Smith v. Commissioner of Social Security

Filing 23

OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATIONS for 15 Report and Recommendation in its entirety. The Court FINDS the decision of the Commissioner that Plaintiff was not entitled to a period of disability and disability income benefits SUPPORTED BY SUBSTANTIAL EVIDENCE, AFFIRMS such decision, and as no further matters remain pending for the Court's review, the Court DIRECTS the Clerk to CLOSE this case on the Courts docket. Signed by Judge S Arthur Spiegel on 9/20/2012. (km1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
GARY WAYNE SMITH,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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NO. 1:11-CV-00203

OPINION AND ORDER

This matter is before the Court on the Magistrate Judge’s
March 21, 2012 Report and Recommendation (doc. 15), and Plaintiff’s
Objections (doc. 22).

For the reasons indicated herein, the Court

ADOPTS and AFFIRMS the Magistrate Judge’s Report and Recommendation
in all respects, FINDS the ALJ’s non-disability finding supported
by substantial evidence, and DIRECTS the clerk to close this case
on the Court’s docket.
I.

Background
This disability benefits appeal concerns Plaintiff’s

December 2007 applications for Supplemental Security Income (SSI)
and Disability Insurance Benefits (DIB), alleging a disability
onset date of December 30, 2006, due to degenerative disc disease,
numbness in upper and lower extremities, anxiety, depression, and
pain of the neck, hip, leg, and back (doc. 15).

Upon denial of his

application initially and upon reconsideration, Plaintiff requested
and received a hearing de novo before Administrative Law Judge

(ALJ) Deborah Smith, who, on December 22, 2009, denied both of
Plaintiff’s applications (Id.).

Plaintiff’s request for review by

Appeals Council was denied, making ALJ Smith’s Findings the final
determination of the Commissioner (Id.).
The ALJ’s findings are summarized in the record (Id.).
Essentially, Plaintiff has not engaged in substantial gainful
activity since December 30, 2006, due to the severe impairment of
degenerative disc disease of the cervical spine (Id.). As a result
of his condition, Plaintiff underwent surgery, an anterior cervical
discectomy and fusion (ACDF), in May 2007.

Despite Plaintiff’s

surgery and condition, the ALJ found Plaintiff did not have an
impairment or combination of impairments meeting or medically
equaling one of the impairments in the Listings (Id.). The ALJ
considered the entire record and found that Plaintiff had a
residual functional capacity (“RFC”) to perform light work; he must
avoid overhead bilateral reaching, climbing ladders, scaffolds, and
ropes; and engage in no more than occasional stooping, crouching,
and crawling (Id.).
After considering that Plaintiff could not perform any
past relevant work, the ALJ considered Plaintiff’s age, background
and,

residual

functional

capacity

and

concluded

there

are

nonetheless jobs in the national economy that Plaintiff could
perform since December 30, 2006 (Id.).

As such, the ALJ found

Plaintiff not under disability, and not entitled to SSI or DIB

2

(Id.).
Plaintiff subsequently appealed to this Court, under the
theories that ALJ Smith erred by 1) substantially relying upon the
medical findings of non-treating physicians when determining his
RFC; 2) by improperly assessing Plaintiff’s credibility in regards
to his physical limitations; and 3) by improperly applying the
Grids when determining his level of vocational ability (Id.).

The

Magistrate

has

Judge

has

reviewed

Plaintiff’s

theories

and

recommended that the Court find the ALJ’s decision supported by
substantial evidence, and therefore deny Plaintiff the benefits he
seeks (doc. 15).

Plaintiff has filed his Objections to the

Magistrate Judge’s Report and Recommendation (doc. 22), such that
this matter is ripe for the Court’s review.
II.

The Magistrate Judge’s Report and Recommendation
The Magistrate Judge reviewed each of Plaintiff’s claims

to determine whether the ALJ’s findings of non-disability were
supported by substantial evidence, that is, “such relevant evidence
as

a

reasonable

mind

might

accept

as

adequate

to

support

a

conclusion” (doc. 15, citing 42 U.S.C. § 405(g), Richardson v.
Perales, 402 U.S. 389, 401 (1971)).

In conducting her review, the

Magistrate Judge explained the Court considers the record as a
whole

when

deciding

whether

the

Commissioner’s

findings

are

supported by substantial evidence (Id. citing Hephner v. Mathews,
574 F.2d 359 (6th Cir. 1978)).

