Varner v. Commissioner of Social Security

Filing 20

REPORT AND RECOMMENDATION that the decision of the Commissioner be Reversed and Remanded for further proceedings consistent with this opinion. Objections to R&R due by 7/14/2016. Signed by Magistrate Judge Karen L. Litkovitz on 6/27/2016. (art)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

GREGORY LEE VARNER,
Plaintiff,

Case No. 1: l 5-cv-476
Barrett, J.
Litkovitz, M.J.

vs.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

REPORT AND
RECOMMENDATION

Plaintiff Gregory Lee Varner brings this action pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3) for judicial review of the final decision of the Commissioner of Social Security
("Commissioner") denying plaintiffs applications for disability insurance benefits ("DIB") and
supplemental security income ("SSI"). This matter is before the Court on plaintiffs statement of
errors (Doc. 14) and the Commissioner's memorandum in opposition (Doc. 19).
I. Procedural Background
Plaintiff filed his applications for DIB and SSI in May and December 2011, respectively,
alleging disability since May 25, 2011 1 due to a groin injury, high blood pressure, a liver
problem, and vision problems. The applications were denied initially and upon reconsideration.
Plaintiff requested and was granted a hearing before administrative law judge ("ALJ") Ena
Weathers. Plaintiff and a vocational expert ("VE") appeared and testified at the ALJ hearing, at
which plaintiff was represented by a non-attorney representative. On February 26, 2014, the
ALJ issued a decision denying plaintiffs DIB and SSI applications. Plaintiffs request for
review by the Appeals Council was denied, making the ALJ's February 26, 2014 decision the
final administrative decision of the Commissioner.

1

Plaintiff initially alleged disability since November 30, 2008, but later amended the alleged onset date to May 25,
20 11. (Tr. 13).

II. Analysis
A. Legal Framework for Disability Determinations
To qualify for disability benefits, a claimant must suffer from a medically determinable
physical or mental impairment that can be expected to result in death or that has lasted or can be
expected to last for a continuous period of not less than 12 months. 42 U.S.C. §§ 423(d)(l)(A)
(DIB), 1382c(a)(3)(A) (SSI). The impairment must render the claimant unable to engage in the
work previously performed or in any other substantial gainful employment that exists in the
national economy. 42 U.S.C. §§ 423(d)(2), 1382c(a)(3)(B).
Regulations promulgated by the Commissioner establish a five-step sequential evaluation
process for disability determinations:
l) If the claimant is doing substantial gainful activity, the claimant is not disabled.
2) If the claimant does not have a severe medically determinable physical or
mental impairment - i.e., an impairment that significantly limits his or her
physical or mental ability to do basic work activities - the claimant is not
disabled.
3) If the claimant has a severe impairment(s) that meets or equals one of the
listings in Appendix 1 to Subpart P of the regulations and meets the duration
requirement, the claimant is disabled.
4) If the claimant's impairment does not prevent him or her from doing his or her
past relevant work, the claimant is not disabled.
5) If the claimant can make an adjustment to other work, the claimant is not
disabled. If the claimant cannot make an adjustment to other work, the claimant
is disabled.
Rabbers v. Comm 'r o/Soc. Sec., 582 F.3d 647, 652 (6th Cir. 2009) (citing 20 C.F.R. §§
404.1520(a)(4)(i)-(v), 404.1520(b )-(g)). The claimant has the burden of proof at the first four
steps of the sequential evaluation process. Id. ; Wilson v. Comm 'r ofSoc. Sec., 378 F.3d 541 , 548
(6th Cir. 2004). Once the claimant establishes a prima facie case by showing an inability to

2

perform the relevant previous employment, the burden shifts to the Commissioner to show that
the claimant can perform other substantial gainful employment and that such employment exists
in the national economy. Rabbers, 582 F.3d at 652; Harmon v. Apfel, 168 F.3d 289, 291 (6th
Cir. 1999).
B. The Administrative Law Judge's Findings

The ALJ applied the sequential evaluation process and made the following findings of
fact and conclusions oflaw:
1. The [plaintiff] meets the insured status requirements of the Social Security Act
through December 31, 2013.
2. The [plaintiff] has not engaged in substantial gainful activity since May 25,
2011, the amended alleged onset date of disability (20 CFR 404.1571-1576 and
416.971-976).
3. The [plaintiff] has the following severe impairments: history of hernia repair
with residual groin pain; osteoarthritis with knee and low back pain; mild
cataracts; depressive disorder; borderline intellectual functioning; and
polysubstance abuse (alcohol and cannabis) (20 CFR 404.1520(c) and
416.920(c)).
4. The [plaintiff] does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix l (20 CFR 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, the undersigned finds that the
[plaintiff] has the residual functional capacity [("RFC")] to perform light work as
defined in 20 CFR 404.1567(b) and 416.967(b) except the [plaintiff] is unable to
climb ladders, ropes, and scaffolds; and can occasionally crawl and climb ramps
or stairs. The [plaintiff] is limited to simple, routine, and repetitive tasks without
strict production demands. The [plaintiff] can perform occasional overhead
reaching, especially on the right, and occasionally push/pull with the left lower
extremity. The [plaintiff] requires verbal or demonstration instruction reminders
with introduction of new tasks. The [plaintiff] must avoid concentrated exposure
to hazards, including work at unprotected heights, commercial driving, and
moving machinery. The [plaintiff] requires the use of a cane for ambulation on
uneven surfaces.

3

6. The [plaintiff] is unable to perform any past relevant work (20 CFR 404.1565
and 416.965). 2
7. The [plaintiff] was born [in] 1959 and was 49 years old, which is defined as an
individual closely approaching advanced age, on May 25, 2011 , the amended
alleged onset date of disability (20 CFR 404.1563 and 416.963 ).
8. The [plaintiff] has a limited education and is able to communicate in English
(20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a finding
that the [plaintiff] is "not disabled," whether or not the [plaintiff] has transferable
job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the [plaintiffs] age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the national
economy that the [plaintiff] can perform (20 CFR 404.1569, 404.1569(a),
416.969, and 416.969(a)). 3
11. The [plaintiff] has not been under a disability, as defined in the Social
Security Act, from May 25, 2011, the amended alleged onset date of disability,
through the date of this decision (20 CFR 404. l 520(g) and 4 l 6.920(g)).
(Tr. 15-27).
C. Judicial Standard of Review

Judicial review of the Commissioner's determination is limited in scope by 42 U.S.C. §
405(g) and involves a twofold inquiry: (I) whether the findings of the ALJ are supported by
substantial evidence, and (2) whether the ALJ applied the correct legal standards. See Blakley v.
Comm 'r ofSoc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see also Bowen v. Comm 'r ofSoc. Sec.,

478 F.3d 742, 745-46 (6th Cir. 2007).

2

Plaintiffs past relevant work was as a furnace operator, a medium exertion, skilled position; a foundry steel
worker, a heavy exertion, unskilled position; a shipping and receiving clerk, a medium exertion, skilled position; a
roofer, a very heavy exertion, unskilled position; a foundry machine operator, a heavy exertion, unskilled position;
and a construction laborer, a very heavy exertion, unskilled position. (Tr. 26, 6 1).
3
The ALJ re lied on the VE 's testimony to find that plaintiff would be able to perform the requirements of
representative occupations such as a light cleaner (227 ,471 jobs nationally), a packer (32,4 19 jobs nationally), and a
food preparer (140,521 jobs nationally). (Tr. 27, 63).

