Woodard v. Commissioner of Social Security

Filing 19

REPORT AND RECOMMENDATIONS re 2 Complaint filed by Nancy S. Woodard. It is recommended that plaintiffs statement of errors be overruled and that judgment be entered in favor of the defendant Commissioner of SocialSecurity. Objections to R&R due by 1/14/2013. Signed by Magistrate Judge Terence P Kemp on 12/27/12. (jcw1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Nancy S. Woodard,

:

Plaintiff,

:

v.

:

Case No. 2:11-cv-1055

:
Commissioner of Social Security,
Defendant.

JUDGE GREGORY L. FROST
Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION
I.

Introduction

Plaintiff, Nancy S. Woodard, filed this action seeking
review of a decision of the Commissioner of Social Security
denying her applications for disability insurance benefits and
supplemental security income.

Those applications were filed on

June 16, 2003, and alleged that plaintiff became disabled on
January 3, 2003.
After initial administrative denials of her applications,
plaintiff was given a hearing before an Administrative Law Judge
on July 10, 2006.
denied benefits.

In a decision dated June 18, 2007, the ALJ
Subsequently, the Appeals Council remanded the

case for further evaluation of the medical evidence.

A second

administrative hearing was held on July 31, 2010, which also
resulted in a decision denying benefits.

That decision became

the final decision of the Commissioner when the Appeals Council
denied review on September 22, 2011.
After plaintiff filed this case, the Commissioner filed the
administrative record on March 27, 2012.

Plaintiff filed her

statement of specific errors on April 13, 2012.
filed a response on July 16, 2012.

The Commissioner

No reply brief has been

filed, and the case is now ready to decide.

II.

Plaintiff’s Testimony at the Administrative Hearing

Plaintiff, who was 45 years old at the time of the
administrative hearing and who has a high school education,
testified as follows.

Her testimony appears at pages 996-1024 of

the administrative record.
Plaintiff last worked on January 3, 2003.

At that time, she

was working as an assistant manager at a McDonald’s restaurant.
She began having pain in her right knee and took a two-month
leave of absence to see if it would improve, but it did not.

She

had the knee replaced, but still suffers from pain and
inflamation.
knee.

In addition, she developed problems with her left

Both knees have been treated with cortisone shots.

She

rides a scooter, prescribed by her doctor, because walking is
difficult, and walks with a cane.
Plaintiff also testified to back problems.
degenerative disease in her lower back.

She has

At the time of the

hearing, she was not getting any treatment for her back due to
lack of funds.

She also described nerve damage in her left wrist

and said she wore a wrist brace all the time, even while
sleeping.

She suffers from diabetes as well, but at the time of

the hearing it was fairly well controlled with insulin and other
medications.

Also, she has shoulder problems which prevent her

from working overhead with her left arm.
was under control.

Her high blood pressure

She was attempting to lose 200 pounds.

She

did not testify to any psychological problems.
For knee pain, plaintiff took pain medications.

Percocet,

in particular, caused drowsiness, but she took it on average
about twice a week.
with her feet up.

Her most comfortable position was sitting

Plaintiff testified that her back was getting

worse, as was her left knee.

She was able to walk half a block,

using a cane, and could stand for five to ten minutes.

Back pain

was the most significant limiting factor for these activities.
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She could sit for half an hour at a time and could resume sitting
if she got up and moved around for a few minutes.

She could lift

up to five pounds and could climb only a few steps.
Plaintiff did not believe she could do any of her past work
due to her inability to bend, lift and stand as required.
had a sedentary job, her ankles would swell.

If she

She does not do

household chores but does shop for groceries and occasionally
visits friends or goes to movies.

She had been participating in

pool therapy for about five months.
shoes or showering.
hour or more.

She needed assistance tying

In a normal day she would lie down for an

She could attend some school activities for her

children, and during the day she read, listened to music, and
used a computer.

Several days a week, her pain level would make

it impossible for her to go to work.
III.

The Medical Records

The medical records in this case are found beginning on page
144 of the administrative record.
summarized as follows.