3

The Magistrate Judge first addressed Plaintiff’s argument
that the ALJ erroneously relied upon the opinion of non-examining
medical consultants, and not that of Plaintiff’s treating physician
(Id.).

The Magistrate Judge found that, generally, the opinion of

the treating physician is entitled to controlling weight, but that
ALJ

can

decline

to

give

controlling

weight

if

the

treating

physician’s opinions are not supported by substantial medical
evidence (Id. citing Walters v. Comm’r of Soc. Sec., 127 F.3d 525,
529-30 (6th Cir, 1997); Harris v. Heckler, 756 F.2d 431, 435 (6th
Cir. 1985); Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th
Cir. 2009)). Ultimately, the Magistrate Judge stated, the ALJ must
provide good reason as to why less weight was given to the treating
physician’s opinion (Id. citing Blakely, 581 F.3d at 406 (citing 20
C.F.R. § 404.1527(d)(2); Social Security Ruling 96-2p, 1996 WL
374188, at *5; Wilson, 378 F.3d at 544)).
The Magistrate Judge found that ALJ Smith relied on the
opinions of the treating physician, in this case Dr. Joanne DeGreg,
insomuch as they were supported by objective medical evidence
(Id.).

The Magistrate Judge found that state agency medical

consultant Dr. Das’ review of Plaintiff’s history, medical records,
physical examination, and x-ray study, all objective evidence,
The Magistrate Judge also found

supported the ALJ’s RFC (Id.).
that

record

review

of

Dr.

Vasiloff,

another

state

medical

consultant, resulted in the conclusion that Plaintiff could perform

4

light work so long as he never climbed apparatuses, stoop or crawl
frequently, and avoided positions that required certain levels of
reaching (Id.).

As for Dr. McPherson, Plaintiff’s neurosurgeon,

the Magistrate Judge noted his neurological examination findings
both supported the conclusion that Plaintiff could perform light
work with accommodations (Id.).

In summary, the Magistrate Judge

found the ALJ relied on substantial and objective medical evidence
in arriving at Plaintiff’s RFC (Id.).
The Magistrate Judge noted the ALJ rejected the opinion
of

Dr.

DeGreg,

assessment

was

Plaintiff’s
not

supported

treating
by

physician,

her

treatment

“because
notes

or

her
the

objective findings of record and was inconsistent with her own
notes and findings” (Id.).

In rejecting Dr. DeGreg’s opinion, the

ALJ stated that Dr. DeGreg’s treatment notes gave little legitimacy
to her RFC opinion (Id.). Furthermore, the ALJ noted that Dr.
DeGreg did not treat Plaintiff for at least 10 months after the
cervical fusion surgery, and that upon Plaintiff’s return to Dr.
DeGreg, Plaintiff complained of hip pain despite Dr. DeGreg’s x-ray
findings showing no abnormalities (Id.). Similarly, the ALJ notes,
Dr. DeGreg found only minor range of motion issues post surgery, as
did

Plaintiff’s

treating

neurosurgeon

Dr.

McPherson.

The

Magistrate Judge notes that the ALJ finds this problematic given
the “extreme RFC limitations” Dr. DeGreg suggested (Id.).
Lastly, the Magistrate Judge points out that the treatment and

5

prescription inconsistencies noted by the ALJ (Id.). The ALJ
specifically points to the fact that Dr. DeGreg considered the need
for an assistive device when Plaintiff stands or walks in her RFC
assessment, but her treatment notes do not provide a prescription
or medical need for such devices (Id.). Furthermore, as the ALJ
notes, Dr. DeGreg states that Plaintiff should be confined to low
stress

jobs

in

her

RFC

assessment,

but

states

in

the

same

assessment that emotional factors have no effect on the Plaintiff’s
symptoms or functions (Id.). Finally, the ALJ notes that Dr.
DeGreg’s

RFC

assessment

defends

Plaintiff

as

not

being

a

“malingerer”, but that her treatment notes show she at one point
refused

to

provide

Plaintiff

with

additional

pain

medicine

prescriptions because Plaintiff continued to test negative for
opiates despite being prescribed high doses of Percocet (Id.).
The