4

The Commissioner's findings must stand if they are supported by "such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales,
402 U.S. 389, 401 (1971) (citing Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229
(1938)). Substantial evidence consists of "more than a scintilla of evidence but less than a
preponderance. .. ." Rogers v. Comm 'r a/Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). In
deciding whether the Commissioner' s findings are supported by substantial evidence, the Court
considers the record as a whole. Hephner v. Mathews, 574 F.2d 359 (6th Cir. 1978).
The Court must also determine whether the ALJ applied the correct legal standards in the
disability determination. Even if substantial evidence supports the ALJ's conclusion that the
plaintiff is not disabled, " a decision of the Commissioner will not be upheld where the SSA fails
to follow its own regulations and where that error prejudices a claimant on the merits or deprives
the claimant of a substantial right." Rabbers, 582 F.3d at 651 (quoting Bowen, 478 F.3d at 746).

See also Wilson, 378 F.3d at 545-46 (reversal required even though ALJ's decision was
otherwise supported by substantial evidence where ALJ failed to give good reasons for not
giving weight to treating physician 's opinion, thereby violating the agency's own regulations).

D. Medical Evidence
Dr. Alsamman
Plaintiff first saw internist Samer Alsamman, M.D., on September 4, 2012. (Tr. 516).
Plaintiff complained of continuous right knee pain that caused a limp, left groin and hip pain
related to a 2005 hernia repair surgery, and chronic back and abdominal pain. (Id.). Plaintiff
was taking meloxicam (a nonsteroidal anti-inflammatory drug) and Lyrica (used to treat
neuropathic pain). (Tr. 517). On physical examination, Dr. Alsamman noted abdominal
tenderness in the right upper quadrant and paraumbilical area; right knee tenderness on active
and passive movement with no crepitus, effusion, or restricted range of motion; and left hip pain

5

on movement. (Tr. 518). Dr. Alsamman ordered X-rays and provided a referral to physical
therapy. (Id.).
On September 20, 2012, Dr. Alsamman' s physical examination revealed abdominal
tenderness in the right upper quadrant; left groin tenderness; right knee tenderness on active and
passive movement with no crepitus, effusion, or restricted range of motion; and left hip pain on
movement. (Tr. 515). Dr. Alsamman prescribed a knee brace and cane for the osteoarthritis in
plaintiffs knee. (Id.).
An X-ray of plaintiffs knee in October 2012 revealed "mild medial compartmental joint
space narrowing" with no soft tissue abnormalities. (Tr. 556). An October 2012 X-ray of
plaintiffs hip revealed a synovial herniation pit in the right femoral neck. (Tr. 559). The
radiologist recommended "[c]orrelation for femoral acetabular impingement syndrome." (Id.).
The results of an October 2012 ultrasound of plaintiffs abdomen were normal except for a cyst
on plaintiffs liver that appeared benign. (Tr. 552).
In November 2012, Dr. Alsamman noted that "[a]n orthopedic referral was requested for
[plaintiff] based on the finding of hip joint synovial fluid herniation and suspected acetabular
impingement." (Tr. 509). Physical examination revealed mild abdominal tenderness in the right
hypochondria! area, left inguinal area tenderness, and decreased range of motion and bony
tenderness in the right knee. (Tr. 511 ). Dr. Alsamman noted that plaintiff needed to return to his
pain medicine physician and referred him to physical therapy. (Tr. 512).
In January 2013, an X-ray of plaintiffs knee showed mild medial compartment
narrowing, " likely degenerative," that was unchanged from the October 2012 study. (Tr. 548).
Also in January 2013, plaintiff rated his pain at 7 out of 10 for Dr. Alsamman. (Tr. 498). Dr.
Alsamman noted that plaintiff did not go to his orthopedic appointment for the referral related to
left hip synovial herniation. (Id.). On physical examination, Dr. Alsamman noted that the right

6

inguinal area was "small, firm, swelling, slightly enlarge[ d] with cough, with mild tenderness to
deep palpation." (Tr. 500). Dr. Alsamman also noted right knee tenderness with no effusion or
swelling and pain and tenderness at the back of the lower part of the thigh and the back of the
knee with no mass or swelling. (Id.). Dr. Alsamman ordered an abdominal ultrasound to
determine if plaintiff had a right inguinal hernia. (Tr. 50 I). Dr. Alsamman prescribed ibuprofen
for plaintiffs knee pain and indicated he would consider ordering a knee MRI if the pain
persisted. (Id.).
A February 2013 abdominal ultrasound was normal and showed that the liver lesion
noted in October 2012 was no longer present. (Tr. 544). In May 2013, plaintiff reported
symptoms of depression and anxiety, for which Dr. Alsamman prescribed Paxil. (Tr. 493, 496).
On physical examination, Dr. Alsamman noted tenderness in the left groin area related to the
2005 hernia repair surgery and tenderness and decreased range of motion in the right knee. (Tr.
495). Dr. Alsamman prescribed Benty] (used to relieve muscle spasms and cramping in the
gastrointestinal tract) for plaintiffs continued complaints of abdominal pain. (Tr. 496). Dr.
Alsamman prescribed Naprosyn (a nonsteroidal anti-inflammatory drug) for plaintiffs knee
pam. (Id.).
In August 2013, Dr. Alsamman noted that plaintiff was taking Naprosyn and Lyrica with
"partial relief' of his knee pain. (Tr. 489). Dr. Alsamman indicated that plaintiffs chronic groin
pain was "controlled" with Bentyl. (Id.). Physical examination revealed tenderness in both
knees. (Tr. 491 ). Dr. Alsamman ordered intraarticular steroid injections for plaintiffs knees.
(Tr. 492).
In September 2013, Dr. Alsamman noted that plaintiff had fallen " over the stairs after his
right knee gave away, and he injured his face, and limbs." (Tr. 485). On physical examination,
Dr. Alsamman noted chronic back pain and generalized tenderness over plaintiffs hands and

