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Case: 1:12-cv-00588-SJD-SKB Doc #: 8 Filed: 06/04/13 Page: 1 of 24 PAGEID #: 631












UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION





























Case No. 1:12-cv-588

Dlott, J.
Bowman, M.J.




BOBBY J. TRACY,




Plaintiff,










v.





COMMISSIONER OF SOCIAL SECURITY,


Defendant.

REPORT AND RECOMMENDATION

Plaintiff Bobby J. Tracy filed this Social Security appeal in order to challenge the

Defendant’s determination that she is not disabled. See 42 U.S.C. §405(g).

Proceeding through counsel, Plaintiff presents numerous claims of error, all of which the

Defendant disputes. As explained below, I conclude that the ALJ’s finding of non-

disability should be AFFIRMED because it is supported by substantial evidence in the

administrative record.





I. Summary of Administrative Record

Plaintiff applied for Disability Insurance Benefits (“DIB”) in June 2008, alleging

disability primarily due to neck pain, arm pain and weakness, and vision problems (Tr.

20), with an onset date of April 1, 2007. After Plaintiff’s application was denied initially

and upon reconsideration, she requested a hearing de novo before an Administrative

Law Judge (“ALJ”). An evidentiary hearing was held on December 9, 2010, at which

Plaintiff was represented by counsel. At the hearing, ALJ Gregory G. Kenyon heard



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testimony from Plaintiff and from a vocational expert. On January 28, 2011, the ALJ

denied Plaintiff’s application in a written decision, concluding that Plaintiff was not

disabled.



The record reflects that Plaintiff was 51 years old at the time of the ALJ’s

decision. She remarried in October of 2009 and resides with her husband. She has a

high school education, and worked from 1999 to 2007 for The Fechheimer Brothers

Company in a variety of positions. She also worked from 1996 through November 2006

for a printing company. Based upon her testimony of her varied positions over time, the

vocational expert identified past relevant work experiences as a warehouse assistant

supervisor, grocery store cashier, receptionist, and cook. (Tr. 60-61).



Plaintiff sustained a serious work injury at the Fechheimer Brothers Company in

April 2001, for which she received (and states that she continues to receive) Workers’

Compensation benefits. Plaintiff stopped working in April 2007 due to persistent severe

neck and shoulder pain; the ALJ determined that Plaintiff has not performed substantial

gainful activity since that time.



Based upon the record and testimony presented at the hearing, the ALJ found

that Plaintiff has the following severe impairments: “cervical degenerative disc disease,

degenerative joint disease of the right shoulder, carpal tunnel syndrome, glaucoma, and

diabetes mellitus.” (Tr. 18). The ALJ determined that none of Plaintiff’s impairments

alone, or in combination, met or medically equaled one of the listed impairments in 20

CFR Part 404, Subpart P, Appendix 1. (Tr. 19). Rather, the ALJ determined that



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Plaintiff retained the residual functional capacity (“RFC”) to perform a limited range of

light work, described as follows:

[S]he can occasionally crouch, stoop, kneel, and climb ramps and stairs,
and she can never crawl or climb ladders, ropes, or scaffolds. She can
occasionally engage in overhead reaching with the dominant upper
extremity. She cannot work around hazards such as unprotected heights
or dangerous machinery and she cannot drive automotive equipment.
She can frequently use her hands for handling and fingering. Mentally,
the claimant is limited to unskilled simple, repetitive tasks.


(Tr. 20).



Based upon the record as a whole including testimony from the vocational

expert, and given Plaintiff’s age, education, work experience, and RFC, the ALJ

concluded that, while precluded from most past work, Plaintiff would be able to return to

her past relevant work as a cashier. (Tr. 23, 62-63). Relying on the VE’s testimony, the

ALJ alternatively determined that other jobs existed in significant numbers in the

national economy that Plaintiff could perform, including cleaner, hand packer, and

inspector, as well as assembler. (Tr. 23-24, 62-64). Accordingly, the ALJ determined

that Plaintiff is not under disability, as defined in the Social Security Regulations, and is

not entitled to DIB. (Tr. 24).



The Appeals Council denied Plaintiff’s request for review. Therefore, the ALJ’s

decision stands as the Defendant’s final determination. On appeal to this Court, Plaintiff

presents numerous claims, articulated somewhat differently in the captions of Plaintiff’s

brief than in the body of that document.1 As understood by the undersigned, Plaintiff


1Paraphrasing the captions used by Plaintiff in the “Argument” section of the brief, the errors are
described as: (1) a lack of substantial evidence to support denial of benefits; (2) a failure to find other
related medical conditions were “severe”; (3) overreliance on Exhibit 4F (Dr. Sheridan’s report) and failure
to consider Exhibits 6F (chiropractor Robert Prewitt), 9F (BWC decision), 11F (Dr. Doriott), and 16F



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asserts that the ALJ erred: (1) by disregarding a prior determination that Plaintiff could

not perform her past work; (2) by failing to find additional medical conditions to be

“severe”; (3) by overly relying upon the consultative examination performed by Dr.

