Smith v. Commissioner of Social Security

Filing 16

Memorandum Opinion and Order. The Court finds that the decision of the Commissioner is supported by substantial evidence. Accordingly, the Court AFFIRMS the decision of the Commissioner. Signed by Magistrate Judge Kenneth S. McHargh on 2/21/13. (R,N)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

JEFFREY SMITH,
Plaintiff,
v.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

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CASE NO. 1:11-CV-2788

MAGISTRATE JUDGE
KENNETH S. McHARGH

MEMORANDUM OPINION & ORDER

This case is before the Magistrate Judge pursuant to the consent of the parties. (Doc. 13).
The issue before the undersigned is whether the final decision of the Commissioner of Social
Security (the “Commissioner”) denying Jeffrey Smith’s applications for a Period of Disability
and Disability Insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 416(i)
and 423, and Supplemental Security Income benefits under Title XVI of the Social Security Act,
42 U.S.C. §1381 et seq., is supported by substantial evidence and, therefore, conclusive.
For the reasons set forth below, the undersigned AFFIRMS the decision of the
Commissioner.
I. PROCEDURAL HISTORY
On November 16, 2009, Plaintiff Jeffrey Smith (“Smith” or “Plaintiff”) applied for a
Period of Disability and Disability Insurance benefits and Supplemental Security Income
benefits. (Tr. 139-49). Smith alleged he became disabled on March 5, 2004, (Tr. 139, 144), due
to suffering from constant pain, difficulty sitting, standing and bending, and reduced motion in
his left shoulder. (Tr. 169). The Social Security Administration denied Plaintiff’s applications
for benefits initially and upon reconsideration. (Tr. 53-56, 61-74, 77-90). Thereafter, Smith

requested a hearing before an administrative law judge to contest the denial of his applications.
(Tr. 91-92). The administration granted Plaintiff’s request and scheduled a hearing. (Tr. 97102).
On August 26, 2011, Administrative Law Judge Kendra Kleber (the “ALJ”) convened a
hearing in Cleveland, Ohio, to evaluate Plaintiff’s applications. (Tr. 24-52). Plaintiff appeared
with counsel and testified before the ALJ. (Id.). Vocational expert, Deborah Lee, also appeared
and testified at the hearing. (Id.). During the proceeding, Plaintiff moved to amend his disability
onset date to January 26, 2010. (Tr. 28). In doing so, Plaintiff acknowledged that such an
amendment would require him to withdraw his application for Disability Insurance benefits.
(Id.).
On September 9, 2011, the ALJ issued an unfavorable decision finding Smith was not
disabled.

(Tr. 10-19).

The ALJ applied the five-step sequential analysis,1 and concluded

1

The Social Security Administration regulations require an ALJ to follow a five-step sequential
analysis in making a determination as to “disability”. See 20 C.F.R. §§ 404.1520(a), 416.920(a).
The Sixth Circuit has summarized the five steps as follows:
(1)
If a claimant is doing substantial gainful activity – i.e., working for profit – she is
not disabled.
(2)
If a claimant is not doing substantial gainful activity, her impairment must be
severe before she can be found to be disabled.
(3)
If a claimant is not doing substantial gainful activity and is suffering from a
severe impairment that has lasted or is expected to last for a continuous period of at least twelve
months, and her impairment meets or equals a listed impairment, claimant is presumed disabled
without further inquiry.
(4)
If a claimant’s impairment does not prevent her from doing her past relevant
work, she is not disabled.
(5)
Even if a claimant’s impairment does prevent her from doing her past relevant
work, if other work exists in the national economy that accommodates her residual functional
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Plaintiff retained the ability to perform work which existed in significant numbers in the national
economy. (Id.). Following the issuance of the ALJ’s decision, Plaintiff sought review of the
ruling from the Appeals Council. (Tr. 6). However, the council denied Smith’s request, thereby
making the ALJ’s decision the final decision of the Commissioner. (Tr. 1-3). Plaintiff now
seeks judicial review of the Commissioner’s decision pursuant to 42 U.S.C. §§ 405(g) and
1383(c).
II. PERSONAL BACKGROUND INFORMATION & PERTINENT MEDICAL HISTORY
Smith, born on May 7, 1958, was 53 years old on the date of his hearing before the ALJ.
(See Tr. 53). Accordingly, Plaintiff was considered as a person “closely approaching advanced
age” for Social Security purposes. See 20 C.F.R. §§ 404.1563(d), 416.963(d). Plaintiff has a
10th grade education, (Tr. 28, 175), and past experience working as a mixing machine operator,
machine packager, spot welder and car wash attendant. (Tr. 45-47).
Plaintiff’s impairments stem from a workplace injury suffered in September 2001 while
bending and lifting materials. (Tr. 249). X-rays showed Smith suffered from degenerative disc
disease of the lower thoracic and lumbar spine and moderate disc space narrowing at L4-5. (Tr.
245).
Between 2001 and 2008 Plaintiff continued to experience problems with pain.