7

knees. (Tr. 487). Dr. Alsamman prescribed Vicodin, Naprosyn, and a handicapped parking
permit for the osteoarthritis in plaintiffs knees. (Tr. 488). Dr. Alsamman advised plaintiff that
he needed a home care nurse, "but he refused and his wife said she will take care of him[] at
home." (Id.). Dr. Alsamman also advised plaintiff not to take stairs without assistance. (Id.).
Dr. Alsamman administered a steroid injection in plaintiffs right knee. (Tr. 484).
Also in September 2013, plaintiff underwent a CT scan of the cervical spine after his fall.
(Tr. 537). The CT scan revealed the following abnormal findings: (1) a "[p]osterior disc bulge
narrows the ventral [cerebrospinal fluid] space" at C4-5; (2) anterior endplate spurs at C4-5; (3)
disc narrowing at C5-6, including a " [d]isc bulge and endplate spurs [that] narrow the ventral
[cerebrospinal fluid] space" and " left hypertrophic facet arthropathy" (i.e., facet syndrome); (4) a
small anterior endplate spur at C6-7; and ( 5) reversal of normal curvature in the cervical spine.
(Tr. 537).
In October 2013, plaintiff complained to Dr. Alsamman of right shoulder pain because of
the fall in addition to his chronic pain complaints. (Tr. 480). On physical examination, Dr.
Alsamman noted chronic left groin pain, right shoulder tenderness with decreased range of
motion, and tenderness in both knees. (Tr. 482). Dr. Alsamman referred plaintiff to an
orthopedic surgeon to assess the possibility of bilateral knee replacement. (Tr. 483). Dr.
Alsamman ordered blood tests to rule out rheumatoid arthritis. Noting that plaintiff "has limited
shoulder movement above the horizontal level with tenderness" and pain that did not resolve
with medicines and physical therapy, Dr. Alsamman ordered an MRI of plaintiffs right shoulder.
(Id.). The shoulder MRI revealed the following abnormal findings: (1) "supraspinatus and
infraspinatus tendinopathy but no evidence of rotator cuff tear"; (2) a "small amount of fluid in
subacromial-subdeltoid bursa suggestive of bursitis"; and (3) moderate osteoarthritis of the
acromioclavicular joint. (Tr. 532).

8

In January 2014, Dr. Alsamman submitted an opinion concerning plaintiffs physical
RFC. (Tr. 332-36). Dr. Alsamman noted diagnoses of generalized osteoarthritis and
hypertension. (Tr. 332). As to prognosis, Dr. Alsamman commented: "limiting his
functionality, progressive." (Id.). Dr. Alsamman listed the following symptoms: bilateral knee
pain, stiffuess in the knees and hands, frequent falls because knees give out, and chronic groin
pain because of an old hernia repair. Dr. Alsamman opined that plaintiffs pain was continuous
and his knee pain limited his mobility. Dr. Alsamman noted the following clinical findings and
objective signs concerning plaintiffs knees: tenderness, loss of joint space, crepitus. (Id.). Dr.
Alsamman indicated that medication, physical therapy, and knee support had all been tried with
partial relief. (Tr. 333). Dr. Alsamman opined that "with progression of disease, these measures
are not helpful." (Id.). Dr. Alsamman indicated that "stress from pain" was a psychological
condition affecting plaintiffs physical condition. (Id.). Dr. Alsamman opined that plaintiffs
experience of pain would "frequently" interfere with the attention and concentration needed to
perform even simple work tasks. (Id.). Further, Dr. Alsamman opined that plaintiff was
incapable of even "low stress" jobs due to "sever[ e] progressive osteoarthritis, affecting knees
and small joints of hands." (Id.). Dr. Alsamman did not complete three additional pages of
questions concerning plaintiffs functional limitations. (See Tr. 334-36).
Dr. Hughes

Neurologist Arthur Hughes, M.D., evaluated plaintiff in July 2013 for workers'
compensation purposes. (Tr. 429-31 ). On physical examination, Dr. Hughes noted that plaintiff
had a "markedly antalgic gait using a cane on the right." (Tr. 429). Further, plaintiff showed
tenderness of the left groin and medial thigh; pain with flexion of the left leg at the hip and with
internal and external rotation of the hip; and 1+ knee reflexes. Dr. Hughes observed that
plaintiffs "movements were all made very deliberately due to pain." (Id.). Dr. Hughes opined

9

that plaintiff "has had persisting and increased left groin pain, which has severely limited his
activities such that he is unable to use stairs, can walk only short distances, and has limited
ability to lift. He has to use a cane because of the [e ]ffect of the pain on his gait." (Tr. 430). Dr.
Hughes opined that plaintiffs left ilioinguinal neuralgia and gait disorder combined for "a total
permanent partial impairment of the whole person of 22%." (Id.). Dr. Hughes opined that a
previous award of 11 % "adds an additional 11 % whole person permanent partial impairment."
(Id.).
Dr. Swedberg

Family medicine doctor Phillip Swedberg, M.D., examined plaintiff in April 2012 for
disability purposes. (Tr. 383-90). On physical examination, Dr. Swedberg noted that plaintiff
"ambulates with an antalgic somewhat stiff gait" and "appears to be in discomfort." (Tr. 389).
Plaintiff had tenderness to palpation over the left groin and inguinal region. Plaintiff was unable
to squat or walk heel to toe and he "had decreased range of motion of the lumbosacral spine with
flexion 60 degrees, extension 20 degrees, right and left lateral flexion 20 degrees." (Id.). The
rest of plaintiffs physical examination was within normal limits with no evidence ofrecurrent
hernia. (Tr. 390). Dr. Swedberg opined that plaintiff"appears capable of performing a mild-tomoderate amount of sitting, standing, ambulating, bending, kneeling, pushing, pulling, lifting and
carrying heavy objects." (Id.) . Further, Dr. Swedberg indicated that plaintiff "had no difficulty
reaching, grasping or handling objects." (Id.) .
Dr. Griffiths

Clinical psychologist Brian Griffiths, Psy.D., examined plaintiff in January 2012 for
disability purposes. (Tr. 344-50). Plaintiff reported consuming six cans of beer a day. (Tr. 346).
He reported no prior mental health treatment. (Id.). Plaintiff reported the following activities of
daily living: ( 1) watching television; (2) playing computer games; (3) spending time with his