Sheridan and disregarding treating physician opinions; (4) by improperly evaluating

Plaintiff’s credibility, including her allegations of disabling pain; (5) by failing to include

additional limitations in the hypothetical posed to the VE; and (6) by failing to evaluate

Plaintiff’s age. None of the asserted errors require remand.







II. Analysis

A. Judicial Standard of Review

To be eligible for DIB benefits, a claimant must be under a “disability” within the

definition of the Social Security Act. See 42 U.S.C. §1382c(a). Narrowed to its

statutory meaning, a “disability” includes only physical or mental impairments that are

both “medically determinable” and severe enough to prevent the applicant from (1)

performing his or her past job and (2) engaging in “substantial gainful activity” that is

available in the regional or national economies. See Bowen v. City of New York, 476

U.S. 467, 469-70 (1986).



When a court is asked to review the Commissioner’s denial of benefits, the

court’s first inquiry is to determine whether the ALJ’s non-disability finding is supported

by substantial evidence. 42 U.S.C. § 405(g). 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) (additional citation and internal


(chiropractor Michael Hekler); (4) an improper assessment of credibility; (5) an improper evaluation of
pain; and (6) a failure to include additional restrictions in the hypothetical posed to the VE.



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quotation omitted). In conducting this review, the court should consider the record as a

whole. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial evidence

supports the ALJ’s denial of benefits, then that finding must be affirmed, even if

substantial evidence also exists in the record to support a finding of disability. Felisky v.

Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994). As the Sixth Circuit has explained:

The Secretary’s findings are not subject to reversal merely because
substantial evidence exists in the record to support a different conclusion .
. . . The substantial evidence standard presupposes that there is a ‘zone
of choice’ within which the Secretary may proceed without interference
from the courts. If the Secretary’s decision is supported by substantial
evidence, a reviewing court must affirm.


Id. (citations omitted).



In considering an application for benefits, the Social Security Agency is guided by

the following sequential benefits analysis: at Step 1, the Commissioner asks if the

claimant is still performing substantial gainful activity; at Step 2, the Commissioner

determines if one or more of the claimant’s impairments are “severe;” at Step 3, the

Commissioner analyzes whether the claimant’s impairments, singly or in combination,

meet or equal a Listing in the Listing of Impairments; at Step 4, the Commissioner

determines whether or not the claimant can still perform his or her past relevant work;

and finally, at Step 5, if it is established that claimant can no longer perform his or her

past relevant work, the burden of proof shifts to the agency to determine whether a

significant number of other jobs which the claimant can perform exist in the national

economy. See Combs v. Commissioner of Soc. Sec., 459 F.3d 640, 643 (6th Cir.

2006); 20 C.F.R. §§404.1520, 416.920.



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A plaintiff bears the ultimate burden to prove by sufficient evidence that he or she

is entitled to disability benefits. 20 C.F.R. § 404.1512(a). A claimant seeking benefits

must present sufficient evidence to show that, during the relevant time period, he or she

suffered an impairment, or combination of impairments, expected to last at least twelve

months, that left him or her unable to perform any job in the national economy. 42

U.S.C. § 423(d)(1)(A).













B. Specific Errors

1. Failure to Accept “Ruling(s)” That Plaintiff Could Not Perform Past Work

Plaintiff argues that the ALJ erred by failing to acknowledge a prior administrative

“finding” that Plaintiff’s limitations were severe enough that she could not perform her

past jobs. She contends that the Social Security Administration previously concluded

that Plaintiff could not perform her past work. Plaintiff also relies upon a prior

determination by the Ohio BWC that approved temporary disability for multiple injuries.

(Tr. 401-402).



Neither argument has merit. Plaintiff’s citations to “findings” by the Social

Security Administration refer to a single sentence drawn from her initial denial letter, 2

in which the agency states: “We realize that your condition prevents you from doing

your past jobs, if any, but it does not prevent you from doing other work which is less

physically demanding.” (Tr. 74). In context, it is not entirely clear that the referenced

form language constitutes the type of forceful “ruling” that Plaintiff suggests.