Magistrate

Judge

opined

therefore

“[a]s

inconsistencies in a treating physician’s opinion is a factor the
ALJ may consider in determining the weight to accord such opinion
. . . the ALJ reasonably considered the above noted inconsistencies
in giving little weight to Dr. DeGreg’s functional assessment” (Id.
citing Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 242 (6th Cir.
2007)).
The Magistrate Judge next addressed Plaintiff’s complaint
that the ALJ erred in assessing his credibility (Id.). Plaintiff
argues

that

based

on

his

testimony

6

he

should

be

limited

to

sedentary

employment

and

thus

be

found

disabled

under

the

guidelines, 20 C.F.R. Pt. 404, Subpt. P, App. 2 (Id.). Plaintiff
testified

to

a

number

of

physical

symptoms

and

limitations

including 1) a history of falling and need for assistive devices;
2) numbness and/or weakness in his extremities; 3) chronic back,
neck, and hip pain; and 4) anxiety and depression (Id.). The
Magistrate Judge found that Plaintiff failed to allege specific
errors of law or fact on the part of the ALJ, and that a de novo
decision on the issue of his credibility is outside the scope of
judicial review in this matter (Id.).

However, the Magistrate

Judge noted that the court can review the ALJ’s decision on the
grounds that it was supported by substantial evidence and that
proper legal standards were applied (Id. citing Rogers, 486 F.3d at
241).
The Magistrate Judge noted the ALJ found inconsistencies
between the objective medical findings evidence and Plaintiff’s
allegations (Id.). First, the ALJ found there was no objective
clinical or medical evidence to explain Plaintiff’s complaints
regarding his hip and leg pain, especially in light of no abnormal
findings in the x-ray, done by Dr. DeGreg, of the Plaintiff’s hip
(Id.).

Second,

the

ALJ

notes

that

contrary

to

Plaintiff’s

complaints regarding his extremities, objective medical records
showed significant improvement in muscular strength post surgery
and improved extremity usage six months post surgery (Id.).

7

Lastly, the ALJ took issue with Plaintiff’s consistently negative
drug screening despite Plaintiff’s allegations that he ran out of
Percocet, an opiate, well before his next refill because his pain
was so great he needed to take a higher dose than prescribed.
(Id.).
the

Having reviewed the evidence, the Magistrate Judge found

ALJ’s

credibility

finding

reasonable

and

supported

by

substantial evidence in the record, including objective medical
evidence (Id.).
As

a

final

matter,

the

Magistrate

Judge

addressed

Plaintiff’s complaint that the ALJ erroneously applied medicalvocational guidelines (the Grids) when making his RFC determination
(Id.). The Magistrate Judge noted that in Plaintiff’s argument, he
relies on vocational testimony at his hearing that suggested if Dr.
DeGreg or Plaintiff’s own testimony were taken at full weight,
Plaintiff would be limited to sedentary work (Id.). The Magistrate
Judge rejected this claim, noting that the Plaintiff is essentially
repeating his previous arguments concerning erroneous RFC and
credibility findings, both of which the Magistrate Judge had
already addressed (Id.).
III.

Plaintiff’s Response
Plaintiff contends that the ALJ erred, as well as the

Magistrate Judge by reiterating the findings, in denying him
benefits insofar as 1) the assigned RFC was not substantially
supported by the medical records, 2) Plaintiff’s credibility was

8

not properly considered because it was evaluated based on isolated
testimony and not the record as a whole, and 3) the Grids were
improperly applied (doc. 22).
Plaintiff’s
determination

was

first

objection

error

because

an

is

it

that

the

overlooked

ALJ’s

RFC

consistent,

longitudinal, medical records in favor of inconsistent notations
(Id.).

Plaintiff contends that the Magistrate Judge supports the

ALJ findings by restating the Defendant’s brief and the ALJ opinion
(Id.).

The example given in the Plaintiff’s objections concerns

a statement made in the Magistrate Judge’s opinion where she
likened

the

Plaintiff’s

limited

cervical

range

of

motion

to

overhead reaching (Id.). Plaintiff contends these two movements are
“not functionally the same” and that the Magistrate Judge provides
no

basis for why she finds them similar (Id.). Furthermore,

Plaintiff contends that the ALJ placed too much weight on postsurgical findings, which “were not functional findings” as they do
not “equate to ability to perform work” (Id.). Plaintiff contends
that the Magistrate Judge erroneously reiterates the ALJ’s findings
without considering the other relevant medical records the ALJ
chooses to overlook, and which support a RFC for sedentary work
(Id.).
Plaintiff further contends the Magistrate Judge again
erroneously

reiterated

the

ALJ’s

overlooking

objective

evidence

9

credibility
(Id.).