10

girlfriend and grandchildren; (4) occasionally babysitting nieces and nephews; (5) attending to
his own grooming and hygiene; and (6) doing " light household chores with frequent breaks like
wiping off the kitchen table" because he was unable to stand for long periods of time. (Tr. 347).
Further, plaintiff reported that he was able to fix a meal but could not go grocery shopping
because it required too much walking. (Id.).
On clinical examination, Dr. Griffiths noted that plaintiffs "phraseology, grammatical
structure, and vocabulary suggested that he is an intellectually limited person." (Id.). He was
unable to perform serial sevens and committed multiple errors counting backwards from twenty
by threes. (Tr. 348). Plaintiff was unable to perform a verbal mathematics problem involving
division. Plaintiff received a full scale IQ score of 65 on the Wechsler Adult Intelligence Scale,
Fourth Edition, " indicating that he is currently functioning in the mildly mentally retarded range
of intelligence or at about the 1st percentile for his age group." (Id.). His working memory
score of 71 indicated "that his attention and concentration skills fall in the borderline range or at
about the 3rd percentile for his age group." (Id.). His processing speed score of 50 indicated
"that his processing speed falls in the deficient range or at less than the 1st percentile for his age
group." (Id.). Dr. Griffiths opined that plaintiffs performance on the IQ test was "somewhat
lower than would be expected based on his clinical presentation" and "emotional factors and/or
vision problems negatively impacted his performance on this measure as he appears to be of
borderline intelligence." (Id.).
Dr. Griffiths diagnosed plaintiff with depressive disorder, alcohol abuse, and borderline
intellectual functioning. (Tr. 349). Dr. Griffiths noted that plaintiff "performed poorly on Digit
Span, a simple structured task designed to assess short-term memory skills." (Id.). Dr. Griffiths
opined that this might "suggest problems remembering and carrying out basic work-related
activities in a timely and consistent manner." (Tr. 350). Further, Dr. Griffiths opined that

II

plaintiff "may have difficulty understanding simple work-related instructions if they are
presented to him in a written format." (Id.). As to plaintiffs ability to maintain attention,
concentration, persistence, and pace, Dr. Griffiths opined: "Problems with sustained attention
and concentration are expected. In addition, the limited energy, easy fatigability and poor
frustration tolerance that often accompanies depression may interfere with task persistence and
pace." (Id.). As to plaintiffs ability to interact with others, Dr. Griffiths opined that plaintiff's
"emotional difficulties may cause him to withdraw from others." (Id.). Finally, as to plaintiff's
ability to respond appropriately to work pressures, Dr. Griffiths opined that "in light of his
current mental state, the stress and pressures associated with day-to-day work activity might
exacerbate depressive symptomology leading to withdrawal and slowed work performance."
(Id.).
Non-examining State Reviewing Physicians
In May 2012, Maureen Gallagher, D.O., and Carl Tishler, Ph.D., examined medical
records from Dr. Swedberg, Dr. Griffiths, and Faculty Medical Center. (Tr. 68-82). Dr.
Gallagher opined that plaintiff's physical RFC was limited in the following ways: (1)
occasionally lift 50 pounds; (2) frequently lift 25 pounds; (3) stand and/or walk for 6 hours in an
8-hour workday; (4) sit for 6 hours in an 8-hour workday; (5) frequently climb ramps/stairs; (6)
occasionally climb ladders/ropes/scaffolds; and (7) frequently crawl. (Tr. 77-78). Dr. Tishler
opined that plaintiff's mental RFC was limited in the following ways: (1) marked limitation in
the ability to understand and remember detailed instructions; (2) marked limitation in the ability
to carry out detailed instructions; (3) moderate limitation in the ability to complete a normal
workday without interruptions from psychological symptoms and to perform at a consistent pace;

(4) moderate limitation in the ability to accept instructions and respond appropriately to criticism
from supervisors; and (5) moderate limitation in the ability to respond appropriately to changes

12

in the work setting. (Tr. 78-80). On reconsideration in August 2012, Leslie Green, M.D., and
Vicki Warren, Ph.D., reached the same conclusions. (See Tr. 107-11).

E. Specific Errors
On appeal, plaintiff argues the ALJ failed to properly assess plaintiffs mental limitations
and pain in formulating the RFC. Next, plaintiff argues the ALJ failed to properly weigh the
medical opinions of record and improperly substituted her own non-medical judgment. (Doc.
14). Because the ALJ' s assessment of the medical opinions directly impacts whether the ALJ
properly formulated plaintiff's RFC, the Court will first consider plaintiff's assignment of error
related to the ALJ ' s consideration of the medical opinions.
1. Whether substantial evidence supports the ALJ's consideration of the medical
opinions of record.

a. Substantial evidence supports the ALi's assessment of the treating physician 's
opinion.
It is well-established that the findings and opinions of treating physicians are entitled to

substantial weight. "In general, the opinions of treating physicians are accorded greater weight
than those of physicians who examine claimants only once." Walters v. Comm 'r ofSoc. Sec.,
127 F.3d 525, 529-30 (6th Cir. 1997). See also Harris v. Heckler, 756 F.2d 431, 435 (6th Cir.
1985) ("The medical opinions and diagnoses of treating physicians are generally accorded
substantial deference, and if the opinions are uncontradicted, complete deference."). "The
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, or
who has only seen the claimant's medical records." Barker v. Shala/a, 40 F.3d 789, 794 (6th
Cir. 1994).

13

"Treating-source opinions must be given 'controlling weight ' if two conditions are met:
(1) the opinion ' is well-supported by medically acceptable clinical and laboratory diagnostic
techniques'; and (2) the opinion ' is not inconsistent with the other substantial evidence in [the]
case record."' Gayheart v. Comm 'r ofSoc. Sec. , 710 F.3d 365, 376 (6th Cir. 2013) (citing 20
C.F.R. § 404.1527(c)(2)). See also Cole v. Astrue, 661 F.3d 931 , 937 (6th Cir. 2011). If the ALJ
declines to give a treating source' s opinion controlling weight, the ALJ must balance the factors
set forth in 20 C.F.R. § 404. l 527(c)(2)-(6) in determining what weight to give the opinion. See
Gayheart, 710 F.3d at 376; Wilson, 378 F.3d at 544. These factors include the length, nature and
extent of the treatment relationship and the frequency of examination. 20 C.F .R. §
404.1527(c)(2)(i)-(ii); Wilson, 378 F.3d at 544. In addition, the ALJ must consider the medical
specialty of the source, how well-supported by evidence the opinion is, how consistent the
opinion is with the record as a whole, and other factors which tend to support or contradict the
opinion. 20 C.F.R. § 404.1527(c)(3)-(6); Gayheart, 710 F.3d at 376; Wilson, 378 F.3d at 544.
"Importantly, the Commissioner imposes on its decision makers a clear duty to ' always
give good reasons in [the] notice of determination or decision for the weight [given a] treating
source' s opinion."' Cole, 661 F.3d at 937 (citation omitted). See also Wilson, 378 F.3d at 544
(ALJ must give "good reasons" for the ultimate weight afforded the treating physician opinion).
Those reasons must be "supported by the evidence in the case record, and must be sufficiently
specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating
source's medical opinion and the reasons for that weight." Cole, 661 F.3d at 937 (citing SSR
96-2p, 1996 WL 374188 at *5 (1996)). This procedural requirement "ensures that the ALJ
applies the treating physician rule and permits meaningful review of the ALJ's application of the
rule." Gayheart, 710 F.3d at 376 (quoting Wilson, 378 F.3d at 544).