He

presented to the emergency room in 2005 with complaints of right hip pain and was diagnosed
with right sciatica. (Tr. 262, 265). Smith later presented to the emergency room in 2007 with
complaints of low back pain.

(Tr. 256).

Doctors diagnosed him with exacerbation of a

capacity and vocational factors (age, education, skills, etc.), she is not disabled.
Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990); Heston v. Comm’r of Soc. Sec., 245 F.3d
528, 534 (6th Cir. 2001).
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lumbosacral strain (chronic). (Tr. 259). Finally, in 2008, Smith had x-rays taken of his left
shoulder. (Tr. 300). The x-rays revealed bony spurring on Plaintiff’s humeral head. (Id.).
On January 26, 2010, Plaintiff presented to Dr. Naomi Waldbaum for a consultative
examination. (Tr. 331-37). Smith told Dr. Waldbaum that he experienced severe pain in his
right groin which spread to the middle of his back and at times to his left side. (Tr. 335). During
her physical examination of Plaintiff, Dr. Waldbaum noted Plaintiff’s gait was abnormal as he
had a limp on the right side and walked with his right leg “turned out in external rotation”. (Tr.
336). Smith also used a cane on the right side and put his total body weight on that leg. (Id.). In
addition, Dr. Waldbaum stated that Plaintiff performed all maneuvers with much groaning, and
that some of his movements were exaggerated. (Id.). Dr. Waldbaum also performed straight leg
raising tests on Smith. The exam was normal for his left leg, but he experienced pain at 30
degrees on the right. (Tr. 337). Interestingly, Dr. Waldbaum did not indicate whether Plaintiff’s
muscle testing scores were reliable, but instead commented that Smith “ha[d] some exaggerated
pain responses.” (Tr. 331).
Overall, Dr. Waldbaum found Smith suffered from chronic pain in his right low back
which radiated down to his right hip and leg. (Id.). However, she noted that it did not appear to
her that Smith had undergone an EMG nerve conduction evaluation to establish whether he had
sciatica. (Id.). Nor was she privy to any x-rays or MRIs suggesting whether Smith had any
ongoing pathology.

(Id.).

