Steagall v. Commissioner of Social Security

Filing 13

REPORT AND RECOMMENDATIONS re 1 Complaint filed by Plaintiff Kenneth Steagall. It is RECOMMENDED THAT the non-disability decision of the Commissioner be AFFIRMED and that this case be CLOSED. Plaintiff's request for oral argument should be DENIED. Objections to R&R due by 12/19/2013. Signed by Magistrate Judge Stephanie K. Bowman on 12/2/2013. (km1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

KENNETH STEAGALL,

Case No. 1:12-cv-876

Plaintiff,

Barrett, J.
Bowman, M.J.

v.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

REPORT AND RECOMMENDATION
Plaintiff Kenneth Steagall filed this Social Security appeal in order to challenge
the Defendant’s determination that he is not disabled.

See 42 U.S.C. §405(g).

Proceeding through counsel, Plaintiff presents four claims of error, all of which the
Defendant disputes. As explained below, I conclude that the ALJ’s finding of nondisability should be AFFIRMED because it is supported by substantial evidence in the
administrative record.
I. Summary of Administrative Record
This proceeding involves Plaintiff’s appeal of the most recent denial of his
application for Disability Insurance Benefits (“DIB”).
Plaintiff first applied for DIB in April 2004, alleging disability due to back and neck
pain resulting from a November 2002 car accident, with a disability onset date, as
amended, of July 29, 2003.

After his application was denied initially and upon

reconsideration, Plaintiff requested a hearing de novo before an Administrative Law
Judge (“ALJ”). After two evidentiary hearings, ALJ Deborah Smith denied Plaintiff’s
application in a written decision dated April 26, 2007, concluding that Plaintiff was not
1

disabled. (Tr. 12-19). The Appeals Council rejected Plaintiff’s appeal of that decision,
and Plaintiff sought further appeal in this Court. Steagall v. Com’r of Soc. Sec., Case
No. 1:07-cv-961.
United States Magistrate Judge Timothy S. Hogan 1 recommended affirming the
Commissioner’s decision, but the presiding district judge disagreed and remanded to
the Commissioner for further review.

The Court held that the ALJ had committed

reversible error, particularly concerning her analysis of the opinions of Drs. Wunder and
Murphy. (See Tr. 617-626, Docs. 14 and 16 in Case No. 1:07-cv-961).
Following remand, ALJ Smith held another evidentiary hearing on February 22,
2011, at which Plaintiff, a vocational expert, and a medical expert all testified. (Tr. 547584, 914-986). On April 8, 2011, ALJ Smith issued a second written decision, again
concluding that Plaintiff was not disabled prior to December 31, 2009, his date last
insured. (Tr. 592-610).
Plaintiff has not engaged in substantial gainful activity during the relevant
disability period. The ALJ determined that Plaintiff suffers from the following severe
impairments: “degenerative disc disease, and shoulder impingement with underlying
acromioclavicular joint arthrosis.” (Tr. 594).

The ALJ also noted non-severe

impairments including diabetes, knee pain, obesity, and dysthymic disorder.

(Tr. 594-

597). She rejected Plaintiff’s allegation that he is impaired by carpal tunnel syndrome.
(Id.). Considering Plaintiff’s severe and established non-severe impairments as a whole,
the ALJ determined that Plaintiff did not have any impairment or combination of
impairments that met or equaled one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1. (Tr. 597). The ALJ found that as of his date last insured,

1

Although U.S. District Judge Michael R. Barrett remains the presiding district judge, this case was
assigned to the undersigned magistrate judge in light of Judge Hogan’s retirement from the bench.

2

Plaintiff retained the residual functional capacity (“RFC”) to perform a range of light
work, “except he can sit, stand, and/or walk for 6 hours each, with the ability to alternate
sitting and standing for 5 minutes every hour.”

In addition, the ALJ found Plaintiff

capable of lifting and/or carrying “10 pounds with the right side and up to 20 pounds with
the left side.” (Tr. 598).
Plaintiff was “closely approaching advanced age” as of his alleged disability
onset date, and was 55 years old, or “of advanced age,” as of his date last insured. (Tr.
608). He has at least a high school education and past relevant work as an electrician,
which he performed at the “heavy” exertional level for approximately thirty years. Based
on that work, Plaintiff acquired transferable skills in electrical maintenance. (Tr. 608609).

The ALJ determined that, prior to his date last insured, Plaintiff could have

performed jobs that exist in significant numbers in the national economy, including
dispatcher, expediter/material lister, and electrical equipment assembler. (Tr. 609).
Accordingly, the ALJ determined that Plaintiff was not under disability prior to December
31, 2009, as defined in the Social Security Regulations. (Id.).
The Appeals Council denied Plaintiff’s request for review of the ALJ’s 2011
decision. Therefore, that decision stands as the Defendant’s final determination. On
appeal to this Court, Plaintiff argues that the ALJ repeated the errors for which this
Court previously remanded: (1) by rejecting the opinions of Drs. Murphy and Wunder;
(2) by relying on the testimony of non-treating physician consultants; (3) by relying on
vocational expert testimony that did not accurately reflect Plaintiff’s limitations; and (4)
by improperly assessing Plaintiff’s credibility.

3

II. Analysis
A. Judicial Standard of Review
To be eligible for benefits, a claimant must be under a “disability” within the
definition of the Social Security Act.

See 42 U.S.C. §1382c(a).

Narrowed to its

statutory meaning, a “disability” includes only physical or mental impairments that are
both “medically determinable” and severe enough to prevent the applicant from (1)
performing his or her past job and (2) engaging in “substantial gainful activity” that is
available in the regional or national economies. See Bowen v. City of New York, 476
U.S. 467, 469-70 (1986).
When a court is asked to review the Commissioner’s denial of benefits, the
court’s first inquiry is to determine whether the ALJ’s non-disability finding is supported
by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971) (additional citation and internal
quotation omitted). In conducting this review, the court should consider the record as a
whole. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial evidence
supports the ALJ’s denial of benefits, then that finding must be affirmed, even if
substantial evidence also exists in the record to support a finding of disability. Felisky v.
Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994). As the Sixth Circuit has explained:
The Secretary’s findings are not subject to reversal merely because
substantial evidence exists in the record to support a different conclusion .
. . . The substantial evidence standard presupposes that there is a ‘zone
of choice’ within which the Secretary may proceed without interference
from the courts. If the Secretary’s decision is supported by substantial
evidence, a reviewing court must affirm.
Id. (citations omitted).

