Thompson v. Commissioner of Social Security Administration

Filing 21

Memorandum Opinion and Order: The Court AFFIRMS the Commissioner's decision. Magistrate Judge Kathleen B. Burke on 6/30/2014. (D,I)

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

DOUGLAS THOMPSON,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant.

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CASE NO. 5:13-cv-00917
MAGISTRATE JUDGE
KATHLEEN B. BURKE

MEMORANDUM OPINION & ORDER

Plaintiff Douglas Thompson (“Plaintiff” or “Thompson”) seeks judicial review of the
final decision of Defendant Commissioner of Social Security (“Defendant” or “Commissioner”)
denying his application for social security disability benefits. Doc. 1. This Court has jurisdiction
pursuant to 42 U.S.C. § 405(g). This case is before the undersigned Magistrate Judge pursuant to
the consent of the parties. Doc. 14. For the reasons set forth below, the Court AFFIRMS the
Commissioner’s decision.
I. Procedural History
Thompson protectively filed applications for Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”) on January 28, 2009. 1 Tr. 113-116, 162-168, 169-171,
222. He alleged a disability onset date of July 1, 2008 (Tr. 162, 169, 222), and claimed disability
based on deteriorating disc disease (Tr. 117, 124, 226). After initial denial by the state agency
(Tr. 113-114, 117-123), and denial upon reconsideration (Tr. 115-116, 124-128), Thompson
1

Protective filing is a Social Security term for the first time you contact the Social Security Administration to file a
claim for disability or retirement. Protective filing dates may allow an individual to have an earlier application date
than the actual signed application date. This is important because protective filing often affects the entitlement date
for disability and retirement beneficiaries along with their dependents.
http://www.ssdrc.com/disabilityquestionsmain20.html.

1

requested a hearing (Tr. 109-112). On July 26, 2011, Administrative Law Judge Barbara Sheehe
(“ALJ”) conducted an administrative hearing. Tr. 39-65.
In her November 10, 2011, decision, the ALJ determined that Thompson had not been
under a disability from July 1, 2008, the alleged onset date, through the date of the decision. Tr.
20-38. Thompson requested review of the ALJ’s decision by the Appeals Council. Tr. 15-19.
On March 5, 2013, the Appeals Council denied Thompson’s request for review, making the
ALJ’s decision the final decision of the Commissioner. Tr. 1-4.
II. Evidence
A.

Personal, educational and vocational evidence
Thompson was born in 1978. Tr. 44-45, 162, 169, 222. He was 33 years old at the time

of the hearing. Tr. 45. He has never been married. Tr. 343. He has three minor children that
live with their mother. Tr. 343. Thompson lives with his mom. Tr. 51. He worked in the past
as a general laborer and stopped working on July 1, 2008, his alleged onset date. Tr. 226-227.
As a general laborer, Thompson performed various jobs, including loading and unloading trucks,
running machinery, and performing general housekeeping work. Tr. 55-59, 227. He completed
high school and one year of college in 2004. Tr. 45, 230.
B.

Medical evidence 2
1. Treatment history
Beginning as early as 2006 through 2008, 3 Thompson received treatment through the

Family Health Center (“FHC”) in both Ohio and Michigan for reported back pain. Tr. 266-310.
2

Although Thompson alleged disability based on both mental and physical impairments, his arguments pertain to
his alleged physical impairments. Doc. 17. Accordingly, the medical evidence summarized herein relates to
Thompson’s alleged physical impairments.

3

The last FHC treatment note appears to be dated June 24, 2008. Tr. 291-294. During that visit, Thompson
presented with complaints of a sore throat. Tr. 291-294. Prior to that, on June 3, 2008, Thompson was seen for his
back pain. Tr. 280.
2

During a May 9, 2008, 4 visit with Dawn Ackerman, RN, PA-C, at the FHC, Thompson
reported that he was living at a mission and/or at a friend’s house and was unemployed. Tr. 282.
He reported that he was continuing to have low back pain that radiated occasionally down his left
leg but noted that there were days when his back did not bother him as much. Tr. 282. On
examination, Thompson was extremely tender over the SI joint primarily on the left and he had
tenderness to palpation along the lumbar paraspinous musculature. Tr. 282. Straight leg raises
were negative and his strength was 5/5. Tr. 282.

Ms. Ackerman assessed Thompson with

chronic low back pain with sciatica of the left lower extremity. Tr. 282. Thompson noted that
he had smoked marijuana about three weeks prior but was not using any further and intended to
stop completely. Tr. 282. Thompson was “re-signed to [a] narcotics contract” and a urine drug
screen was performed. 5 Tr. 282. Ms. Ackerman prescribed Vicodin and Flexeril. Tr. 282.
On June 3, 2008, Thompson saw Ms. Ackerman for his low back pain and sciatica. Tr.
280. He reported that his mother had passed away. Tr. 280. He indicated that he had been
sleeping better with the Flexeril and was doing really well with the Vicodin. Tr. 280. He
reported, however, that he had run out of Vicodin and his pain had gotten worse over the prior 24
hours. Tr. 280. During the examination, Ms. Ackerman noted that Thompson was standing; he
was very uncomfortable sitting; he was rocking on the balls of his feet to ease his pain. Tr. 280.
Thompson was tender in his lumbar musculature. Tr. 280. Ms. Ackerman assessed chronic low
back pain with sciatica and refilled Thompson’s Vicodin and Flexeril. Tr. 280.

4

A May 9, 2008, FHC Michigan treatment note reflects that Thompson had returned to the area from Ohio where he
had been taking care of his mother who had cancer. Tr. 282. An April 16, 2008, treatment note reflects that
Thompson reported that he had been without pain for a while and was working at a factory. Tr. 295. A
musculoskeletal exam showed “TENDER SPINOUS PROCESSES. Full range of motion. Normal rotations.
STABLE. Normal strength and tone.” Tr. 295.
5

The drug test was positive for marijuana. Tr. 277.

3

On September 10, 2008, Thompson presented to the Wooster Community Hospital
Emergency Department (“WCH ER”) with complaints of back pain. Tr. 316. Thompson
reported that he had been in pain management in Michigan for his back. Tr. 316. He indicated
that the back pain that he was experiencing was similar to his prior back pain. Tr. 316. He
reported that his back pain had gotten worse the day before. Tr. 316. His pain was worse when
standing and he got relief by bending his knees. Tr. 316. He denied numbness, tingling or
weakness in his leg. Tr. 316. On examination, he had no vertebral tenderness to palpation but he
did have moderate tenderness to palpation over his left sciatic notch. Tr. 316. Thompson had a
negative straight leg raise bilaterally; 5/5 dorsiflexion, plantar flexion, extensor halluces longus
bilaterally; 2+ and symmetric patellar and Achilles tendon reflexes bilaterally; and normal
sensation to light touch throughout. Tr. 316. Thompson was given prescriptions for 10 Vicodin,
Flexeril and Naproxen and he was advised to follow up with Dr. Ayman Basali in 2 days. 6 Tr.
316-317.
Three days later, Thompson presented at the WCH ER reporting that he had been doing
ok until that evening. Tr. 314. He stated that he turned the wrong way and began having worse
pain on the left side of his back. Tr. 314. He reported that his entire left leg, back and sides were
numb. Tr. 314. Thompson indicated that he had an appointment scheduled with Dr. Basali in 3
days. Tr. 314. On examination, Thompson had mild diffuse tenderness to palpation over his
lumbar spine and left sciatic notch. Tr. 314. He had a negative straight leg raise bilaterally; 5/5
dorsiflexion, plantar flexion, extensor halluces longus bilaterally; 2+ and symmetric patellar and
Achilles tendon reflexes bilaterally; and decreased sensation to light touch in the lateral left foot.

6

Dr. Basali is a physician with the Pain Management Institute at Wooster Community Hospital. Tr. 421.
4

Tr. 314. The WCH ER doctor noted that an OARRS 7 report showed that Thompson had had 3
prescriptions for narcotic medication in the past year and a number of emergency department
visits during the current month. Tr. 314. Since Thompson had reported that he was scheduled to
see Dr. Basali in 3 days, the emergency room doctor gave Thompson a prescription for 15
Vicodin. Tr. 314.
A month later, however, on October 24, 2008, Thompson presented again to the WCH
ER not having seen Dr. Basali. Tr. 313. Thompson indicated that Dr. Basali would not see him
unless he paid him $130.00, which he did not have. Tr. 313. Thompson stated that he had fallen
down the steps the day before and aggravated his back. Tr. 313. On examination, Thompson
had some tenderness to palpation diffusely over the left lumbar paraspinal musculature; negative
straight leg raises; deep tendon reflexes were +2/4 equal bilaterally at the patella and Achilles;
normal L5 extension; he was able to stand and ambulate without difficulty; and there was no
external evidence of trauma such as bruising. Tr. 313. The emergency room doctor indicated,
“At this point, he stated that in Michigan he was getting Flexeril and Vicodin 7.5 for his pain. I
explained to him that for chronic pain I would not write him for narcotics.” Tr. 313. The
emergency room doctor offered him prescriptions for Ultram, Flexeril and Naprosyn and a
referral to a primary care physician. Tr. 313.
Thompson continued to seek treatment at the WCH ER for complaints of back pain
through May 2009. 8 Tr. 311 (12/10/2008), 331 (1/4/2009), 330 (1/11/2009), 328-329
(2/26/2009), 326-327 (3/9/2009), 325 (4/16/2009). During his January 11, 2009, WCH ER visit,
7

“OARRS” is the Ohio Automatic Rx Reporting System. See Ohio Administrative Code § 4731-11-11(A)(1); see
also Tr. 428 (referring to an OARRS report); Tr. 432 (referring to the Ohio Automatic Reporting System Survey).
8

He also presented to the emergency room for complaints of pain not associated with his back. Tr. 324. For
example, on April 22, 2009, Thompson presented to the WCH ER with complaints of tooth pain and an inability to
see a dentist until the following Monday. Tr. 324.

