Oblinger v. Commissioner of Social Security

Filing 19

REPORT AND RECOMMENDATION that 13 Statement of Specific Errors be sustained & the case be remanded to the Commissioner for further proceedings pursuant to 42 USC §405(g), sentence four. Objections due w/in fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 4/18/2012. (kk2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Dean C. Oblinger,

:

Plaintiff,

:

v.

:

:
Commissioner of Social Security,
Defendant.

Case No. 2:11-cv-623
JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION
I.

Introduction

Plaintiff, Dean C. Oblinger, filed this action seeking
review of a decision of the Commissioner of Social Security
denying his application for social security disability benefits.
That application was filed with a protective filing date of
November 5, 2007, and alleged that plaintiff became disabled on
November 1, 2006.
After initial administrative denials of his claim, plaintiff
was given a hearing before an Administrative Law Judge on
February 18, 2010. In a decision dated May 3, 2010, the ALJ
denied benefits.

That determination became the Commissioner’s

final decision on May 24, 2011, when the Appeals Council denied
review.
After plaintiff filed this case, the Commissioner filed the
administrative record on September 26, 2011.

Plaintiff filed his

statement of specific errors on October 31, 2011, to which the
Commissioner responded on January 31, 2012.

No reply brief has

been filed, and the case is now ready to decide.
II.

Plaintiff’s Testimony at the Administrative Hearing

Plaintiff’s testimony at the administrative hearing is found
at pages 31 through 50 of the record.

Plaintiff, who was 46

years old at the time of the hearing and is a high school
graduate with some college, testified as follows.
Plaintiff last worked in 2004.
at a food processing plant.
bending and lifting.

He was a sanitation worker

The job required a good deal of

He left that job to pursue more education

and to address a child care situation.

He was unable to complete

his educational program, however, due to back pain.

Plaintiff

broke his back in 1984 and underwent a spinal fusion in 1985, and
the pain has now recurred.
Plaintiff testified that his pain begins in his left hip and
radiates down his left leg, although sometimes it radiates down
both legs.

His doctors have not recommended surgery.

experiences severe pain on a daily basis.

He

Sometimes, depending

on his level of activity the previous day, he must lie down all
day.

He treats the pain with Vicodin and Tylenol.
From a physical standpoint, plaintiff can stand about

fifteen minutes at a time before his legs become numb.

The same

thing happens if he sits too long - about ten minutes in a
straight chair, or thirty minutes in a recliner.
occasionally lift a gallon of milk.

He can

He avoids climbing stairs.

He can walk about 100 yards before needing to sit down.
On a daily basis, plaintiff is able to drive his children to
school, and he can also drive to medical appointments.
that involves driving more than ten minutes.

None of

He can squat,

although getting back up is a problem, and can bend from the
waist, but not very well.

He did not believe he could do even a

sedentary job because he needs to lie down six or seven hours a
day just to reduce his pain level.
television.

He is able to read and watch

Finally, he testified that he has had cortisone

injections, a TENS unit, physical therapy, traction, acupuncture,
and heat, but none of those have given him any lasting relief.
III.

The Medical Records
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The medical records in this case are found beginning on page
192 of the administrative record.

The pertinent records can be

summarized as follows.
The first set of records consist of office notes from
plaintiff’s general physician, Dr. Hollern, going back to 1999.
Even then, plaintiff was described as “rather stiff” with limited
forward flexion of his back and as experiencing pain with left
lateral bending.

He was referred to a back specialist.

Other

notes indicate ongoing low back pain with exacerbations from time
to time.

Some notes indicate normal reflexes and muscle

strength, but there are other notes indicating difficulty
obtaining patellar reflexes.
early as 2003.

Radicular symptoms were noted as

A 2004 note shows that plaintiff was going to see

a spine specialist again.

By 2006, the diagnosis was chronic low

back pain with intermittent radiculopathy.

A note dated June 14,

2007 showed that plaintiff had been working with Dr. Fitz but was
getting no relief from his pain.

Dr. Hollern reported in

October, 2007 that plaintiff had been seen by a specialist, Dr.
Rea, but was not a surgical candidate. (Tr. 192-235).
Dr. Fitz filled out a questionnaire reviewing his treatment
of plaintiff from 2004 to 2008.