4

In considering an application for either DIB or SSI benefits, the Social Security
Agency is guided by the following sequential benefits analysis: at Step 1, the
Commissioner asks if the claimant is still performing substantial gainful activity; at Step
2, the Commissioner determines if one or more of the claimant’s impairments are
“severe;” at Step 3, the Commissioner analyzes whether the claimant’s impairments,
singly or in combination, meet or equal a Listing in the Listing of Impairments; at Step 4,
the Commissioner determines whether or not the claimant can still perform his or her
past relevant work; and finally, at Step 5, if it is established that claimant can no longer
perform his or her past relevant work, the burden of proof shifts to the agency to
determine whether a significant number of other jobs which the claimant can perform
exist in the national economy. See Combs v. Commissioner of Soc. Sec., 459 F.3d
640, 643 (6th Cir. 2006); 20 C.F.R. §§404.1520, 416.920.
A plaintiff bears the ultimate burden to prove by sufficient evidence that he or she
is entitled to disability benefits. 20 C.F.R. § 404.1512(a). A claimant seeking benefits
must present sufficient evidence to show that, during the relevant time period, he or she
suffered an impairment, or combination of impairments, expected to last at least twelve
months, that left him or her unable to perform any job in the national economy. 42
U.S.C. § 423(d)(1)(A).
B. Specific Errors
1. The Opinions of Drs. Murphy and Wunder versus Dr. Hill
a. The Basis For Remand of the 2007 ALJ Decision
As stated, the primary reason for this Court’s remand of the ALJ’s 2007 decision
was her failure to adequately explain why she gave more weight to the opinion of
consulting physician Dr. Hill than to the opinions of treating Drs. Murphy and Wunder.
Dr. Murphy was Plaintiff’s primary care physician for ten months in 2006-2007. Dr.
5

Wunder was a rehabilitative specialist to whom Plaintiff was initially referred by Dr.
Stambough, a treating neurosurgeon who performed a spinal fusion on Plaintiff in March
of 2004.
Plaintiff asserts that both Drs. Wunder and Murphy were “treating physicians”
whose opinions should have been given “controlling weight.” Plaintiff argues that the
ALJ’s failure to adopt their opinions warrants reversal by this Court for a second time.
The relevant regulation concerning treating physicians provides: “If we find that a
treating source’s opinion on the issue(s) of the nature and severity of your impairment(s)
is well-supported by medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with the other substantial evidence in your case record, we will
give it controlling weight.” 20 C.F.R. §404.1527(c)(2); see also Warner v. Com’r of Soc.
Sec., 375 F.3d 387, 390 (6th Cir. 2004). The reasoning behind what has become
known as “the treating physician rule” has been stated as follows:
[T]hese sources are likely to be the medical professionals most able to
provide a detailed, longitudinal picture of the claimant's medical
impairment(s) and may bring a unique perspective to the medical
evidence that cannot be obtained from the objective medical findings
alone or from reports of individual examinations, such as consultative
examinations or brief hospitalizations.
Wilson v. Commissioner of Social Security, 378 F.3d 541, 544 (6th Cir. 2004)(quoting
former 20 C.F.R. § 404.1527(d)(2)). Thus, the treating physician rule requires “the ALJ
to generally give “greater deference to the opinions of treating physicians than to the
opinions of non-treating physicians.” See Blakley v. Com’r of Social Security, 581 F.3d
399, 406 (6th Cir. 2009). Additional regulations require the Commissioner to generally
give greater weight to examining sources than to non-examining sources, and to
consider the same factors for review of any medical source opinion. See 20 C.F.R.
§404.1527(c).
6

Despite the presumptive weight given to the opinions of the treating physician, if
those opinions are not “well-supported” or are inconsistent with other substantial
evidence, then the opinions need not be given controlling weight. Soc. Sec. Ruling 962p, 1996 WL 374188, at *2 (July 2, 1996). In such cases, the ALJ should review
additional factors to determine how much weight should be afforded to the opinion.
These factors include, but are not limited to: “the length of the treatment relationship
and the frequency of examination, the nature and extent of the treatment relationship,
supportability of the opinion, consistency of the opinion with the record as a whole, and
any specialization of the treating physician.” Blakley, 581 F.3d at 406; see also 20
C.F.R. §404.1527(c)(2). “[A] finding that a treating source medical opinion...is
inconsistent with the other substantial evidence in the case record means only that the
opinion is not entitled to ‘controlling weight,’ not that the opinion should be rejected.”
Blakley, 581 F.3d at 408 (quoting Soc. Sec. Rul. 96-2p).
In her first opinion in 2007, the ALJ rejected Dr. Wunder’s opinions in just two
sentences, finding Dr. Wunder’s assessment to be inconsistent “with the record as a
whole” and an inappropriate determination of disability that is “reserved to the
Commissioner.” (Tr. 17). Similarly, the ALJ succinctly faulted Dr. Murphy for failing to
“cite detailed limitations regarding specific individual functions.” (Tr. 17). In 2011, the
same ALJ explained her reasoning in an opinion that is more than double the length of
her prior opinion. In fact, just the portion of the most recent decision devoted to analysis
of Drs. Murphy and Wunder’s respective opinions exceeds the entire length of the ALJ’s
2007 opinion. Thus, to the extent that the ALJ has repeated her prior errors, she has
done so in surpassing detail.
The magistrate judge assigned to Plaintiff’s first judicial appeal stated that he did
not “fully understand” the ALJ’s criticism of the two treating physician opinions, to the
7

extent that those opinions reflected the period of 2005-2007, and therefore were not
necessarily inconsistent with earlier 2004 opinions on which the ALJ relied. Magistrate
Judge Hogan pointed out that the opinions could be reconciled if Plaintiff’s condition had
worsened over time. (Tr. 617A). Although the magistrate judge did not find the flaws in
the ALJ’s analysis to be grounds for reversal, U.S. District Judge Michael R. Barrett
disagreed. In addition to the flaws noted by the magistrate judge, the Court pointed out:
Dr. Hill, whose opinion the ALJ gave the most weight, was a one-time
examiner, and Dr. Wunder is a specialist in rehabilitative medicine. While
all of these factors are properly considered under section 1527(d)(2), the
ALJ did not include a discussion of these factors in her decision. As such,
the Court finds that the ALJ failed to articulate “good reasons” for not
giving weight to the opinions of Drs. Wunder and Wilson. Furthermore,
the Court finds that this failure was not de minimus. …Both doctor’s
opinions are based upon their treatment of Plaintiff, and as the Magistrate
Judge noted, their opinions are “not necessarily inconsistent” with the
record as a whole. While their opinions may not be entitled to controlling
weight, their opinions should be weighted under the factors listed in
section 1527(d)(2).
(Tr. 623, emphasis added).
Plaintiff now claims that the Court made a factual conclusion in his favor that his
physical condition was “worsening” over time. See R&R at 39-40. But that is not what
the Court found. Judge Hogan (who recommended affirming the non-disability finding)
merely reasoned that a “logical” hypothesis for the more extreme opinions of Drs.
Murphy and Wunder was that Plaintiff’s condition had worsened over time. Neither the
magistrate judge nor the district judge made any factual finding as to whether Plaintiff’s
condition had actually and/or significantly deteriorated.
Rather, the Court held that remand was required because the ALJ did not “fully”
explain why Dr. Hill’s opinion was entitled to more weight than the later opinions of Drs.
Murphy and Wunder. (Id.). The ALJ also failed to explain on the record whether she
had considered factors such as the length of the treatment relationship, the nature and
8

extent of that relationship, and the specialization of the physicians in question. See,
e.g., 20 C.F.R. §404.1527(c)(2)(listing relevant factors). On the other hand, the Court
adopted the magistrate judge’s recommendation in rejecting Plaintiff’s claim that he met
or equaled Listing 1.04(A).

(Tr. 624).

Although the Court did not agree with the

magistrate judge that the claim had been waived, the Court had no difficulty in rejecting
the sole evidence - Dr. Wunder’s opinion - that Plaintiff met the Listing, as “inconsistent
with other substantial evidence in the record.” (Tr. 625).
b.