Regardless, that initial determination was not binding on the ALJ, who must consider


2Although Plaintiff cites a second page (Tr. 78), that citation, to the denial of reconsideration letter, does
not contain any language to support Plaintiff’s argument.



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additional evidence at the evidentiary hearing. For the same reasons, Plaintiff’s

reliance on the award of temporary disability benefits by the Ohio Bureau of Workers’

Compensation is misplaced. That decision also was not binding on the ALJ. The VE’s

testimony at the hearing that Plaintiff’s prior job of cashier was consistent with Plaintiff’s

RFC provides substantial evidence to support the ALJ’s determination that Plaintiff

could perform that work. Substantial evidence in the form of the VE’s testimony also

supports the determination that there were thousands of jobs in the regional economy

in addition to the job of cashier that Plaintiff could still perform. (Tr. 61-64). See also

generally, Varley v. Secretary of Health and Human Servs., 820 F.2d 777, 779-80 (6th

Cir. 1987).

2. Failure to Find Additional Impairments to be “Severe”

Plaintiff additionally complains that the ALJ “found only a limited number of

Plaintiff’s overall thirty six (36) medical conditions to be ‘severe.’” (Doc. 5 at 14).

Specifically, Plaintiff attacks the ALJ’s failure to specifically discuss “the significance of”

Plaintiff’s cervical radiculopathy/radiculitis, her shoulder impingement syndrome, her

herniated cervical disc, her neuropathy, her C6-7 displaced annular tear, her cervical

spondylosis, “and some twenty-five (25) other [unspecified] diagnosed conditions.”

(Doc. 5 at 16).



Plaintiff’s argument confuses diagnoses with disability. The number of formal

diagnoses scattered among a claimant’s medical records has never sufficed as proof of

disability. A diagnosis, in and of itself, is not conclusive evidence of disability because it

does not reflect the limitations, if any, that it may impose upon an individual. See Higgs



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v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988)(“The mere diagnosis..of course, says

nothing about the severity of the condition.”). There is no evidence to suggest that the

ALJ failed to consider all relevant medical evidence submitted to him.







Importantly, Plaintiff fails to explain how the ALJ’s alleged failure to discuss any

particular diagnosis is grounds for reversal in this case. As even Plaintiff concedes, so

long as an ALJ determines that some severe impairments exist at Step 2 of the

sequential analysis and proceeds to Step 3, “any failure to identify other impairments, or

combinations of impairments, as severe in step two would only be harmless error.”

(Doc. 5 at 15); see also Anthony v. Astrue, 266 Fed. Appx. 451, 457 (6th Cir. 2008);

Maziarz v. Sec’y of Health & Human Servs., 837 F.2d 240, 244 (6th Cir. 1987)).







3. Alleged Improper Evaluation of Medical Evidence

In another assertion of error, Plaintiff argues that in formulating Plaintiff’s RFC,

the ALJ relied far too heavily upon the opinions of a consulting physician, and too little

on the opinions of her treating physicians.







a. Legal Standards

The relevant regulation concerning the opinions of treating physicians, 20 C.F.R.

§404.1527(d)(2), provides: “[i]f we find that a treating source’s opinion on the issue(s) of

the nature and severity of your impairment(s) 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.” Id.; see also

Warner v. Com’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004).



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The reasoning behind what has become known as “the treating physician rule”

has been stated as follows:



longitudinal picture of

. . . these sources are likely to be the medical professionals most able to
provide a detailed,
the claimant's medical
impairment(s) and may bring a unique perspective to the medical
evidence that cannot be obtained from the objective medical findings
alone or from reports of individual examinations, such as consultative
examinations or brief hospitalizations.


Wilson v. Commissioner of Social Security, 378 F.3d 541, 544 (6th Cir. 2004)(quoting 20

C.F.R. § 404.1527(d)(2)). Thus, the treating physician rule “requires the ALJ to

generally give greater deference to the opinions of treating physicians than to the

opinions of non-treating physicians.” See Blakley v. Com’r of Social Security, 581 F.3d

399, 406 (6th Cir. 2009).



Despite the presumptive weight given to the opinions of the treating physician, if

those opinions are not “well-supported” or are inconsistent with other substantial

evidence, then the opinions need not be given controlling weight. Soc. Sec. Ruling 96-

2p, 1996 WL 374188, at *2 (July 2, 1996). In such cases, the ALJ should review

additional factors to determine how much weight should be afforded to the opinion.

These factors include, but are not limited to: “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

any specialization of the treating physician.” Blakley, 581 F.3d at 406; see also 20

C.F.R. §404.1527(d)(2). “[A] finding that a treating source medical opinion...is

inconsistent with the other substantial evidence in the case record means only that the



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opinion is not entitled to ‘controlling weight,’ not that the opinion should be rejected.”