Plaintiff’s condition was

described as chronic low back pain and left leg pain.

Pertinent

findings included a limited range of lumbar motion and a scar
over the lumbar spine.

Dr. Fitz had prescribed Prednisone and

Percocet, but only for flare-ups of plaintiff’s back condition.
Dr. Fitz noted that epidural steroid injections had not helped.
He did not think plaintiff could bend, stoop, lift over fifteen
pounds, sit for prolonged periods, or climb ladders.
40).

(Tr. 236-

Dr. Fitz also submitted treatment notes indicating that

therapy had not been helpful, and also reporting fairly normal
objective test results, including normal strength and sensation
and negative straight leg raising.
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An EMG was also essentially

negative, but an MRI study revealed spinal stenosis at L4-5 and
L5-S1.

The notes also show complaints of numbness and pain

radiating down both legs.

The report from the 2006 MRI also

showed mild diffuse disk bulge at the L4-5 and L5-S1 levels and
some mild bilateral foraminal narrowing at those levels, as well
as degenerative changes beginning at L3.

(Tr. 241-54).

Later

treatment notes showed increasing left leg pain, complaints of
intermittent numbness and burning in the left leg, some decreased
sensation in the left foot and left leg, and more steroid
injections.

(Tr. 288-97).

The file also contains a functional capacity assessment done
by Dr. Cho, a state agency reviewer, on May 13, 2008.

Dr. Cho

basically limited plaintiff to work at the light exertional level
with some restrictions on climbing, balancing, stooping,
kneeling, crouching and crawling.

Dr. Cho reported that there

was a treating source statement regarding plaintiff’s physical
capacities in the file and that the treating source’s conclusions
were not significantly different from Dr. Cho’s.

He also stated

that “the findings of the ap [attending physician] are given
controlling weight.”

(Tr. 255-62).

Dr. Herceg, who appears to be another physician in the same
office as Dr. Fitz, examined plaintiff on November 10, 2008.

He

reported that plaintiff had had problems for the past five or six
years, and that his pain was worse with activity.
the lumbar spine showed a well-healed incision.

Examination of

There was some

kyphosis in the upper aspect of the lumbar spine, flexion and
extension were limited, strength and reflexes were normal, and
straight leg raising was positive on the left.

X-rays showed

multilevel spondylosis with disc space narrowing and anterior
osteophyte formation.

A CT myelogram done over a year before

demonstrated degenerative changes with narrowing at the L3-4 and
L4-5 levels.

Dr. Herceg’s impression was post laminectomy,
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lumbar spine, L2, lumbar spinal stenosis, and lumbar degenerative
disc disease.
findings.

Surgery was not recommended based on these

(Tr.

344-45).

On December 16, 2009, Dr. Fitz wrote a letter in which he
provided his opinion as to plaintiff’s functional capacity, and
he attached a form used for that purpose.

Dr. Fitz recited

plaintiff’s history of injury, diagnoses and treatment as
reflected in his notes, and stated that plaintiff was limited in
his ability to stand and walk for prolonged periods of time due
to leg pain associated with spinal stenosis, and in his ability
to sit for prolonged periods of time due to multilevel
degenerative disc disease.

He also could not lift over ten

pounds and was limited in his ability to bend and twist at the
waist.

Dr. Fitz stated that plaintiff “is unable to perform the

essential functions of many occupations due to his limitations
with regards to sitting, standing, walking, bending, twisting and
lifting.”

The physical capacities evaluation form attached

limited plaintiff to six hours total of sitting, standing and
walking during a work day.

(Tr. 356-58).

The last document in the medical portion of the file is a
letter written by Dr. Rea from the Ohio State University
Comprehensive Spine Center, dated December 14, 2010.

That letter

post-dates the ALJ’s decision and was not considered by him, so
the Court will not discuss it further.
IV.

The Medical Expert’s Testimony

Dr. Gaitens, a medical expert, was asked to provide
testimony at the administrative hearing.

His testimony is found

at pages 51-57 of the record.
Dr. Gaitens testified that he is board-certified in physical
medicine and rehabilitation.

He reviewed the records concerning

plaintiff’s back condition and concluded that his impairment was
not of sufficient severity, based on those records, to satisfy
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the Listing of Impairments, particularly Section 1.04A.
Dr. Gaitens believed that plaintiff could lift 20 pounds
occasionally and ten frequently, but he was limited in his
ability to stand.