5

Dr. Wright, the emergency room doctor, assessed Thompson with acute left sciatica and acute
chronic pain syndrome. Tr. 330. He noted that Thompson had been unable to get his pain
medication filled because he did not have insurance or financial resources. Tr. 330. Dr. Wright
suggested that Thompson follow up with doctors at the Startzman Clinic. Tr. 330. During a
March 9, 2009, WCH ER visit for complaints of back pain, Dr. Lofgren, the emergency room
doctor, reminded Thompson that he had been advising him that he had chronic pain and needed
to be seen by a pain management specialist. Tr. 326. Thompson indicated that he had a referral
to Dr. Blankenhorn but he was waiting for his records from Michigan. Tr. 326. Dr. Lofgren
reminded Thompson that Thompson had been saying that for almost a year and advised
Thompson that he would provide him with a prescription for 15 Vicodin but would not treat him
again with narcotics. Tr. 326. Thompson was instructed again to follow up with the Startzman
Clinic. Tr. 326. However, on April 16, 2009, Thompson returned again to the WCH ER stating
he had run out of Vicodin and Flexeril. Tr. 325. On examination, Thompson showed localized
tenderness at L4, L5 with referral pain at the left gluteal region, no radiculopathy; no root pain;
no CVA tenderness; and he was able to ambulate with difficulty. Tr. 325. Dr. Gunduz, the ER
physician, discharged Thompson with a prescription for Vicodin and Flexeril and instructed him
to follow up with a Dr. Jonathan Kase or his family doctor. Tr. 325.
In May 2009, Thompson was in jail on drug and domestic violence charges. Tr. 234,
334-341. As part of the mental health and substance abuse interview, the prison counselor noted
that Thompson “catastrophized about all of his many medical issues.” Tr. 341. He indicated he
would be paralyzed if he moved the wrong way because of a herniated disc and that it was likely
that he would have a heart attack while in jail because of his increased anxiety. Tr. 341.

6

On November 1, 2009, Thompson saw Mark J. Tereletsky, D.O., with complaints of
lower back pain. Tr. 373.

Thompson reported that his lower back pain shoots into his left leg.

Tr. 373. He indicated that he had fallen down the stairs. Tr. 373. Dr. Tereletsky noted that
Thompson had tenderness to palpation over his left SI joint area. Tr. 373. Thompson had good
range of motion. Tr. 373. Dr. Tereletsky prescribed 30 Vicodin and Soma. Tr. 373. Thompson
returned to see Dr. Tereltsky on December 8, 2009, with continued complaints of back pain and
continued pain down his left leg. Tr. 372. Thompson was seeking a refill of medication. Tr.
372. Dr. Tereltsky noted that Thompson had a decreased range of motion in lumbar spine. Tr.
372. Thompson thought he had had an MRI but could not say where it was done. Tr. 372. Dr.
Tereltsky decided to keep Thompson on small amounts of Vidodin for the pain and to continue
with Soma and NSAIDs. 9 Tr. 372.
During 2010, Thompson continued to seek treatment at various emergency rooms
including, Dunlap Community Hospital, Wadsworth-Rittman Hospital, WCH, and Summary
Health System Barberton Hospital, for his low back pain. 10 Tr. 394 (12/30/2010), 395-398, 465466 (12/20/2010), 11 401 (12/13/2010), 428-429 (11/30/10), 12 430-431 (11/2/2010), 432-433

9

A May 24, 2010, physical examination note from Dr. Robert F. Lindsay, D.O., indicates that Thompson had seen
Dr. Tereletsky in the past but had been dismissed. Tr. 387; see also Tr. 404 (6/21/2010 Dunlap Community Hospital
emergency department note).
10

Additionally, Thompson sought emergency room treatment for other issues, including dental pain in January 2010
(Tr. 438) and a rash in December 2010 (Tr. 399).
11

Thompson presented to the ER with complaints of shoulder pain and exacerbation of back pain following a fall.
Tr. 465. On physical examination, Thompson showed “[n]o spinous process tenderness over the cervical,
thoracolumbar or sacral areas. Mild paraspinal discomfort of the L4-L5 area. Straight leg raise negative . . . Good
range of motion of the shoulder, elbow and wrist. 5/5 grip. Nonantalgic.” Tr. 465.

12

Thompson was given a prescription for Percocet, Motrin and Flexeril and advised to follow up with his doctor.
Tr. 428. However, Dr. Louis Horwitz, M.D., the attending physician, noted that he had reviewed Thompson’s
OARRS report and it was concerning. Tr. 428. Dr. Horowitz noted that the OARRS report reflected that, during the
prior year, Thompson had used 5 different addresses and had received 40 different prescriptions for narcotics from
13 different doctors and 6 different pharmacies. Tr. 428.

7

(9/26/2010), 13 434 (9/9/2010), 439-444 (9/7/2010), 403 (8/30/2010), 409-414 (8/8/2010), 14 435
(7/16/2010), 404-405 (6/21/2010), 436-437 (5/6/2010), 438 (1/3/2010).
In 2010, Thompson also received treatment from physicians at the Family Practice Center
(FPC). Tr. 381-390. On May 24, 2010, Thompson saw Dr. Robert F. Lindsay, D.O., of the FPC
for problems with swallowing and vomiting. Tr. 387. During that visit, Thompson reported that
he had an appointment scheduled with Dr. Blankenhorn in July 2010 for pain management. Tr.
387. Dr. Lindsay advised Thompson to keep his appointment with Dr. Blankenhorn because Dr.
Lindsay no longer treated chronic pain with narcotics. Tr. 388. On August 20, 2010, Thompson
saw Dr. Lindsay following his emergency room visit for having fallen off a ladder and having
been advised that he might have fractured a rib. Tr. 385. Thompson indicated that he had not
met with Dr. Blankenhorn because he had a court date. Tr. 385. Thompson requested and
received a new referral for Dr. Blankenhorn. Tr. 385-386. He also received a prescription for
Percocet. Tr. 386.
On September 13, 2010, Thompson also saw pain management specialist Ayman H.
Basali, M.D., regarding his chronic back condition. Tr. 421-427. Thompson informed Dr.
Basali that he had been treated by Dr. Tereletsky who treated him with epidural injections,
Vicodin and anti-inflammatory medication. 15 Tr. 423. Thompson reported that his pain was
getting worse with dull, aching sensation in his lower lumbar region, varying in intensity
between a 3 to 10 out of 10. Tr. 423. He indicated that his pain increased with standing, lifting,
13

Thompson reported chronic back pain and indicated that his pain was worse because his 6-year old daughter
jumped on him, straining his back. Tr. 432. The attending physician, Dr. Lisa Darenek M.D., noted that she did not
feel comfortable writing Thompson any prescriptions for narcotic because he had multiple prescriptions from
multiple emergency rooms for pain. Tr. 432.

14

Thompson reported falling off a 6-foot ladder while retrieving a kitten out of a tree. Tr. 409.

15

Thompson indicated the he had moved out the state and therefore stopped treatment with Dr. Tereletsky. Tr. 423.
Thompson reported that he was under the care of out an of state pain physicians. Tr. 423.

