Neanover v. Commissioner of Social Security

Filing 17

MEMORANDUM AND OPINION AND ORDER - IT IS ORDERED THAT Defendant's decisionis SUPPORTED BY SUBSTANTIAL EVIDENCE, and AFFIRMED, and this case is CLOSED. Signed by Magistrate Judge Stephanie K. Bowman on 9/29/2017. (km)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
ANTHONY NEANOVER,
Plaintiff,

Case No. 1:16-cv-545
Bowman, M.J.

v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

MEMORANDUM OF OPINION
AND ORDER

Plaintiff Anthony Neanover filed this Social Security appeal in order to challenge
the Defendant’s finding that he is not disabled. See 42 U.S.C. §405(g). Proceeding
through counsel, Plaintiff presents two claims of error for this Court’s review. For the
reasons explained below, I conclude that this case should be AFFRIRMED because the
finding of non-disability is supported by substantial evidence in the administrative
record.
I. Summary of Administrative Record
In March 2012, Plaintiff filed applications for Disability Insurance Benefits (”DIB”)
and Supplemental Security Income (SSI) alleging a disability onset date of October 1,
2009 due to mental and physical impairments. After Plaintiff’s claims were denied
initially and upon reconsideration, he requested a hearing de novo before an
Administrative Law Judge (“ALJ”). On August 5, 2014, an evidentiary hearing was held,
at which Plaintiff was represented by counsel. (Tr. 41-84). At the hearing, the ALJ
heard testimony from Plaintiff and an impartial vocational expert. On October 1, 2014,
ALJ Deborah Smith denied Plaintiff application in a written decision. (Tr. 21-34).

The record on which the ALJ’s decision was based reflects that Plaintiff was born
in 1973 and was 36 years old on the alleged onset date. (Tr. 45, 111). He reported
completing the eighth grade and previously working as a mechanic/automotive painter,
machine assembler, carpenter, head of maintenance, moving truck driver, and tow
driver. (Tr. 48-54, 78-79). Plaintiff alleges disability based upon headaches, back pain,
nerve damage and pain in the arms, as well has heart problems. Based upon the
record and testimony presented at the hearing, the ALJ found that Plaintiff had the
following severe impairments: “chronic obstructive pulmonary disease (“COPD”) and
right ulnar neuropathy.”

(Tr. 24).

The ALJ concluded that none of Plaintiff’s

impairments alone or in combination met or medically equaled a listed impairment in 20
C.F.R. Part 404, Subp. P, Appendix 1. Despite these impairments, the ALJ determined
that Plaintiff retains the RFC to perform light work with the following limitations:
He can only occasionally climb ladders, ropes, and scaffolds, can only
frequently climb ramps and stairs, and must avoid concentrated exposure
to extreme heat, extreme cold, humidity, fumes, odors, dusts, gases, and
poorly ventilated areas.
(Tr. 25). Based upon the record as a whole including testimony from the vocational
expert, and given Plaintiff’s age, education, work experience, and RFC, the ALJ
concluded that jobs exist in significant numbers in the national economy that Plaintiff
can perform.

(Tr. 22).

Accordingly, the ALJ determined that Plaintiff is not under

disability, as defined in the Social Security Regulations, and is not entitled to SSI. (Tr.
32-33).
The Appeals Council denied Plaintiff’s request for review. Therefore, the ALJ’s
decision stands as the Defendant’s final determination. On appeal to this Court, Plaintiff
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maintains that the ALJ erred by: 1) formulating an RFC that is contrary to the evidence
of record, and 2) formulating hypothetical questions that did not accurately portray
Plaintiff’s impairments and limitations. Upon careful review and for the reasons that
follow, the undersigned finds Plaintiff’s assignments of error are not well-taken.
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