He could only stand five or six hours out of

an eight-hour shift, and would need to change position every 45
minutes in order to do that.

He could sit for an hour to an

hour-and-a-half at a time, with changes of position in between.
He would also be limited in the areas of crouching, kneeling,
crawling, and climbing, with the latter absolutely precluded.
Plaintiff’s medication would make working at heights or around
moving machinery inadvisable.

This assessment was based on the

records rather than plaintiff’s testimony.

Dr. Gaitens saw no

evidence of malingering in the medical records.
V.

The Vocational Testimony

Mr. Rosenthal, a vocational expert, also testified at the
administrative hearing.

His testimony begins at page 58.

He

began by asking plaintiff a number of questions about past jobs,
which included not only food sanitation worker but also some jobs
in retail and a security guard position.

Mr. Rosenthal

testified that plaintiff’s past relevant work as a stock
supervisor at a Sears store was light and skilled; the job as a
sanitation worker was heavy and semi-skilled (although plaintiff
did that job at the medium level); and as a security guard or
gate guard as light and semi-skilled.
light and skilled.

The stock clerk job was

Mr. Rosenthal noted that the record also

indicated some other jobs, which were unskilled, medium
exertional level positions.
Mr. Rosenthal was first asked to assume that plaintiff were
limited as described in Exhibit 3F, which is the functional
capacity assessment from Dr. Cho, the state agency reviewer.
that were so, he could do still do the gate guard job.

Next, he

was asked to assume the limitations appearing in Exhibit 9F,
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If

which is Dr. Fitz’s report.
work.

With those limitations, he could not

Finally, if plaintiff had the abilities described by Dr.

Gaitens in his testimony, he could perform the gate guard job as
it is usually performed (though not necessarily how plaintiff
performed it), and a full range of sedentary work.
VI.

The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 15
through 24 of the administrative record.

The important findings

in that decision are as follows.
The Administrative Law Judge found, first, that plaintiff
met the insured status requirements of the Social Security Act
through December 31, 2009, but not afterward.

Second, the ALJ

found that plaintiff had not engaged in substantial gainful
activity from his alleged onset date of November 1, 2006 through
the date of the decision.

As far as plaintiff’s impairments are

concerned, the ALJ found that plaintiff had severe impairments
including degenerative disc disease and status-post lumbar
fusion.

The ALJ also found that these impairments did not meet

or equal the requirements of any section of the Listing of
Impairments (20 C.F.R. Part 404, Subpart P, Appendix 1).
Moving to the next step of the sequential evaluation
process, the ALJ found that plaintiff had the residual functional
capacity to perform a limited range of light work, with the
ability to sit, stand or walk for up to six hours a day so long
as he could change positions at will.

He also could occasionally

bend, stoop, crouch, kneel and bend, but could not climb ladders,
ropes, or scaffolds or work around unprotected heights or
hazardous machinery.

These restrictions did not preclude

plaintiff from performing
gate guard.

his past relevant work as a security

As a result, the ALJ found that plaintiff was not

under a disability and was not entitled to benefits.
VII.

Plaintiff’s Statement of Specific Errors
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In his statement of specific errors, plaintiff raises the
following issues.

First, he argues that the ALJ erroneously

rejected the opinion of his treating physician, Dr. Fitz, instead
crediting the opinion of Dr. Gaitens, which, he contends, was
made unreliable by Dr. Gaitens’ apparent lack of knowledge of
certain aspects of the medical record.

Second, he asserts that

the ALJ denied him due process by refusing to allow his counsel
to ask certain questions about his past relevant work.

Third, he

asserts that the hypothetical question posed to the vocational
expert was defective because it did not take plaintiff’s use of
medications with substantial side effects into account.

The

Court generally reviews the administrative decision under this
legal standard:
Standard of Review.

Under the provisions of 42 U.S.C.

Section 405(g), "[t]he findings of the Secretary [now the
Commissioner] as to any fact, if supported by substantial
evidence, shall be conclusive. . . ."

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) (quoting Consolidated Edison Company v.
NLRB, 305 U.S. 197, 229 (1938)).
scintilla.'" Id.
Cir. 1976).