8

walking, bending or doing any other kinds of activity; his activities of daily living had gradually
decreased; and his sleeping pattern was interrupted because of the pain. Tr. 423. Thompson
also indicated that he was unable to do physical therapy because of the pain. Tr. 423. He
reported muscle weakness, muscle pain, and decreased range of motion. Tr. 422. On
examination, Thompson showed limited range of motion with flexion and extension movement
with diffuse paraspinal facet tenderness; straight leg raising was negative; flexion, abduction and
external rotation was negative. Tr. 422. Thompson had no dermatomal or sensory deficits and
no focal motor deficits. Tr. 424. Dr. Basali assessed degenerative disk disease lumbar; facet
syndrome lumbar; and radicular syndrome lower extremity. Tr. 424. He recommended an MRI
of the lumbar spine and prescribed Mobic and Zanaflex but no scheduled medications. Tr. 424.
The September 17, 2010, lumbar spine MRI showed:
L5-S1 annular bulge with midline and right paracentral disk protrusion and
accompanying endplate spondylosis, with impingement on the descending right
S1 nerve root, without compressive intervertebral neural foraminal narrowing.
L4-5 annular bulge, posterior central and right intraforaminal disk protrusions,
endplate spondylosis and right greater than left facet arthrosis, resulting in
compressive bilateral lateral recess encroachment and moderate right
intervertebral neural foraminal narrowing.
L3-4 annular bulge with posterior central disk protrusion and mild endplate
spondylosis, with mild bilateral lateral recess encroachment, without compressive
intervertebral neural foraminal narrowing.
T11-12 posterior right paracentral disk protrusion, imaged in sagittal plane only.
Cosider further assessment with axial imaging through this level of dedicated
thoracic spine MRI, as clinically warranted.
Tr. 406-408, 445-447.
On September 22, 2010, Thompson saw Dr. Deanne E. McCarroll, D.O., of the FPC. Tr.
383. Thompson reported that he had been hit by a car on September 18, 2010, when he was
walking to get mail. Tr. 383. He stated that he was hit on the back of his right knee and hit the
9

hood of the car and rolled. Tr. 383. The car was going 15-20 mph. Tr. 383. He did not file a
police report and he did not go to the emergency room. Tr. 383. He thought he was fine but it
kept hurting and hurting. Tr. 383. Dr. McCarroll noted that Thompson’s story was questionable
because his past medical history showed that he had already been to the emergency room on
three other occasions in September 2010 and had a hard time answering why he did not go after
being hit by a car. Tr. 383. Dr. McCarroll recommended that Thompson continue with ice and
heat on his knee and stretching. Tr. 384. She also recommended that he continue the Mobic that
Dr. Basali had prescribed for him for anti-inflammatory effects. Tr. 384. On September 30,
2010, Thompson returned to the FPC for a check-up following a September 24, 2010, emergency
room visit. Tr. 318-382. He saw Dr. Douglas R. Brown, D.O. Tr. 381-382. Thompson reported
that he was scheduled to see Dr. Basali the following week and also indicated that the Zanflex
that Dr. Basali had prescribed was not working at all and he was having quite a bit of pain in his
back. Tr. 381. On examination, Thompson’s range of motion was decreased. Tr. 381. Dr.
Brown prescribed Percocet but noted that Thompson was told that no more pain medication
would be dispensed. Tr. 382.
Thompson did not see Dr. Basali again but, on November 17, 2010, he saw pain
management specialist Dr. Daniel Lynch, M.D. Tr. 502-504. On examination, Thompson had a
mildly antalgic gait with left limp; his posture was poor with moderate round shoulders and
forward stoop; and his range of motion was significantly reduced with respect to extension,
moderately reduced with flexion and mildly reduced with lateral tilt and rotation. Tr. 502.
Provocative testing was positive for facet arthritis, left Si joint arthropathy while his lower left
extremity was approximately 1.5 cm shorter than his right side. Tr. 502. Neurological testing
was grossly normal in testing nerve roots L1-S2 for any sensory or motor deficits and deep

10

tendon reflexes were normal except at his left knee. Tr. 502. Dr. Lynch advised Thompson that
Dr. Lynch intended to employ minimal narcotic management and explained that all pain
medication were to be written by Dr. Lynch. Tr. 503. Dr. Lynch recommended various
treatment, including medication, steroid injections, and a consultation for physical therapy. Tr.
503.
On December 7, 2010, Thompson received a lumbar epidural injection (Tr. 400) and, on
January 1, 2011, he received a caudal epidural injection (Tr. 393). Following his injections, on
February 2, 2011, Thompson saw Dr. Lynch. Tr. 463-464. Dr. Lynch noted that Thompson
“certainly has reason for having significant lower back pain.” Tr. 464. Dr. Lynch indicated that,
based on Thompson’s MRI from the prior year, Thompson had a herniated nucleus pulposus at
the L3-4, L4-5, and L5-SI levels along with effacement of the L5 and S1 nerve roots. Tr. 464.
Because medication management and injections had given Thompson only temporary relief, he
provided Thompson with the names of orthopedic spine surgeons. Tr. 464. Dr. Lynch also
noted that he explained to Thompson that he would not escalate his opioid medication any
further but that, in the event of flare-ups, an emergency room visit might be his only option. Tr.
464.
Thompson had a second lumbar spine MRI performed on February 17, 2011. Tr. 505507. The MRI showed (1) disc protrusions at L3-4, L4-5 and L5-S1 with degenerative disc
disease and disc dehydration; (2) no foraminal stenosis or significant central canal stenosis; and
(3) mild facet arthritis in the lower lumbar spine. Tr. 506. Also, during 2011, Thompson
continued to receive treatment at emergency rooms for his low back pain. 16 Tr. 477-483

16

He also presented to the emergency room for a rash. Tr. 490-495.
11

(1/17/2011), 17 469-475 (1/19/2011), 456-462 (2/23/2011), 18 449-455 (3/9/2011), 19 497-501
(5/8/2011), 20 484-485 (5/17/2011).
On July 20, 2011, Glenn D. Blankenhorn, D.O., saw Thompson for a consultation with
respect to Thompson’s complaints of low back pain. Tr. 510-11. Thompson reported having had
low back pain for six years. 21 Tr. 510. He described his pain as being constant with stabbing,
stinging, pins and needles in his lower extremities that was exacerbated by activity and lessened
by pain medication. Tr. 510. Thompson reported having had multiple evaluations along with an
MRI and being diagnosed with multilevel disc disease with herniations and stenosis. Tr. 510.
An orthopedic consult had occurred but surgery was not recommended. Tr. 510. Thompson had
been referred to pain management and started on Vicodin. Tr. 510. He underwent physical
therapy trials and epidural injections with poor relief. Tr. 510. Thompson had also tried
neuroactive medications and NSAIDS. Tr. 510. He had not been given a trial of TENS or
educated in guided imaging. Tr. 510.
Dr. Blankenhorn indicated that, on physical examination, Thompson “does have
paraspinal muscle facilitation and some segmental restrictions. 2+ biceps, triceps, brachioradialis
deep tendon reflexes and 1+ patella, and 1+ Achilles bilaterally. Negative SLR, Lasegue, and
bowstring. No lower extremity muscular atrophy or fasciculations. He has normal appearing
17

Thompson presented to the emergency room indicating that his pain was so bad that he passed out. Tr. 477.

18

Thompson complained of worsening back pain. Tr. 456. He had been moving a heavy object. Tr. 460. The
emergency room physician spoke with Dr. Lynch who advised that Thompson had a “surgical back” and did not feel
that increasing pain medication would help. Tr. 456.
19

Thompson reported that he had slipped, making his back pain worse. Tr. 449.

20

Thompson reported that Dr. Lynch had advised him that Dr. Lynch was unable to help him anymore and that
Thompson would have to go to the emergency room for pain medicine until he was able to find another doctor. Tr.
499.
21

He could not identify a specific event that caused his low back pain but noted that he had been in a motor vehicle
accidence in 1997; was a mixed martial art fighter; and performed heavy factory work until 2007. Tr. 510.

12

gait and localizes well to light touch.” Tr. 510. Dr. Blankenhorn noted that he had reviewed the
multiple reports of imaging and Thompson did have “multiple level disc disease with a disc
protrusion and end-plate spondylosis at L5-S1 with S1 root impingement.” Tr. 510.
Dr. Blankenhorn opined that Thompson had: (1) chronic pain syndrome; (2) degenerative
joint and disc disease; (3) lumbar disc herniation; and (4) possible radiculopathy. Tr. 510. Dr.
Blankenhorn’s plan included putting Thompson on a pain contract and continuing with his pain
medications and doing an OARRS review the day prior to prescribing. Tr. 510-511. He also
recommended trials of TENS, lumbar traction, and a possible follow up with electrodiagnostic
evaluation and education in guided imaging. Tr. 511. Dr. Blankenhorn stated that Thompson
should be seen again in two weeks. Tr. 511.
2. Opinion evidence
a. Treating physician
After seeing Thompson for a consultation on July 20, 2011, Glenn D. Blankenhorn, D.O.,
on August 3, 2011, completed a Medical Source Statement regarding Thompson’s ability to
perform certain physical activities. Tr. 508-509. Dr. Blankenhorn opined that Thompson was
(1) limited to lifting/carrying up to 10 pounds occasionally and up to 2 pounds frequently; (2)
limited to standing/walking a total of 30 minutes during an 8-hour workday and for 15 minutes
without interruption; (3) limited to sitting for a total of 1 hour during an 8-hour workday and for
1 hour without interruption; (4) rarely or never able to climb, balance, stoop, crouch, kneel or
crawl; (5) rarely or never able to push/pull; occasionally able to reach; and frequently able to
handle, feel, and perform fine or gross manipulation; and (6) unable to be exposed to heights and
temperature extremes. Tr. 508-509. Dr. Blankenhorn further opined that, in addition to a
morning, lunch and afternoon break, Thompson would require additional breaks and Thompson