Blakley, 581 F.3d at 408 (quoting Soc. Sec. Rul. 96-2p).







b. Examining Consultant Dr. Sheridan

In formulating Plaintiff’s RFC, the ALJ relied most heavily on the opinion of

examining consultant Dr. Sheridan, giving his opinion “significant weight.” Plaintiff

objects to the use of Dr. Sheridan’s examination report on the grounds that the exam

was conducted two years prior to the date of the hearing, without review of relevant

medical records. For the same reasons, Plaintiff objected to Dr. Sheridan’s report being

admitted into evidence at the evidentiary hearing or considered at all. The ALJ properly

overruled that objection as more properly considered in the context of the weight to be

given to the report, and not to its admissibility. The ALJ’s ruling in this respect was not

error.



Whether the ALJ adequately considered the medical evidence (both prior to and

after Dr. Sheridan’s September 22, 2008 report) requires some additional discussion.

Plaintiff asserts that Dr. Sheridan failed to consider a June 30, 2007 MRI of Plaintiff’s

spine, or the records of treating physicians such as Drs. Atluri, Goldfarb, and Simons.

Plaintiff further complains that Dr. Sheridan did not perform or review any objective

studies or tests. The latter contention is refuted by Dr. Sheridan’s report, which reflects

a complete consultative exam, including the performance of manual motor testing,

range of motion tests, and numerous additional “objective” measurements and tests.

(See Tr. 268-278). With few exceptions, Dr. Sheridan’s exhaustive examination

revealed only “normal” objective findings.



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While it is less clear that Dr. Sheridan reviewed Plaintiff’s medical records,

including the June 2007 MRI that predated his report, there is no question those records

were reviewed by other consulting physicians and the ALJ. Consulting physician

William Bolz, M.D. completed a full records review and assessed Plaintiff’s RFC on

October 8, 2008. (Tr. 279-86). His assessment was generally consistent with the RFC

found by the ALJ. On July 20, 2009, a second consulting physician, Gerald Klyop,

M.D., reviewed updated medical records and affirmed the RFC for light work that had

been assessed by Dr. Bolz. (Tr. 386). Plaintiff points to no relevant records that were

not reviewed by these consultants. Although the ALJ stated that he was giving Dr.

Bolz’s opinion only “some” weight to the extent that the ALJ believed that an additional

handling restriction was warranted, the ALJ noted that the assessment of Dr. Bolz (and

by inference, Dr. Klyop) was “generally consistent with the medical record as a whole.”

(Tr. 22). The ALJ also specifically discussed the results of the Plaintiff’s MRI and EMG

studies in the context of formulating Plaintiff’s RFC. (Tr. 18-19).





b. General Review of Clinical Records of Treating Sources



Plaintiff complains that the ALJ failed to discuss the records of Drs. Prewitt,

Goldfarb, Simons and Atluri. She additionally complains that the ALJ failed to discuss

records from Drs. Lee-Robinson and Thieman, or of the Goshen Family Practice.

However, Plaintiff also acknowledges that the ALJ “previously cited to all of those

records (except those of Dr. Simons) and relied upon them in finding at step two (2) that

plaintiff suffered from a number of ‘severe’ conditions.” (Doc. 5 at 22-23).



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As discussed above, an ALJ must give “controlling weight” to the opinions of

treating physicians, so long as those opinions are “well-supported” and not inconsistent

with other evidence. However, Plaintiff’s assertion that the ALJ erred in failing to give

controlling weight to any of her treating physicians is not persuasive because, with rare

exceptions, Plaintiff fails to identify any specific “opinions” that the ALJ rejected.



For example, Plaintiff asserts that the ALJ erred by affording the opinion of her

chiropractor, Robert Pruitt, “less weight,” but fails to identify the manner in which the

ALJ allegedly erred. (Doc. 5 at 23). Only a physician or a psychologist can be

considered to be a “treating physician” whose opinion would be entitled to controlling

weight. Plaintiff’s argument as to her chiropractor is so cursory as to be unreviewable.3

Nevertheless, many of the chiropractor’s records actually support the Commissioner’s

determination that Plaintiff is not disabled. (See, e.g., Tr. 290, Dr. Prewitt’s notation of

“continued mild improvement,” with therapy recommended “at a reduced frequency as

she continues to make improvement”).