14

The ALJ gave little weight to Dr. Alsamman's opinion for the following reasons: (1) it
was neither well supported nor consistent with the substantial evidence of record; (2) the degree
of pain opined by Dr. Alsamman was not supported by objective findings or plaintiffs treatment
history; (3) the degree of pain was not consistent with plaintiffs activities of daily living; and (4)
the limitations opined by Dr. Alsamman are mental functional impainnents, but he does not have
a psychological or mental health specialty. (Tr. 24).
Plaintiff contends the ALJ improperly rejected Dr. Alsamman's opinion because
plaintiffs treatment records and objective radiological evidence support that opinion. (Doc. 14
at 14).
Here, the ALJ properly weighed Dr. Alsamman' s opinions. First, the ALJ gave good
reasons for not giving Dr. Alsamman's opinion controlling weight and those reasons are
substantially supported by the record. Dr. Alsamman did not complete three of the five pages of
the questionnaire. (See Tr. 334-36). In the two pages that Dr. Alsamman did complete, the only
functional limitations he identified were that plaintiffs pain would frequently interfere with the
attention and concentration needed to perform even simple work tasks and plaintiff would be
incapable of even "low stress" jobs. (Tr. 333). In discounting Dr. Alsamman' s opinion on
plaintiffs mental RFC, the ALJ properly considered the fact that Dr. Alsamman was not a
specialist in mental health treatment. See 20 C.F.R. §§ 404.1527(c)(5), 416.927(c)(5). The ALJ
also reasonably concluded that Dr. Alsamman's opinion was " internally inconsistent" inasmuch
as Dr. Alsamman opined that plaintiffs pain was severe enough to cause problems with
attention, concentration, and the ability to handle work stress, but Dr. Alsamman did not indicate
that plaintiffs pain would cause any exertional or postural limitations. (Tr. 24); see Coldiron v.

Comm 'r ofSoc. Sec., 391 F. App' x 435, 442 (6th Cir. 2010) (holding that internal

15

inconsistencies in a treating physician's opinion may provide substantial evidentiary support for
the ALJ's decision not to accord it controlling weight).
Moreover, substantial evidence supports the ALJ ' s determination that Dr. Alsamman's
opinion concerning the severity of plaintiffs pain was not supported by objective findings or
plaintiffs treatment history. (Tr. 24). As the ALJ noted, plaintiffs April 2012 physical
examination with Dr. Swedberg was within normal limits except for an antalgic gait, decreased
range of motion of the lumbosacral spine, and tenderness over the groin region. (See Tr. 21 ,
390). Further, the ALJ referenced an examination in January 2012 by pain management doctor
Gregory Fry, M.D., that was unremarkable except for "only some non-specific tenderness over
the left groin." (See Tr. 21 , 459). Dr. Fry noted that plaintiffs sensory and motor functions
remained intact in all extremities. (See id.). The ALJ also properly noted that radiological
studies revealed only mild changes that do not support plaintiffs complaints of severe pain. (See
Tr. 21-22). For example, an October 2012 ultrasound of plaintiffs abdomen was normal except
for a benign cyst on plaintiffs liver. (Tr. 552). An October 2012 knee X-ray revealed only
"mild medial compartmental joint space narrowing" with no soft tissue abnormalities. (Tr. 556).
A January 2013 X-ray of plaintiffs knee was unchanged. (Tr. 548). While Dr. Alsamman
referred plaintiff to an orthopedist based on an October 2012 hip X-ray that showed "hip joint
synovial fluid herniation and suspected acetabular impingement," plaintiff did not go to his
orthopedic appointment. (See Tr. 498, 509, 559). During the following year of treatment, Dr.
Alsamman never noted any abnormal findings on physical examination related to plaintiffs hip.
(See Tr. 482, 487, 491 , 495, 500). As to plaintiffs cervical spine, the ALJ accurately noted that

a September 2013 CT scan showed only "some low-grade degenerative disc
disease/spondylosis." (See Tr. 22, 53 7). An October 2013 shoulder MRI revealed some
tendinopathy, bursitis, and moderate osteoarthritis, but no evidence ofrotator cuff tear. (See Tr.

16

22, 532). The ALJ also reasonably noted that plaintiff's conservative pain treatment did not
support Dr. Alsamman's opinion. (See Tr. 22, 24); see Francis v. Comm 'r Soc. Sec. Admin., 414
F. App' x 802, 806 (6th Cir. 2011) (" [T]he ALJ reasonably viewed Francis' s limited treatment as
inconsistent with Dr. Wakham ' s opinion. While Francis has been no stranger to a doctor's
office, all of his recent treatments were conservative and largely confined to pain
medications.... [This is] consistent with a finding that Francis's medications adequately
manage his pain and enable him to work full time with some restrictions. This, again, is all that
the substantial-evidence standard requires.").
For these reasons, the Court determines that the ALJ reasonably declined to give Dr.
Alsamman ' s opinion controlling weight. See Gayheart, 710 F.3d at 376.
Moreover, substantial evidence supports the ALJ' s weighing of the regulatory factors in
affording little weight to Dr. Alsamman's opinion. See 20 C.F.R. §§ 404.1527(c)(2)-(6),
416.927(c)(2)-(6). In her decision, the ALJ noted that she considered "all of the relevant factors,
including the doctor's specialization, the doctor's explanation for the opinion, and the
consistency of the opinion with the record [as] a whole (20 CFR 404.1527)." (Tr. 24). As
already explained, the reasons the ALJ gave in support of discounting Dr. Alsamman' s opinion
were good reasons. Further, these reasons "reache[ d] several of the factors that an ALJ must
consider." Allen v. Comm 'r ofSoc. Sec., 561 F.3d 646, 651 (6th Cir. 2009). For example, the
ALJ noted that Dr. Alsamman was not a specialist in psychiatry or mental health treatment in
discounting Dr. Alsamman 's opinion on plaintiff's mental health limitations. See 20 C.F.R. §§
404.1527(c)(5), 416.927(c)(5). Further, the ALJ' s comments concerning the internal
inconsistency of Dr. Alsamman 's opinion and the lack of objective findings and treatment
history to support his opinion address the regulatory factors of supportability and consistency.