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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).
In considering an application for supplemental security income or disability
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 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.
B. ALJ Decision is supported by substantial evidence
1. ALJ’s RFC assessment
Plaintiff argues first that the ALJ’s RFC assessment is not supported by
substantial evidence. Specifically, Plaintiff contends that in formulating Plaintiff’s RFC
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the ALJ improperly rejected the findings of Plaintiff’s treating physician and also failed to
fully and fairly develop the record. Upon careful review, the undersigned finds that
Plaintiff’s first assignment of error is not well-taken.
Plaintiff has a history of shortness of breath; chest pain/tightness; COPD;
emphysema; asthma; bronchitis; hypertension; angina; coronary artery disease (“CAD”);
back pain radiating to his legs (characterized as lumbosacral pain and painful lumbar
radiculitis); right elbow pain/numbness and right arm neuropathy; alcohol dependence;
and adjustment disorder with mixed anxiety and depressed mood. (Tr. 371-74, 377-85,
390-467, 474-82, 486-572, 590, 603-36, 639-43, 645-51, 655-64, 666-94, 712-15). His
treatment records are primarily emergency room visits to address his various
impairments and primary care at Family Health Center with F. Stuart Leeds, M.D. (Tr.
371-467, 563-72, 634-36, 666-94). He has previously been prescribed Nitroglycerin,
Neurontin/Gabapentin, Imdur, Aspirin, Singular, Symbicort, Simvastatin, Spiriva,
Mobic/Meloxicam, Advair, Albuterol/ProAir, and Wellbutrin. (Tr. 458, 486, 488, 563, 598,
603, 646, 655, 712).
In September 2009, he collapsed at work with acute chest pain and shortness of
breath. (Tr 396-412). A Department of Corrections Mental Health Evaluation from
January 2010 indicates Plaintiff was diagnosed with adjustment disorder with mixed
anxiety and depressed mood and alcohol dependence in remission. (Tr. 416-21). Jail
records indicate Plaintiff received mental health treatment in prison until March 2010.
(Tr. 422-26). In November 2010, cardiologist Joseph K. Choo, M.D., diagnosed angina
and indicated Plaintiff had at least moderate probability of significant coronary artery
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disease. (Tr. 476). In October 2011, Dr. Choo indicated he suspected Plaintiff’s issues
were more pulmonary rather than cardiac but noted that “this is quite disabling and
limiting to him.” (Tr. 486). In December, Plaintiff was noted to have significant dyspnea
at rest as well as with any exertion. (Tr. 488). In February 2012, Dr. Choo noted etiology
was not clear and that Plaintiff was not responsive to his pulmonary regimen. (Tr. 490).
In March, Plaintiff underwent an angiocardiogram and heart catheterization. (Tr. 492562). In August 2012, he was referred for a pulmonary consultation by Dr. Choo. (Tr.
603-06). Eric J. Weinstein, M.D., assessed COPD, bullous emphysema, and dyspnea.
(Tr. 605). He noted Plaintiff’s pulmonary function testing seemed to indicate elevated
airway resistance more consistent with asthma. (Tr. 605). He started Plaintiff on
nebulizer therapy. (Tr. 605). In September, he noted nebulizer therapy had given
Plaintiff some benefit but he continued to have difficulty with shortness of breath (most
with activity or any bending over/lifting). (Tr. 607-08).
Plaintiff presented to the ER with chest pain multiple times in May and June
2013. (Tr. 666-94). In May 2014, Dr. Choo observed diminished breath sounds
bilaterally and assessed chest tightness, dyspnea on exertion, bullous emphysema,
COPD with asthma, fatigue, and bilateral leg pain. (Tr. 713).
In July 2012, Plaintiff underwent a consultative examination conducted by Dale
Kimbrough, M.D. (Tr. 574-80). Dr. Kimbrough noted Plaintiff became short of breath
with conversation and during the active portion of the physical examination. (Tr. 575).
Plaintiff’s grasp with his right hand was abnormal and right finger abduction and
adduction was less than the left. (Tr. 577). He had reduced range of motion in his right
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and left wrists. (Tr. 579). Dr. Kimbrough diagnosed COPD, asthma, and right arm
weakness. (Tr 576). He indicated Plaintiff is physically limited in his ability to ambulate
and stand. (Tr. 576). He noted Plaintiff is mildly limited in lifting heavy objects with his
right hand. (Tr. 578).
In October 2012, a provider from the Family Health Center of Clinton Memorial
Hospital completed an RFC questionnaire and indicated he had been treating Plaintiff
since June 23, 2010 and diagnosing bullous emphysema and coronary artery disease.1
(Tr. 637-38). Plaintiff was noted to need to recline or lie down in excess of traditional
breaks and to take unscheduled breaks for 15-30 minutes with almost any exertion on
his part. (Tr. 637). He could not walk a full city block without rest or significant pain,
could sit for 60 minutes at a time for a total of 8 hours, stand/walk for 5 minutes at a
time for a total of one hour, and occasionally lift up to 50 lbs. (Tr. 637-38). He was noted
to likely be absent from work once or twice a month and was not physically capable of
working an 8 hour day, 5 days a week on a sustained basis. (Tr. 638).
Additionally, Leanne Bertani, M.D., and Teresita Cruz, M.D., reviewed the record
in August and November 2012, respectively. (Tr. 116-18, 132-34). Their review of the
evidence included the opinion from Dr. Kimbrough from July 2012, which they gave
“little” weight because the evidence did not suggest any limitations in Plaintiff’s ability to
stand or ambulate. (Tr. 116, 132). Both Dr. Bertani and Dr. Cruz independently
determined that Plaintiff could lift 20 pounds occasionally, lift 10 pounds frequently,