It is "'more than a mere

LeMaster v. Weinberger, 533 F.2d 337, 339 (6th

The Commissioner's findings of fact must be based

upon the record as a whole.

Harris v. Heckler, 756 F.2d 431, 435

(6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366 (6th
Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir.
1984).

In determining whether the Commissioner's decision is

supported by substantial evidence, the Court must "'take into
account whatever in the record fairly detracts from its weight.'"
Beavers v. Secretary of Health, Education and Welfare, 577 F.2d
383, 387 (6th Cir. 1978) (quoting Universal Camera Corp. v. NLRB,
340 U.S. 474, 488 (1951)); Wages v. Secretary of Health and Human
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Services, 755 F.2d 495, 497 (6th Cir. 1985).

Even if this Court

would reach contrary conclusions of fact, the Commissioner's
decision must be affirmed so long as that determination is
supported by substantial evidence.

Kinsella v. Schweiker, 708

F.2d 1058, 1059 (6th Cir. 1983).
The Court begins with plaintiff’s contention that the
opinion of his treating physician, Dr. Fitz, was improperly
rejected, because that is a potentially dispositive issue.

It is

well-established that a treating physician's opinion is entitled
to weight substantially greater than that of a nonexamining
medical advisor or a physician who saw plaintiff only once.
Lashley v. Secretary of H.H.S., 708 F.2d 1048, 1054 (6th Cir.
1983); Estes v. Harris, 512 F.Supp. 1106, 1113 (S.D. Ohio 1981).
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.

Bull v. Comm’r

of Social Security, 629 F.Supp. 2d 768, 780-81 (S.D. Ohio 2008),
citing Cornett v. Califano, No. C-1-78-433 (S.D. Ohio Feb. 7,
1979).
A physician's statement that plaintiff is disabled is not
determinative of the ultimate issue.

The weight given

such a statement depends on whether it is supported by
sufficient medical data and is consistent with other evidence
in the record.

20 C.F.R. §404.1527(d); Harris v. Heckler, 756

F.2d 431 (6th Cir. 1985).

In evaluating a treating physician’s

opinion, the Commissioner may consider the extent to which that
physician’s own objective findings support or contradict that
opinion.

Moon v. Sullivan, 923 F.2d 1175 (6th Cir. 1990); Loy v.

Secretary of HHS, 901 F.2d 1306 (6th Cir. 1990).

The

Commissioner may also evaluate other objective medical evidence,
including the results of tests or examinations performed by nontreating medical sources, and may consider the claimant’s
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activities of daily living.

Cutlip v. Secretary of HHS, 25 F.3d

284 (6th Cir. 1994).
If not contradicted by any substantial evidence, a treating
physician's medical opinions and diagnoses are afforded complete
deference.

Harris, 756 F.2d at 435.

The Commissioner may have

expertise in some matters, but cannot supplant the medical
expert.

Hall v. Celebrezze, 314 F.2d 686, 690 (6th Cir. 1963).

The "treating physician" rule does not apply to a one-time
examining medical provider, and the same weight need not be given
to such an opinion even if it favors the claimant.

Barker v.

Shalala, 40 F.3d 789 (6th Cir. 1994).
If the Commissioner does not give controlling weight to the
opinion of a treating physician, the Commissioner is required to
explain what weight has been assigned to that opinion, and why.
Failure to articulate the reason for discounting such an opinion
with a level of specificity that allows the claimant to
understand why his physician’s views have not been accepted, and
to allow the Court to review the ALJ’s bases for making that
decision, is almost always reversible error.

Rogers v. Comm’r of

Social Security, 486 F.3d 234, 242 (6th Cir. 2007); Wilson v.
Comm’r of Social Security, 378 F.3d 541, 544 (6th Cir. 2004).
Here, the ALJ explicitly adopted the residual functional
capacity finding made by Dr. Gaitens.

In doing so, the ALJ found

him to be well-qualified and found his opinion to be “consistent
with and well-supported by the record as a whole, including the
objective clinical and laboratory findings referenced in this
decision.”

The ALJ bolstered this conclusion with the findings

reported by Dr. Cho, although he noted that Dr. Gaitens had
access to additional records which Dr. Cho did not.

(Tr. 22).

Turning to Dr. Fitz’s opinion, the ALJ explained that he
gave it “little weight.”