Medical Evidence Leading to Second ALJ Decision

To provide context to the ALJ’s more recent analysis of the opinions of Drs.
Murphy and Wunder, it is necessary to summarize Plaintiff’s overall medical records. In
January 2003, Plaintiff first complained to an orthopedist, Dr. Shockley, that his lingering
back and neck pain from a November 2002 car accident prevented him from continuing
to work as an electrician. (Tr. 127, 143).

Dr. Shockley recommended aggressive

physical therapy and a variety of non-surgical interventions. (Tr. 143). In April 2003,
Dr. Shockley authorized Plaintiff’s return to “light duty” work, but since it was not
“available” at Plaintiff’s place of employment, he authorized Plaintiff remaining off work
until May 5, 2007. (Tr. 221). In August 2003, Plaintiff reported to Dr. Stambough, his
treating neurosurgeon, that he “actually got a lot better until he ‘went back to work at
light duty.’” (Tr. 163). The same month, Plaintiff underwent MRI, CT, and myelogram
studies that showed only mild degenerative changes with overall spinal stability, with
“minimal instability between the recumbent and upright positions.” (Tr. 167, 213-214).
From 2003 to 2004, Dr. Stambough noted multiple “normal” or near normal
objective test results, including EMG, MRI, and CT mylogram, and normal neurological
findings on clinical examination. In September 2003, Dr. Stambough reported no
contraindications to Plaintiff’s intended return to work. (Tr. 173). After being unable to
9

determine any neurological origin for Plaintiff’s complaints, Dr. Stambough indicated in
October 2003 that John Ruch, a chiropractor, should take over Plaintiff’s care. (Tr. 179180). From October to December 2003, despite complaints of some soreness, Plaintiff
reported to Dr. Ruch and/or Dr. Stambough that water therapy and chiropractic care had
improved his functioning so much that he felt able to return to work by November 2003.
(Tr. 289, 292, see also generally reported improvement at Tr. 179, 274-285, 287).
Plaintiff apparently aggravated his back in December 2003. Shortly thereafter, in
early March 2004, Plaintiff chose to have Dr. Stambough perform elective spinal fusion
surgery to correct spondylolisthesis and instability.

Three weeks post-surgery, Dr.

Stambough believed that Plaintiff should continue to improve, but recommended that he
not be returned to work above a “medium or moderate” level due to the limited range of
motion associated with a spinal fusion. (Tr. 185-186).
Plaintiff first applied for disability benefits a month after his surgery, in April 2004.
In May 2004, a state agency consultant, Dr. Hinzman, opined that Plaintiff could perform
light work based on excellent post-surgical results documented by x-ray, improved
reported symptoms, and normal neurological test results. (Tr. 343-347). In June 2004,
Dr. Stambough allowed Plaintiff to try working full-time, subject to restrictions on
repetitive lifting, bending, or twisting, maximum lifting of 30 pounds with frequent lifting
limited to 20 pounds, and a sit/stand option “as needed.” (Tr. 192). In October 2004,
another state consultant, Dr. Hill, conducted a records review and affirmed the opinions
expressed by Plaintiff’s neurosurgeon, that Plaintiff was capable of at least light work,
so long as he had the option to “periodically alternate sitting and standing” on an “as
needed” basis. (Tr. 355).
In 2005 when Plaintiff returned to him for re-evaluation at the chiropractor’s
suggestion, Dr. Stambough further referred Plaintiff to Dr. Wunder, a rehabilitative
10

specialist. Dr. Wunder initially saw Plaintiff just three times in 2005: May 5, June 16,
and December 27, 2005. (Tr. 866A, 868-874).

At his first visit in May 2005, Plaintiff

reported that his surgery definitely had improved his “moderate” low back pain, but that
he was experiencing shoulder impingement and was felt a need to sit “if he walks for a
long period of time” or to walk after extended sitting. (Tr. 873). At that time, Dr. Wunder
concluded that notwithstanding Plaintiff’s “neuropathic type” pain, additional treatment
and work hardening might yet enable Plaintiff to work in some occupation, despite an
inability to return to heavy manual labor. (Tr. 874). At the third visit in December 2005,
Plaintiff reported that he had been “doing well” on a medication that he would no longer
have access to due to a lapse in insurance. (Tr. 870). In November of 2006, nearly a
year after his last examination of Plaintiff, Dr. Wunder reviewed his 2005 notes and
rendered an opinion that Plaintiff was disabled from work. (Tr. 380-381).
Dr. Murphy, Plaintiff’s primary care physician from March through December
2006, agreed that Plaintiff was “truly disabled.” (Tr. 446-449). Dr. Murphy based her
opinion on Plaintiff’s pain, a general decline in his health, and her belief that Plaintiff’s
condition had worsened over time. (Tr. 448-449). Dr. Murphy indicated that Plaintiff
had suffered another back fracture at the point of his fusion site, that he required a
cane, and that his range of motion was extremely limited.

(Tr. 448).

Dr. Murphy

repeatedly mentioned Plaintiff’s financial inability to afford treatment. (Tr. 448).
After the ALJ’s first adverse decision, Plaintiff sought additional treatment. In
April 2008, Plaintiff underwent an additional MRI study. (Tr. 813-814). In May 2008, Dr.
Romanowski, another orthopedist, reported that Plaintiff’s MRI showed a stable fusion
mass, disk degeneration, and no obvious nerve root impingement.

(Tr. 726).

Dr.

Romanowski’s clinical examination also reflects essentially normal findings. (Tr. 726).

11

In June 2010, after the expiration of Plaintiff’s insured status, Dr. Le examined
Plaintiff at the request of the Ohio Bureau of Disability Determination, and reported that
Plaintiff needed a cane “for walking.” (Tr. 702, 708). In December 2010, Plaintiff sought
treatment from Dr. Brenneman, who noted that Plaintiff does not use a cane or other
ambulation device, and upon examination was able to walk on heels and toes. (Tr. 906907).
After this Court’s remand, the ALJ engaged a medical expert. Plaintiff improperly
describes that orthopedist as “a physician employed and paid by the government to
defends against Mr. Steagall’s disability claim” who conducted “a cursory file review.” To
the contrary, a medical expert is not an advocate who “defends against” a disability
claim but a “neutral advisor” engaged to provide expertise in cases involving complex
medical records such as this one.

See Richardson v. Perales, 402 U.S. 389, 408

(1971). Dr. Hutson testified at the February 2011 hearing that he conducted a review of
the entirety of Plaintiff’s records, and the thoroughness of his review is evident from the
undersigned’s review of his testimony. Among the records reviewed by Dr. Hutson
were the records of Dr. Wunder. In addition to the three consultations with Dr. Wunder
in 2005, Plaintiff returned to see Dr. Wunder two or three more times: on September 1,
2008, on April 27, 2009, and on December 2, 2010. 2 (Tr. 867, Tr. 684-690, 895-897).
c. Whether the 2011 Explanation Constitutes “Good Reasons”
In light of this Court’s directive on remand, the ALJ attempted to more “clearly
explain why the opinions of Dr. Wunder and Dr. Murphy are not entitled to controlling

2

At the December 2, 2010 visit, Dr. Wunder noted that, notwithstanding Plaintiff’s insistence that he had
seen Dr. Wunder in July 2010, Dr. Wunder’s search of his own records reflected hat he last saw Plaintiff
in September 2008, although he acknowledges having sent records “for Social Security Disability” for
Plaintiff between September 2008 and December 2010. (Tr. 894-895). Thus, despite Dr. Wunder’s April
27, 2009 narrative suggesting an examination that date, Dr. Wunder’s December 2010 records reflect
some ambiguity as to whether he examined Plaintiff at that time or merely reviewed and dictated the 2009
letter for purposes of Plaintiff’s social security claim.