1

Notably, neither Plaintiff, nor his counsel could identify the doctor who signed this form. Plaintiff now
contends that the author of the form was F. Stuart Leeds, M.D. his treating physician.

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stand, walk and/or sit for about six hours in an eight-hour day, and had additional
postural and environmental limitations. (Tr. 116-18, 132-34).
In formulating Plaintiff’s RFC, the ALJ assigned significant weight to the findings
of state agency consulting physicians Drs. Bertani and Cruz. In this regard, the ALJ
noted that “these professionals enjoyed a considerable portion of the evidence available
at the time of the hearing.” (Tr. 30). The ALJ further noted that Drs. Bertani and Cruz’s
functional findings are accompanied by detailed narrative explanation and citations to
the objective testing and treatment notes. Id.
The ALJ assigned little weight to the findings of Dr. Kimbrough. In so concluding,
the ALJ noted that Dr. Kimbrough’s extreme functional limitations were not supported by
his thorough objective examination which yielded mostly normal results. Notably, Dr.
Kimbrough reported that Plaintiff denied any musculoskeletal complaints, yet he
concluded that Plaintiff was “physically limited in his ability to ambulate and stand.” (Tr.
30). The ALJ found this finding to be “exceedingly vague” and “without any objective
basis.” Id. The ALJ further noted that aside from Plaintiff’s subjective complaints, there
were no objective findings found in Dr. Kimbrough’s exam to support these limitations.
The ALJ also assigned little weight to the functional assessment from October
2012 from the Family Health Center of Clinton Memorial Hospital. (Tr. 30). The ALJ
noted that the nature and extent of the author’s relationship with Plaintiff is unknown
even to Plaintiff and his attorney.
Plaintiff contends that the ALJ erred by failing to give controlling weight to the
findings of Dr. Kimbrough and Dr. Leeds and improperly afforded significant weight to
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the state agency consulting physicians Drs. Bertani and Cruz. Plaintiff’s contentions are
unavailing.
In evaluating the opinion evidence, “[t]he ALJ ‘must’ give a treating source
opinion controlling weight if the treating source opinion is ‘well-supported by medically
acceptable clinical and laboratory diagnostic techniques’ and is ‘not inconsistent with
the other substantial evidence in [the] case record.’” Blakley v. Commissioner Of Social
Sec., 581 F.3d 399, 406 (6th Cir. 2009) (quoting Wilson v. Commissioner, 378 F.3d 541,
544 (6th Cir. 2004).