13

would need an at-will sit/stand option. Tr. 509. Dr. Blankenhorn indicated that Thompson had
been prescribed a brace and TENS unit and he described Thompson’s pain as severe. Tr. 509.
b. Consultative examining physician
On March 13, 2009, Perry Williams, M.D., completed a Basic Medical form, including
exam findings and a “physical functional capacity assessment.” 22 Tr. 375-376. Dr. Williams
noted that Thompson’s extremities were within normal limits; his spine was tender at the lumbar
sacral spine, with decreased range of motion; and his joints were intact. Tr. 376. Dr. Williams
indicated that Thompson had degenerative disc disease of the lumbar spine. Tr. 376. He stated
that Thompson’s health status was “poor but stable.” Tr. 376. Dr. Williams ordered x-rays of
Thompson’s lumbar spine. Tr. 374. Those x-rays showed:
[N]ormal alignment of the lumbar vertebrae with mild loss of disk space at L4-L5.
Note that there is a shallow AP diameter of the lumbar canal from L4 through S1
which may represent a degree of lumbar canal stenosis, a finding which could be
evaluated with CT or MRI. Bone mineralization is normal. There is no fracture
of listhesis.
Tr. 374. The impression was: “Degenerative disk disease at L4-L5. Shallow AP diameter of the
lower lumbar canal.”
In the “functional capacity assessment,” Dr. Williams opined that Thompson was (1)
limited to stand/walking for a total of 2-4 hours in an 8-hour workday and for 1-2 hours without
interruption; (2) limited to sitting for a total of 3-6 hours in an 8-hour workday and for 1-2 hours
without interruption; (3) limited to lifting/carrying up to 20 pounds frequently and 25 pounds
occasionally; and (4) markedly limited in his ability to push/pull and bend. Tr. 375. Dr.
Williams indicated that Thompson’s limitations were the result of the noted conditions. Tr. 375.

22

The form completed by Dr. Williams is an Ohio Department of Job and Family Services form. Tr. 375-376. On
March 4, 2009, Thompson signed an Ohio Department of Job and Family Services form indicating that he agreed to
apply for SSI and he agreed that, if he received SSI, the State would be entitled to receive his SSI benefits in the
amount of reimbursable public assistance that the State had provided. Tr. 182.
14

Dr. Williams checked a box indicating that Thompson was employable, noting with restrictions.
Tr. 375.
c. State agency reviewing physicians
On August 28, 2009, state agency reviewing physician Edmond Gardner, M.D.,
completed a Physical RFC Assessment. Tr. 363-370. Dr. Gardner opined that Thompson could
occasionally lift and/or carry up to 50 pounds; frequently lift and/or carry up to 25 pounds; stand
and/or walk for about 6 hours in an 8-hour workday; sit for about 6 hours in an 8-hour workday;
and push and/or pull, other than as shown for lift and/or carry. Tr. 364. Dr. Gardner opined that
Thompson had no postural, manipulative, visual, communicative, or environmental limitations.
Tr. 365-367. In discussing Thompson’s alleged symptoms, Dr. Garnder stated,
Allegations are partially credible. He alleges he is unable to do any lifting
including a gallon of milk, however he is able to perform basic ADL’s per his
report. There is no evidence of radiculopathy and he is neurologically intact. The
degree of limitations set forth by the clmt are disproportionate to the MER in file.
He is able to walk, stand and move about in a normal manner. If his pain were as
severe as he alleges, one would think he would seek alternative treatment or
surgical intervention.
Tr. 368.
On March 30, 2010, W. Jerry McCloud, M.D., reviewed additional medical evidence,
including medical records from Dr. Tereletsky, and concluded that there was no new medical
evidence that would alter Dr. Gardner’s August 28, 2009, RFC. Tr. 380. Thus, Dr. McCloud
affirmed Dr. Gardner’s August 28, 2009, RFC. Tr. 380.
C.

Testimonial evidence
1.

Thompson’s testimony

Thompson testified and was represented by counsel at the administrative hearing. Tr. 4459. He indicated that he had been unable to work since July 1, 2008, because of constant pain.

15

Tr. 45, 55. He has tried to work but cannot. Tr. 55. He indicated that he would miss too many
days. Tr. 55. He stated, “I can’t even get out of bed.” Tr. 55.
He described his pain as being located on the lower left side and middle of his back, with
really bad shooting pain down into his left leg that causes numbness once or twice each day for
about 30-40 minutes. Tr. 46. He stated that sitting or standing too long makes his back pain
worse. Tr. 46. He can sit for about 25 minutes at a time and he can stand for about 30 minutes at
a time before having to change positions. 23 Tr. 46-47. He occasionally uses a cane when he is
feeling really bad to help prevent a fall. Tr. 54-55. He can walk for about 3 minutes at time. Tr.
47. Also, if he is lying down a certain way and turns to grab something, he will feel a twinge and
then go numb and feel shooting pain. Tr. 47. He indicated that he is not sure that he could lift a
gallon of milk. Tr. 53-54. He stated that his doctor advised him not to lift anything over a
pound. Tr. 54. The most comfortable position for him is lying on his back with his left leg
pulled up towards his body. Tr. 47. He stated that he is in that position for about 7 hours each
day. Tr. 47. He reported that the pain is so bad sometimes that it causes him to go unconscious.
Tr. 45, 47-48.
Thompson indicated that he has tried everything to relieve the pain. Tr. 45, 48.

He has

tried physical therapy, epidural and cortisone injections, different types of pain killers and
muscle relaxers. Tr. 48. However, he stated that nothing seems to totally eliminate the pain. Tr.
48. Shortly before the hearing, he started seeing Dr. Blankenhorn, a new pain management
doctor. Tr. 48-49. He stated that it had taken him a while to get in to see Dr. Blankenhorn
because of scheduling conflicts and insurance issues. Tr. 49. Thompson stated that Dr.
Blankenhorn had switched him from Vicodin 500 to Percocet 750. Tr. 49. Also, Dr.
Blankenhorn added Flexeril to try to alleviate Thompson’s back spasms. Tr. 49. Thompson
23

During the hearing, Thompson asked if he could stand for a moment. Tr. 55.
16

indicated that his medication makes him very tired. Tr. 49. Some nights he is able to sleep
through the night but, on other nights, the pain causes him to wake up after about one to three
hours. Tr. 49. He is tired, groggy and slightly disoriented on days after he has not slept well.
Tr. 49-50. Dr. Blankenhorn was considering whether a TENS machine could help Thompson
with his back spasms. Tr. 50. His doctors had advised him that there really were no other
procedures for his back. Tr. 50. However, he noted that one doctor mentioned that Thompson
could try fusion but that doctor also said that fusion would just put more pressure on the higher
discs and cause them to deteriorate at a faster rate. Tr. 50.
Thompson described a typical day as waking up, taking his medication, lying back down
and watching a movie, getting up, checking on his mom, usually lying back down, trying to
check the mail, and playing chess with a friend if a friend comes over. Tr. 50. He usually
spends most of the day in his room reading books and watching television. Tr. 50-51. He is
unable to help with the laundry but occasionally helps with the dishes if he is able to stand long
enough. Tr. 51. He really does not drive but recently obtained his driver’s license for
emergencies. Tr. 53.
Prior to having problems with his back, he was very athletic. Tr. 51. He enjoyed playing
basketball and was a martial artist. Tr. 51. Thompson acknowledged using drugs and alcohol in
the past but reported that he had not used marijuana for almost two years since he had been in
pain management. Tr. 51-52. He drinks alcohol occasionally. Tr. 52.
2.

Vocational Expert’s testimony

Vocational Expert (“VE”) Lynn Smith testified at the hearing. Tr. 59-64.