Aside from this, Dr. Waldbaum found Plaintiff used his cane

inappropriately, as he transferred all his weight to his right side and limped with his right leg.
(Id.). Ultimately, the doctor opined Smith was unable to perform any work which required
sitting, climbing or walking. (Id.). Dr. Waldbaum further noted that Plaintiff had a limited
ability to use his left arm due to his shoulder impairment. (Id.). Lastly, she opined that “[w]ith
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appropriate treatment and reduction in symptomatology, [Smith] should be able to perform some
sedentary, light type work.” (Id.).
On March 23, 2010, state agency physician, Dr. William Bolz, conducted a review of
Smith’s medical record to assess his physical residual functional capacity (“RFC”). (Tr. 339-46).
Dr. Bolz opined Plaintiff was capable of lifting 20 pounds occasionally, 10 pounds frequently,
and standing, walking or sitting for 6 hours each workday. (Tr. 340). But, Dr. Bolz indicated
Plaintiff had a limited ability to perform pushing, pulling, and reaching overhead with his left
arm, and should not perform jobs which required balancing or working around hazards. (Tr.
340-43). However, Dr. Bolz disagreed with Dr. Waldbaum’s recommendation that Plaintiff
refrain from any work which would involve standing, walking or climbing. (Tr. 345). Dr. Bolz
highlighted that Plaintiff used his cane inappropriately during Dr. Waldbaum’s exam and
exaggerated his pain responses during testing. (Id.). He also opined that Smith’s medical record
did not support the restrictions announced by Dr. Waldbaum and concluded that her opinion was
not entitled to great weight. (Id.).
In April 2010, Plaintiff received treatment from Dr. Juan Escandon in response to
complaints of back pain. (Tr. 349-53). Dr. Escandon diagnosed Smith with “[d]egenerative
changes involving the lower lumbar spine” but did not find evidence of compression or
malalignment. (Tr. 352). Plaintiff’s range of motion in his back was normal and Dr. Escandon
encouraged Plaintiff to engage in exercises to improve the strength and flexibility in his back.
(Tr. 350). The doctor also recommended Plaintiff to avoid long periods of sitting or standing,
and advised him to move around and change positions as much as possible to manage his pain.
(Id.).

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Lastly, in June 2011, Plaintiff presented to Dr. Constance Magoulias with complaints of
chronic back pain which radiated down to his left leg. (Tr. 356). Smith displayed a limited
range of motion in his back and was prescribed physical therapy. (Tr. 358-59). Dr. Magoulias
believed he likely suffered from degenerative joint disorder with radiculopathy. (Tr. 359).
Plaintiff was administered an injection of pain medication and given muscle relaxers and
nonsteroidal anti-inflammatory drugs (“NSAIDs”). (Tr. 356, 359). The physician noted she
would consider prescribing Smith Neurontin if his symptoms worsened. (Tr. 359).
III. ALJ’s RULING
At the outset of the decision, the ALJ acknowledged Plaintiff’s request to amend his
disability onset date and to withdraw his application for benefits under Title II. (Tr. 10).
However, the ALJ denied the motion, explaining that she reviewed all the medical records
admitted into evidence at Smith’s hearing, “[i]n order to properly and completely adjudicate the
entire period before [her]”. (Id.).
The ALJ made the following findings of fact and conclusions of law in applying the fivestep sequential evaluation process. At step one, the ALJ found Plaintiff had not engaged in
substantial gainful activity since his original onset date of March 5, 2004. (Tr. 12). At step two,
the ALJ held Plaintiff suffered from two severe impairments: mild degenerative changes of the
lumbar spine and degenerative changes of the left shoulder. (Tr. 12-13). But, at step three, the
ALJ ruled that neither of these impairments, individually or combined, met or equaled one of the
listed impairments set forth in 20 C.F.R Part 404, Subpart P, Appendix 1. (Tr. 13).
Before moving to the next step, the ALJ assessed Plaintiff’s RFC to work. The ALJ ruled
Smith retained the ability to perform a limited range of light work as defined in 20 C.F.R. §§
404.1567(b) and 416.967(b).

(Tr. 14-17).