He provided the following reasons for

doing so: (1) “the physician’s opinion are (sic) inconsistent
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with his own clinical findings (Exhibits (sic) 2F) and are
unsupported by the diagnostic testing and longitudinal clinical
evidence in the record”; (2) Dr. Fitz “did not reference specific
medical findings within the record and/or explain how those
medical findings supported the opinion expressed as to the
severity of the claimant’s impairments and the limitations they
imposed on the claimant’s functional capacity to work”; and (3)
because “the final responsibility for determining whether a
claimant is ‘disabled’ or ‘unable to work’ is an area reserved to
the Commissioner ....”

Id.

The third reason is clearly

boilerplate language which has no application here, since Dr.
Fitz made specific determinations about plaintiff’s physical
abilities which, according to the vocational expert, are
inconsistent with the performance of substantial gainful
activity, rather than some general statement as to
unemployability.

Thus, the Court’s analysis will focus on the

other two reasons given for discounting Dr. Fitz’s opinion.
The first reason given is, at best, incomplete.

It fails to

recognize that there are additional records from Dr. Fitz besides
those grouped under Exhibit 2F.

It also does not explain, apart

from asserting in conclusory fashion (and in language which could
be used in any case like this) exactly how it is that Dr. Fitz’
opinion about plaintiff’s physical ability is inconsistent with
Dr. Fitz’ clinical findings, or which of those findings presents
that inconsistency.

Further, it fails to state exactly how Dr.

Fitz’ opinion is unsupported by diagnostic testing; there is a
wealth of diagnostic testing, and Dr. Fitz described it in detail
in his reports.

Further, the ALJ’s decision does not say how Dr.

Fitz’ opinion is unsupported by the longitudinal clinical
evidence.

Dr. Fitz was the source of a good bit of the

longitudinal clinical evidence as well, and he cited it in the
narrative letter accompanying the form he filled out.
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Thus, the

first reason simply lacks the type of detail required when an ALJ
decides to give little weight to a treating source’s opinion.
What the ALJ may have meant, although he did not say this
explicitly, is that in his opinion, the medical evidence - in
whatever form it took, whether diagnostic tests, reports of
symptoms, or clinical evidence and findings - is inconsistent
with a finding that plaintiff was as limited as Dr. Fitz thought.
Although the ALJ described and characterized much of this
evidence in an earlier portion of his decision (Tr. 20), he did
so as part of his determination that plaintiff’s testimony was
not entirely credible.

That is a different determination than

the process which must be followed in evaluating a treating
source’s opinion.
§404.1529.

Compare 20 C.F.R. §404.1527(d) with 20 C.F.R.

Consequently, the Court has little difficulty

concluding that this first proffered rationale is simply too
vague and too much reliant on the ALJ’s own view of how medical
evidence supports, or does not support, the treating source’s
opinion to pass muster under the applicable regulation and case
law.

See, e.g., Simpson v. Comm’r of Social Security, 344 Fed.

Appx. 181, *12 (6th Cir. August 27, 2009)(an ALJ may not make his
own medical findings), citing, inter alia, Rohan v. Chater, 98
F.3d 966, 970 (7th Cir. 1996); Harmon v. Astrue, 2011 WL 834138,
*10 (N.D. Ohio Feb. 8, 2011)(ALJ may not substitute his own lay
judgment of the significance of treatment notes for the
functional capacity assessment of the treating physician),
adopted and affirmed 2011 WL 825710 (N.D. Ohio Mar. 4, 2011);
Friend v. Comm’r of Social Security, 375 Fed. Appx. 543, *8 (6th
Cir. April 28, 2010)(“it is not enough to dismiss a treating
physician's opinion as ‘incompatible’ with other evidence of
record; there must be some effort to identify the specific
discrepancies and to explain why it is the treating physician's
conclusion that gets the short end of the stick”); Sharp v.
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Barnhart, 152 Fed. Appx. 503, *6 (6th Cir. 2005)(an ALJ must
“explain why the extensive test results, diagnoses and other
information contained in [a claimant’s] submitted medical records
do not suffice to support his physicians' opinions”).
The second reason advanced by the ALJ for discounting Dr.
Fitz’ opinion fares no better.