The VE

described Thompson’s past work. Tr.60. She indicated that Thompson performed work as a

17

machine operator (a medium, unskilled job); hand packager (a medium, unskilled job), and cable
assembler (a medium, skilled job). Tr. 60.
The ALJ proceeded to ask the VE a series of hypotheticals. Tr. 60-63. For her first
hypothetical, the ALJ asked the VE to assume a person of the same age, education and past
relevant work experience as Thompson who can lift and carry 10 pounds frequently and 20
pounds occasionally; can sit, stand and/or walk for 6 hours in an 8-hour workday; can never
climb ladders, ropes or scaffold; and can occasionally climb stairs and ramps. Tr. 60. The VE
indicated that the described individual would be unable to perform Thompson’s past relevant
work but there would be other jobs available that the individual could perform, including (1)
assembler, a light, unskilled job with 1,500 positions available locally, 10,000 statewide, and
200,000 nationally; (2) ticket seller, a light, unskilled job with 7,000 positions available locally,
140,000 statewide, and 3.4 million nationally; and (3) fast food worker, a light, unskilled job
with 4,000 positions available locally, 100,000 statewide, and 2.2 million nationally. Tr. 61.
For her second hypothetical, the ALJ added that the individual described in the first
hypothetical should also avoid all exposure to workplace hazards such as unprotected heights
and dangerous machinery. Tr. 61. The VE indicated that the same jobs listed for the first
hypothetical would remain available. Tr. 61.
For her third hypothetical, the ALJ asked the VE to assume a person of the same age,
education and past relevant work experience as Thompson who can lift and carry up to 5 pounds
frequently and 10 pounds occasionally; can sit during the course of an 8-hour workday and stand
and/or walk for 2 hours during the course of an 8-hour workday; should never climb ladders,
ropes or scaffolds; and can occasionally climb stairs and ramps. Tr. 61-62. The VE indicated
that, although the described individual would be unable to perform Thompson’s past relevant

18

work, there would be other jobs available that the individual could perform, including (1)
inspector, a sedentary, unskilled job with 1,500 positions available locally, 30,000 statewide, and
670,000 nationally; (2) order clerk, a sedentary, unskilled job with 1,000 positions available
locally, 9,000 statewide, and 260,000 nationally; and (3) assembler, a sedentary, unskilled job
with 1,300 positions available locally, 17,000 statewide, and 300,000 nationally. Tr. 62.
For her fourth hypothetical, the ALJ added that the individual described in the third
hypothetical should also avoid all exposure to workplace hazards such as unprotected heights or
dangerous machinery. Tr. 62. The VE indicated that the same jobs listed for the third
hypothetical would remain available. Tr. 62.
For her fifth hypothetical, the ALJ added that the individual described in the third and
fourth hypotheticals should be allowed a sit/stand option, which would entail the individual
being off task a minute or two while changing positions. Tr. 62-63. The VE indicated that the
described individual would remain able to perform the inspector job and order clerk job. Tr. 63.
In addition, the VE indicated that the individual would be able to perform the job of ticket
checker, a sedentary, unskilled job with 7,000 positions available locally, 70,000 statewide, and
1.8 million nationally. Tr. 63.
For her sixth hypothetical, the ALJ added that, as result of the symptoms that the
individual experiences, the individual described in the third, fourth and fifth hypotheticals would
be off task 20% of the time or more. Tr. 63. The VE indicated that there would be no jobs
available for the described individual. Tr. 63.
For the final hypothetical, the ALJ asked the VE if there would jobs available for the
individual if, instead of being off task 20% of the time, the individual would miss two or more

19

days of work per month. Tr. 63. The VE indicated that there would be no jobs available for the
described individual. Tr. 63.
III. Standard for Disability
Under the Act, 42 U.S.C § 423(a), eligibility for benefit payments depends on the
existence of a disability. “Disability” is defined as the “inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). Furthermore:
[A]n individual shall be determined to be under a disability only if his physical or
mental impairment or impairments are of such severity that he is not only unable
to do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in
the national economy24 . . . .
42 U.S.C. § 423(d)(2)(A).
In making a determination as to disability under this definition, an ALJ is required to
follow a five-step sequential analysis set out in agency regulations. The five steps can be
summarized as follows:
1.

If the claimant is doing substantial gainful activity, he is not disabled.

2.

If claimant is not doing substantial gainful activity, his impairment must
be severe before he can be found to be disabled.

3.

If claimant is not doing substantial gainful activity, is suffering from a
severe impairment that has lasted or is expected to last for a continuous
period of at least twelve months, and his impairment meets or equals a
listed impairment, claimant is presumed disabled without further inquiry.

4.

If the impairment does not meet or equal a listed impairment, the ALJ
must assess the claimant’s residual functional capacity and use it to
determine if claimant’s impairment prevents him from doing past relevant

24

“’[W]ork which exists in the national economy’ means work which exists in significant numbers either in the
region where such individual lives or in several regions of the country.” 42 U.S.C. § 423(d)(2)(A).

20

work. If claimant’s impairment does not prevent him from doing his past
relevant work, he is not disabled.
5.

If claimant is unable to perform past relevant work, he is not disabled if,
based on his vocational factors and residual functional capacity, he is
capable of performing other work that exists in significant numbers in the
national economy.

20 C.F.R. §§ 404.1520, 416.920; 25 see also Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987).
Under this sequential analysis, the claimant has the burden of proof at Steps One through Four.
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997). The burden shifts to the
Commissioner at Step Five to establish whether the claimant has the RFC and vocational factors
to perform work available in the national economy. Id.
IV. The ALJ’s Decision
In her November 10, 2011, decision, the ALJ made the following findings: 26
1.

Thompson meets the insured status requirements through June 30, 2013.
Tr. 25.

2.

Thompson has not engaged in substantial gainful activity since July 1,
2008, the alleged onset date. Tr. 25.

3.

Thompson has the following severe impairments: extensive folliculitis;
obesity; degenerative disc disease, lumbar disc herniation, and low back
syndrome. Tr. 25. Thompson’s medically determinable impairments of
bipolar disorder, rule-out anti-social personality disorder, and alcohol and
cannabis abuse, considered singly or in combination, do not cause more
than minimal limitation in Thompson’s ability to perform basic mental
work activities are and therefore are not severe. Tr. 25-26.

4.

Thompson does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed
impairments. Tr. 26-27.

25

The DIB and SSI regulations cited herein are generally identical. Accordingly, for convenience, further citations
to the DIB and SSI regulations regarding disability determinations will be made to the DIB regulations found at 20
C.F.R. § 404.1501 et seq. The analogous SSI regulations are found at 20 C.F.R. § 416.901 et seq., corresponding to
the last two digits of the DIB cite (i.e., 20 C.F.R. § 404.1520 corresponds to 20 C.F.R. § 416.920).
26

The ALJ’s findings are summarized.
21

5.

Thompson has the RFC to perform sedentary work except that he may
occasionally climb ramps and stairs, but may never climb ladders, ropes
or scaffolds; he must avoid all exposure to workplace hazards, such as
unprotected heights and dangerous moving machinery. Tr. 27-31.

6.

Thompson is unable to perform any past relevant work. Tr. 31.

7.

Thompson was born in 1978 and was 30 years old, which is defined as a
younger individual age 18-44, on the alleged disability onset date. Tr. 32.

8.

Thompson has at least a high school education and is able to
communicate in English. Tr. 32.

9.

Transferability of job skills is not material to the determination of
disability. Tr. 32.

10.

Considering Thompson’s age, education, work experience, and RFC,
there are jobs that exist in significant numbers in the national economy
that Thompson can perform, including inspector, order clerk, and
assembler. Tr. 32-33.

Based on the foregoing, the ALJ determined that Thompson had not been under a
disability from July 1, 2008, through the date of the decision. Tr. 33.
V. Parties’ Arguments
A.

Plaintiff’s arguments
Thompson presents two arguments in support of his request for reversal and remand.

First, he argues that the ALJ’s RFC finding is not supported by substantial evidence because the
ALJ did not properly weigh the opinion evidence and/or explain how her RFC was supported by
the opinion evidence. Doc. 17, pp. 14-17. More particularly, he argues that the ALJ did not
properly weigh the opinion of his treating physician Dr. Blankenhorn who opined that Thompson
had more severe limitations than those included in the ALJ’s RFC. Doc. 17, pp. 14-15
(referencing Tr. 508-509). He also argues that the ALJ’s RFC is not supported by the other
opinion evidence. Doc. 17, pp. 15-16. He argues that, although the ALJ found that the opinion
of the consultative examining physician Dr. Williams was entitled to “little weight” because
22

evidence received after he rendered his opinion justified more restrictive limitations, the ALJ’s
RFC was less restrictive than Dr. Williams’ opinion. 27 Doc. 17, pp. 15-16.
Second, Thompson argues that the ALJ erred in assessing Thompson’s credibility. Doc.
17, pp. 17-21. He argues that the ALJ only discussed statements regarding his daily activities
that diminish Thompson’s credibility and ignored other statements about his daily activities that
would show that he is unable to work. Doc. 17, pp. 18-19. He also argues that the ALJ did not
properly consider his treatment and medication or work history record when assessing his
credibility and incorrectly suggested that Thompson exaggerated his symptoms. Doc. 17, pp. 1920.
B.

Defendant’s arguments
In response, the Commissioner argues that the RFC is supported by substantial evidence

and that the ALJ properly considered and weighed the medical opinion evidence. Doc. 20, pp.
19-23.
The Commissioner also argues that the ALJ’s credibility assessment is supported by
substantial evidence and that, in assessing Thompson’s credibility, the ALJ properly noted
inconsistent statements and exaggerations and properly considered evidence of Thompson’s
daily activities in conjunction with the objective medical and opinion evidence. Doc. 20, pp. 2325.
VI. Law & Analysis
A reviewing court must affirm the Commissioner’s conclusions absent a determination
that the Commissioner has failed to apply the correct legal standards or has made findings of fact
27

Thompson also points out that the ALJ gave little weight to the state agency reviewing physicians’ opinions who
opined that Thompson could perform a full range of medium work because evidence received after they rendered
their opinions justified a more restrictive RFC. Doc. 17, p. 16. Thus, he argues it remains unclear how the ALJ
arrived at her RFC. Doc. 17, p. 16.

