United States District Court, E.D. Tennessee
MEMORANDUM OPINION AND ORDER
A. VARLAN CHIEF UNITED STATES DISTRICT JUDGE
Social Security appeal is before the Court on the Report and
Recommendation (the “R&R”) entered by United
States Magistrate Judge Susan K. Lee [Doc. 18]. In the
R&R, Magistrate Judge Lee recommends that plaintiff's
motion for judgment on the pleadings [Doc. 14] be denied, and
defendant's motion for summary judgment [Doc. 16] be
granted. In doing so, Judge Lee concludes that substantial
evidence supports the Commissioner's decision that
plaintiff was not disabled during the relevant period, and
that the Commissioner adequately weighed the opinion of Nurse
Practitioner Rita Milner. Plaintiff submitted an objection to
the R&R [Doc. 19], and the Commissioner responded [Doc.
Standard of Review
must conduct a de novo review of those portions of a
magistrate judge's report and recommendation to which a
party objects unless the objections are frivolous,
conclusive, or general. See 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 72(b)(3); Smith v. Detroit
Fed'n of Teachers, Local 231, 829 F.2d 1370, 1373
(6th Cir. 1987); Mira v. Marshall, 806 F.2d 636, 637
(6th Cir. 1986). “Objections disputing the correctness
of the magistrate's recommendation, but failing to
specify the findings believed to be in error are too general
and therefore insufficient.” Stamtec, Inc. v.
Anson, 296 F. App'x 516, 519 (6th Cir. 2008) (citing
Spencer v. Bouchard, 449 F.3d 721, 725 (6th Cir.
2006)). 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).
R&R, Judge Lee recommends upholding the
Commissioner's conclusion that plaintiff was not
disabled, because the Commissioner applied the correct legal
standard and her decision was supported by substantial
evidence [Doc. 18 p. 11]. In her objection to the R&R,
plaintiff argues that Judge Lee's recommendation is
incorrect, because the Administrative Law Judge
(“ALJ”) erred in rejecting the opinion of
plaintiff's treating nurse practitioner, Rita Milner.
Plaintiff further argues that the ALJ erred by considering
the opinions of two state agency, non-examining medical
consultants when reaching a disability determination. The
Court will address each argument in turn.
The ALJ's Treatment of Milner's Opinion
argued before Judge Lee that the ALJ erred in discounting
Milner's opinion, contending that because Milner was the
only examining source in the record, the ALJ should have
given her opinion substantial weight.
discounting Milner's opinion, the ALJ addressed the
opinion in the following way:
On May 21, 2014, Rita P. Milner, N.P., a treating source,
provided an assessment regarding the claimant's ability
to engage in physical work activity. Joanna Filchock, M.D., a
clinic physician, endorsed the assessment but never treated
the claimant. Ms. Milner opined the claimant could lift and
carry up to ten pounds infrequently and up to five pounds
occasionally. She noted the claimant could occasionally grasp
small objects and engage in tasks requiring fine
manipulation. She stated the claimant could never type or
write. Ms. Milner concluded the claimant would exceed four
absences each month due to chronic fatigue and anxiety.
As a nurse practitioner, Ms. Milner is not an
“acceptable medical source” under the Regulation
for authoritative independent opinions. Further, her opinion
is inconsistent with the record as a whole. For example,
medical records indicate the claimant suffers no residual
effects from a remote cerebral ventricular accident. The
record also indicates the claimant remains asymptomatic
despite her cardiovascular condition. Progress notes indicate
her condition is controlled with conservative medications
such as Metoprolol Tartrate 25 mg.
[Doc. 18 p. 9-10 (citing Tr. 17)].
R&R, Judge Lee analyzed this treatment of Milner's
opinion, and found that “the ALJ met the applicable
standard and adequately set forth her reasons for discounting
[Milner's] opinion” [Id. at p. 11]. In
reaching this conclusion, Judge Lee noted that the ALJ
“properly acknowledged Milner's treatment
relationship with plaintiff, but found that factor outweighed
by the opinion's inconsistency with the record as a
whole” [Id.]. Judge Lee further stated that
because Milner was not an “accepted medical source,
” but rather was an “other source, ” the
ALJ was not required to either give Milner's opinion
controlling weight, or give reasons why she did not give it
controlling weight [Id. at 8].
objection, plaintiff argues that Judge Lee was incorrect in
concluding that the ALJ adequately weighed Milner's
opinion. Specifically, plaintiff argues that although Milner
is not an “acceptable medical source” under the
regulations, because she was the only treating source in the
record, her opinion should have been afforded more weight by
the ALJ. In support of this argument, plaintiff asserts that
the Social Security Commissioner's regulations value an
examining and treating source because “these sources
are likely to be the medical professionals most able to
provide a ...