For instance, the ALJ limited Plaintiff to only
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frequent pushing, pulling or overhead reaching with his left arm, and precluded Plaintiff from
any work involving climbing ladders or scaffolds. (Tr. 14). In light of Plaintiff’s RFC, the ALJ
held Plaintiff could return to his past work as a car wash attendant. (Tr. 18). Accordingly, the
ALJ found Plaintiff was not entitled to benefits.
IV. DISABILITY STANDARD
A claimant is entitled to receive Disability Insurance and/or Supplemental Security
Income benefits only when he establishes disability within the meaning of the Social Security
Act. See 42 U.S.C. §§ 423, 1381. A claimant is considered disabled when he cannot perform
“substantial gainful employment by reason of any medically determinable physical or mental
impairment that can be expected to result in death or that has lasted or can be expected to last for
a continuous period of not less than twelve (12) months.” See 20 C.F.R. §§ 404.1505, 416.905.
V. STANDARD OF REVIEW
Judicial review of the Commissioner’s benefits decision is limited to a determination of
whether, based on the record as a whole, the Commissioner’s decision is supported by substantial
evidence, and whether, in making that decision, the Commissioner employed the proper legal
standards. See Cunningham v. Apfel, 12 F. App’x 361, 362 (6th Cir. 2001); Garner v. Heckler,
745 F.2d 383, 387 (6th Cir. 1984); Richardson v. Perales, 402 U.S. 389, 401 (1971).
“Substantial evidence” has been defined as more than a scintilla of evidence but less than a
preponderance of the evidence. See Kirk v. Sec’y of Health & Human Servs., 667 F.2d 524, 535
(6th Cir. 1981). Thus, if the record evidence is of such a nature that a reasonable mind might
accept it as adequate support for the Commissioner’s final benefits determination, then that
determination must be affirmed. Id. The Commissioner’s determination must stand if supported
by substantial evidence, regardless of whether this Court would resolve the issues of fact in
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dispute differently or substantial evidence also supports the opposite conclusion. See Mullen v.
Bowen, 800 F.2d 535, 545 (6th Cir. 1986); Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir.
1983). This Court may not try the case de novo, resolve conflicts in the evidence, or decide
questions of credibility. See Garner, 745 F.2d at 387. However, it may examine all the evidence
in the record in making its decision, regardless of whether such evidence was cited in the
Commissioner’s final decision. See Walker v. Sec’y of Health & Human Servs., 884 F.2d 241,
245 (6th Cir. 1989).
VI. ANALYSIS
Plaintiff asserts two objections to the ALJ’s decision. First, Plaintiff claims the ALJ did
not properly evaluate his allegations of disabling pain. Second, Smith maintains substantial
evidence does not support the ALJ’s decision to assign little weight to opinion of Dr. Naomi
Waldbaum. Neither of these objections warrants reversal of the ALJ’s decision or remand.
1. Disabling Pain
The Social Security regulations recognize that a claimant’s disability can be caused by
the symptoms resulting from a claimant’s impairments, rather than from the impairment itself.
20 C.F.R. §§ 416.929, 404.1529. However, statements made by the claimant regarding his pain
will not alone establish an entitlement to benefits. 20 C.F.R. §§ 404.1529(a), 416.929(a).
Instead, the Sixth Circuit has prescribed a two-pronged test to evaluate a claimant’s subjective
complaints of disabling pain:
First, we examine whether there is objective medical evidence of an underlying
medical condition. If there is, we then examine: (1) whether objective medical
evidence confirms the severity of the alleged pain arising from the condition; or
(2) whether the objectively established medical condition is of such a severity that
it can reasonably be expected to produce the alleged disabling pain.
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997).
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Even if the ALJ concludes that the claimant’s impairment could reasonably be expected
to produce the alleged pain, the ALJ must still evaluate the intensity, persistence and limiting
effects of the claimant’s symptoms to determine the extent to which they limit the claimant. 20
C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). In evaluating the claimant’s pain, the ALJ should
consider the individual’s daily activities, the location, duration, frequency and intensity of the
symptoms, precipitating and aggravating factors, the type dosage, effectiveness, and side effects
of any medication taken to alleviate the symptoms, other treatment taken, and any other
measures used to relieve the claimant’s symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3).
“In so doing, the Commissioner has the power and discretion to weigh all of the evidence and to
resolve the significant conflicts in the administrative record.” Walters, 127 F.3d at 531.
Because the ALJ has the opportunity to observe the demeanor and disposition of
witnesses during the hearing process, the ALJ is best equipped to evaluate the credibility of
witnesses.

Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 247-48 (6th Cir. 2007).