23

unsupported by substantial evidence in the record. 42 U.S.C. § 405(g); Wright v. Massanari, 321
F.3d 611, 614 (6th Cir. 2003). “Substantial evidence is more than a scintilla of evidence but less
than a preponderance and is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Besaw v. Sec’y of Health & Human Servs., 966 F.2d 1028,
1030 (6th Cir. 1992) (quoting Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681
(6th Cir. 1989). The Commissioner’s findings “as to any fact if supported by substantial
evidence shall be conclusive.” McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir.
2006) (citing 42 U.S.C. § 405(g)). Even if substantial evidence or indeed a preponderance of the
evidence supports a claimant’s position, a reviewing court cannot overturn “so long as
substantial evidence also supports the conclusion reached by the ALJ.” Jones v. Comm’r of Soc.
Sec., 336 F.3d 469, 477 (6th Cir. 2003). Accordingly, a court “may not try the case de novo, nor
resolve conflicts in evidence, nor decide questions of credibility.” Garner v. Heckler, 745 F.2d
383, 387 (6th Cir. 1984).
A.

The ALJ properly considered and weighed the medical opinion evidence and the
RFC is supported by substantial evidence
“[A]n ALJ does not improperly assume the role of a medical expert by assessing the

medical and non-medical evidence before rendering a residual functional capacity finding.” Poe
v. Comm’r of Soc. Sec., 342 F. Appx. 149, 157 (6th Cir. 2009). The regulations make clear that a
claimant’s RFC is an issue reserved to the Commissioner and the ALJ is to assess a claimant’s
RFC “based on all of the relevant medical and other evidence” of record. 20 C.F.R. §§
404.1545(a); 404.1546(c); see also Coldiron v. Comm’r of Soc. Sec., 391 Fed. Appx. 435, 439
(6th Cir. 2010) (“The Social Security Act instructs that the ALJ – not a physician – ultimately
determines a Plaintiff’s RFC”).

24

Thompson recognizes that it is the ALJ and not a physician who ultimately determines a
claimant’s RFC. Doc. 17, p. 14. However, he asserts that reversal and remand is warranted
because the RFC is not supported by substantial evidence. Doc. 17, pp. 14-17. His argument is
based on his claim that the ALJ did not properly weigh the opinions of Dr. Blankenhorn and Dr.
Willliams and/or explain how her RFC was supported by the opinion evidence. Doc. 17, pp. 1417.
The ALJ determined that Thompson had the RFC to:
[P]erform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a)
except that claimant may occasionally climb ramps and stairs, but may never
climb ladders, ropes or scaffolds; the claimant must avoid all exposure to
workplace hazards, such as unprotected heights and dangerous moving
machinery.
Tr. 27.
It is the ALJ’s responsibility to evaluate the opinion evidence using the factors set forth
in 20 C.F.R. § 404.1527. 20 C.F.R. § 404.1527(e)(2). Those factors include the examining
and/or treatment relationship, length, nature and extent of treatment relationship, supportability
of the opinion, consistency of the opinion with the record as a whole, and specialization. 20
C.F.R. § 404.1527(c)(1)-(6).
1. Dr. Blankenhorn
With respect to the opinion of Dr. Blankenhorn, the ALJ stated,
Little weight is accorded the opinion of the claimant’s treating source, Glenn
Blankenhorn, D.O., that the claimant would be limited to the sedentary exertional
level, could stand and/or walk no more than one-half hour in an eight hour
workday and could sit no more than one hour in an eight hour workday, that the
claimant could not climb, balance, stoop, crouch, kneel, crawl, push or pull, that
the claimant could occasionally reach, should avoid all exposure to heights and
extremes of temperature, would require additional rest periods and would require
the option to sit or stand at will. Dr. Blankenhorn examined the claimant and was
reporting within the bounds of his professional certifications, yet the record
reflects that he examined the claimant on a single occasion. Dr. Blankenhorn’s
25

opinion contained no narrative, offering no findings on which his opinion was
based and his opinion was inconsistent with the essentially benign findings of his
own physical examination.
Tr. 31.
Thompson argues that “[b]ecause the ALJ named Dr. Blankenhorn as a treating source,
she was required to accord his opinion controlling weight if it was well-supported by medically
acceptable clinical and laboratory diagnostic techniques not inconsistent with other substantial
evidence in the record.” Doc. 17, p. 15. Thompson’s argument assumes that, because the ALJ
called Dr. Blankenhorn a treating source, Dr. Blankenhorn was a treating source entitled to
controlling weight under the “treating physician rule.”
With respect to the “treating physician rule,” the Sixth Circuit has stated that “[a]n ALJ
must give the opinion of a treating source controlling weight if he finds the opinion wellsupported by medically acceptable clinical and laboratory diagnostic techniques and not
inconsistent with the other substantial evidence in the case record.” 28 Wilson v. Comm’r of Soc.
Sec., 378 F.3d 541, 544 (6th Cir. 2004); 20 C.F.R. §§ 404.1527(d)(2).
A treating source is an acceptable medical source who provides, or has provided, a
claimant with medical treatment or evaluation and who has had an ongoing treatment
relationship with the claimant. 20 C.F.R. § 404.1502. The Commissioner will generally
consider there to be an “ongoing treatment relationship” when the medical evidence establishes
that a claimant is or has been seen with a frequency consistent with accepted medical practice for
the type of treatment or evaluation required for a claimant’s medical condition. Id. “The
28

If a treating source’s opinion is not provided controlling weight, certain factors are to be applied by the ALJ to
determine what weight should be given to the treating source’s opinion. Bowen v. Comm’r of Soc Sec., 478 F.3d
742, 747 (6th Cir. 2007). The factors to be considered are: (1) the length of the treatment relationship and the
frequency of the examination, (2) the nature and extent of the treatment relationship, (3) the supportability of the
opinion, (4) the consistency of the opinion with the record as a whole, (5) the specialization of the source, and (6)
any other factors which tend to support or contradict the opinion. Bowen, 478 F.3d at 747; 20 C.F.R. §§
404.1527(d), 416.927(d).
26

treating physician doctrine is based on the assumption that a medical professional who has dealt
with a claimant and his maladies over a long period of time will have a deeper insight into the
medical condition of the claimant than will a person who has examined a claimant but once . . .
.” Kornecky v. Comm’r of Soc. Sec., 167 Fed. Appx. 496, 507 (6th Cir. 2006) (quoting Barker v.
Shalala, 40 F.3d 789, 794 (6th Cir. 1994). In those instances where a physician is not a treating
source, Wilson has been found to be inapplicable. See Smith v. Comm’r of Soc. Sec., 482 F.3d
873, 876 (6th Cir. 2007); see also Kornecky, 167 Fed. Appx. at 507; see also Daniels v. Comm’r
of Soc. Sec., 152 Fed. Appx. 485, 490 (6th Cir. 2005).
Although the ALJ referred to Dr. Blankenhorn as a “treating source,” the ALJ
specifically noted that Dr. Blankenhorn saw Thompson on only one occasion. Tr. 31.
Thompson does not claim that he had an ongoing treatment relationship with Dr. Blankenhorn
such that his opinion should be entitled to special deference. Nor does he provide any authority
to support a claim that the ALJ’s mere reference to Dr. Blankenhorn as a “treating source”
elevated Dr. Blankenhorn’s opinion to that of a treating physician entitled to special deference
under the “treating physician rule.” Accordingly, because Thompson’s relationship with Dr.
Blankenhorn did not to the level of an ongoing treatment relationship, the Court finds that,
contrary to Thompson’s argument, the ALJ did not violate the treating physician rule. See
Daniels, 152 Fed. Appx. at 490-491 (noting that, even though the ALJ casually referred to a
doctor as a treating source, the ALJ’s failure to specifically address that doctor’s opinion was not
surprising because the doctor did not meet the requirements under the regulations to be defined
as a treating physician); see also Smith, 482 F.3d at 876 (finding that doctors who had examined
the claimant on a single occasion or treated claimant on a very limited basis did not constitute the
type of ongoing treatment relationship contemplated by the “treating physician rule”).