The pertinent records can be

This summary will focus on the treatment

records from Dr. Franklin and nurse practitioner Ms. Rutan, as
well as consultative examiner Dr. Smith, because that evidence is
also the key to evaluating plaintiff’s first statement of error.
Dr. Franklin began treating plaintiff as early as 2000, when
he saw her for de Quervain’s stenosing tensynovitis of the
extensor tendons of the right wrist and possible carpal tunnel
syndrome of the left wrist.

The former condition was treated

surgically and plaintiff continued to work for several years
afterward.
Next, in 2002, Dr. Franklin started treating plaintiff for
her right knee problems.

She had arthroscopic surgery in July of

that year and, again, went back to work afterwards.

Another such

procedure was performed early in 2003 after plaintiff continued
to report pain and instability in the knee.
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She never returned

to work after that surgery.

The records show that during the

next several months, she continued to seek treatment from either
the emergency room or from Dr. Franklin for continued problems
with her knee, and that she also had surgery on her left wrist.
X-rays taken toward the end of the year showed arthritis in the
knee, and she had begun wearing a knee brace.
Dr. Franklin wrote a lengthy report on September 14, 2004,
detailing the history of his treatment of plaintiff’s various
conditions.

First, he noted that her left wrist problems

prevented her from using her left hand for repetitive motions.
He had not been treating her back problem but thought it would
affect her sitting and standing.

He said her right knee was the

most incapacitating factor, and since he viewed her as too young
for total knee replacement, he thought those problems would
disable her from working competitively in a fast-paced
environment.

(Tr. 491-94).

He also completed a form indicating

that she could sit for six hours in a work day and stand for one
hour, but needed to get up and move around every thirty minutes.
At about the same time, Ms. Rutan completed a questionnaire about
plaintiff’s diabetes in which she stated that plaintiff could
only sit or stand for one hour each during a work day.
16).

(Tr. 512-

Two years later, Dr. Franklin wrote another letter

confirming his conclusions, indicating that plaintiff had gotten
somewhat worse, and that with her knee problems, she would either
not be able to work 40 hours per week or “perform[] any of the
work duties she was capable of doing prior to initiation of her
disability.”

(Tr. 623-24).

Ms. Rutan also supplemented her

report in 2006, stating that her practice group saw plaintiff
four to five times per year and that plaintiff was disabled due
to limitations from her diabetes and joint problems.

(Tr. 687).

Dr. Smith performed a consultative physical examination on
April 21, 2006.

At that time, plaintiff’s chief complaint was
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pain in her right knee, left wrist, and low back.

She was using

crutches and taking Vicodin and Percocet to control the pain.
She could climb stairs but with difficulty and said she could not
kneel, squat, stoop or crawl.

She weighed 295 pounds.

Her left

hand pinch and grasp were abnormal as was the range of motion of
her right knee.

Dr. Smith diagnosed osteoarthritis of the right

knee as well as other conditions and noted that she was dependent
on a brace for the right knee and the left wrist.

He thought she

was impaired with respect to walking, lifting, bending, kneeling,
carrying, and handling objects in her left hand, but her ability
to sit was not impaired.

(Tr. 595-97).

He also completed a form

on which he indicated she could walk for four hours in a day, but
not more than 30 minutes at a time.

(Tr. 602).

follow-up evaluation on November 2, 2009.

Dr. Smith did a

At that time,

plaintiff had real difficulties with her left wrist and hand
including continuous pain and intermittent swelling.

She was not

using a cane at that time but would use a scooter when she was
out for longer periods.

She did dusting and cooking at home but

would sit while cooking.

Her right knee pain was better since

she had her knee replaced.

She walked with a slight limp.

He

completed a form indicating she could sit, stand and walk for a
total of seven hours in a work day and could lift up to ten
pounds,

(Tr. 934-47).

On December 4, 2007, plaintiff was evaluated by Dr.
Lombardi, who recommended total right knee replacement.

At that

time, her level of activity was described as “semi-sedentary.”
(Tr. 784).