Plaintiff next complains that the ALJ failed to adequately consider the records of

Steven Goldfarb, M.D., an orthopedist with whom she treated for four months beginning

on April 24, 2007. Dr. Goldfarb rendered no opinions concerning Plaintiff’s functional

limitations, and his treatment records preceded the date of Dr. Sheridan’s examination

and Dr. Bolz’s records review. Dr. Goldfarb’s clinical records also appear to be

consistent with the findings of Dr. Sheridan and/or of the ALJ. (See Tr. 249, noting


3No obvious error is evident from the ALJ’s analysis of Dr. Prewitt’s opinion, which cites to the relevant
records and explains that his opinion is not supported by medical evidence of record, and that as a
chiropractor, Dr. Prewitt is not considered an acceptable medical source.



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Plaintiff “is neurologically intact on both upper extremities” with “full range of motion of

her cervical spine without any radicular symptoms” ). Therefore, no error is apparent.



The third treating physician upon whose records Plaintiff relies is a pain

specialist, Mitchell Simons, M.D. of Greater Cincinnati Pain Management Centers.

According to Plaintiff, she treated with Dr. Simons for approximately 10 months,

beginning in April 2007. (See generally, Tr. 251-267). Again, however, Plaintiff fails to

point to any specific opinions rendered by Dr. Simons that the ALJ rejected. Plaintiff’s

treatment with Dr. Simons also preceded the consulting physicians’ records review.

The ALJ need not cite to every single medical record, when it is clear that all relevant

records have been considered. In addition, the most recent records from Dr. Simons

confirm her continuing improvement. (See Tr. 252, noting “shoulder is feeling a lot

better,” that “[s]he is definitely moving forward,” and that “[w]e want to keep the progress

going”). Therefore, no error is apparent.



Last, Plaintiff treated with Samuel Atluri, M.D., beginning June 30, 2008 for a

period of approximately fourteen months. Dr. Atluri noted Plaintiff’s complaints of pain

ranging from 4 to 6 out of 10 on the pain scale from neck pain with cervical disc

displacement and neck pain with sprain. On examination in March 2009, he noted

decreased muscle strength in Plaintiff’s upper right arm, and on April 2009, he noted

additional complaints of tingling, numbness, and weakness in her hands. On July 14,

2009, he indicated her pain was worse after activity, and referred Plaintiff for an

additional MRI and consultation with Dr. Kramer.4 Consistent with other practitioners,


4Dr. Atluri’s clinical notes merely reflects “some changes noted” concerning the July 2009 MRI. What
those changes might have been is not evident from the administrative record. (Tr. 388).



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his most recent note, from August 2009, reports that Plaintiff’s arm weakness has

improved, that her medications are helping her pain and helping her to be more

“functional,” and that she is in no apparent distress and not in severe pain. The same

record finds normal motor strength in all extremities, and that Plaintiff has a normal gait.

(Tr. 388). Dr. Atluri also offers no specific opinions concerning Plaintiff’s functional

limitations. Therefore, the undersigned finds no error.



Plaintiff’s arguments concerning the clinical records of other treating sources are

even more general and less persuasive. While not entirely clear, it appears that Plaintiff

may be alleging that Dr. Lee-Robinson (who conducted an EMG study) opined that

Plaintiff was “disabled.” (Tr. 542). However, Dr. Lee-Robinson’s very cursory

reference is contained in a cover letter to the referring physician, thanking him for the

referral of “a very pleasant disabled lady who tolerated today’s testing without any

difficulties.” (Id.). An opinion on the ultimate issue of disability is not entitled to

controlling weight since that issue is reserved to the Commissioner. See 20 C.F.R.

§404.1527(e). Notably, Dr. Lee-Robinson’s report reflects that Plaintiff’s carpal tunnel

syndrome showed only “minimal progression” since the prior EMG testing in May of

2007. (Tr. 543).







c. The Opinions of Drs. Doriott and Hekler

In addition to general reliance upon the clinical records of various treating

physicians and chiropractors, as to which the undersigned finds no cause for remand,

Plaintiff argues that the ALJ erred by failing to adopt the RFC opinions offered by a

treating physician, Dr. Doriott, and a second treating chiropractor, Dr. Hekler. As



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previously discussed, the RFC opinions more heavily relied upon by the ALJ were

offered by state agency physicians rather than treating sources. Reviewing the ALJ’s

analysis, however, the undersigned finds no reversible error.



On September 2, 2010, Dr. Elizabeth Doriott submitted a Basic Medical Form to

the Department of Jobs and Family Services. In addition to stating Plaintiff’s diagnoses,

Dr. Doriott opined that Plaintiff was capable of lifting ten pounds frequently and twenty

pounds occasionally, that she was restricted in her ability to stand/walk to one to two

hours out of eight, that she could stand/walk without interruption for the same amount of

time, and that her “seeing” was “markedly limited.” (Tr. 459). Dr. Doriott also opined

that Plaintiff was “going blind” and that she suffers from uncontrollable hypertension.