If the ALJ does not accord controlling weight to a treating

physician, the ALJ must still determine how much weight is appropriate by considering a
number of factors, including 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. Wilson, 378 F.3d at 544; see also 20 C.F.R. § 404.1527(d)(2).
Furthermore, an ALJ must “always give good reasons in [the ALJ's] notice of
determination or decision for the weight [the ALJ] give[s] [the claimant's] treating
source's opinion.” 20 C.F.R. § 404.1527(d)(2); but see Tilley v. Comm'r of Soc. Sec.,
No. 09–6081, 2010 WL 3521928, at *6 (6th Cir. Aug.31, 2010) (indicating that, under
Blakely and the good reason rule, an ALJ is not required to explicitly address all of the
six factors within 20 C.F.R. § 404.1527(d)(2) for weighing medical opinion evidence
within the written decision).
As such, the opinions of treating and examining sources are generally entitled to
more weight than opinions of consulting and non-examining sources. 20 C.F.R. §
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404.1527(d); see also West v. Comm'r Soc. Sec. Admin., 240 Fed. Appx. 692, 696 (6th
Cir. 2007) (citing Kirk v. Sec'y of Health & Human Servs., 667 F.2d 524, 536 (6th Cir.
1981)) (“[R]eports from treating physicians generally are given more weight than reports
from consulting physicians ....”). However, an ALJ need not credit a treating physician
opinion that is conclusory and unsupported. See Anderson v. Comm'r Soc. Sec., 195
Fed. Appx. 366, 370 (6th Cir. 2006) (“The ALJ concluded, properly in our view, that the
[treating physician's] treatment notes did not support and were inconsistent with his
conclusory assertion that appellant was disabled.”); see also Kidd v. Comm'r of Soc.
Sec., 283 Fed. Appx. 336, 340 (6th Cir. 2008) (citing Cutlip v. Sec'y of Health & Human
Servs., 25 F.3d 284, 287 (6th Cir. 1994)) (holding that an ALJ need not credit a treating
physician's conclusory opinions that are inconsistent with other evidence).
Here, in rejecting Dr. Kimbrough’s findings, Plaintiff argues that the ALJ
improperly “substituted her own judgment for the opinions of physicians.” (Doc. 14 at
11). Despite the ALJ’s findings to the contrary, Plaintiff contends that Dr. Kimbrough’s
findings were supported by his examination report and therefore should have been
afforded deference. In this regard, Plaintiff contends that Dr. Kimbrough noted Plaintiff
became short of breath with conversation and during the active portion of the physical
examination. (Tr. 575). Plaintiff’s grasp with his right hand was abnormal and right finger
abduction and adduction was less than the left. (Tr. 577). He had reduced range of
motion in his right and left wrists. (Tr. 579). Plaintiff further notes that Dr. Kimbrough
diagnosed COPD, asthma, and right arm weakness. (Tr. 576).

10

However, it is well established that a mere diagnosis or catalogue of symptoms
does not indicate the functional limitations caused by the impairment. See Young v.
Sec'y of Health & Human Servs., 925 F.2d 146,151 (6th Cir.1990) (diagnosis of
impairment does not indicate severity of impairment). Furthermore, as found by the ALJ,
Aside from Plaintiff’s subjective complaints, there was nothing in Dr. Kimbrough’s exam
to support these limitations. See 20 C.F.R. § 404.1527(c)(3)-(4); see also Poe v.
Comm’r of Soc. Sec., 342 F. App’x 149, 156 (6th Cir. 2009) (“Here, substantial evidence
supports the ALJ’s determination that the opinion of Dr. Boyd, Poe’s treating physician,
was not entitled to deference because it was based on Poe’s subjective complaints,
rather than objective medical data.”); Driggs v. Astrue, No. 2:11-cv-229, 2011 WL
5999036 at *6 (S.D. Ohio Nov. 29, 2011) (Kemp, MJ) (“[A]n ALJ may reject the opinion
of a treating source ‘where the treating physician’s opinion is inconsistent with [that
source’s] own medical records.’”) (internal cite omitted).
Dr. Kimbrough’s findings were also inconsistent with the mild objective findings
contained in the record. As noted by the Commissioner, despite Plaintiff’s complaints
about right arm weakness and pain, he only minimally complained about this
impairment to doctors, and sought no treatment for this condition after October 2011,
when an EMG indicated only “mild compression syndrome” at his right elbow (Tr. 27,
565). As far as Plaintiff’s complaints regarding shortness of breath, three separate
physicians – including his primary care provider and respiratory and pulmonary
specialists – opined that Plaintiff’s complaints appeared out of proportion to his objective