See 20 C.F.R. §§ 404.1527(c)(3)-(4), 416.927(c)(3)-(4). Thus, the ALJ stated good reasons for

17

discounting Dr. Alsamman' s opinion that are consistent with the regulatory factors the ALJ must
consider. Accordingly, substantial evidence supports the ALJ's assessment of Dr. Alsamman's
op1mon.

b. Substantial evidence supports the ALJ's assessment ofDr. Hughes 's opinion.
"[O]pinions from nontreating ... sources are never assessed for ' controlling weight. ' "

Gayheart, 710 F.3d at 376. "The Commissioner instead weighs these opinions based on the
examining relationship (or lack thereof), specialization, consistency, and supportability, but only
ifa treating-source opinion is not deemed controlling." Id. (citing 20 C.F.R. § 404.1527(c)).
"Other factors ' which tend to support or contradict the opinion ' may be considered in assessing
any type of medical opinion." Id. (quoting 20 C.F.R. § 404.1527(c)(6)).
The ALJ gave little weight to Dr. Hughes's opinion for the following reasons: (1) Dr.
Hughes rendered his opinion for workers' compensation purposes and "a determination of
disability by another agency is not binding on (the Social Security Administration]; and (2) Dr.
Hughes's opinion concerning plaintiffs limitations was "inconsistent with, and not supported by,
(plaintiffs] activities of daily living, treatment history, and objective physical examination
findings." (Tr. 24-25).
Plaintiff argues the ALJ improperly rejected Dr. Hughes' s opinion because even though
that opinion was rendered for workers' compensation purposes, it was "still based on his
physical examination" and review of plaintiffs medical records. (Doc. 14 at 14-15).
Here, substantial evidence supports the ALJ ' s assessment of Dr. Hughes' s opinion. The
ALJ gave two reasons for giving little weight to Dr. Hughes's opinion. The first reason-that
Dr. Hughes rendered his opinion for workers' compensation, which has different standards for
disability than the Social Security Administration- is not compelling. (See Tr. 24).
Specifically, while this would be a legitimate reason for the ALJ to reject Dr. Hughes' s opinion

18

that plaintiffs left ilioinguinal neuralgia and gait disorder combined for "a total permanent
partial impairment of the whole person of 22%," the mere fact that Dr. Hughes rendered his
opinion for workers ' compensation purposes is not a valid reason to discredit his opinion that
plaintiffs medical conditions resulted in restrictions in using stairs, walking, and lifting. (Tr.
430).
However, the ALJ also found that Dr. Hughes's opinion lacked consistency and
supportability and these are reasonable grounds supported by substantial evidence for giving Dr.
Hughes's opinion little weight under the regulatory factors. (Tr. 25). The evidence described
above in connection with the ALJ's weighing of Dr. Alsamman ' s opinion likewise supports the
ALJ' s determination that Dr. Hughes' s opinion was inconsistent with and not supported by
plaintiff's treatment history and objective physical examination findings. (Id.). Further, as to
Dr. Hughes' s own examination findings, he noted only that plaintiff had an antalgic gait,
tenderness of the left groin and medial thigh, pain with flexion of the left leg at the hip and with
rotation of the hip, and deliberate movements due to pain. (Tr. 429). Dr. Hughes did not explain
how any of these findings translated to a complete inability to use stairs, an ability to walk only
short distances, and a limited ability to lift. (See Tr. 429-30). Thus, the ALJ reasonably weighed
several relevant regulatory factors in discounting Dr. Hughes' s opinion. See 20 C.F.R. §§
404.1527(c)(3)-(4), 416.927(c)(3)-(4). Accordingly, substantial evidence supports the ALJ's
assessment of Dr. Hughes 's opinion.
c. Substantial evidence does not support the AL.J's assessment o[Dr. Gri(flths '
opinion.

The ALJ summarized the findings of consultative psychologist Dr. Griffiths, but did not
indicate how much weight, if any, she was giving to Dr. Griffiths ' opinion. (See Tr. 23-24).
Specifically, the ALJ stated the following concerning Dr. Griffiths ' opinion:

19

[T]he psychological consultative examiner opined that [plaintiff] appeared to be
an intellectually limited man; however, he was able to follow simple verbal
instructions during the evaluation. However, the doctor indicated that [plaintiff]
may have problems remembering and carrying out basic work-related activities in
a timely and consistent manner, as well as having difficulty understanding simple
work-related instructions if they are presented to him in a written format. In
addition, the doctor opined that problems with sustained attention and
concentration are expected; limited energy, easy fatigability and poor frustration
tolerance may interfere with task persistence and pace; and he has no history or
reports of social difficulties, but his emotional difficulties may cause him to
withdraw from others. The doctor also noted that [plaintiff] has no history of
decompensation from exposure to the workplace; however, in light of his current
mental state, the stress and pressure associated with day-to-day work activity
might exacerbate depressive symptomatology leading to withdrawal and slowed
work performance. The doctor also assigned a Global Assessment of Functioning
[score of] 55, which is indicative of only "moderate" symptoms and "moderate"
difficulties in social or occupational functioning[.]
(Tr. 23-24).
Plaintiff argues the ALJ's RFC failed to account for the mental limitations that
consultative psychologist Dr. Griffiths identified. (Doc. 14 at 9-10). Plaintiff also contends the
ALJ erred by not reporting how much weight she gave to Dr. Griffiths' opinion. (Id. at 15-16).
Here, the ALJ recited Dr. Griffiths' findings but did not indicate how much weight, if
any, she was giving to his opinion. (See Tr. 23-24). Thus, the ALJ failed to provide any
indication that she had weighed Dr. Griffiths' opinion as required under the regulatory factors.
See 20 C.F.R. §§ 404.1527(c), 416.927(c). See also Gayheart, 710 F.3d at 379 (remanding
because among other errors, " [t]he ALJ ' s decision provides no indication that he applied the
factors set out in § 404. I 527( c)-supportability, consistency, specialization- when weighing the
consultative doctors' opinions"). The ALJ's decision is devoid of any reasoning related to Dr.
Griffiths' opinion and the Court cannot discern which findings the ALJ accepted, which findings
she rejected, and her reasons for accepting or rejecting those findings. Thus, the Court is unable
to determine whether substantial evidence supports the ALJ's mental RFC findings because the
Court has no way to determine how much weight the ALJ actually gave to Dr. Griffiths' opinion.