(Tr. 461). Dr. Doriott offered no other limitations such as restrictions on sitting,

reaching, fingering, or handling.



The ALJ afforded Dr. Doriott’s opinions “less weight” because, contrary to Dr.

Doriott’s opinion that Plaintiff would not require any handling/fingering limitations, the

ALJ determined that evidence pertaining to Plaintiff’s carpal tunnel syndrome supported

at least a modest limitation. As pointed out by the Defendant, the ALJ did adopt Dr.

Doriott’s exertional restrictions insofar as he limited her to “light” work, in contrast to Dr.

Sheridan’s opinion that she could lift up to fifty pounds. (Compare Tr. 277).



On

the other hand,

the ALJ

failed

to discuss (or adopt) either

the

standing/walking limitations or the visual limitations offered by Dr. Doriott. An ALJ who

fails to give “controlling weight” to the opinions of a treating physician must provide

“good reasons” for that decision. The Commissioner’s failure to follow its procedural



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rules, such as by providing “good reasons” for the rejection of a treating physician’s

opinion, often will require remand. See Wilson v. Com’r of Soc. Sec., 378 F.3d 541, 547

(6th Cir. 2004). Remand is not required in the instant case, however, because the error

was clearly harmless or de minimis. “[H]armless error may include the instance where a

treating source’s opinion is so patently deficient that the Commissioner could not

possibly credit it.” Blakley, 581 F.3d at 409.



Dr. Doriott’s opinions that Plaintiff is unable to stand/walk for more than two

hours in a day does not appear to be “well supported,” and therefore is not entitled to

controlling weight on that basis alone. Dr. Doriott briefly alludes to “neuropathy” but

Plaintiff’s neurological examination findings were normal. (Tr. 268, 273-75). Plaintiff

herself fails to point to any medical basis for Dr. Doriott’s standing/walking restriction,

which appears to be in conflict with the record as a whole. As best the undersigned can

ascertain, none of Plaintiff’s medical records would support such significant restrictions

in her abilities to stand, walk or sit. Virtually every examination record documents

Plaintiff’s “normal gait” and normal lower extremity findings, with the basis for Plaintiff’s

functional limitations focused on Plaintiff’s neck and shoulder issues and carpal tunnel

syndrome. (See, e.g. Tr. 273, finding that Plaintiff had no standing or walking

restrictions and used no ambulatory aids).



Dr. Doriott’s opinions that Plaintiff’s vision is “markedly limited” and that she is

“going blind” appear to be equally unsupported. Dr. Doriott is not an eye specialist.

From 1999 through 2010, Plaintiff has treated with Lisa Thieman, O.D./Wing Eye Care.

In October 2010, Dr. Thiemann noted that Plaintiff had no diabetic retinopathy (Tr. 496)



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and normal corrected visual acuity of 20/20 in both eyes. (Tr. 496, 501). Although Dr.

Thiemann also noted Plaintiff’s longstanding glaucoma (since 1999), she stated that

Plaintiff was not compliant with her medication regimen for that condition. (Tr. 501-502).

Despite the ALJ’s failureto specifically discuss Dr. Doriott’s opinion concerning Plaintiff’s

vision, he did discuss Dr. Thiemann’s records and (normal) findings. (Tr. 19). Given Dr.

Thiemann’s clinical records, the undersigned finds no error in the ALJ’s failure to adopt

Dr. Doriott’s opinion that Plaintiff’s vision was “markedly” limited.



The only other opinion concerning Plaintiff’s functional limitations was offered by

Michael Hekler, another treating chiropractor. Dr. Hekler also completed a Basic

Medical Form for the Ohio Department of Jobs and Family Services. On that form,

dated August 10, 2010, Dr. Hekler also opined that Plaintiff’s conditions affected her

ability to stand/walk for sustained periods, and limited her to a maximum of 3 hours of

standing/walking, with not more than one to two hours without interruption. Dr. Hekler

additionally opined that Plaintiff could sit for no more than three hours in a work day, for

not more than one hour without interruption, and that her abilities to reach, handle, and

engage in repetitive foot movements were all “markedly” limited. He opined that

Plaintiff’s abilities to push/pull, bend and see all were “moderately” limited. (Tr. 545-

547). Plaintiff argues that the ALJ erred by rejecting Dr. Hekler’s conclusions,

particularly concerning her abilities to push/pull or reach, given that the ALJ found that

she could engage in “frequent” reaching. However, as a chiropractor, Dr. Hekler is not

an acceptable medical source whose opinions are entitled to controlling weight. The

ALJ also explained that the restrictions offered by the chiropractor were not supported



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by objective medical evidence, and included such extreme restrictions that Plaintiff

would be rendered bedridden, which the record as a whole did not support. (Tr. 22).