Knee replacement surgery was performed by Dr.

Franklin on December 20, 2007.

Within a month, plaintiff had

made good gains in strength and functional ability.

She made

slow but steady progress over the course of the next number of
months, with some setbacks.

Her primary complaints over that

time frame related to her hands and wrists more than the knee.

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Treatment notes throughout 2009 are similar, and by 2010 Dr.
Franklin stated that plaintiff’s primary problems were her left
knee and left wrist, although he also said that “her function
remains significantly impaired as previously documented.”

(Tr.

953).
IV.

The Vocational Testimony

A vocational expert, Ms. Ewers, also testified at the
administrative hearing.
record.

Her testimony begins at page 1024 of the

She characterized plaintiff’s past work as a fast food

manager as light and semiskilled, and as a fast food cook as
medium and semiskilled.
Ms. Ewers was asked questions about a hypothetical
individual of plaintiff’s age who had plaintiff’s education level
and work history, and who could do light work with no climbing of
ropes, ladders or scaffolds and occasional climbing of stairs,
balancing, stooping, kneeling and crawling, with no work on
uneven surfaces and no exposure to hazards or extremes of
temperature.

She testified that a person with those

restrictions could do various light jobs such as copy machine
operator, electronics worker, rental clerk, and mail clerk.
Additional jobs would exist at the sedentary level.

The number

of these jobs would be slightly reduced if the person could stand
or walk for only four hours in the work day, and 15,000 light
jobs and 4,000 sedentary jobs would still remain if the person
also could not do more than occasional fine manipulation with the
non-dominant hand.

A ten-pound lifting restriction would further

reduce the number of light jobs, but not the sedentary ones.
Someone with a cane could perform those remaining jobs.
Plaintiff’s job skills would transfer to a number of light and
sedentary positions.
In response to questions from plaintiff’s counsel, Ms. Ewers
testified that a person who kept their feet elevated for five

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hours a day could not work.

The same would be true for someone

off task for up to 25% of the day due to pain or side effects of
medication.

Also, someone who needed to lie down for two hours

during the work day or who would miss three or four days per
month for medical reasons would not be employable.
V.

The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 23
through 36 of the administrative record.

The important findings

in that decision are as follows.
The Administrative Law Judge found, first, that plaintiff
met the insured requirements for disability benefits through
March 31, 2008.

Next, plaintiff had not engaged in substantial

gainful activity from her alleged onset date of January 3, 2003,
through the date of the decision.

As far as plaintiff’s

impairments are concerned, the ALJ found that plaintiff had
severe impairments including bilateral de Quervain’s
tenosynovitis with residuals of surgery and chronic condition in
the left, non-dominant hand; internal derangement in the right
knee with mild arthritis initially progressing to severe in the
later record and total knee replacement; moderate arthritis in
the left knee per MRI in December 2007; vertebrogenic disorder of
the lumbar spine; and obesity.

The ALJ also found that these

impairments did not, at any time, 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 lift up to ten pounds, to stand or walk up to four
hours in an eight-hour work day, that she could not climb ropes,
ladders or scaffolds, that she could not push or pull more than
ten pounds on the left, that she could only occasionally climb
stairs, balance, stoop, kneel, crouch, or crawl, that she could

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only occasionally handle or finger on the left, that she could
not work on uneven surfaces, that she could not be exposed to
hazards or cold extremes, that she could not be more than
occasionally exposed to heat extremes, humidity, wetness,
irritants, or vibrations, and that she could not perform jobs
that did not permit the use of a cane or motorized scooter to
ambulate.

The ALJ described this capacity as a “reduced range of

sedentary work.”

(Tr. 30).

Adopting the vocational expert’s

testimony, the ALJ found that plaintiff could not do any of her
past work but could perform unskilled sedentary jobs such as
assembly patcher, weight tester, surveillance system monitor, and
charge account clerk.

Because the testimony showed that those

jobs exist in significant numbers in the regional and national
economies, the ALJ concluded that plaintiff was not entitled to
benefits.
VI.