findings

Plaintiff

by

argues,

specifically, that the issue of his credibility with regard to
medication noncompliance was improperly considered (Id.). Plaintiff
contends that there is ample medical evidence in the record to
support Plaintiff’s testimony that medicine does not alleviate his
functional limitations (Id.). Plaintiff contends the Magistrate
Judge overlooked this evidence in affirming the ALJ’s findings
(Id.).
evidence

Furthermore, Plaintiff contends the ALJ did not cite any
to

contradict

his

testimony,

nor

did

she

cite

any

documentation to contradict the limitations Plaintiff testified to
(Id.).
As a final matter, Plaintiff contends the Magistrate
Judge erred in affirming the ALJ’s Grid findings of ability to
perform light work (Id.). Plaintiff contends the ALJ did not
consider all relevant medical records, Dr. DeGreg’s RFC findings,
Plaintiff’s testimony, or the ALJ’s own hypothetical finding that
limited reaching and handling precludes all light level jobs (Id.).
According to Plaintiff, if the above were considered, he should not
have been found able to perform light level work, and thus been
assigned a sedentary RFC (Id.).
In summary, Plaintiff argues the ALJ erred in evaluating
Plaintiff’s RFC and credibility, and applying the Grids (Id.).
Plaintiff objects to the Magistrate Judge’s findings because “a
mere reciting of the Defendant’s position and adopting the ALJ’s
decision is not warranted in this matter” (Id.) As such, Plaintiff

10

contends at minimum remand is required for a proper evaluation of
his ability to function in the workplace (Id.).
IV.

Discussion
The Court rejects Plaintiff’s contentions that the ALJ

erred in evaluating his RFC, accessing his credibility, and in
applying the Grids.

Plaintiff is correct in his view that the

Magistrate Judge supported and reiterated the findings of the ALJ.
However, the Court finds no issue with this as Plaintiff presented
no objective evidence to the Magistrate Judge to refute that the
ALJ’s original findings were indeed reasonable and substantially
supported by evidence in the record.
First, Plaintiff’s contention that the ALJ rejected
“longitudinal records” in favor of notations when determining his
RFC is contrary to the record (Id.). Plaintiff underwent extensive
cervical surgery to address, what was at the time, a degenerative
cervical disease. Pre-surgical findings of Dr. DeGreg and Dr.
McPherson explain well the extent of Plaintiff’s spinal issues and
functional limitations. Both the ALJ and the Magistrate Judge made
note of these findings when considering the record as a whole.
However, longitudinal records include post-surgical findings, like
those from Dr. DeGreg, Dr. McPherson, and pain management physician
Dr. Khan. All records were made available to the two non-examining
medical consultants in the course of this case. Dr. McPherson and
both medical consultants arrived at the same conclusion regarding

11

Plaintiff’s

functional

assessment.

Compared

with

pre-surgical

findings, significant improvements were made within six weeks of
the surgery.

Within seven months of the surgery, Dr. McPherson

noted that x-rays showed normal spinal alignment, and he opined
that Plaintiff had “reached maximum medical improvement” (doc. 15).
It is clear to this court that the ALJ considered longitudinal
records when determining Plaintiff’s RFC.
Similarly, it appears to this Court that Plaintiff is
actually arguing that the ALJ and Magistrate Judge erred by basing
his RFC on longitudinal records, spanning pre and post-surgical,
instead of the inconsistent post-surgical functional assessments of
Dr. DeGreg.
in

Plaintiff’s view overstates the ALJ’s responsibility

evaluating

medical

evidence.

The

regulations

provide

a

framework for evaluation of all evidence, clearly favoring the
opinions of treating physicians over those of non-examining medical
sources and experts.

20 C.F.R. 404.1527(d).

The opinions of non-

examining consultants are only given weight insofar as they are
supported by evidence in the case record.

Social Security Ruling

96-p. When a treating physician’s opinion is rejected, as here, as
unsupported, it is only proper for the ALJ to consider and weigh
the opinions of other medical sources.

The ALJ did not weigh the

post-surgical “notations” of the treating physician as favorable as
Dr.

McPherson

opinions.

Dr.

or

the

DeGreg’s

two

non-examining

functional

12

medical

assessment

was

consultants’
objectively

inconsistent with her own previous treatment records, and the
findings of the other three medical professionals on the record.
Therefore, this Court affirms the ALJ and Magistrate Judge’s RFC
decision as they are supported by substantial evidence.
Next,

Plaintiff

objects

to

the

findings

on

his

credibility (doc. 22). Plaintiff contends the ALJ discredited his
own functional assessment testimony because of an alleged medical
noncompliance (Id.). To address the allegation, Plaintiff argues
that “there is ample evidence throughout the record that medicines
did not alleviate the functional limitation described” (Id.).
Furthermore,

the

Plaintiff

suggests

the

Court

take

into

consideration that the limitations he testified to are consistent
with his documented medical condition unless there is documentation
to the contrary (Id.).