11

test results, including pulmonary function tests and his documented COPD and asthma.
(Tr. 27, 607, 636, 647-48).
Plaintiff’s chest x-rays revealed negative findings, and a six-minute walking test
in late August 2012 showed no cause for medical concern (Tr. 28, 595, 605, 609).
Cardiology testing similarly revealed no medical explanation for Plaintiff’s complaints. In
December 2011, Plaintiff had a Lexascan, which revealed no evidence of ischemia and
a normal ejection fraction of 64%. (Tr. 28, 488). Plaintiff failed to obtain a catheterization
and angiogram, first ordered in 2009, until March 2012. (Tr. 28, 486, 490-91). At that
time, testing revealed no evidence of heart-related disease. (Tr. 28, 499). In August
2013, specialists remarked that his entire cardiac workup was negative, including a
recent EKG evaluation. (Tr. 28, 655, 683).

In light of the foregoing, the ALJ’s

determination that Dr. Kimbrough’s findings were entitled to little weight is supported by
substantial evidence and should not be disturbed.
Plaintiff further argues that the ALJ failed to give controlling weight to the opinion
from the Family Health Center. As noted above, at the time of the hearing, neither
claimant nor his attorney could identify the doctor who signed the form at the hearing.
(Tr. 31, 56). Plaintiff now contends that the opinion was authored by Dr. Leeds, his
treating physician.

A treatment note from the day before the opinion was signed

indicated that Dr. Leed completed a form for Plaintiff, despite urging him to wait until
“cardio and pulmonary evals are in,” and the signatures are somewhat similar on the
opinion and this treatment note. (Tr. 636). Plaintiff also points to evidence that he saw
Dr. Leeds approximately six times; in September 2010, October 2010, October 2011,
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January 2012, March 2012, and October 2012 (Pl. Br. at 12; Tr. 443-44, 458-59, 56572, 536-36). As such, Plaintiff contends that as a treating physician, Dr. Leed’s findings
should have been afforded controlling weight. Plaintiff’s contention is not well-taken.
Again, neither claimant nor his attorney could identify the doctor who signed the
form at the hearing. (Tr. 31, 56). Furthermore, as noted by the ALJ, the doctor who
completed the form stated that his “nature, frequency, and length of contact” was only
“6/23/10,” indicating, as the ALJ noted, that he had only seen Plaintiff during a single
encounter in 2010. (Tr. 31, 637). In any event, even assuming Dr. Leeds was a treating
physician, the ALJ properly weighed his assessment. It is well stabled that a treating
physician’s opinion is entitled to controlling weight only if it is well supported by clinical
and laboratory findings and is not inconsistent with the other substantial evidence of
record. See 20 C.F.R. § 404.1527(c)(2); see also SSR 96-2p; Combs v. Comm’r of Soc.
Sec., 459 F.3d 640, 652 (6th Cir. 2006) (en banc). This opinion is wholly unsupported.
As noted by the Commissioner, the doctor who authored the opinion was unable
to state whether Plaintiff’s impairments were “reasonably consistent with the symptoms
and functional limitations described in this evaluation” because the doctor was waiting
for further information from a cardiologist and pulmonologist. (Tr. 31, 638).
Furthermore, Plaintiff cites to treatment notes indicated that he was seen by Dr.
Leeds on six occasions. However, Dr. Leeds treatment notes review mostly normal
findings. Notably, a medical opinion is only valid if it is based on objective evidence,
including clinical and laboratory findings. See Young v. Sec’y of HHS, 925 F.2d 146,
151 (6th Cir. 1990) (Court rejected a treating physician’s opinion because that physician
13