Plaintiff’s Statement of Specific Errors

In her statement of specific errors, plaintiff raises two
issues.

She argues (1) that the ALJ did not properly weigh the

medical evidence, and particularly the opinions expressed by Dr.
Franklin and nurse practitioner Ms. Rutan; and (2) that the ALJ
not properly assess her credibility.

The Court generally reviews

the administrative decision of a Social Security ALJ 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
Richardson v. Perales, 402

adequate to support a conclusion'"

U.S. 389, 401 (1971) (quoting Consolidated Edison Company v.
NLRB, 305 U.S. 197, 229 (1938)).
scintilla.'" Id.

It is "'more than a mere

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

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Cir. 1976).

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
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).
As to plaintiff’s first statement of error, it has long been
the law in social security disability cases 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.

20 C.F.R. §404.1527(d); see also

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).
However, 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 non-treating medical
sources, and may consider the claimant’s activities of daily
living.

Cutlip v. Secretary of HHS, 25 F.3d 284 (6th Cir. 1994).

No matter how the issue of the weight to be given to a treating
physician’s opinion is finally resolved, the ALJ is required to
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provide a reasoned explanation so that both the claimant and a
reviewing Court can determine why the opinion was rejected (if it
was) and whether the ALJ considered only appropriate factors in
making that decision.

Wilson v. Comm’r of Social Security, 378

F.3d 541, 544 (6th Cir. 2004).
Here, the ALJ first discussed the various reports of
disability authored by Ms. Rutan.

He gave them no weight, noting

that plaintiff was seen by Ms. Rutan primarily in connection with
her diabetes and not for orthopedic issues, and that there was no
evidence that diabetes was even a severe impairment.

Further,

the ALJ concluded that nothing in the treatment records from the
practice group which Ms. Rutan worked for showed any objective
basis for the conclusion that plaintiff could not perform even
sedentary work.
Next, the ALJ reviewed Dr. Franklin’s reports.

The starting

point of that analysis was an incorporation of the rationale of
the prior administrative decision which gave less than
controlling weight to Dr. Franklin’s opinion.

That decision,

found in the record at Tr. 716-31, found that Dr. Franklin’s
various opinions were “neither well-supported by medically
acceptable clinical and laboratory diagnostic techniques nor
consistent with other substantial evidence in the case record.”
It also found that at least part of his opinion was based on
vocational factors.

The decision identified the reports of the

state agency reviewers and the testimony of a medical expert, Dr.
Hutson, at the first administrative hearing as the specific
evidence in the record which contradicted Dr. Franklin’s
opinions.

(Tr. 727-28).

Lastly, the ALJ commented on the restriction of seven hours
of sitting, standing and walking during a work day, noting that
such a restriction seemed “a bit arbitrary” and no reason was
given why plaintiff could do those activities for seven hours,
but not eight.

He also noted that plaintiff’s right knee had
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improved following surgery and that she was always able to walk,
and that even with a restriction based on use of a cane she could
still do a number of sedentary jobs.

The ALJ also rejected Dr.

Smith’s seven-hour restriction, noting that it did not comport
with the record as a whole and was not supported by his own
report.

Finally, he noted the seeming inconsistency between

plaintiff’s ability to do a variety of daily activities and the
restrictions placed on her by Dr. Franklin.
Plaintiff, in her statement of errors, describes the ALJ’s
decision-making process as “fatally flawed.”

With respect to Dr.

Franklin’s opinions, she contends that the ALJ did not take into
account her entire testimony about daily activities, which
included not only the things the ALJ found she could do attending pool therapy, grocery shopping, visiting, reading,
infrequently going on vacation, assisting her children with
homework, attending their school activities, and doing some minor
household chores - but also things she could not do, such as most
of the housework or cooking, being unable to shop without using a
scooter, or needing help with showering and tying her shoes.

She

analogizes this case to Rogers v. Comm’r of Social Security, 486
F.3d 234 (6th Cir. 2007), a case in which the Court of Appeals
criticized the ALJ’s decision because the ALJ had improperly
compared “somewhat minimal daily functions” to “typical work
activities.”