The ALJ appears to take issue

with the way in which Dr. Fitz articulated his reasons for
believing that plaintiff was severely limited in his ability to
sit, stand and walk; the second reason given for discounting that
opinion seems to focus on the claimed absence of any explanation
of how that opinion relates to the medical records.

However, Dr.

Fitz provided a very detailed letter in which he explained
exactly which conditions affected plaintiff’s ability to sit,
stand or walk for prolonged periods of time.

These conditions

were all diagnosed by objective testing (they were, as Dr. Fitz’
letter noted, spinal stenosis and degenerative disc disease, the
latter of which the ALJ also found to be a severe impairment, and
the former of which is supported by multiple tests and medical
opinions).

Perhaps the ALJ meant that Dr. Fitz did not directly

explain how the diagnoses and test results demonstrated
conclusively that plaintiff would have trouble sitting, standing
or walking for an eight-hour work day, but as Dr. Gaitens
acknowledged, some limitations caused by pain are subjective in
nature and will never have a direct correlation with objective
measurements.

(Tr. 57).

In fact, that is one of the reasons why

a long-time treating source’s opinion on such matters is usually
accorded more weight than a doctor who simply reviews the medical
records (and who acknowledges, as Dr. Gaitens candidly did, that
he could not take any subjective evidence into account in making
his evaluation of the claimant, see Tr. 54).

The Commissioner’s

own regulations reflect this principle, stating that “[treating]
sources are likely to be the medical professionals most able to
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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 ....”

20 C.F.R. §404.1527(d).

The ALJ’s

second rationale for rejecting Dr. Fitz’ opinion, to the extent
that it is directed not simply to the way in which Dr. Fitz
explained it - and the Court has found nothing deficient about
that explanation - but to the foundation for that opinion, is
inconsistent with this regulation, and seems to require a
treating source to draw an exact correlation between objective
testing and the actual pain or limitations experienced by a
patient before an ALJ may give the source’s opinion any
significant weight.

This, too, is error.

The Court also agrees with plaintiff that the ALJ did not,
as the controlling case law requires, demonstrate compliance with
§404.1527(d) after finding that Dr. Fitz’ opinion was not to be
given controlling weight.

The Court of Appeals has explained

that
If the ALJ declines to give a treating source's opinion
controlling weight, he must then balance the following
factors to determine what weight to give it: “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 specialization of the treating source.” Wilson v.
Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir.2004)
(citing 20 C.F.R. § 404.1527(d)(2)).
Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011).

The ALJ’s

opinion in this case cites to none of these factors, failing to
discuss the fact that Dr. Fitz was a long-time treating source,
that he examined plaintiff frequently, that his findings and
opinions appeared to be consistent over time, that there was
additional support in the evaluation done by Dr. Herceg, and that
Dr. Fitz appears to be well-qualified to diagnose and treat
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conditions such as spinal stenosis or degenerative disc disease.
Although the Commissioner may be correct that an ALJ does not
have to recite in every case that he has considered these various
factors, there must be at least some evidence in the record to
support the claim that he did so.

This record is totally devoid

of such evidence, and the Court simply cannot find from the
record that the ALJ followed the proper procedure and considered
the appropriate factors which decisions like Cole and which
§404.1527(d) require an ALJ to consider.

Thus, the decision, as

it currently stands, cannot be affirmed.
This conclusion largely moots the second portion of
plaintiff’s first claim of error, which is directed to the
foundation of Dr. Gaitens’ opinion.

However, it is worth noting

that Dr. Gaitens did appear to be unaware of certain important
parts of the medical record, including, as plaintiff points out
in his memorandum, evidence of occasional inability to detect
reflexes (particularly a patellar reflex), evidence of positive
straight leg raising, and evidence of decreased range of motion.
Such matters are unquestionably part of the medical record in
this case, and should the ALJ deem it necessary to re-evaluate
Dr. Gaitens’ testimony after giving the appropriate weight to Dr.
Fitz’ opinion, there should be some discussion about why these
omissions either do or do not detract from the weight to be given
to Dr. Gaitens’ testimony.
Plaintiff’s next argument is that his counsel was improperly
precluded from eliciting testimony about his work history.
characterizes this as a due process violation.

He

The focus of this

argument is questions about plaintiff’s prior work as a gate
guard.