27

Thompson alternatively argues that, if Dr. Blankenhorn’s opinion was not entitled to
controlling weight, the ALJ was required to weigh the opinion using the factors set forth in 20
C.F.R. §§ 404.1527 and 416.927. 29 Doc. 17, p. 15. However, the ALJ did just that. She
considered the length of the treatment relationship, i.e., one visit. Tr. 31. She considered the
supportability of the opinion, i.e., the opinion contained no narrative and offered no findings on
which the opinion was based. Tr. 31. She considered the consistency of Dr. Blankenhorn’s
opinion with the record as a whole, i.e., his opinion was inconsistent with the essentially benign
findings of his own physical examination. Tr. 31. The ALJ met her obligation to consider and
weigh Dr. Blankenhorn’s opinion and explain the reasons for providing little weight to that
opinion. Accordingly, the Court finds no error in the ALJ’s consideration of and the weight
provided to Dr. Blankenhorn’s opinion. Accordingly, reversal and remand is not warranted.
2. Dr. Williams
With respect to Dr. Williams opinion, the ALJ stated,
Little weight was accorded the opinion of the consultative physical examiner,
Perry Williams, M.D., that the claimant could lift twenty five pounds occasionally
and twenty pounds frequently, that the claimant could stand and/or walk four
hours in an eight hour workday and could sit for six hours in an eight hour
workday, that the claimant was markedly limited in his ability to push, pull or
bend. Dr. Williams examined claimant and was reporting within the bounds of his
professional certifications, yet evidence received subsequent to the rendering of
this opinion, particularly the diagnostic imaging (14F/9), (19F/2) justifies the
more restrictive limitations imposed.
Tr. 31.
The RFC restriction limiting Thompson to sedentary work is more restrictive than Dr.
Williams’ opinion, which would allow Thompson to perform work at the light level. Compare

29

Those factors include the examining and/or treatment relationship, length, nature and extent of treatment
relationship, supportability of the opinion, consistency of the opinion with the record as a whole, and specialization.
20 C.F.R. § 404.1527(c)(1)-(6).

28

20 C.F.R. § 404.1567(a) (“Sedentary work involves lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers, and small tools . . .”) with 20
C.F.R. § 404.1567(b) (“Light work involves lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to 10 pounds . . .”). 30 However, Thompson
argues that the ALJ should have also included other more restrictive limitations, including
limitations for push/pull, bending and prolonged sitting, and/or should have provided a
meaningful explanation to account for the apparent contradiction between the limitations in the
RFC and the weight provided to the opinion evidence. 31 Doc. 17, p. 16.
When determining an RFC, an “ALJ considers numerous factors . . . including the
medical evidence, non-medical evidence and the claimant’s credibility.” See Coldiron, 391 Fed.
Appx. at 443. The ALJ’s decision makes clear that, when formulating Thompson’s RFC, the
ALJ considered both medical and non-medical evidence as well as Thompson’s credibility. Tr.
27-31. Moreover, “t]he Social Security Act instructs that the ALJ – not a physician – ultimately
determines a Plaintiff’s RFC”. Id. at 435. Thus, Thompson’s suggestion that, because the ALJ
provided little weight to the various medical opinions, the ALJ’s RFC cannot be deemed
supported by substantial evidence (Doc. 17, pp. 14, 16), is without merit.
Further, although the ALJ, when discussing Dr. Williams’ opinion, did not specifically
state why he did not include Dr. Williams’ stated restrictions for pushing/pulling, bending or
prolonged sitting in the RFC, the ALJ’s discussion of Dr. Blankenhorn’s opinion demonstrates

30

Additionally, the RFC is more restrictive than the opinions of the state agency reviewing physicians who opined
that Thompson could perform medium work. Tr. 364, 380. The state agency reviewing physicians also opined that
Thompson had no postural limitations, including stooping and crouching. Tr. 365.

31

Thompson also suggests that, because the ALJ provided little weight to the various medical opinions, the ALJ’s
RFC cannot be deemed to be supported by substantial evidence. Doc. 17, pp. 14, 16.

29

that the ALJ implicitly determined that the evidence did not support those limitations.32 See
Vaughan v. Comm’r of Soc. Sec., 2013 WL 453275, * 11 (N.D. Ohio Jan. 7, 2013), report and
recommendation adopted, 2013 WL 453252 (N.D. Ohio Feb. 6, 2013) (recognizing that in the
Sixth Circuit, “an ALJ can consider all the evidence without directly addressing in his written
decision every piece of evidence submitted by a party . . . so long as his factual findings as a
whole show that he implicitly resolved any conflict.” (quoting Loral Defense Systems-Akron v.
N.L.R.B, 200 F.3d 436, 453 (6th Cir. 1999)); see also Karger v. Commissioner of Social Sec.,
414 Fed. Appx. 739, 749, 753 (6th Cir.2011) (recognizing that, where the necessary evidence
and analysis is contained within the decision, it may be shown that an ALJ implicitly resolved
conflicts based on the ALJ’s factual findings as a whole). Thus, Thompson’s argument that the
RFC conflicted with Dr. Williams’ opinion and the ALJ failed to adequately explain why she did
not include limitations for pushing/pulling, bending and/or prolonged sitting is without merit.
For example, Dr. Williams opined that Thompson was markedly limited in his ability to
bend or push/pull. Tr. 375. Similarly, Dr. Blankenhorn opined that Thompson could rarely or
never stoop or crouch and could rarely or never push/pull. Tr. 508-509. When discussing Dr.
Blankenhorn’s opinion, the ALJ found that, among other limitations, Dr. Blankenhorn’s stated
limitations of no pushing/pulling, stooping or crouching were unsupported by specific findings
and were inconsistent with the essentially benign findings of his own physical examination. Tr.
31.

This discussion is sufficient to allow this Court to follow the ALJ’s rationale for not

including Dr. Williams’ marked limitations of no bending and/or no pushing/pulling.
Thompson also argues that the ALJ should have accounted for limitations in prolonged
sitting. However, he does not propose what that limitation should have been. Moreover, when
discussing Dr. Blankenhorn’s opinion, the ALJ explained that Dr. Blankenhorn’s opinion that
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Even if the ALJ’s discussion with respect to Dr. Blankenhorn’s opinion is not a
30

Thompson would need a sit/stand option was unsupported by specific findings and were
inconsistent with the essentially benign findings of his own physical examination. Tr. 31.
Again, the ALJ’s discussion of Dr. Blankenhorn’s opinion is sufficient to allow this Court to
follow the ALJ’s rationale for not including limitations in the RFC to account for “prolonged
sitting.”
Since the ALJ’s decision makes clear why the ALJ did not include limitations in the RFC
for pushing/pulling, bending and/or prolonged sitting, the Court finds that reversal and remand is
not warranted.
B.

The ALJ properly evaluated Thompson’s credibility
Thompson argues that the ALJ improperly discounted his credibility. Doc. 17, pp. 17-21

Social Security Ruling 96–7p and 20 C.F.R. § 404.1529 describe a two-part process for assessing
the credibility of an individual's subjective statements about his or her symptoms. First, the ALJ
must determine whether a claimant has a medically determinable physical or mental impairment
that can reasonably be expected to produce the symptoms alleged; then the ALJ must evaluate
the intensity and persistence associated with those symptoms to determine how those symptoms
limit a claimant’s ability to work.
When evaluating the intensity and persistence of a claimant’s symptoms, consideration is
given to objective medical evidence and other evidence, including: (1) daily activities; (2) the
location, duration, frequency, and intensity of pain or other symptoms; (3) precipitating and
aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medication taken
to alleviate pain or other symptoms; (5) treatment, other than medication, received for relief of
pain or other symptoms; (6) any measures used to relieve pain or other symptoms; and (7) other

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factors concerning functional limitations and restrictions due to pain or other symptoms. 20
C.F.R. § 404.1529(c); Soc. Sec. Rul. 96–7p, 1996 WL 374186, at 3 (July 2, 1996).
“Tolerance of pain is a highly individual matter and a determination of disability based
on pain by necessity depends largely on the credibility of the claimant.” Villarreal v. Sec'y of
Health & Human Servs., 818 F.2d 461, 463 (6th Cir. 1987) (quoting Houston v. Secretary of
Health and Human Services, 736 F.2d 365, 367 (6th Cir.1984)). Thus, since the ALJ had the
opportunity to observe Thompson, her conclusions should not be easily dismissed. Id.; see also
Calvin v. Comm'r of Soc. Sec., 437 Fed. Appx. 370, 371 (6th Cir. 2011) (citing Walters v.
Comm'r of Soc. Sec., 127 F.3d 525, 531 (6th Cir.1997)) (“An ALJ's findings based on the
credibility of the applicant are to be accorded great weight and deference, particularly since an
ALJ is charged with the duty of observing a witness's demeanor and credibility”). “Nevertheless,
an ALJ's assessment of a claimant's credibility must be supported by substantial evidence.”
Calvin, 437 F. Appx. at 371.
In reviewing an ALJ’s credibility determination, a court is “limited to evaluating whether
or not the ALJ’s explanations for partially discrediting [claimant’s testimony] are reasonable and
supported by substantial evidence in the record.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469,
476 (6th Cir. 2003). The court may not “try the case de novo, nor resolve conflicts in evidence,
nor decide questions of credibility.” Gaffney v. Bowen, 825 F.2d 98, 100 (6th Cir. 1987).
When assessing the credibility of Thompson’s allegations regarding the intensity,
persistence and limiting effects of his back pain, the ALJ considered the case record and
conducted a thorough credibility analysis and concluded that the limitations associated with his
pain were not as severe as Thompson alleged. Tr. 27-31.