In sum, the ALJ adequately explained that the basis for his rejection of Dr.

Doriott’s opinion that Plaintiff had no reaching, handling or fingering restrictions at all,

and his reasons for imposing those limitations in formulating Plaintiff’s RFC. The ALJ’s

failure to adopt the most extreme limitations offered by any treating source, Dr. Hekler,

does not provide grounds for remand because those limitations were not well

supported, were not offered by an acceptable medical source, and were inconsistent

with the record as a whole. Similarly, while the ALJ erred in failing to discuss the

portions of Dr. Doriott’s opinion relating to standing/walking and vision limitations, that

error was harmless because that portion of Dr. Doriott’s opinion was patently deficient.





4. Evaluation of Plaintiff’s Credibility

Next, Plaintiff criticizes the ALJ for finding that Plaintiff’s “medically determinable

impairments could reasonably be expected to cause the alleged symptoms,” but then

also simultaneously concluding that Plaintiff’s statements “concerning the intensity,

persistence and limiting effects of these symptoms” were not credible. (Tr. 21). Plaintiff

argues that the ALJ should not have found Plaintiff’s complaints to be “inconsistent” with

the RFC determined by the ALJ without citing any specific exhibit. (Doc. 5 at 26-27).

Plaintiff argues that many of her complaints were supported by medical testing that

corroborated the existence of severe medical impairments.





An ALJ’s credibility assessment must be supported by substantial evidence, but

“an ALJ’s findings based on the credibility of the applicant are to be accorded great



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weight and deference, particularly since an ALJ is charged with the duty of observing a

witness’s demeanor and credibility.” Walters v. Com’r of Soc. Sec., 127 F.3d 525, 531

(6th Cir. 1997). Further, a credibility determination cannot be disturbed “absent a

compelling reason.” Smith v. Halter, 307 F.3d 377, 379 (6th Cir. 2001). Thus, it is

proper for an ALJ to discount the claimant’s testimony where there are contradictions

among the medical records, her testimony, and other evidence. Warner v. Com’r of

Soc. Sec., 375 F.3d at 392.



Plaintiff points to testimony at the hearing that she self-limits her driving to short

distances due to vision issues, including “really bad blind spots in certain positions,” as

well as arm weakness and difficulty in turning her neck. (Tr. 35). Plaintiff goes on to

cite additional testimony concerning her various diagnoses and pain complaints. She

specifically refers to testimony concerning her macular degeneration (involving blind

spots), and that her eyes are also impacted by her diabetes “when my sugar[‘]s up.” (Tr.

43-44). However, Plaintiff’s testimony was contradicted by the records of her treating

eye doctor, who noted Pliantiff’s 20/20 visual acuity and lack of diabetic retinopathy.



Plaintiff additionally points to testimony that she can stand only for an hour at a

time, can walk only about 90 minutes, and can sit for not more than an hour. (Tr. 44-

45). She also testified that she spends most of the day lying on the couch. Plaintiff

argues that all of this testimony was consistent with her medical records and the ALJ’s

determination that she has “severe” impairments. She contends that the ALJ should not

have compared her testimony to the opinions of Dr. Sheridan.



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The testimony to which Plaintiff refers was both acknowledged and discussed by

the ALJ, even though he ultimately found her statements not to be fully credible. (Tr.

20-21). Plaintiff suggests that “for the ALJ to assess the Plaintiff’s credibility against the

ALJ’s [RFC] finding” would be akin to the ALJ substituting his own medical judgment for

that of the treating physician (Doc. 5 at 27). But for an ALJ to determine a plaintiff’s

RFC finding is not “play[ing] doctor” as Plaintiff alleges. Rather, the regulatory

framework requires an ALJ to determine a claimant’s RFC based upon all of the medical

evidence in the record. Nor was it error for the ALJ to confirm that Plaintiff’s medically

determinable impairments could cause some symptoms, but nevertheless to find that

her statements concerning the severity of those symptoms and intensity were not

credible. In fact, similar language is commonly used, almost to the point of boilerplate,

in social security opinions rendered by many administrative law judges. As previously

discussed, there was little (if any) objective medical evidence to support Plaintiff’s

allegations that she was severely limited in her abilities to stand, walk, or sit.



