2:25-cv-293
Judge Michael H. Watson
Magistrate Judge Vascura
Defendant.
OPINION AND ORDER
Plaintiff applied for Supplemental Security Income benefits in January
2022. Tr. 241-47. Her application was denied initially and on reconsideration.
Tr. 119-40. She attended a hearing before an Administrative Law Judge ("ALJ"),
who entered an unfavorable decision. Tr. 17-41. The Appeals Council declined
to review the ALJ's decision, Tr. 1, and Plaintiff appealed it to this Court, Compl.,
ECFNo. 1.
The Magistrate Judge issued a Report and Recommendation ("R&R"),
recommending the Court overrule Plaintiff's Statement of Specific Errors and
affirm the Commissioner of Social Security's ("Commissioner") decision. R&R,
ECF No. 16. Plaintiff timely objected to that recommendation. Obj., ECF No. 17.
I. STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 72(b), the Court reviews de
novo those portions of the R&R to which Plaintiff properly objected. Fed. R. Civ.
P. 72(b).
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II. ANALYSIS
In her Statement of Specific Errors, Plaintiff argued that the ALJ erred in
omitting from the Residual Functional Capacity ("RFC") a requirement that
Plaintiff elevate her legs (presumably to heart level) and erred by failing to
explain the supportability and consistency of medical opinion evidence stating
that Plaintiff must elevate her legs. Stmt. Errors 14-19, ECF No. 14.
The R&R considered the purported errors in reverse order, concluding that
both lacked merit. R&R, ECF No. 16. The Magistrate Judge first concluded that
the ALJ did not err in his evaluation of the medical opinion evidence because the
need to elevate Plaintiff's legs (to heart level or otherwise) was not included in
any "medical opinion, " as the regulations define that term. Id. at 6-7 ("Although
the ALJ was required to consider these treatment notes as part of the record
when assessing Plaintiff's RFC, he was not required to articulate findings about
their supportability or consistency because they were not medical opinions. ").
Thus, as the statements did not amount to "medical opinion[s], " theALJ was not
required to discuss the supportability and consistency factors outlined in 20
C. F. R. § 416. 920c(b)(2) or otherwise analyze those statements as medical
opinions.
As for the RFC, the Magistrate Judge concluded that theALJ did not err in
omitting a leg-elevation requirement because it was clear that theALJ considered
Plaintiff's leg swelling and elevation treatment, and "no medical provider opined
that Plaintiff's edema caused work-related functional limitations or that she
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needed to elevate her feet to waist level during the workday or even that she
needed to elevate her legs daily. " R&R 8, ECF No. 16. Moreover, the Magistrate
Judge noted, other record evidence demonstrated that Plaintiff's edema was
intermittent. Id. at 8-9.
Plaintiff objects on both scores. First, she objects to the Magistrate
Judge's conclusion that the treatment notes indicating a need for leg elevation do
not amount to medical opinions. Obj. 2, ECF No. 17. Plaintiff acknowledges that
the Magistrate Judge cited the correct definition of "medical opinion, " 20 C. F. R.
§ 416. 913(a)(2), but she contends that the Magistrate Judge misapplied the
definition. Obj. 2-3, ECF No. 17.
Second, Plaintiff objects to the Magistrate Judge's conclusion regarding
the ALJ's failure to include a leg-elevation requirement in the RFC. Id. at 3-4.
Finally, Plaintiff argues that the errors are not harmless. Id. at 4-5.
Upon de novo review, the Court agrees with the R&R.
A. Medical Opinion Evidence
Turning first to theALJ's evaluation of the medical opinion evidence, the
Court agrees that the notes to which Plaintiff cites do not qualify as medical
opinions.
20 C. F. R. 416. 920e states, in pertinent part, "[w]hen a medical source
provides one or more medical opinions ... we will consider those medical
opinions ... using the factors listed in paragraphs (c)(1) through (c)(5) of this
section, as appropriate. " Moreover, theALJ must explain how he considered the
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two most important of those factors-supportability and consistency-in
determining the persuasiveness of a medical opinion. 20 C. F. R.
§ 416. 920c(b)(2). A "medical opinion, " in turn, is defined as "a statement from a
medical source about what you can still do despite your impairments) and
whether you have one or more impairment-related limitations or restrictions in the
abilities listed in paragraphs . .. of this section. " 20 C. F. R. § 416. 913(a)(2).
The first record Plaintiff cites is a treatment note by Certified Physician
Assistant ("PA-C") Alena Weldy, documenting Plaintiff's January 13, 2022, office
visit. Tr. 407. The note concludes with a summary of Plaintiff's "Care Plan[, ]"
which includes the following statement: "Discussed good edema control with
compression, low salt, and elevation when NWB[1] and at night/rest. " Id.
(footnote added).
The second record Plaintiff cites is composed of two office notes from her
cardiologist's office. 2 Those notes are from an April 2022 and a May 2022
cardiology visit, and the "Clinical Notes" about Plaintiff's ongoing edema
concerns in each note state, "Elevate feet while sitting, avoid salty foods. " Tr.
695-96.
1 NWB stands for "not weight bearing."
2 One note appears to be from her cardiologist, Dr. Richard Bardales, Tr. 695, and the
other appears to be from Certified Nurse Practitioner ("CNP") Delores Bardales, Tr. 697.