12

weight.” (Tr. 603). Because Plaintiff argues that the ALJ’s analysis is “not supported by
the record or this Court’s prior findings” (Doc. 7 at 11), the undersigned finds it
appropriate to quote extensively from the ALJ’s 2011 detailed analysis.
The ALJ began with Dr. Murphy’s opinion that Plaintiff was “truly disabled.”
Dr. Murphy is a primary care physician …who treated the claimant for not
even a consecutive 12 month period. Disability is defined as the inability
to engage in substantial gainful activity for a continuous 12 month period.
Dr. Murphy’s treatment notes report symptoms, medications, and very little
evidence or discussion about positive findings on examination, objective
testing, or other medical bases for her opinions. It actually appears Dr.
Murphy only saw the claimant for about 8 visits over a 10 month period.
As noted in the prior decision, she cites only to pain and limitation of
motion as the basis for her opinion that the claimant was “disabled.” While
she mentions a rotator cuff tear, this appears based entirely on the
claimant’s report (…for example, where the claimant reports a partial
rotator cuff tear that cannot be fixed due to lack of insurance). Further,
whether the claimant is disabled is a finding reserved for the
Commissioner….and there is no indication that Dr. Murphy understands
what the definition of disability is under the Social Security Act.
The undersigned has considered her statement that the claimant cannot
sit or stand for an extended period and has incorporated that limitation into
the residual functional capacity to the extent it is supported by the overall
evidence. However, the undersigned rejects Dr. Murphy’s opinion that the
claimant is disabled. She appears to give great consideration to the
claimant’s financial status and the fact that he is compliant with treatment,
but the undersigned has not found the claimant noncompliant, and his
financial status has no bearing on whether he is disabled. … Dr. Murphy
also gives a great deal of weight to her ‘observation’ of the claimant, but
her treatment notes do not document any observations that are consistent
with disability.
(Tr. 603-604).
Plaintiff now argues that the ALJ erred by suggesting that Dr. Murphy was
required to cite specific objective tests for her opinions. Plaintiff argues that “[a]
summary by an attending physician made over a period of time need not be
accompanied by a description of the specific tests in order to be regarded as credible
and substantial.” See Jones v. Com’r of Soc. Sec., Case No. 1:05-cv-789, 2005 WL
3742187 at *9 (S.D. Ohio, Dec. 15, 2006). However, Jones also states that the “weight
13

given a treating physician’s opinion on the nature and severity of impairments depends
on whether it is supported by sufficient medical data and is consistent with other
evidence in the record.” Id. Although Plaintiff argues that the ALJ should have given
Dr. Murphy’s RFC and disability opinions controlling weight because they were
consistent with the opinions of Dr. Wunder, the undersigned disagrees. Unlike in 2007,
the ALJ’s 2011 analysis is sufficiently detailed and fully supported by the record. Dr.
Murphy’s letter admits that she has never performed “a full functional evaluation” to
assess Plaintiff’s ability to work. (Tr. 682). Therefore, the ALJ’s reasoned explanation
for rejecting Dr. Murphy’s assessment satisfies the “good reasons” standard and
sufficiently explains why she was not required to give the opinion “controlling weight.”
The ALJ’s 2011 analysis of Dr. Wunder’s opinions is even more detailed.
Pointing out Plaintiff’s sporadic history with Dr. Wunder, the ALJ first remarked that “Dr.
Wunder is…not necessarily a ‘treating source’ who has consistently seen and treated
the claimant over an extended period of time.” (Id.). 3 The ALJ’s comment is consistent
with her obligation to consider the length of the treatment relationship, the frequency of
examination, and the nature and extent of the treatment relationship.
The ALJ next described Dr. Wunder’s November 2006 opinions as follows:
Dr. Wunder’s November 2006 summary….indicated a “right shoulder
rotator cuff tear” and left shoulder pain – even though imaging had
previously shown no tear and Dr. Stambough had clearly stated that the
claimant’s left shoulder pain had ‘resolved completely…has resulted in no
impairment, no pain, and no dysfunction’ (13F/1). Reading Dr. Wunder’s
report, it is difficult at times to tell whether he was reporting his own
findings or interpreting other doctors’ findings. Nonetheless, Dr. Wunder
mentioned chronic decreased strength over the left EHL, diminished
sensation, diminished left Achilles reflex, and “irritable straight leg raise.”

3

Magistrate Judge Hogan likewise characterized Dr. Wunder’s “treating physician” status as
“problematic,” when describing his three 2005 consultations. (Tr. 617A). In December 2010, Dr. Wunder
stated that Plaintiff wanted him to “take over his care” but also remarked that he had not seen Plaintiff in
more than two years. (Tr. 895).

14

He also stated, “he had a lumbar fusion, left leg radiculitis, and left
shoulder impingement with rotator cuff syndrome.”
Dr. Wunder said he thought the claimant had some type of neuropathic
pain syndrome, and he advised conditioning and work hardening. He also
said the claimant “met the listings for Social Security at the time of my
initial evaluation on May 6, 2005” (14F/2). He further stated, my diagnosis
would be that of status post lumbar fusion at L4-5 and intermittent
radiculitis in the leg.
I thought he met the listings for chronic
radiculopathy. He had clinical findings with sensory loss, motor loss, and
reflex loss that met that diagnosis. He also had underlying shoulder
impingement. I thought his prognosis was poor. I did not think he could
sustain remunerative employment. I thought he had permanent loss of
residual functional capacities. His impairment rating would be 27% to the
whole person form [sic] the auto accident and fusion” (14F/3).
(Tr. 602-603, quoting Tr. 380-381).
After summarizing Dr. Wunder’s 2006 opinions, the ALJ launches into a very
detailed analysis, beginning with the 2006 opinion, re-iterated in 2010, that Plaintiff
meets or equals Listing 1.04:
Dr. Wunder opined that the claimant met listing 1.04 and could not do any
work. Dr. Wunder’s opinion and clinical findings have been widely
divergent from other doctors’ opinions and findings and from the
diagnostic evidence, as discussed above. There is no reason to believe
the claimant’s condition had worsened appreciably between April 2004,
when he last saw Dr. Stambough, and May 2005, when he first saw Dr.
Wunder. Dr. Wunder performed no new diagnostic tests but instead relied
largely on the claimant’s allegations of subjective pain in reaching his
conclusions.
As the Court noted, Dr. Wunder’s opinion that the claimant ‘met the
listings for chronic radiculopathy’ was contradicted by CT testing and was
also inconsistent with other substantial evidence of record. . .. The medical
expert, Dr. Hutson, who is an orthopedic surgeon whose opinion is entitled
to more weight than Dr. Wunder’s by virtue of his expertise, noted that Dr.
Wunder’s neurologic findings were inconsistent from one examination to
another. Dr. Hutson also testified many of Dr. Wunder’s neurologic
findings could not be explained orthopedically. Dr. Hutson testified that in
November 2006, Dr. Wunder mentioned findings that are not even
consistent with the neuro-anatomical distribution of any particular nerve
root. Instead, he noted findings that are partially associated with L5 and
findings that are partially associated with the S1 nerve root. Dr. Hutson
further testified that in September 2008, Dr. Wunder said the claimant’s
reflexes were equal and that his motor and sensory examination was
intact (23F), so Dr. Wunder’s findings even vary within his own
15