20

The failure of the ALJ to properly assess Dr. Griffiths' opinion is especially troubling in
this case because Dr. Griffiths performed the only complete mental health examination of
plaintiff in the record. Moreover, examining Dr. Griffiths' opinion in light of the regulatory
factors strongly suggests that his opinion is consistent with and supported by Dr. Griffiths' own
examination findings and the medical record. See 20 C.F.R. §§ 404.1527(c)(3)-(4),
416.927(c)(3)-(4). For example, Dr. Alsamman prescribed Paxil for plaintiffs symptoms of
depression and anxiety. (Tr. 493, 496). Dr. Alsamman opined that plaintiffs experience of pain
would "frequently" interfere with the attention and concentration needed to perform even simple
work tasks. (Tr. 333). Further, Dr. Alsamman opined that plaintiff was incapable of even " low
stress" jobs. (Id.). While Dr. Alsamman is not a mental health specialist, he saw plaintiff
frequently as his treating physician and the ALJ should have considered whether his opinion and
treatment of plaintiff was consistent with and supported Dr. Griffiths' findings.
In deciding whether the ALJ's failure to consider the regulatory factors and assign weight
to Dr. Griffiths' opinion warrants reversal, the Court must determine whether "that error
prejudices [plaintiff] on the merits or deprives [him] of a substantial right." Rabbers, 582 F.3d at
651. The Commissioner argues that the ALJ's failure to indicate the amount of weight she gave
Dr. Griffiths' opinion was harmless error because the ALJ 's RFC assessment accounted for all
the limitations that Dr. Griffiths identified. (Doc. 19 at 14-15). If the Commissioner is correct,
then reversal would not be warranted because the ALJ's failure to identify the weight given to
Dr. Griffiths' opinion would not have "prejudice[d] [plaintiff] on the merits or deprive[d] [him]
of a substantial right." Rabbers, 582 F.3d at 651.
Dr. Griffiths identified the following functional limitations as consistent with plaintiffs
history, mental status examination, and IQ testing: ( 1) problems remembering and carrying out
basic work-related activities in a timely and consistent manner; (2) difficulty understanding

21

simple work-related instructions if they are presented in a written format; (3) problems with
sustained attention and concentration; ( 4) interference with task persistence and pace from the
limited energy, easy fatigability, and poor frustration tolerance that often accompany depression;
(5) emotional difficulties that may cause plaintiff to withdraw from others; and (6) withdrawal
and slowed work performance in light of plaintiff's current mental state and the stress and
pressures associated with day-to-day work activity. (See Tr. 349-50). First, the ALJ accounted
for plaintifrs difficulty understanding simple work-related instructions presented in a written
format by requiring "verbal or demonstration instruction reminder with introduction of new
tasks." (Tr. I 9). Further, the RFC accounted for plaintiff's problems with sustained attention
and concentration, task persistence, and pace by limiting plaintiff to "simple, routine, and
repetitive tasks without strict production demands." (Id.). See Kepke v. Comm 'r ofSoc. Sec.,
636 F. App' x 625, 635 (6th Cir. 20 16) (rejecting plaintiff's argument that ALJ's hypothetical
limiting plaintiff to simple, unskilled work in a low stress job was insufficient to convey
moderate limitations in concentration, persistence, and pace); Smith-Johnson v. Comm 'r of Soc.

Sec., 579 F. App' x 426, 437 (6th Cir. 2014) (" [T]he limitation to simpl e, routine, and repetitive
tasks adequately conveys [plaintiff's] moderately limited ability ' to maintain attention and
concentration for extended periods.'").
However, it is not clear that the ALJ's RFC assessment accounted for Dr. Griffiths '
findings that plaintiff would have problems remembering and carrying out basic work-related
activities in a timely and consistent manner. (See Tr. 19, 350). While the ALJ limited plaintiff
to simple tasks, the Court cannot say that the limitation to simple tasks adequately
accommodates Dr. Griffiths ' finding that plaintiff might have problems with even basic work
activities. Further, the ALJ's RFC assessment did not include any limitations concerning
plaintiff's ability to interact with supervisors, coworkers, or the general public to account for Dr.

22

Griffiths' findings related to plaintiffs expected withdrawal from others as a result of his
emotional difficulties and response to work stress and pressures. (See Tr. 19, 350).
Accordingly, the Court finds that the ALJ's failure to properly weigh Dr. Griffiths'
opinion does not constitute harmless error. Instead, this failure may have "prejudice[d]
[plaintiff] on the merits or deprive[d] [him] of a substantial right," as the additional limitations
that Dr. Griffiths identified that were not accounted for in plaintiffs RFC might alter the
Commissioner's evaluation of whether there was other work that plaintiff could perform.

Rabbers, 582 F.3d at 651. Therefore, plaintiffs third assignment of error should be sustained.
At this time, the Court declines to consider plaintiffs first assignment of error concerning the
mental limitations included in the RFC because a proper evaluation of Dr. Griffiths' opinion may
change the ALJ' s RFC assessment.

2. Substantial evidence supports the ALJ's assessment of plaintiff's pain.
Subjective complaints of pain and other symptoms are evaluated under the standard set
forth in Duncan v. Sec'y of HHS. , 801F.2d847, 852-53 (6th Cir. 1986). In order to find
plaintiff disabled on the basis of pain alone, the Commissioner must first determine whether
there is objective medical evidence of an underlying medical condition. Id. at 853. If there is,
the Commissioner must then determine: (1) whether the objective medical evidence confirms
the severity of the pain alleged by plaintiff; or (2) whether the underlying medical impairment is
severe enough that it can reasonably be expected to produce the allegedly disabling pain. Id.
In addition to the objective medical evidence, the Commissioner must consider the
opinions and statements of the plaintiffs doctors. Felisky, 35 F.3d at 1040. Additional specific
factors relevant to the plaintiffs allegations of pain include his daily activities; the location,
duration, frequency, and intensity of his pain; precipitating and aggravating factors; the type,
dosage, effectiveness, and side effects of any medication plaintiff takes to alleviate his pain or

23

other symptoms; treatment other than medication plaintiff has received for relief of his pain; and
any measures the plaintiff uses to relieve his pain. Id. at I 039-40; 20 C.F.R. § 404.1529( c).
Although plaintiff is not required to provide "objective evidence of the pain itself' in order to
establish he is disabled, Duncan, 801 F.2d at 853, statements about his pain or other symptoms
are not sufficient to prove disability. 20 C.F.R. § 404.1529(a). The record must include
"medical signs and laboratory findings which show that (plaintiff has] a medical impairment(s)
which could reasonably be expected to produce the pain or other symptoms alleged and which,
when considered with all of the other evidence ... would lead to a conclusion that [plaintiff is]
disabled. " Id.
The ALJ found that "the record does not support (plaintiffs] allegation that his
impairments are so severe that they prevent him from working. " (Tr. 2 l ). As to plaintiff's groin
pain, the ALJ determined that while Or. Swedberg' s examination revealed tenderness,
"additional physical examinations of record were benign and continuously reflect that no
expansile mass was seen with no evidence ofrecurrent inguinal hernia." (id.) . Further, the ALJ
noted that plaintiff's "groin pain has not caused any changes in his bowel or urinary habits" and
"no further surgery for his groin pain has been recommended." (Id.). While acknowledging that
the record contains evidence of an antalgic gait, the ALJ stated that plaintiff's "physical
examinations show normal strength, as well as sensory and motor functions intact in all four
extremities with no deficits except for diminished sensation over the left groin area." (Id.) . The
ALJ also noted that the October 2012 knee X-ray "revealed only mild medial compartmental
joint space narrowing, likely degenerative, and left hip x-rays reported synovial herniation in the
right femoral neck with recommendation for correlation for femoral acetabular impingement
syndrome recommended." (Id.). Further, the ALJ found that plaintiff's pain did not result in
symptoms normally associated with chronic, severe pain such as muscle atrophy, rigidity, or