A review of the record shows, however, that all of the

information material to evaluating that job was eventually
brought out through questioning, and plaintiff does not really
argue otherwise - his point goes more to the timing of these
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questions than the issue of whether they were eventually
answered.

Plaintiff cites no case authority in support of this

argument, and although claimants for social security benefits do
have some procedural due process rights, see, e.g., Day v.
Shalala, 23 F.3d 1052 (6th Cir. 1994), the Court can find no
violation of procedural due process here.

The second claimed

error lacks merit.
Finally, plaintiff argues that the hypothetical question
posed to Mr. Rosenthal was not supported by substantial evidence.
The specific issue he raises relates to his use of narcotic pain
medication.

Plaintiff appears to be correct that the ALJ

misunderstood or misinterpreted the record about his prescription
pain medication, and that he did take at least one narcotic
medication, Vicodin, on a regular basis.

However, Dr. Gaitens

was aware of the use of that medication and did not impose
restrictions on plaintiff’s work abilities beyond the need to
avoid unprotected heights or moving machinery.

Thus, if the ALJ

had been entitled to rely on Dr. Gaitens’ assessment of
plaintiff’s abilities, there would have been no error concerning
the effect of plaintiff’s medication.

Of course, this issue is

largely mooted by the Court’s determination that the current
administrative decision did not properly determine that Dr.
Gaitens’ view of plaintiff’s functional capacity was the correct
one.
The remaining issue is what disposition of the case is
appropriate.

If the Secretary's decision is not supported by

substantial evidence, the Court must decide whether to remand the
matter for rehearing or to reverse and order benefits granted.
The Court has authority to affirm, modify, or reverse the
Secretary's decision "with or without remanding the cause for
rehearing." 42 U.S.C. §405(g). The primary factor to be
considered is whether the proof of disability is strong, and
opposing evidence is lacking in substance, so that remand would
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merely involve the presentation of cumulative evidence. See
Bailey v. Comm’r of Social Security, 173 F.3d 428, *5 (6th Cir.
Feb. 2, 1999)(unreported), citing Sayers v. Gardner, 380 F.2d 940
(6th Cir. 1967); Guy v. Schweiker, 532 F.Supp. 493, 499 (S.D.
Ohio 1982); Estes v. Harris, 512 F.Supp. 1106, 1116 (S.D. Ohio
1981). However, “when the Secretary misapplies the regulations
or when there is not substantial evidence to support one of the
ALJ's factual findings and his decision therefore must be
reversed, the appropriate remedy is not to award benefits. The
case can be remanded under sentence four of 42 U.S.C. § 405(g)
for further consideration.” Faucher v. Sec’y of HHS, 17 F.3d
171, 175-76 (6th Cir. 1994).
Here, although Dr. Fitz’ opinion would support a finding of
disability, the error committed by the ALJ was not properly
weighing that opinion or articulating an adequate basis for
giving it little or no weight. That is a misapplication of the
regulation relating to the opinions of treating sources. A
remand would not necessarily result in the mere presentation of
cumulative evidence or an automatic award of benefits.
Therefore, in this case, remand is the proper remedy.
VIII. Recommended Decision
Based on the above discussion, it is recommended that the
plaintiff’s statement of errors be sustained to the extent that
the case be remanded to the Commissioner for further proceedings,
pursuant to 42 U.S.C. §405(g), sentence four.
IX.

Procedure on Objections

If any party objects to this Report and Recommendation,
that party may, within fourteen (14) days of the date of this
Report, file and serve on all parties written objections to
those specific proposed findings or recommendations to which
objection is made, together with supporting authority for the
objection(s).

A judge of this Court shall make a de novo

determination of those portions of the report or specified

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proposed findings or recommendations to which objection is
made.

Upon proper objections, a judge of this Court may

accept, reject, or modify, in whole or in part, the findings
or recommendations made herein, may receive further evidence
or may recommit this matter to the magistrate judge with
instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to
object to the Report and Recommendation will result in a
waiver of the right to have the district judge review the
Report and Recommendation de novo, and also operates as a
waiver of the right to appeal the decision of the District
Court adopting the Report and Recommendation.

See Thomas v.

Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d
947 (6th Cir. 1981).

/s/ Terence P. Kemp
United States Magistrate Judge

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