examinations. Dr. Hutson also pointed out that in 2009, Dr. Wunder
mentioned yet another, different, set of findings associated with L3-4
nerve root distribution. Dr. Hutson said straight leg raising is a test for
sciatic nerve irritation that goes all the way to the bottom of the foot.
Therefore, Dr. Wunder’s finding that the claimant had pain to the knee is
not indicative of a positive straight leg raise. Dr. Wunder asserts the
nature of the claimant’s back impairment is “misunderstood” because it is
a stretching or tethering of nerves rather than compression, but it is
unlikely so many specialists would misunderstand the objective evidence.
Dr. Hutson testified that there was no evidence of tethering associated
with pain or dysfunction at all. Thus, Dr. Hutson questioned many of Dr.
Wunder’s findings, said they were inconsistent from one exam to another
and very inconsistent with findings set forth in the remainder of the
records. He said the claimant’s condition did not meet or equal a Listings
[sic] and noted normal neurologic findings based on other exams in the
record as noted above.
Even without Dr. Hutson’s testimony, the record sufficiently establishes
that Dr. Wunder’s findings are inconsistent with other doctor’s findings.
Although Dr. Wunder made and found positive neurologic findings
throughout his reports, the undersigned has pointed out at least 11 other
examinations where neurological findings were completely normal from
December 2002 through December 2010. In fact, Dr. Murphy’s notes
consistently documented no motor, sensory, or other neurological
deficits…while Dr. Wunder was simultaneously reporting neurological
deficits. A March 2006 ER examination showed 5/5 muscle strength
bilaterally in both the upper and lower extremities; normal sensory
examination bilaterally; normal gait, normal tandem gait, and “completely
normal and nonfocal neurological exam” (22F/59). A May 2007 ER
examination also showed the claimant could walk on his heels and toes.
His range of motion was decreased, but his muscle strength was 5/5
bilaterally. Deep tendon reflexes were symmetrical. Sensation was
grossly intact. EHL strength was normal and equal (contrary to Dr.
Wunder’s finding of EHL weakness), and gait was normal (22F/47). An
August 2007 ER examination showed full range of motion of the back,
including flexion, extension, lateral rotation, and bending (22F/20). In
November 2007, Dr. Murphy even noted the claimant had 5/5 strength
(22F/11). In May 2008, orthopedist James Romanowski, M.D. reported
the claimant had limited range of back motion but 5/5 strength throughout
his lower extremities, negative straight leg raise, and intact sensation
throughout his lower extremities (22F/14).
Dr. Stambough, a
neurosurgeon, also reported numerous normal neurological findings….
Still, Dr. Wunder always found positive neurological findings when he
examined the claimant. Unlike Dr. Wunder’s, Dr. Stambough’s treatment
notes are consistent, and at no time does he render an opinion or give
advice inconsistent with his treatment notes and clinical findings. Even
the medical expert had a difficult time reconciling Dr. Wunder’s findings
with the objective testing such as MRIs, CT scans, x-rays, and EMG
testing.
16

Dr. Wunder who was contacted by counsel and in 19F he writes a long
letter to counsel about the claimant’s condition and to comment on
findings in the undersigned’s prior decision. He again opines the
claimant’s impairment meets listing 1.04 and, in the alternative, provides a
residual functional capacity assessment.
As previously noted, Dr.
Wunder’s opinion that the claimant’s degenerative disc disease meets
listing 1.04 is completely unsupported – a fact that did not escape even
the Court. That he consistently argues to the contrary significantly
undermines Dr. Wunder’s reliability and his opinion as a whole. Also
undermining Dr. Wunder’s opinion is his mischaracterization of other
doctors’ findings.
He said, for example, that Dr. Shockley noted
“stretching or tethering of the nerve root” (!9F/2). Dr. Shockley made no
such finding. He noted that Dr. Stambough performed surgery because
he “had to” reduce the instability, when in fact, Dr. Stambough noted only
very minimal instability and said surgery was not mandatory but
completely elective. Dr. Wunder also tends to gloss over details like the
long gap in treatment, indicating, “I started to see the patient in 2005.”
(Tr. 604-605).
As if that level of detailed analysis were not sufficient, the ALJ went on:
Dr. Wunder also reports the claimant has “obligatory” use of a cane, and
the claimant testified at the prior hearing that his cane use began around
February 2007. Yet most of the medical records either do not mention a
cane or specifically say a cane is not used even after February 2007.
Exhibit 21F mentions the claimant using a cane, but there is no mention of
a cane in the following exhibits, with dates ranging from 2007 through
2009: 20F, 22F/6-7, 22F/14, 22F/20, 22F/30-33, 22F/44-45. In fact, most
of these examinations show full strength and no difficulty with ambulation.
“No” use of cane is also reported at 25F/8 in December 2010, yet Dr.
Wunder indicated he use of a cane is mandatory. Consultative examiner
Chuc Le, M.D., reported in June 2010 that the claimant used a cane for
support, but his examination also showed only moderate tenderness to
palpation, no swelling of the back, no guarding or spasm, intact sensory
examination in the lower extremities, ability to walk with an antalgic gait,
ability to walk on his toes and heels, ability to squat, no atrophy, and
symmetrical reflexes (21F/2). It is also worth mentioning that while Dr.
Wunder described diminished and/or absent patellar and Achilles reflexes,
Dr. Le specifically noted equal Achilles and patellar reflexes bilaterally
(21F/2). Regarding the claimant’s shoulder, Dr. Le found only moderate
tenderness to palpation.
Dr. Wunder also opined the claimant has carpal tunnel syndrome…and
limits hand use in reaching, handling, fingering, fine grip, and
manipulation. When counsel was asked to walk the undersigned through
the record to show common findings establishing carpal tunnel syndrome,
he could not. As such, there is no EMG evidence…which is the most
17

common testing to diagnose this problem. There are no reports of
ongoing positive Phalen’s or Tinel’s testing, splinting, injections, or hand
surgery over a 12 month period to establish a “severe” or “limiting” carpal
tunnel syndrome. In fact, neurosurgeon Dr. Stambough specifically and
repeatedly noted the absence of a positive Tinel’s sign. … Dr. Wunder
reported “nocturnal parathesias of both hands” yet also acknowledged the
claimant never had any diagnostic testing for carpal tunnel syndrome. He
apparently found that the claimant’s subjective complaints alone are
enough to make a diagnosis that would significantly limit his manual
dexterity. However, subjective statements…will not alone establish that
the individual is disabled; there must be medical signs and laboratory
findings which show that the individual has a medical impairment(s) which
could reasonably be expected to produce the pain or other symptoms
alleged. … Dr. Wunder limited hand use even though other examinations,
like the consultative examiner’s Dr. Le, found no hand limitations (in June
2010 – 21F/2), and other doctors did not even mention carpal tunnel
syndrome. This is yet another example of Dr. Wunder’s findings and
conclusions being inconsistent with the remainder of the record and
another reason that Dr. Wunder’s opinion appears unreliable in this case.
The medical expert agreed…finding Dr. Wunder’s report lacking and
inconsistent with the remainder of the record….The undersigned gives
little weight to Dr. Wunder’s opinion that the claimant’s impairment meets
listing 1.04 or to his conclusion that the claimant is disabled and unable to
engage in sustained remunerative employment. The undersigned finds
Dr. Wunder’s opinions and findings generally unreliable and it appears he
is being an advocate on behalf of the claimant’s disability.
(Tr. 606).
Plaintiff continues to advocate for a different interpretation of Dr. Wunder’s
opinions. He submits that the ALJ continued to err in her assessment of those opinions
in several distinct ways. First, Plaintiff suggests that the ALJ should not have found Dr.
Wunder’s opinions to be inconsistent with other evidence of record, given this Court’s
prior determination that those (later) opinions were not necessarily inconsistent with
Plaintiff’s earlier records.