It is

appropriate for the ALJ to discount credibility where the ALJ finds discrepancies between the
medical reports, claimant’s testimony and other evidence of record. Walters, 127 F.3d at 531.
When an ALJ decides to discredit a claimant’s credibility, the ALJ’s decision “must contain
specific reasons for the finding on credibility, supported by the evidence in the case record, and
must be sufficiently specific to make clear to the individual and to any subsequent reviewers the
weight the adjudicator gave to the individual’s statements and the reasons for that weight.” SSR
96-7p; Cunningham v. Astrue, 360 F. App’x 606, 613 (6th Cir. 2010).
In the instant case, the ALJ properly evaluated Smith’s claims of disabling pain pursuant
to the two-step process announced by the Sixth Circuit. At the first prong of the analysis, the
ALJ found there was sufficient objective evidence of an underlying condition. Plaintiff agrees
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with the ALJ’s determination at this step. The ALJ also held that Smith’s condition could
reasonably be expected to cause his alleged pain. But, the ALJ found Smith’s statements
regarding the intensity, persistence and limiting effects of his pain were not credible. Smith
challenges this aspect of the ALJ’s ruling.
To begin, Smith maintains that because he amended his disability onset date to January
26, 2010, the ALJ erred by relying on medical evidence, or the lack thereof, prior to this time to
discredit his allegations of pain after this date. Smith concedes that the medical evidence of
record existing prior to January 26, 2010 does not support a finding of disability, but submits that
the record post January 2010 supports his request for benefits.
On the other hand, the Commissioner contends that amending the onset date did not
prevent the ALJ from considering evidence in the record prior to January 26, 2010. Rather, the
Commissioner points to a number of regulations which acknowledge an adjudicator’s duty to
consider all the evidence within a claimant’s record.

See 20 C.F.R. §§ 404.1520(a)(3),

416.920(a)(3); 404.953(a), 416.1453(a); and 404.946(a), 416.1446(a). However, the undersigned
is not fully convinced that an ALJ’s responsibility to review the entire record necessarily
legitimizes the ALJ’s reliance upon what may be dated information to discredit the veracity of a
claimant’s statements years later.
Nevertheless, it is not necessary for the Court to resolve that issue today as the ALJ
supplied adequate reasons, stemming from evidence in the record after January 2010, for
discounting Smith’s allegations of pain after this date. For example, the ALJ noted that there
was a gap in Smith’s treatment from 2008 through June 2011. Thus, Plaintiff failed to receive
any treatment for his alleged disabling pain for over a year after his amended onset date.

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The ALJ also noted that there was inconsistency in the record regarding the side of
Smith’s body in which he experienced pain. From a historical perspective, the ALJ noted that
since 2001, Smith had consistently complained of pain in his back which spread to his right hip
and leg. (See Tr. 16). Notably, Plaintiff also chiefly complained of problems with pain in right
hip and leg during his consultative examination with Dr. Waldbaum on January 28, 2010 – his
amended onset date. (Tr. 335-37). Dr. Waldbaum indicated that Smith used a cane in his right
hand and put his entire body weight on that side. Yet, when Smith presented to his doctor in
June 2011, his chief complaint was lower back pain with radicular pain in his left leg. (Tr. 356).
Plaintiff made this same allegation at the hearing, during which he testified that he used the cane
in his left hand to relieve the pain on that side of his body. (Tr. 35-36). Therefore, Plaintiff gave
his doctors conflicting reports regarding both which side of his body he experienced pain and
which hand he used to walk with a cane. Accordingly, this was a valid basis for the ALJ to
discount the credibility of Smith’s allegations of pain.
It was also appropriate for the ALJ to rely upon Smith’s non-compliance with treatment
in discounting his allegations. While the ALJ identified instances of non-compliance in the
record prior to January 2010, the ALJ also highlighted there were no documents in the record
showing that Plaintiff had attended physical therapy sessions which were prescribed for him on
June 23, 2011. Plaintiff contends the ALJ should not have used this lack of evidence against him
because he claims that at the time of the hearing he had begun to attend physical therapy, but
simply was unable to obtain records documenting such by the time of the proceeding.
Ultimately, “[t]he burden of providing a complete medical record rests with the
claimant.” Weeks v. Shalala, No. 94-5948, 1995 WL 521156, at *2 (6th Cir. Sept. 1, 1995)
(Table). Furthermore, it is reasonable for an ALJ to presume that a claimant who is represented
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by counsel has presented his best case for entitlement to benefits. Delgado v. Comm’r of Soc.
Sec., 30 F. App’x 542, 549 (6th Cir. 2002) (citing Sears v. Bowen., 840 F.2d 394, 402 (7th Cir.
1988)). Thus, Smith bore the burden of providing the ALJ with a complete record, and it was
fair for the ALJ to presume that he had done so given his representation by counsel. Although
Plaintiff testified that he had begun treatment, it was reasonable for the ALJ to question the
veracity of Plaintiff’s statement given the lack of any records confirming Plaintiff’s allegations.
Although the ALJ provided several adequate reasons for discrediting the severity of
Smith’s pain, the undersigned agrees that the ALJ probably exceeded her duties when she ruled
that Smith’s inability to sleep at night was a direct result of him taking a nap in the evening. An
ALJ does not inherently possess medical expertise and may not substitute her judgment for that
of a medical professional.