The Court is inclined to agree with both

findings articulated by the ALJ and Magistrate Judge. First, as
stated above, the findings of Dr. McPherson and the two medical
consultants

are

contrary

to

Plaintiff’s

testimony.

Objective

medical evidence in the record show near normal alignment and
rotation post surgery. Contrary to Plaintiff’s objection, he bears
the burden of proof in regards to disproving this evidence.
Second, Plaintiff’s own treatment noncompliance raises
serious questions in regards to his credibility. Both the ALJ and
the

Magistrate

Judge

found

issue

with

Plaintiff’s

alleged

prescription noncompliance in light of his testimony regarding the

13

severity of his pain. However, nowhere does the ALJ state medicine
compliance

would

automatically

or

unquestionably

alleviate

functional limitations, thus changing his RFC assessment from
sedentary to light work. Instead noncompliance coupled with the
continued negative drug screenings left the ALJ and Magistrate
Judge with doubt as to whether Plaintiff was following through with
his treatment plan. As noted above, records show that Dr. McPherson
found Plaintiff’s surgery to be a success and referred Plaintiff to
physical therapy to improve upon these results. It was also
suggested he see a pain management specialist. Plaintiff failed to
see a physical therapist until 2009, and began seeing a pain
management

physician

eleven

months

after

Dr.

McPherson’s

suggestion, but only after Dr. DeGreg refused to provide additional
pain medication. Again, based on the record, this Court finds no
error in the ALJ’s reasoning for discrediting Plaintiff and affirms
the decision.
Finally, Plaintiff argues the ALJ erred in applying
medical-vocational guidelines, the Grids, when determining his RFC
(Id.).

Plaintiff contends that if his testimony or Dr. DeGreg’s

RFC assignment were controlling, he would have been assigned the
RFC for sedentary work (Id.). The Court agrees with Plaintiff’s
contention,

but

again

finds

the

ALJ

decision

substantially

supported. The Court has already addressed the Grids issue in
addressing the issues of RFC and credibility. As stated previously,

14

Plaintiff’s

testimony

and

Dr.

DeGreg’s

RFC

assessment

are

unsupported and contrary to objective medical findings on record.
The Grids were applied using the objective medical findings and the
RFC for light work was assigned. Therefore, Plaintiff is not
entitled to a more favorable RFC and the ALJ’s decision will be
affirmed.
V.

Conclusion
The Court finds the Magistrate Judge’s Report complete,

thorough and persuasive.

Having reviewed the record, the Court

finds well-taken the Magistrate Judge’s conclusion that the ALJ’s
finding of non-disability is supported by substantial evidence.
The Court rejects Plaintiff’s argument that the ALJ erred in
formulating Plaintiff’s RFC, in weighing and evaluating the medical
evidence, or in applying the Grids.

The ALJ’s findings in this

case were therefore supported by substantial evidence and his
conclusion denying benefits fell properly within his “zone of
choice.”

Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994).

Finally, the Court sees no basis for a remand, as it is clear from
the evidence that Plaintiff has the ability to function in the
workplace, limited to a reduced range of light work.
Proper notice was provided to the Parties under Title 28
U.S.C. § 636(b)(1)(c), including the notice that they would waive
further

appeal

if

they

failed

to

file

an

objection

to

the

Magistrate Judge’s Report and Recommendation in a timely manner.

15

See United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981).
Accordingly,

having

reviewed

this

matter

de

novo,

pursuant to Title 28 U.S.C. § 636, the Court concludes that the
Magistrate

Judge’s

findings,

Recommendation, are correct.

as

outlined

in

her

Report

and

Therefore, the Court hereby ADOPTS

the Report and Recommendation in its entirety (doc. 17), FINDS the
decision of the Commissioner that Plaintiff was not entitled to a
period of disability and disability income benefits SUPPORTED BY
SUBSTANTIAL EVIDENCE, AFFIRMS such decision, and as no further
matters remain pending for the Court’s review, the Court DIRECTS
the Clerk to CLOSE this case on the Court’s docket.

SO ORDERED.

Date: September 20, 2012

s/S. Arthur Spiegel
S. Arthur Spiegel
United States Senior District Judge

16