Inextricably tied to Plaintiff’s overall complaints about the ALJ’s assessment of

her credibility is her criticism of his assessment of her pain level. She argues that her

pain alone should have been found to be disabling, based upon her testimony and

medical records demonstrating that her impairments could be expected to produce

some pain. As other Sixth Circuit cases have stated, however, “[s]ubjective complaints

of ‘pain or other symptoms shall not alone be conclusive evidence of disability.’” Buxton

v. Halter, 246 F.3d 762, 773 (6th Cir. 2001)(quoting 42 U.S.C. §423(d)(5)(A)).



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Based upon a review of the record as a whole, the Court finds no error. Many

people experience chronic pain that is less than disabling. See Blacha v. Secretary of

Health and Human Services, 927 F.2d 228, 230-231 (6th Cir. 1990)(affirming ALJ’s

determination that back pain from nerve root compression and herniated disc, coupled

with degenerative changes, was not disabling). Because substantial evidence supports

the functional limitations found by the ALJ, his failure to include any additional

limitations based upon complaints of disabling pain does not constitute reversible error.





5. Alleged Error Regarding the Hypothetical Provided to the VE

Plaintiff contends that the ALJ failed to pose appropriate hypothetical questions

to the VE, because he failed to conclude visual restrictions, postural limitations, or more

severe handling/fingering limitations. The visual restrictions were supported only by Dr.

Doriott’s “markedly limited” vision opinion, and Plaintiff’s testimony that she limits her

driving due to some vision issues. Such a limitation was contradicted by the records of

Plaintiff’s eye doctor. In addition, although the VE testified that the jobs could not be

performed by a blind person, she explained that she could not state whether some

impairment (such as halos or “blind spots”) would preclude the referenced jobs, absent

additional detail concerning the precise level of impairment. (Tr. 68-69). For the

reasons previously stated, substantial evidence supports the ALJ’s decision not to

include a visual limitation in Plaintiff’s RFC.



Similarly, substantial evidence supports the ALJ’s decision not to impose

additional limitations relating to Plaintiff’s carpal tunnel syndrome, or additional postural

limitations suggested by Drs. Hekler and/or Doriott. Although Plaintiff focuses on the



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fact that the VE testified that Plaintiff would be disabled if restricted to both “occasional”

handling and fingering, the VE also testified that if Plaintiff were able to perform

“frequent” handling but only “occasional” fingering, she would still be employable. (Tr.

66-67). For reasons previously discussed, the record provides substantial evidence for

the ALJ’s determination that Plaintiff could perform “frequent” handling and fingering.

With respect to the requested postural limitations, the VE testified that if Plaintiff had

only standing/walking limitations (per Dr. Doriott), she could still perform a significant

number of sedentary jobs, but that if she were further restricted to sitting, meaning that

she could not sit/stand/walk for a total of 8 hours, then all jobs would be eliminated. (Tr.

69). Again, the medical record supports the ALJ’s decision not to include any additional

limitations on standing, walking or sitting. See Stanley v. Sec’y of Health & Human

Servs., 39 F.3d 115, 118 (6th Cir. 1994)(“the ALJ is not obliged to incorporate

unsubstantiated complaints into his hypotheticals.”).





6. Alleged Error Regarding Plaintiff’s Age

Last, Plaintiff briefly argues that the ALJ “failed to consider the affect [sic] of

plaintiff’s age at the time of the hearing and its impact upon her ability to adjust to work.”

This argument is flatly refuted by the ALJ’s written opinion, wherein he specifically

discussed Plaintiff’s age, including the fact that during the time that her application for

benefits was pending, she “changed age category to closely approaching advanced

age.” (Tr. 23).







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III. Conclusion and Recommendation

For the reasons explained herein, IT IS RECOMMENDED THAT the decision of

the Commissioner to deny Plaintiff DIB benefits be AFFIRMED because it is supported

by substantial evidence in the record as a whole, and that this case be CLOSED.



































































/s Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge



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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

BOBBY J. TRACY,










Plaintiff,










v.






COMMISSIONER OF SOCIAL SECURITY,













Defendant.




























Case No. 1:12-cv-588

Dlott, J.
Bowman, M.J.





Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written

NOTICE

objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS of

the filing date of this R&R. That period may be extended further by the Court on timely

motion by either side for an extension of time. All objections shall specify the portion(s)

of the R&R objected to, and shall be accompanied by a memorandum of law in support

of the objections. A party shall respond to an opponent’s objections within FOURTEEN

(14) DAYS after being served with a copy of those objections. Failure to make

objections in accordance with this procedure may forfeit rights on appeal. See Thomas

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



24