24

tremor. (Id.). The ALJ also noted that plaintiff " has conservatively treated for his pain with
medications and injections, but he has not undergone any more invasive treatment such as further
surgery." (Tr. 22). The ALJ concluded that the following RFC restrictions adequately
accounted for plaintiffs groin pain and osteoarthritis with knee and low back pain: light work
with only occasional overhead reach, push and pull, crawling, and climbing of ramps and stairs;
no climbing of ladders, ropes, and scaffolds; avoidance of concentrated exposure to hazards; and
use of a cane for ambulation on uneven surfaces. (Id.).
Plaintiff argues the ALJ cherry-picked his medical records to discount his pain
symptoms. (Doc. 14 at 11-12). Plaintiff contends the ALJ improperly relied on the lack of
surgical intervention in discounting the severity of plaintiffs pain because "[n]o where in the
records does a physician suggest a surgical procedure for the neuralgic [ilioinguinal pain]." (Id.
at 12).
Here, radiological evidence confirms underlying medical conditions in plaintiffs knee,
cervical spine, hip, and shoulder that could cause pain. (See Tr. 532, 537, 548, 556, 559); see
Duncan, 801 F.2d at 853. However, substantial evidence supports the ALJ's finding that

objective medical evidence does not confirm the severity of the pain alleged by plaintiff. (See
Tr. 21-22); see Duncan, 801 F.2d at 853. Plaintiff is correct that the record does not reveal any
medical recommendation that surgery was appropriate for his neuralgic ilioinguinal pain. (See
Doc. 14 at 12). In fact, Dr. Fry noted that plaintiff obtained a surgical consultation related to his
continuing ilioinguinal pain, but the surgeon did not "want to re-explore" the surgical site as
there was no evidence that his hernia had recurred. (Tr. 452). Thus, as to plaintiffs continuing
ilioinguinal pain, the ALJ unreasonably relied on the fact that he had not undergone surgery.
Nevertheless, the ALJ's finding that plaintiff " has conservatively treated for his pain with
medications and injections, but ... has not undergone any more invasive treatment such as

25

further surgery," was not limited to plaintiff's ilioinguinal pain and is substantially supported.
(Tr. 22). For example, Dr. Alsamman referred plaintiff to an orthopedic surgeon to evaluate
plaintiffs hip, but plaintiff did not go to his orthopedic appointment. (See Tr. 498, 509). Dr.
Alsamman also referred plaintiff to an orthopedic surgeon to assess the possibility of bilateral
knee replacement, but there is no evidence in the record that plaintiff made an appointment with
an orthopedist for that condition either. (See Tr. 483). Further, plaintiff was referred to physical
therapy, but "[h]e stopped physical therapy by himself." (Tr. 516). Dr. Fry treated plaintiff's
pain symptoms with Lyrica and nonsteroidal anti-inflammatory drugs and refused to prescribe
more powerful narcotic analgesics " under any circumstances for this poorly motivated patient."
(Tr. 457). Thus, substantial evidence supports the ALJ's finding that plaintiff's pain treatment
was conservative. This record of conservative treatment supports the ALJ's determination that
plaintiff's pain was not disabling. See Francis, 414 F. App' x at 806.
Moreover, the ALJ noted the absence of most of the objecti ve signs typically associated
with severe pain such as muscle atrophy, rigidity, and tremor. (Tr. 21 ). The ALJ reasonably
relied on the lack of objective findings in determining that plaintiff's allegations concerning the
severity of his pain were not fully credible. See Jones v. Secy, Health & Human Servs. , 945
F.2d 1365, 1369-70 (6th Cir. 1991) (reliable objective evidence of pain includes medical
evidence of muscle atrophy, reduced joint motion, muscle spasm, and sensory and motor
disruption). Plaintiff argues that numerous findings of tenderness in the medical record
constitute objective evidence of severe pain. (See Doc. 14 at 11-12). However, tenderness on
physical examination is not the type of objective evidence on which courts generally rely in
considering whether the alleged severity of a plaintiff's pain is substantially supported. See, e.g. ,

Wagoner v. Comm 'r ofSoc. Sec., No. 1:1l-cv-543 , 2012 WL 2711044, at *11 (S.D. Ohio Jul. 6,
201 2) (Report and Recommendation) (Litkovitz, M.J .), adopted 2012 WL 3072315 (S.D. Ohio

26

Jul. 30, 2012) (Beckwith, J.) (finding that despite instances of tenderness to palpation in the
medical record, substantial evidence supported the ALJ 's finding that plaintiffs back pain was
not disabling where there was no evidence of muscle atrophy, neurological defects, reduced joint
motion, or sensory and motor disruption); McDaniel v. Astrue, No. 08-cv-61, 2008 WL 4 758662,
at *4 (E.D. Ky. Oct. 29, 2008) (finding that despite instances of tenderness to palpation in the
medical record, substantial evidence supported the ALJ's finding that plaintiffs back pain was
not disabling where there was no evidence of focal or neurological deficits).
For these reasons, substantial evidence supports the ALJ's finding that plaintiffs pain
was not of disabling severity. Accordingly, plaintiffs second assignment of error should be
overruled.

III. This matter should be reversed and remanded for further proceedings.
In determining whether this matter should be reversed outright for an award of benefits or
remanded for further proceedings, the Court notes that all essential factual issues have not been
resolved in this matter, nor does the current record adequately establish plaintiffs entitlement to
benefits as of his alleged onset date. Faucher v. Secretary ofH.H.S. , 17 F.3d 171, 176 (6th Cir.
1994). This matter should be remanded for further proceedings, including consideration and
reevaluation of the opinions of the mental health sources ofrecord, reassessment of plaintiffs
mental RFC, and additional vocational testimony as warranted, consistent with this decision.
IT IS THEREFORE RECOMMENDED THAT:
The decision of the Commissioner be REVERSED and REMANDED for further
proceedings consistent with this opinion.

~X7~

Date:

Karen L. LitkovrtZ
United States Magistrate Judge

27

UNITED ST ATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Case No. 1: 15-cv-476
Barrett, J.
Litkovitz, M.J.

GREGORY LEE VARNER,
Plaintiff,
vs.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

NOTICE TO THE PARTIES REGARDING THE FILING OF OBJECTIONS TO R&R
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otheiwise directs. A party may respond to another party's objections
WITHIN 14 DAYS after being served with a copy thereof. 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).

28