However, as discussed above, Plaintiff misconstrues the

Court’s basis for remand, which was the ALJ’s failure to satisfy the “good reasons”
standard. That this was a relatively close case even in 2009 is suggested by the fact
that Magistrate Judge Hogan recommended affirming the non-disability finding, despite
his expressed failure to “understand” the ALJ’s conclusory reasoning. Nothing in the
18

Court’s order of remand prohibited the ALJ from reaching the same conclusion or from
rejecting for a second time the opinions of Drs. Murphy and Wunder. In stark contrast
to 2007, the ALJ’s 2011 analysis is anything but conclusory. In fact, the ALJ engaged
an orthopedic medical expert, Dr. Hutson, to review Dr. Wunder’s opinions as well as
the entirety of Plaintiff’s medical record.
Second, Plaintiff asserts that the ALJ incorrectly describes Dr. Wunder’s opinions
as “widely divergent” from other opinions. For example, Plaintiff claims that Dr. Hutson,
“agreed with many of Dr. Wunder’s findings,” including instability at L3-4, and a
diagnosis of degenerative spondylotisthesis and chronic L5 radiculopathy. (Doc. 7 at
12).

Plaintiff correctly asserts that, after initially testifying that Dr. Wunder found

“negative” carpal tunnel test results, Dr. Hutson conceded at the hearing that Dr.
Wunder found that Plaintiff “did have a positive Tinel and Phalen’s and carpal
compression test” on examination. (Tr. 952, quoting Tr. 687). Last, Plaintiff contends
that the ALJ “ignored” Dr. Le’s statement – consistent with Dr. Wunder’s opinion - that
Plaintiff “needs” to use a cane. (Tr. 702, 708).
With respect to the last statement, the ALJ specifically discussed Dr. Le’s report
that Plaintiff required a cane, and why he rejected that particular assessment. The ALJ
also explained why she discredited Dr. Wunder’s report of positive carpal tunnel test
results. Despite her partial misstatement concerning Dr. Hutson’s testimony on the
issue (which was contradictory), the ALJ provided other valid reasons for discounting
Dr. Wunder’s carpal tunnel diagnosis as evidence of a “severe” impairment lasting 12 or
more months. As the Defendant points out, in December 2010, Dr. Brenneman again
found that Plaintiff does not use a cane. (Tr. 905-906). And in September 2008, even
Dr. Wunder stated that Plaintiff does not use or require a cane and that he “ambulates
without any assistive devices.” (Tr. 867). Despite some minimal agreement, Dr. Hutson
19

extensively testified to his disagreement with Dr. Wunder’s opinions. (See, e.g., Tr.
955, disagreeing with Dr. Wunder that Plaintiff’s condition worsened). Importantly,
Plaintiff’s treating neurosurgeon, Dr. Stambough, repeatedly documented normal
neurological findings and opined that Plaintiff could return to light work.

In short, the

undersigned does not find the handful of instances in which Dr. Wunder’s opinions
could be described as “consistent” with other medical evidence to overcome the far
more significant inconsistencies in Dr. Wunder’s opinions that were discussed ad
nauseam by both Dr. Hutson and the ALJ on remand.
Third, Plaintiff returns to Dr. Wunder’s opinion that, based upon his initial
assessment of Plaintiff in May of 2005, Plaintiff met Listing 1.04 and continued to meet
that listing through 2010. Plaintiff points to his last MRI dated April 2008 (after the first
hearing) that “suggested a small disc herniation with right L5 nerve root impingement
biforaminal disc protrusion and annular tears at L3-4 . ..” (Tr. 603). Plaintiff argues that
Dr. Wunder personally reviewed the April 2008 MRI study in September 2008, and
opined that it reflected “some protruding disks and annular tear at L3-L4 that likely is the
source of his complaints.” (Tr. 867). In April 2009, Dr. Wunder further opined that
Plaintiff had radiculopathy, based in part on the same MRI. (Tr. 690). However, Dr.
Hutson provided extensive and credible testimony as an orthopedic expert as to why
Plaintiff does not meet or equal Listing 1.04 (Tr. 945-948), and the ALJ clearly was
entitled to rely upon that testimony, as well as upon the objective and clinical medical
evidence in the record that contradicted Dr. Wunder’s assessment.
The ALJ also properly discounted the April 2008 MRI as inconclusive, noting that
Dr. Romanowski “reported in May 2008 that there was no obvious nerve root
impingement on this MRI study.” Even the radiologist who read the 2008 MRI described
the study as “significantly limited.” (Tr. 814). Plaintiff faults the ALJ for failing to discuss
20

a single examination record dated February 2009 by Dr. Ankur Shah, in which the latter
physician, with reference to the same MRI, noted “a question of minimal biforaminal disk
protrusion or L3 to L4 with associated annular tears….and …some impingement on the
right L5 nerve root.” (Tr. 719, emphasis added). However, the Sixth Circuit has never
required an ALJ to discuss every medical record. See Walker v. Sec’y of Health and
Human Servs., 884 F.2d 241, 245 (6th Cir. 1989).

More importantly, Dr. Shah’s

reference to the MRI is not conclusive, and his clinical neurological exam revealed a
normal gait, decreased spinal range of motion, but full extremity muscle strength, full
sensation, intact cranial nerves, and negative straight leg raise.

Dr. Shah

recommended that Plaintiff lose weight, do aquatherapy, and walk more. (Tr. 719).
Thus, Dr. Shah’s clinical findings were consistent with the ALJ’s conclusion that
“contemporary examination [to the MRI] showed no evidence of nerve root
impingement….” (Tr. 603). Dr. Romanowski’s clinical exams also were consistent with
the ALJ’s conclusion, revealing a negative straight leg test, full muscle strength in the
extremities, and full sensation. (Tr. 726). A follow-up record from University Hospital
three months after Dr. Shah’s exam similarly consistently recommends “very
conservative treatment…given that he has responded [before] to the antitriptyline and
his other medications,” a plan with which Plaintiff was “very comfortable.” (Tr. 725).
Last, Plaintiff cites Meece v. Barnhart, 192 Fed. Appx. 456, 462 (6th Cir. 2006),
wherein the Sixth Circuit was critical of the ALJ’s failure to give Dr. Wunder’s opinions
“controlling weight” as a treating source. However, Meece is distinguishable because
the ALJ clearly provided “good reasons” for the “little weight” she gave Dr. Wunder’s
opinions in this case. The fact that Dr. Wunder’s opinions were accepted in another

21

case does not mean that they are entitled to controlling weight here. 4
2.