Meece v. Barnhart, 192 F. App’x 456, 465 (6th Cir. 2006).

Consequently, the ALJ should not have discredited Plaintiff’s difficulty sleeping at night on this
basis. Nevertheless, the error is harmless because the remaining reasons asserted by the ALJ for
discrediting Plaintiff are sufficient to justify the ALJ’s ruling.
2. Medical Opinion Evidence
Federal regulations establish the hierarchy of medical opinion evidence. At the top of the
hierarchy are opinions provided by the claimant’s treating source. See Wilson v. Comm’r of Soc.
Sec., 378 F.3d 541, 544 (6th Cir. 2004); see also 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
Opinions from these sources are entitled to controlling weight so long as the opinion is wellsupported by acceptable medical evidence and not inconsistent with the other substantial
evidence of record. Wilson, 378 F.3d at 544. Next in the hierarchy are opinions issued by
examining physicians. 20 C.F.R. §§ 404.1527(c), 416.927(c). Yet, opinions from medical
professionals who have only examined the claimant on one occasion are not automatically
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entitled to any special degree of deference. Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994).
Finally, the adjudicator must consider the findings of non-examining physicians. 20 C.F.R. §§
404.1527(e), 416.927(e). Generally, more weight is given to the opinions of examining medical
sources than to non-examining medical sources. 20 C.F.R. §§ 404.1527(c)(1), 416.927(c)(1).
However, the regulations recognize that opinions from non-examining state agency consultants,
may be entitled to significant weight, as these individuals are “highly qualified” and are “experts
in Social Security disability evaluation.” 20 C.F.R. §§ 404.1527(e)(2)(i), 416.927(e)(2)(i); see
Barker 40 F.3d at 794.
Smith’s final assignment of error challenges the ALJ’s decision to assign “little weight”
to the opinion of Dr. Waldbaum, the consultative examiner who personally evaluated Smith.
Plaintiff contends that instead of accepting Dr. Waldbaum’s opinions, the ALJ improperly
attributed greater weight to the opinions of the state agency examiner who merely conducted a
review of Plaintiff’s medical records. Plaintiff claims the ALJ’s actions were in violation of the
governing regulations, and notes that had the ALJ fully credited Dr. Waldbaum’s assessment, the
Medical-Vocational guidelines would have directed a finding of disability.
This objection is not well-taken. The ALJ’s evaluation of the medical opinion evidence
is supported by substantial evidence. The ALJ gave “little weight” to Dr. Waldbaum’s opinion
explaining that her report was internally inconsistent. The ALJ noted that ironically after Dr.
Waldbaum observed Smith had exaggerated pain responses, the physician nonetheless severely
restricted Smith’s ability to perform work activities.
The record supports the ALJ’s assessment of the doctor’s conclusions. State agency
physician, Dr. Bolz, also questioned the limitations Dr. Waldbaum placed on Smith (i.e.
precluding all work which would require standing, walking or climbing). Dr. Bolz opined that
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neither Dr. Waldbaum’s examination of Plaintiff, nor the evidence of record supported these
restrictions. Accordingly, he opined that Dr. Waldbaum’s opinion was not entitled to great
weight.
In addition, contrary to Plaintiff’s suggestion, the two physical examinations he
underwent following Dr. Waldbaum’s evaluation do not corroborate Dr. Waldbaum’s
conclusions regarding his physical abilities.