Id. at 248.

Finally, she argues that the ALJ

failed to consider the other factors set forth in 20 C.F.R.
§404.1527 when evaluating Dr. Franklin’s opinions.
Plaintiff does not argue directly that the ALJ failed to
articulate his reasons for discounting Dr. Franklin’s opinions to
some extent, and the Court finds that the ALJ gave an explanation
which is sufficiently detailed to satisfy the “articulation”
requirement set forth in §404.1527(d) and to be reviewable.
Thus, the question becomes whether a reasonable person could have
found, based on this record, that Dr. Franklin’s opinions were
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not entirely supported by objective testing, were not consistent
with other portions of the record, and were contradicted to some
extent by plaintiff’s own testimony about her activities of daily
living.
The record does not appear to contain the transcript of the
first administrative hearing, so the Court cannot review the
testimony of Dr. Hutson for consistency with Dr. Franklin’s
views.

It is true that Dr. Smith’s first report indicates fewer

restrictions that Dr. Franklin would have imposed, although his
second report reflects the inability to perform work-type
activities (i.e. sitting, standing and walking) for more than
seven hours in a work day.

Nevertheless, it is a fair reading of

Dr. Franklin’s reports that he was taking plaintiff’s fast-food
manager’s job into account when stating that she could no longer
engage in competitive work; much of the language in his reports
deals with the inability to do the demands of that type of work
or to engage in strenuous labor.

Those reports, other than in

conclusory fashion, do not directly address the question of
whether plaintiff could do a limited range of sedentary work
where she could use a cane, did not have to do any significant
lifting, use her left hand more than occasionally, and could get
up and move around periodically.

It is also true that the

objective evidence is hard to reconcile with Dr. Franklin’s view
that plaintiff’s condition, and inability to work, was much the
same before and after her knee replacement; even his own records
and reports show that her right knee pain and mobility had
improved and that her more recent issues were with her left wrist
and left knee.

Thus, the ALJ was justified in refusing to give

controlling weight to Dr. Franklin’s opinions for these reasons.
Additionally, the Court agrees with the Commissioner that
this case is not on all fours with Rogers.

The Court of Appeals

noted, in that case, that the claimant could not even do the
daily activities she described in the way that most people would
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be able to, and that the ALJ had mischaracterized her testimony.
Here, by contrast, the ALJ appears to have understood and
described plaintiff’s testimony accurately, and she did perform a
number of activities, such as cooking (even while seated),
grocery shopping (again, while seated on a motorized scooter),
going to school functions, and engaging in pool therapy, which
showed the ability to do tasks similar to those needed to perform
a limited range of sedentary work.

The fact that there were some

things, such as showering or tying her shoes, which she needed
help with is not necessarily inconsistent with the ALJ’s residual
functional capacity finding, especially given the fact that the
ALJ did not credit her testimony fully.

Again, there is support

in the record for the ALJ’s use of the activities plaintiff could
perform as some evidence - even if not conclusive evidence - that
she could also do a limited range of sedentary work with various
restrictions.

This is consistent with the controlling law.

See,

e.g., Blacha v. Sec’y of HHS, 927 F.2d 228, 231 (6th Cir. 1990)
(“as a matter of law, an ALJ may consider household and social
activities in evaluating complaints of disabling pain”).
Finally, it is clear that the ALJ considered the other
regulatory factors.

The ALJ understood the length of the

treating relationship and the fact that Dr. Franklin was an
orthopedic specialist, and took into account the nature of the
tests performed and the treatment provided.

On balance, the

Court concludes that the ALJ acted within his discretion in
deciding to discount Dr. Franklin’s opinion to a certain extent,
and finding that plaintiff was slightly more able to do workrelated activities than Dr. Franklin believed.
As far as Ms. Rutan, the nurse-practitioner, is concerned,
plaintiff argues that although a nurse-practitioner is not
considered an “acceptable medical source,” the opinions of such a
health care professional must still be considered.