did not conduct psychological or psychiatric tests in forming his opinion); Higgs v. Sec’y
of HHS, 880 F.2d 861, 863 (6th Cir. 1988) (holding that a lack of evidence in the record
countered claimant’s allegations of disabling impairments); see also SSR 96-4p (“Thus,
regardless of how many symptoms an individual alleges, or how genuine the individual’s
complaints may appear to be, the existence of a medically determinable physical or
mental impairment cannot be established in the absence of objective medical
abnormalities; i.e., medical signs and laboratory findings.”). Here, the doctor’s opinion
was clearly not based on objective evidence, but instead on Plaintiff’s subjective
complaints. See Poe v. Comm’r of Soc. Sec., 342 F. App’x 149, 154 (6th Cir. 2009)
(holding that an ALJ reasonably found that a treating physician’s opinion was not
entitled to deference because it was based on claimant’s subjective complaints, rather
than objective medical data). Accordingly, the ALJ properly weighed the opinion
provided by the Family Health Center.
Next, purportedly relying on Blakely v. Commissioner, 581 F.3d 399 (6th
Cir.2009), Plaintiff argues the ALJ improperly credited the finding of the state agency
physicians because their opinions were not based on a complete case record. Notably,
in Blakely, the ALJ credited the opinions of consulting physicians over the opinion of the
plaintiff's treating physician. The Sixth Circuit held 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., at 409, quoting Soc. Sec. Rul.
96–6p, 1996 WL 374180, at *3 (July 2, 1996)). However, in Blakely the court reversed
on grounds that the state non-examining sources did not have the opportunity to review
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“much of the over 300 pages of medical treatment ... by Blakely's treating sources,” and
that the ALJ failed to indicate that he had “at least considered [that] fact before giving
greater weight” to the consulting physician's opinions. Blakely, 581 F.3d at 409 (quoting
Fisk v. Astrue, 253 Fed.Appx. 580, 585 (6th Cir.2007)).
Nevertheless, the Sixth Circuit reiterated the general principle that an ALJ's
failure to provide adequate explanation for according less than controlling weight to a
treating source may be excused if the error is harmless or de minimis, such as where “a
treating source's opinion is so patently deficient that the Commissioner could not
possibly credit it.” Id. at 409 (quoting Wilson v. Commissioner of Social Security, 378
F.3d 541, 547 (6th Cir.2004)). Under Blakely, then, an ALJ may choose to credit the
opinion of a consultant who has failed to review a complete record, but he should
articulate his reasons for doing so. If he fails to provide sufficient reasons, his opinion
still may be affirmed if substantial evidence supports the opinion and any error is
deemed to be harmless or de minimis. Swartz v. Astrue, No. 10–605, 2011 WL
4571877, at *8 (S.D.Ohio Aug.18, 2011) (Bowman, MJ) (“an ALJ may choose to credit
the opinion of a consultant who has failed to review a complete record, but he should
articulate his reasons for doing so”) (citing Blakely v. Comm'r of Soc. Sec., 581 F.3d 399
(6th Cir.2009)).
Here, the ALJ acknowledged that these doctors did not have access to the
entirety of the evidence when they authored their opinions, and took that into account
when weighing their opinions (Tr. 30). In addition, the ALJ recognized that these were
opinions from nonexamining sources. The mere fact that Drs. Bertani and Cruz did not
15