Consulting Physicians Drs. Hill and Hutson, and Plaintiff’s RFC

In Blakley, the Sixth Circuit reiterated the principle that “[i]n appropriate
circumstances, opinions from State agency medical...consultants...may be entitled to
greater weight than the opinions of treating or examining sources.” Id., 581 F.3d at 409,
quoting Soc. Sec. Rul. 96-6p, 1996 WL 374180, at *3 (July 2, 1996). The Blakley court
reversed because the state non-examining sources did not have the opportunity to
review “much of the over 300 pages of medical treatment...by Blakley’s treating
sources,” and the ALJ failed to indicate that he had “at least considered [that] fact
before giving greater weight” to the consulting physician’s opinions. Id., 581 F.3d at 409
(quoting Fisk v. Astrue, 253 Fed.Appx. 580, 585 (6th Cir. 2007)). Under Blakley, then,
an ALJ may choose to credit the opinion of even a non-examining consultant such as
Dr. Hill, who has not had access to a complete record, but the ALJ should articulate her
reasons for doing so. If the ALJ fails to provide sufficient reasons, the opinion still may
be affirmed if substantial evidence supports the opinion and any error is deemed to be
harmless or de minimis.
Consistent with Blakley, this Court previously held that ALJ Smith failed to
adequately explain her reasons for giving consulting Dr. Hill’s opinions more weight than
the opinions of two treating physicians who rendered later opinions. Dr. Hill did not have
access to the later records of Drs. Murphy and Wunder, but in 2011, the ALJ had not
only Dr. Hill’s opinoin, but additional medical records, and testimony from a consulting

4

Meese is also factually distinguishable. Dr. Wunder had a much more extensive treating relationship with
the plaintiff in that case, having been a primary treating physician for plaintiff’s neck pain, and having
prescribed various forms of physical therapy, cervical traction, the use of a TENS unit, and a prescription
medicine regimen. By contrast, Plaintiff visited Dr. Wunder on but a few occasions for consultation.

22

orthopedic medical expert.

Dr. Hutson reviewed the entirety of Plaintiff’s medical

records through 2010.
In her 2011 opinion, the ALJ explained why she was continuing to rely on Dr.
Hill’s 2004 opinion as still relevant, due to a lack of evidence of “worsening of [Plaintiff’s]
condition after the 2004 opinion was rendered.” (Tr. 607-608). Plaintiff protests that
even Dr. Hutson testified that Plaintiff was experiencing a “continuing degeneration in
his spine.” (Tr. 948). However, Dr. Hutson clearly disagreed with Dr. Wunder’s
conclusion that Plaintiff’s records showed his condition had worsened to the point of
disability prior to December 2009. (Tr. 955).
3.

Hypothetical RFC
a.

The Sit/Stand Option

Vocational expert testimony that is given in response to a hypothetical question
that accurately describes the plaintiff in all “significant, relevant respects” will constitute
substantial evidence on which the Commissioner’s decision may be affirmed.

See

Felisky v. Bowen, 35 F.3d 1027, 1035-36 (6th Cir.1994). In this case, the same VE, Dr.
George Parsons, testified both in 2007 and in 2011. (Tr. 966). Dr. Parsons opined that,
based upon the hypothetical proposed by the ALJ and Plaintiff’s transferable skill set,
Plaintiff would have remained capable of performing multiple skilled and semi-skilled
jobs at the light and sedentary levels. (Tr. 970, 973-974, 979-980).
In arguing that the VE’s testimony does not satisfy the substantial evidence
standard in this case, Plaintiff criticizes the ALJ for failing to explain the inconsistencies
between other opinions and Dr. Hutson’s testimony that Plaintiff “could sit 6 hours per
day, with a sit/stand option permitting him to stand up for 2-5 minutes every hour” which
minutes “would not have to be consecutive.” (Tr. 608, 949). In contrast to Dr. Hutson’s
testimony, Drs. Stambough and Hill both opined that Plaintiff should be able to sit and
23

stand “at will.” Thus, Plaintiff argues that the manner in which the ALJ incorporated the
sit/stand opinion into the hypothetical presented to the VE is “inconsistent” with the
opinions of Drs. Stambough, Murphy, Wunder, and Hill. On that basis alone, Plaintiff
argues for an outright reversal for an award of benefits. (Tr. 968).
The undersigned disagrees. It is both the prerogative and the duty of an ALJ to
determine which among conflicting physician opinions should be credited. See Cox v.
Com’r of Soc. Sec., 295 Fed. Appx. 27, 35 (6th Cir. 2008). Here, the ALJ reasonably
credited Dr. Hutson’s opinion concerning the sit/stand opinion, given that Dr. Hutson
evaluated the entirety of Plaintiff’s records and all of the varying sit/stand opinions
(including Dr. Hinzman’s 2005 opinion that no sit/stand option was needed). In addition,
the vocational expert affirmed testimony from the 2007 hearing that Plaintiff could work
assuming Dr. Hill’s residual functional assessment, which included the “at will” sit/stand
option. (Tr. 966-71). To that extent, the undersigned finds that any error in the phrasing
of the sit/stand option was harmless. 5
b.

Unskilled Versus Skilled Work and the Sit/Stand Option

Plaintiff notes that Dr. Hutson initially testified that he “was going to put him at the
sedentary level” (Tr. 948), and testified in favor of the ALJ’s determination that Plaintiff
could lift up to 20 pounds only after further questioning by the ALJ. (Tr. 948-949). Dr.
Hutson testified that Plaintiff was capable of “some of the light jobs, but mostly
sedentary…with a sit/stand option.” (Tr. 958).

Plaintiff relies upon the vocational

expert’s testimony that Plaintiff wouldn’t be able to perform light work “based upon the
RFC provided by Dr. Hutson,” but would instead be limited to sedentary work. (Tr. 969).

5

Plaintiff would have been prohibited from work only if the ALJ had accepted Dr. Wunder’s opinion that
Plaintiff had to continually alternate between sitting and walking every 10 minutes. (Tr. 971).

24

To the extent that Plaintiff is suggesting that remand is required based upon the ALJ’s
determination that he was capable of engaging in a limited range of “light” work during
the relevant disability period, I disagree. More important than Plaintiff’s concession that
there was some evidence to support the designation of “light” work is the fact that the
VE testified, and the ALJ found that Plaintiff had transferable skills that he could use to
perform a significant number of jobs at the sedentary level.
Plaintiff’s primary argument appears to be that a sit/stand option precludes him
from sedentary work under Wages v. Sec’y of Health & Human Servs., 755 F.2d 495,
498 (6th Cir. 1985). However, the Court in Wages was focused on unskilled work. In
concluding that a sit/stand option is generally incompatible with unskilled sedentary
work, the Sixth Circuit quoted from Social Security Ruling 83-12, including the section
that distinguishes skilled work:
There are some jobs in the national economy—typically professional and
managerial ones—in which a person can sit or stand with a degree of
choice. If an individual had such a job and is still capable of performing it,
or is capable of transferring work skills to such jobs, he or she would not
be found disabled. However, most jobs have ongoing work processes
which demand that a worker be in a certain place or posture for at least a
certain length of time to accomplish a certain task. Unskilled types of jobs
are particularly structured so that a person cannot ordinarily sit or stand at
will. In cases of unusual limitation of ability to sit or stand, a [vocational
expert] should be consulted to clarify the implications for the occupational
base.
Wages v. Sec'y of Health & Human Servs., 755 F.2d at 498. In this case, Dr. Parsons
clearly testified that Plaintiff possessed transferable skills that could be employed in
several jobs that, while sedentary, would in fact permit a sit/stand option. 6

6

Although this is not technically a “Grid” case, Rule 201.07 also would mandate a non-disability finding for
a high school graduate of advanced age, limited to sedentary work, who possesses skilled or semi-skilled
transferable skills.