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The ALJ considered the results of objective medical evidence and physical examinations.
Tr. 28-29. For example, the ALJ recognized that, while diagnostic testing provided support for
Thompson’s allegations of shooting, stabbing pain in his lower back, with numbness in his left
leg, and an inability to lift anything, stand or sit too long, the record, when viewed as a whole,
did not support Thompson’s allegation that his impairment would be preclusive of all work. Tr.
28.
Further, in accordance with the regulations, when reaching his conclusions with respect
to the credibility of Thompson’s alleged disabling pain, the ALJ considered Thompson’s daily
activities, including his ability to attend to his own personal hygiene and grooming, perform
normal household chores, 33 drive, run errands, shop in stores, manage his own finances, walk for
exercise, and read and watch television. Tr. 29-30 (referencing Exhibits 3E (Tr. 233) and 6F (Tr.
346) and hearing testimony). Tr. 29-30. The ALJ indicated that, “[w]hile none of these
activities, considered alone, would warrant or direct a finding of not disabled, when considered
in combination, they strongly suggest that the claimant would be capable of engaging in the work
activity contemplated by the residual functional capacity.” Tr. 30. Additionally, the ALJ
considered the fact that Thompson had engaged in other activities “which are difficult to
correlate with the alleged intensity of the pain stemming from his impairment.” Tr. 29. As
examples, the ALJ noted that, on October 8, 2008, and December 10, 2008, Thompson reported
to emergency room personnel that he had fallen off ladders. 34 Tr. 29 (referencing Exhibit 12F/31
(Tr.411) and Exhibit 3F/1 (Tr. 311)). Also, on September 26, 2010, Thompson reported to
emergency room personnel that he aggravated his back condition when his six year old daughter
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The ALJ considered the fact that Thompson reported that he needed frequent breaks when performing household
chores. Tr. 29.
34

On October 8, 2008, he reported having fallen from a ladder while trying to rescue a cat from a tree. Tr. 411. On
December 10, 2008, he reported being on a ladder and slipping sideways about 8 feet and hitting the ladder on the
way down. Tr. 311.
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jumped on him. Tr. 29 (referencing Exhibit 13F/5 (Tr. 432)). On February 23, 2011, Thompson
was at the emergency room after having moved heavy objects. Tr. 29 (referencing Exhibit
15F/13 (Tr. 460)).
Additionally, the ALJ considered treatment other than medication used to relieve
Thompson’s symptoms. Tr. 29. Thompson acknowledges that the ALJ considered this factor.
Doc. 17, p. 19. However, he appears to suggest that, because Thompson tried so many different
types of treatment without relief, the ALJ should have concluded that Thompson’s allegations
that his pain was completely disabling were fully credible. Doc. 17, pp. 19-20. The ALJ’s
decision makes clear that the ALJ was aware of Thompson’s treatment history and the steps he
had taken to try to relieve his pain but she nonetheless concluded that, based on the record,
Thompson’s allegations that his symptoms were completely disabling were not fully credible.
For example, the ALJ noted that Thompson had tried spinal injections, however, surgery was not
recommended. Tr. 29 (referencing Exhibit 21F/1 (Tr. 510)). Additionally, the ALJ considered
that, although Thompson reported having undergone a course of physical therapy, no such
records were in the file. Tr. 29. The ALJ also considered that Thompson had been discharged
from pain management. Tr. 29 (referencing Exhibit 2F/9 (Tr. 295, April 16, 2008, treatment
note reflecting “broken pain contract.”)). 35
The ALJ considered Thompson’s use of prescription medications and noted that
Thompson had reported no side effects. Tr. 29 (referencing Exhibit 9E (Tr. 244)). Thompson
acknowledges that, in one report, he reported no side effects from his medication (Tr. 244) but
argues that, in another report and during the hearing, he indicated that his medication made him
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The ALJ also referenced Exhibit 17F/14, a May 8, 2011, emergency room note indicating that Thompson reported
that Dr. Lynch was no longer treating him because Dr. Lynch stated “he can’t help me anymore and I have to go to a
straight pain clinic for treatment.” Tr. 499. The ALJ indicated that the reason for Thompson’s discharge from the
pain management practice was unspecified but noted that it had often been reported that Thompson had engaged in
drug seeking behavior. Tr. 29 (referencing Exhibit 3F/1 (Tr. 331), Exhibit 4F/3 (Tr. 326), Exhibit 15F/9 (Tr. 456),
and Exhibit 18F/2 (Tr. 503)).
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very tired (referencing Tr. 50, 261). Thus, he asserts that the ALJ’s credibility assessment is
flawed. However, as discussed below, the ALJ was aware of these inconsistent statements and
factored that into her credibility assessment.
The ALJ also noted that Thompson had made inconsistent statements and indicated that,
although his inconsistent statements may not have been the result of a conscious intention to
mislead, they nonetheless suggested that information provided by Thompson might not be
entirely reliable. Tr. 30. For example, on August 12, 2009, when asked about substance abuse,
Thompson indicated, “I used in the past but I haven’t in a long time.” Tr. 343. However, the
ALJ noted that, a few months earlier, Thompson had been incarcerated for possession of
marijuana. Tr.30 (referencing Exhibit 4E (Tr. 234)). The ALJ also noted that Thompson had
provided inconsistent statements regarding medication side effects. Tr. 30 (referencing Exhibit
15E (Tr. 261) and Exhibit 9E (Tr. 244)).
Thompson also argues that the ALJ improperly suggested that he exaggerated his
symptoms. Doc. 17, p. 20. He asserts that Dr. Blankenhorn’s opinion, which indicates that
Thompson should only lift or carry 2 pounds frequently (Tr. 508) is consistent with Thompson’s
testimony that Dr. Blankenhorn told him not to lift anything weighing over 1 pound (Tr. 54).
While Dr. Blankenhorn’s opinion reflects that he opined that Thompson was restricted to
lifting/carrying 2 pounds frequently (from 1/3 to 2/3 of an 8-hour day), Dr. Blankenhorn also
stated that Thompson could lift/carry up to 10 pounds occasionally (from very little up to 1/3 of
an 8-hour day). Tr. 508. Moreover, in finding that the record suggested that Thompson has
exaggerated his symptoms, the ALJ also pointed to an intake examination wherein the examiner
referenced the fact that Thompson “catastrophized” about his physical conditions. Tr. 30
(referencing Exhibit 5F/9 (Tr. 341)). Thus, considering the record as a whole, it cannot be said

35

that the ALJ’s finding that Thompson tended to exaggerate symptoms is not supported by
substantial evidence.
Additionally, Thompson takes issue with the fact that the ALJ noted that his sporadic
work history raised a question as to whether his continuing unemployment was in fact related to
his impairment. Doc. 17, p. 20. Thompson does not argue that it was improper for the ALJ to
have considered his past work history but claims that the record does not support the ALJ’s
finding that his work history was sporadic. Doc. 17, p. 20. More particularly, he asserts that the
record shows that he posted earnings in every quarter but for 4 quarters in the 10 years preceding
his alleged onset date. Doc. 17, p. 20 (referencing Tr. 196-197). Even assuming that
Thompson’s work history does support his claim that he worked in every quarter but 4 in the 10
years preceding his alleged onset date, the ALJ thoroughly analyzed and explained her
assessment of Thompson’s credibility, she did not limit her analysis to a single piece of
evidence, and her assessment of Thompson’s credibility was reasonable and supported by
substantial evidence. Jones, 336 F.3d at 477 (Even if substantial evidence or indeed a
preponderance of the evidence supports a claimant’s position, a reviewing court cannot overturn
“so long as substantial evidence also supports the conclusion reached by the ALJ.”).
Thompson also argues that the Commissioner’s decision should be reversed and
remanded because the ALJ did not discuss many of the factors contained in 20 C.F.R. §§
404.1529(c) and 416.929(c). Doc. 17, p. 20. However, as shown above, the ALJ’s credibility
assessment includes discussion of many of the factors and is clearly explained. Moreover, the
regulations do not mandate a discussion of all of the relevant credibility factors; an ALJ may
satisfy his obligations by considering most, if not all, of the factors. See Bowman v. Chater, 132
F.3d 32 (Table), 1997 WL 764419, at *4 (6th Cir. Nov. 26, 1997) (per curiam).

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Here, the ALJ’s decision is sufficiently clear to allow this Court to determine whether the
ALJ conducted a proper credibility assessment and whether that determination is supported by
substantial evidence. Soc. Sec. Rul. 96–7p, 1996 WL 374186, at * 4. Having reviewed the
ALJ’s decision, and considering that an ALJ’s credibility assessment is to be accorded great
weight and deference, the undersigned finds that the ALJ’s credibility analysis regarding the
severity of Thompson’s impairments is supported by substantial evidence. Accordingly,
Thompson’s request to reverse and remand the Commissioner’s decision on the basis of the
ALJ’s credibility assessment is without merit.
VII. Conclusion
For the reasons set forth herein, the Court AFFIRMS the Commissioner’s decision.

Dated: June 30, 2014
Kathleen B. Burke
United States Magistrate Judge

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