have the opportunity to examine Plaintiff is not a reason to discount their opinions, but
merely one factor to consider (Tr. 30). See 20 C.F.R. § 404.1527(c)(1) (examining
relationship one of many factors considered when weighing medical opinion). Upon
evaluation of the complete record, including the opinion evidence, Plaintiff's treatment
history and testimony at the administrative hearing, the ALJ determined that the
opinions of Drs. Bertani and Cruz were consistent with overall evidence of record and
clearly articulated his rationale for doing so.
Last, in arguing that the ALJ’s RFC finding is not supported by substantial
evidence, Plaintiff contends that the ALJ failed to develop the record as required by
Agency regulations. Specifically, Plaintiff argues that the ALJ should have recontacted
Dr. Kimbrough, contacted the Family Health Center of Clinton Memorial Hospital to
determine who wrote the opinion from that Center, and obtained a consultative exam
regarding Plaintiff’s mental impairments. Plaintiff’s contentions lack merit.
Social Security proceedings are “inquisitorial rather than adversarial,” such that
an ALJ has a duty “to investigate the facts and develop the arguments both for and
against granting benefits.” Sims v. Apfel, 530 U.S. 103, 111, 120 S.Ct. 2080, 147
L.Ed.2d 80 (2000) (citation omitted). However, ordinarily an ALJ “has discretion to
determine whether further evidence, such as additional testing or expert testimony, is
necessary.” Foster, 279 F.3d at 357 (citing 20 C.F.R. § 404.1517). “Only under special
circumstances, when a claimant is without counsel, not capable of presenting an
effective case, and unfamiliar with hearing procedures does the ALJ have a special duty
to develop the record.” Rise v. Apfel, Comm'r of Soc. Sec., No. 99–6164, 2000 WL
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1562846, at *2 (6th Cir.2000) (citing Lashley v. Sec. of Health and Human Services, 708
F.2d 1048, 1051–52 (6th Cir.1983)).
Here, Plaintiff is represented by counsel, and was represented by counsel at the
administrative hearing.

As detailed above, the ALJ properly evaluated the record

evidence and reasonably accommodated impairments in her RFC finding. As such, the
ALJ properly determined that the current record contained sufficient evidence to make a
proper disability determination. See Foster, 279 F.3d at 357 (citing 20 C.F.R. §
404.1517) (an ALJ “has discretion to determine whether further evidence, such as
additional testing or expert testimony, is necessary.”). It is well established that Plaintiff
has the burden of proving that he is disabled. 20 C.F.R. § 404.1512(a) (“In general, you
have to prove to us that you are . . . disabled.”); see also SSR 86-8p (“The individual
has the burden of proving that he or she is disabled and of raising any issue bearing on
that determination or decision.”). This burden includes providing medical and other
evidence showing the severity of their impairments and how those impairments affect
his ability to work. 20 C.F.R. § 404.1512(a)-(c). As such, Plaintiff’s assignment of error
should be overruled in this regard.

Accordingly, the ALJ properly evaluated and

weighed the opinion evidence in formulating Plaintiff’s RFC.
2. Step-Five Analysis
Plaintiff's final assignment of error alleges that the ALJ's hypothetical questions
to the vocational expert did not adequately portray Plaintiff's impairments; and as such,
the ALJ erred in relying on the VE's testimony. The Sixth Circuit has repeatedly made
clear that a hypothetical question need only reference plaintiff's credible limitations;
17

unsubstantiated complaints are not to be included in the question. See McKenzie v.
Commissioner of Soc. Sec., No. 99–3400, 2000 WL 687680, at * 4 (6th Cir. May 19,
2000). Here, the ALJ selected hypothetical questions which accurately described
Plaintiff's limitations and the extent of his ability to perform work as supported by the
evidence.
In this case, the ALJ properly determined that Plaintiff's subjective complaints
relating to the functional limitations associated with his impairments were not fully
credible. Thus, the ALJ was not required to include limitations in her hypothetical
question that were not supported or not credible. See Casey v. Sec'y of Health &
Human Servs., 987 F.2d 1230, 1235 (6th Cir. 1993) (“It is well established that an ALJ
may pose hypothetical questions to a vocational expert and is required to incorporate
only those limitations accepted as credible by the finder of fact.”). The VE's testimony
provided substantial evidence supporting the ALJ's finding that Plaintiff was not
disabled because he could perform a significant number of jobs. (Tr.). See Hall v.
Bowen, 837 F.2d 272, 273, 275–76 (6th Cir. 1988) (1,350 jobs is a significant number
of jobs in Dayton area and national economy).
III. Conclusion
For the reasons explained herein, IT IS ORDERED THAT Defendant's decision
is SUPPORTED BY SUBSTANTIAL EVIDENCE, and AFFIRMED, and this case
is CLOSED.
/s Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge
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