25

4. Credibility Assessment
In the prior remand order, this Court instructed the ALJ to reassess Plaintiff’s
credibility, insofar as her prior credibility determination “appears to be based solely upon
Dr. Hill’s opinion.” (Tr. 621). The Court explained that the credibility assessment was not
necessarily erroneous, but that “[w]hether Dr. Hill’s opinion can serve as substantial
evidence is dependent upon whether her opinion deserved greater weight tha[n] Drs.
Wunder and Murphy.” (Tr. 621).
A disability claim can be supported by subjective complaints, as long as there is
objective medical evidence of the underlying medical condition in the record. Jones v.
Com’r of Soc. Sec., 336 F.3d at 475. However, “an ALJ is not required to accept a
claimant's subjective complaints and may properly consider the credibility of a claimant
when making a determination of disability.” Id. at 476. (citations omitted). An ALJ’s
credibility assessment must be supported by substantial evidence, but “an ALJ’s
findings based on the credibility of the applicant are to be accorded great weight and
deference, particularly since an ALJ is charged with the duty of observing a witness’s
demeanor and credibility.” Walters v. Com’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir.
1997). Further, a credibility determination cannot be disturbed “absent a compelling
reason.” Smith v. Halter, 307 F.3d 377, 379 (6th Cir. 2001). Thus, it is proper for an
ALJ to discount the claimant’s testimony where there are contradictions among the
medical records, his testimony, and other evidence. Warner v. Com’r of Soc. Sec., 375
F.3d 387, 392 (6th Cir. 2004).
Plaintiff now argues that the ALJ again erred in finding him not to be fully
credible. The ALJ acknowledged that he had a solid work record, that the nature of his
complaints corresponded with the objective medical evidence, and that he was
26

“generally credible.” (Tr. 18). The ALJ stated that Plaintiff “clearly does feel some pain,
and while the mechanism of his pain may be poorly understood, there is evidence to
support his complaints – to a degree.” (Tr. 608). However, she discounted Plaintiff’s
allegations that his pain was disabling, reasoning that she could not “ignore the
substantial evidence indicating that [Plaintiff’s] pain is out of proportion to the medical
findings.” (Tr. 608).
Aside from the ALJ’s assessment of the medical evidence, which the
undersigned has already found to be supported by substantial evidence, Plaintiff
complains that the only ”inconsistent statements” that the ALJ pointed to were his
statements to Dr. Wunder in December 2010 (a year after the date last insured) that he
no longer wanted to take prescribed narcotic pain medication.

The ALJ could not

reconcile those statements with the fact that Plaintiff had been “on Oxycontin, Percocet,
and Methodone for years – yet he alleges disabling and incapacitating pain through the
present case.” (Tr. 607). Plaintiff refers to notations in Dr. Wunder’s records, however,
that imply that Plaintiff wished to discontinue the medications because the Oxycontin
“just knocked him out.” (Tr. 895-96). Plaintiff argues that, as a whole, there is no
conflicting evidence in the record on the issue of his severe pain, pointing to records
that he contends support his testimony of constant disabling pain. (Tr. 15, 18). He
argues that even Dr. Hutson “recognized” Plaintiff’s “intense pain.” (Doc. 7 at 21). On
cross-examination, Dr. Hutson agreed that Plaintiff’s prognosis was poor and that he
suffers from severe pain. (Tr. 958-959). Dr. Hutson testified that it is “possible” that
Plaintiff would be unable to perform a sedentary job due to his complaints of pain. (Tr.
965). Plaintiff argues that is significant that none of his treating physicians have ever
questioned the severity of his pain.

27

However, Plaintiff’s complaints of a disabling level of pain have not been as
consistent as he suggests. It is a mischaracterization to suggest that even Dr. Hutson
testified that Plaintiff suffers from disabling pain. Dr. Hutson did not examine Plaintiff
but instead based his assessment on a review of the medical record; on cross
examination he acknowledged only the obvious – that if Plaintiff’s complaints of a
disabling level of pain were credited, he would be unable to work. (Accord Tr. 981,
testimony of Dr. Parsons that “if” Plaintiff had experienced a constant “9 out of 10” level
of pain prior to December 31, 2009, he would have been unemployable).
Ultimately, it was for the ALJ to determine whether Plaintiff’s pain complaints
were fully credible.

And, consistent with that determination, multiple objective and

clinical records fail to support Plaintiff’s contention that he consistently complained of
pain at a disabling level. Particularly from 2003 through 2005, Plaintiff reported to many
physicians that his treatments, including water therapy, medications, and chiropractic
care, had resulted in so much improvement that he felt able to return to work. (Tr. 173,
180 “happier and more content” with progress, Tr. 192 “symptoms..just achiness in the
back,” Tr. 223 “significant improvement…comfortable returning to work,” Tr. 274-276,
Tr. 288, “continuing” and “progressive” improvement, Tr. 289 “quite pleased…feels that
he probably could return to work,” Tr. 292, Tr. 350, reporting that he cooks, cleans, does
laundry, grocery shops, and goes out with brother). Even Dr. Wunder’s notes reflect
Plaintiff’s report that his 2004 surgery had improved his “moderate” low back pain or
tightness, and suggested (at least in May 2005) that Plaintiff may be able to return to
some form of work with further treatment. And Plaintiff subsequently reported doing
well on prescribed medication.

(Tr. 759, 5/7/07 clinical record stating “his pain is

reasonably well controlled with conservative management.”)

28

Cases involving claims of disability based primarily on complaints of disabling
levels of pain that are not fully supported by clinical records or objective medical
evidence are, by their very nature, particularly difficult. However, this Court must affirm
so long as substantial evidence exists in the record as a whole to support the ALJ’s
decision, even if substantial evidence also can be found to support a contrary
conclusion as to the credibility of a plaintiff’s pain complaints. Reviewing the record as
a whole, the undersigned concludes that substantial evidence exists to affirm the ALJ’s
2011 decision in all respects, including the credibility finding.
III. Conclusion and Recommendation
For the reasons explained herein, IT IS RECOMMENDED THAT the nondisability decision of the Commissioner be AFFIRMED and that this case be CLOSED.
Plaintiff’s request for oral argument should be denied.
/s Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

29

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
KENNETH STEAGALL,

Case No. 1:12-cv-876

Plaintiff,

Barrett, J.
Bowman, M.J.

v.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS of
the filing date of this R&R. That period may be extended further by the Court on timely
motion by either side for an extension of time. All objections shall specify the portion(s)
of the R&R objected to, and shall be accompanied by a memorandum of law in support
of the objections. A party shall respond to an opponent’s objections within FOURTEEN
(14) DAYS after being served with a copy of those objections.

Failure to make

objections in accordance with this procedure may forfeit rights on appeal. See Thomas
v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

30