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These statements are nothing more than confirmations that PA-C Weldy
discussed with Plaintiff that elevation "when NWB and at nighVrest"3 is a method
Plaintiff may employ to control her edema and that Dr. Bardales and CNP
Bardales likewise advised Plaintiff to elevate her legs when sitting as manner of
treating her edema. None of the statements is an opinion about what Plaintiff
can do despite her edema or whether Plaintiff's edema causes any functional
limitations or restrictions. They certainly do not specify that Plaintiff should
elevate her legs for any specific amount of time, during any specific intervals, or
to any specific height (including "to heart level, " as Plaintiff repeatedly
characterizes the alleged limitation). The Court therefore agrees with the
Magistrate Judge that these sentences from the January 13, 2022, treatment
note, the April 2022 treatment note, and the May 2022 treatment note do not
meet the definition of a "medical opinion" that the ALJ was required to assess
under §§ 416. 920c(c)(1)-(c)(5) and explain for supportability and consistency.
Plaintiff attempts to discount the cases the Magistrate Judge cited, see
R&R 7, ECF No. 16 (citing Tina D. v. Comm'rofSoc. See., No. 3:22-cv-152,
2023 WL 2759861, at *5-6 (S. D. Ohio Apr. 3, 2023), and Bobbie N. E. v. Comm'r
ofSoc. Sec. Admin., No. 3:20-CV-524, 2022 WL 4151752, at *3 (S. D. Ohio Sept.
13, 2022)), by noting that, in those cases, the at-issue treatment notes were
made outside of the alleged disability window. Obj. 2-3, ECF No. 17
3 Importantly, Plaintiff had admitted during that office visit that she slept in a chair with
her legs down. Tr. 405.
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The Court has reviewed those cases de novo and concludes that the
timing of the notes in Tina D. and Bobbie N. E. was just one reason those courts
upheld the Commissioner's decisions. The remainder of the analyses in those
cases explain why the at-issue statements therein were "a routine treatment note
that does not contain a medical opinion. " Tina D., 2023 WL2759861, at *6; see
a/so Bobbie N. E., 2022 WL4151752, at *4 ("These stray recommendations for
Plaintiff to elevate her leg without any detail as to when or how long she should
engage in this activity are too vague to constitute medical opinions or support
specific functional limitations. " (citation omitted)). Those analyses apply equally
here and support the Magistrate Judge's recommendation.
In sum, the Court concludes on de novo review that theALJ did not err by
failing to explain the supportability and consistency of (or otherwise evaluate the
persuasiveness of) the three cited statements regarding leg elevation because
those statements do not amount to medical opinions.
B. Residual Functional Capacity
Plaintiff next objects that, even if the leg-elevation recommendation is not
a medical opinion, theALJ erred by omitting it as a limitation from Plaintiff's RFC.
Obj. 3-4, ECF No. 17. Specifically, she contends that theALJ acknowledged
Plaintiff's edema but noted that it was well controlled with conservative treatment,
yet the ALJ ignored the fact that the very treatment controlling the edema
entailed leg elevation. Id. Accordingly, Plaintiff contends, theALJ employed
circular reasoning: he essentially concluded that, because Plaintiff could control
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her edema through leg elevation, Plaintiff's edema did not require leg elevation
as a functional limitation. Id. Moreover, Plaintiff argues that a requirement that
she elevate her legs to heart level would be work-preclusive. Id.
But, as discussed above, there is no evidence (other than Plaintiff's
testimony) that a medical provider opined that Plaintiff should-let alone was
required to-elevate her legs to heart level, and there is no evidence that any
elevation was required outside of regularly scheduled breaks and lunch. To the
contrary, the treatment notes discussed above provided only generally that
Plaintiff should elevate her legs, and they did not include a recommendation for
any specific duration, interval, or height.
And, under the existing RFC, Plaintiff can still abide by PA-C Weldy's
recommendation that she elevate her legs at "night/rest, " Tr. 407, without any
restriction in work abilities, and she can presumably abide by PA-C Weldy's and
the Bardales' recommendations to elevate her legs "when [non weight bearing]"
or "while sitting, " Tr. 407, 695-96, by elevating her legs during breaks, lunch, and
while networking.
Plaintiff therefore fails to show that the ALJ erred by omitting leg elevation
from the RFC. See Sorrell v. Comm'rofSoc. See., 656 F. App'x 162, 170 (6th
Cir. 2016) ("[T]heALJ was not required to include a limitation for elevating legs in
the RFC because, although there were some treatment records that mentioned
leg elevation as a treatment for edema, no physician indicated that Sorrell's
edema caused work-related functional limitations, and no medical expert opined
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that Sorrell would need to elevate her feet to waist level during the workday or
even every day. ").
III. CONCLUSION
For the above reasons, the Court OVERRULES Plaintiff's objections,
ADOPTS the R&R, and AFFIRMS the Commissioner's non-disability finding.
The Clerk shall enter judgment for the Commissioner and terminate this case.
IT IS SO ORDERED.
M HAELH. ATSON, JUDGE
UNITED STATES DISTRICT COURT
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