In April 2010, Smith presented to Dr. Juan

Escandon. The doctor examined Plaintiff and noted degenerative changes in his lower lumbar
spine. However, he did not completely preclude Smith from work which required sitting,
climbing or walking as indicated by Dr. Waldbaum. Instead, Dr. Escandon noted that Smith
should avoid “long periods of sitting or standing” and should “move around and change [his]
position of weight-bearing as much as possible.” (Tr. 350) (emphasis added). Obviously, there
is a clear difference between a total inability to perform a task – Dr. Waldbaum’s perspective,
and an acknowledgment of one’s ability to perform a task within certain boundaries – Dr.
Escandon’s perspective.
Nor did Plaintiff’s next physical examination demonstrate that he could not perform any
work involving standing, climbing or walking. In June 2011, Smith presented to Dr. Constance
Magoulias complaining of chronic back pain. While the doctor acknowledged that Plaintiff had
a restricted range of motion and tested positive on straight leg raising on the left side, Plaintiff
has not shown where the doctor restricted his ability to walk, stand or climb to the extent
announced by Dr. Waldbaum. Rather, Dr. Magoulias advised Smith to participate in physical
therapy and prescribed him pain injections and medication.
Although Plaintiff disagrees with the ALJ’s decision to limit the weight given to Dr.
Waldbaum’s opinion, the decision has support in the record. As mentioned above, because Dr.
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Waldbaum only examined Plaintiff one time, her opinion was not entitled to any special
deference. Nor was the ALJ compelled to provide “good reasons” for his decision to assign less
than controlling weight to the doctor’s findings as such a requirement only applies to the
consideration of opinions offered from treating sources. Thus, the statement provided by the
ALJ – finding Dr. Waldbaum’s opinion internally inconsistent—adequately explained why her
conclusions were not deserving of additional weight. On the other hand, it was proper for the
ALJ to attribute “some weight” to Dr. Bolz’s findings. Dr. Bolz is a state agency reviewer and is
considered to be an expert in disability evaluation. He had access to Plaintiff’s entire medical
record including Dr. Waldbaum’s evaluation and possessed the skill to assess whether the
physician’s opinions were consistent with the record.
Finally, Plaintiff points to various objective findings made by Dr. Waldbaum and other
physicians in the record which Plaintiff claims the ALJ overlooked, but the ALJ was under no
obligation to mention every piece of evidence presented to her in order to demonstrate that such
evidence was considered. Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 496, 508 (6th Cir.
2006) (quoting Loral Defense Systems-Akron v. N.L.R.B., 200 F.3d 436, 453 (6th Cir. 1999)).
Despite whatever commonality exists between their objective findings, no other physician
recommended restrictions on Smith’s work activity as severe as Dr. Waldbaum. Thus, the
similarities of the doctors’ findings are of little significance, and are insufficient to reverse the
ALJ’s ruling.

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VII. DECISION
For the foregoing reasons, the Magistrate Judge finds that the decision of the
Commissioner is supported by substantial evidence. Accordingly, the Court AFFIRMS the
decision of the Commissioner.
IT IS SO ORDERED.
s/ Kenneth S. McHargh
Kenneth S. McHargh
United States Magistrate Judge
Date: February 21, 2013.

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