She asserts

that the ALJ did not give these views adequate consideration,
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rejecting them instead simply because Ms. Rutan did not treat
plaintiff for her orthopedic issues.
The Commissioner responds, and the Court agrees, that the
ALJ followed the applicable Social Security Ruling, SSR 06-3p, in
evaluating these opinions.

That ruling does direct an ALJ

generally to the considerations set out in §404.1527, but it also
states that the regulations do not directly apply to sources such
as nurse practitioners, and that opinions from such sources “are
important and should be evaluated on key issues such as
impairment severity and functional effects, along with the other
relevant evidence in the file.”

It then says that the §404.1527

factors “can” be part of the evaluation process, and recommends
that the ALJ give a statement of reasons for accepting or
rejecting opinions from such sources.
Here, the ALJ correctly noted that Dr. Franklin, not Ms.
Rutan or the doctors she worked for, treated the most potentially
disabling conditions from which plaintiff suffered - specifically
her wrist and knee problems.

Further, the ALJ found that

plaintiff’s diabetes, which is what she usually saw Ms. Rutan
for, was under control, posed no serious restrictions to her
functioning, and was not a severe impairment.
challenge this finding.

Plaintiff does not

It is true that in many of her treatment

notes, Ms. Rutan describes, to some extent, orthopedic issues,
but that was not the focus of her treatment, and it is certainly
permissible for an ALJ to discount an opinion of any source,
acceptable or not, to the extent that it is based on conditions
for which that source has not provided treatment.

It is also

true that Ms. Rutan’s notes do not describe the results of any
objective testing supporting whatever conclusions she drew about
plaintiff’s ability to work.

The Court concludes that the ALJ

adequately considered Ms. Rutan’s opinions and explained his
reasons for discounting them, as SSR 06-3p requires, and that he
did not commit any reversible error on this issue.
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The final issue about medical source opinions relates to Dr.
Smith.

The ALJ appears to have accepted Dr. Smith’s 2006 opinion

more or less in its entirety, and almost all of his 2009 opinion,
with the exception of its limiting plaintiff to only seven hours
of combined sitting, standing and walking.

As noted above, the

ALJ explained why he rejected that small portion of the report.
Plaintiff claims, however, that the reasons given by the ALJ for
doing so were impermissibly vague and, in addition, that there is
no direct support in the record for the ultimate finding as to
plaintiff’s residual functional capacity.
The Court does not find the ALJ’s explanation impermissibly
vague; the ALJ clearly stated that Dr. Smith’s own report did not
provide any support for his conclusion that plaintiff was either
not capable of sitting for an extra hour during a work day or
standing or walking for the same amount of time.

Further, in his

earlier report, which reflected his views before plaintiff had
her knee replacement surgery, he thought she could stand and walk
for four hours, and the record reflected improvement in her right
knee after that date.

Finally, the Court finds that the RFC

which the ALJ arrived at, while not corresponding directly to any
specific medical report, draws elements from the various reports
and also credits some of plaintiff’s testimony, such as her need
to use a cane, which was not directly supported by some of the
medical evidence.

It was within the ALJ’s “zone of decision” to

determine this particular residual functional capacity, and each
part of it has some support in the record.
insulate it from reversal.

That is enough to

See, e.g., Poe v. Comm’r of Social

Security, 342 Fed. Appx. 149, *7 (6th Cir. August 18, 2009)(“The
responsibility for determining a claimant's residual functional
capacity rests with the ALJ, not a physician. See 20 C.F.R. §§
404.1546(c), 416.946(c).

Although the ALJ may not substitute his

opinion for that of a physician, he is not required to recite the
medical opinion of a physician verbatim in his residual
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functional capacity finding”).
The second major issue raised by plaintiff’s statement of
errors deals with the way in which the ALJ judged her
credibility.

She argues, first, that the ALJ used an incorrect

legal standard, evaluating her credibility against the ALJ's
residual functional capacity finding rather than against the
entirety of the record.

In support of this argument, she cites

to the decision in Bjornson v. Astrue, 671 F.3d 640 (7th Cir.
2012), a decision which is critical of the template used by ALJs
because it implies that the ALJ has made a finding as to residual
functional capacity prior to determining if the claimant's
testimony is credible rather than in the opposite sequence.
Plaintiff also contends that the ALJ's reliance on testimony
given at the first administrative hearing was error because, as
noted above, the transcript of that hearing is not a part of the
record before the Court.

Finally, she asserts that her testimony

at the second hearing was consistent with the medical evidence
and establishes disability.
In response, the Commissioner argues that the ALJ reasonably
determined that plaintiff's testimony, to the extent that it
supported a finding of total disability, did not have to be
accepted at face value.

The Commissioner asserts that the ALJ's

discussion of plaintiff's credibility is a "textbook discussion
of Social Security Ruling 96-7p."
Doc. 18, at 13.

Commissioner's memorandum,

The ALJ, says the Commissioner, took the correct

factors into account, including the plaintiff's testimony, the
medical records, plaintiff's activities of daily living, her
symptoms, and her medication and treatment, and then cited to
reasons for discounting her testimony which are supported by the
record.

Those reasons included the fact that the medical records

indicated, contrary to plaintiff's testimony, that the condition
of her right knee improved following surgery, and the fact that
the prior ALJ made a credibility finding which was based in part
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(and, according to the Commissioner, properly) on that ALJ's
observation of plaintiff at the first hearing.
This Court has, in Jones v. Comm’r of Social Security, 2012
WL 5378850 (S.D. Ohio Oct. 30, 2012), and Williams v. Astrue,
2012 WL 4364147 (S.D. Ohio Sept. 24, 2012), acknowledged the
Bjornson decision, but has held that when an ALJ, despite using
the standard template, engages in a complete discussion of the
credibility issue, the Court will simply review that
determination to insure that it is supported by substantial
evidence.

Consequently, the Court will review the ALJ's

credibility discussion in light of SSR 96-7p and the entirely of
the record.
The ALJ noted, first, that plaintiff was not using any kind
of ambulatory aid at the time of the prior hearing, and engaged
in a wide range of daily activities.

By the time of the second

hearing, notwithstanding her knee replacement, she said that her
activities were more limited and that she was using ambulatory
aids.

Although the testimony from the first hearing is not in

the record, the first administrative decision is, and the second
ALJ did not determine that plaintiff was not truthful at the
first hearing, but rather took that testimony at face value.

The

Court does not view this as erroneous.
Second, the ALJ found that plaintiff’s testimony at the
second hearing concerning her various activities was "not
inconsistent with a sedentary range of work."

(Tr. 34).

That

finding is an interpretation of the testimony which a reasonable
person could have adopted.

Although the Court does not

necessarily agree that the ALJ's discussion is "textbook," and
the ALJ did not engage in a lengthy discussion of the apparent
discrepancies between the medical evidence and plaintiff's
testimony, the Court concludes that the discussion is thorough
enough to demonstrate that the ALJ used an appropriate legal
standard, took into account matters which do have a relationship
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to credibility, and relied on facts which were adequately
supported by the record.

The ALJ reasonably concluded that, to

the extent that plaintiff testified to symptoms which would have
prevented her from doing even a reduced ranged of sedentary work,
that testimony was not credible.

That is enough to prevent the

Court from overturning the ALJ's credibility finding. See
generally Foreman v. Commissioner of Social Sec., 2012 WL 1106257
(S.D. Ohio March 31, 2012) (Watson, J.), citing Walters v. Comm'r
of Social Security, 127 F.3d 525, 531 (6th Cir. 1997); Felisky v.
Bowen, 35 F.3d 1027, 1036 (6th Cir. 1994).
VII.

Recommended Decision

Based on the above discussion, it is recommended that the
plaintiff’s statement of errors be overruled and that judgment be
entered in favor of the defendant Commissioner of Social
Security.
VIII.

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
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
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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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