Hines v. Commissioner of Social Security

Filing 18

REPORT AND RECOMMENDATIONS re 3 Complaint filed by Bethshean A Hines. The Magistrate Judge concludes that there is substantial evidence supporting the administrative law judges decision denying benefits. Accordingly, it is RECOMMENDED that the decision of the Commissioner of Social Security be AFFIRMED. Objections to R&R due by 12/1/2014. Signed by Magistrate Judge Mark R. Abel on 11/14/2014. (Abel, Mark)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Bethshean A. Hines,

:
Plaintiff,

Civil Action 2:13-cv-1043
:

v.

Judge Sargus
:

Commissioner of Social Security,
Defendant.

Magistrate Judge Abel
:

REPORT AND RECOMMENDATION
Plaintiff Bethshean A. Hines brings this action under 42 U.S.C. §§ 405(g) and
1383(c)(3) for review of a final decision of the Commissioner of Social Security denying
her applications for Social Security Disability and Supplemental Security Income
benefits. This matter is before the Magistrate Judge for a report and recommendation
on the administrative record and the parties’ merits briefs.
Summary of Issues. Plaintiff Hines maintains that she became disabled on October 5, 2007, at age 24, due to a lower back injury. (PageID 244.) Plaintiff argues that
the decision of the Commissioner denying benefits should be reversed because:
• the administrative law judge committed reversible error in not finding that
plaintiff meets the requirements of listing 1.04a; and
• the administrative law judge to evaluate the plaintiff’s pain in relation to the
residual functional capacity; and
• the administrative law judge committed reversible error by not appointing a
medical expert to testify to the plaintiff’s limitations.
See Doc. 11.

Procedural History. Plaintiff Hines protectively filed her applications for disability insurance benefits and supplemental security income on September 15, 2010,
alleging that she became disabled on October 5, 2007, at age 24. (PageID 225-28.) The
applications were denied initially and upon reconsideration. Plaintiff sought a de novo
hearing before an administrative law judge. On July 3, 2012, an administrative law
judge held a hearing at which plaintiff, represented by counsel, appeared and testified.
(PageID 79-105.) A vocational expert also testified. (PageID 105-14.) On August 20,
2012, the administrative law judge issued a decision finding that Hines was not disabled
within the meaning of the Act. (PageID 166-90.) On August 29, 2013, the Appeals
Council denied plaintiff’s request for review and adopted the administrative law
judge’s decision as the final decision of the Commissioner of Social Security. (PageID
46-49.)
Age, Education, and Work Experience. Hines was born on July 3, 1983. (PageID
79, 225, 253.) She has a high school education. (PageID 245.) Hines has past relevant
work experience as a furniture sales person; desk clerk; cleaner/ housekeeping; and
cashier. (PageID 246, 258.)
Plaintiff’s Testimony. The administrative law judge fairly summarized Hines’s
testimony at the administrative hearing as follows:
The claimant testified she was lifting a table at work when she felt a sharp
pain go from her back up to her head and into her right leg. She said her
manager told her to keep working so she did not go to the emergency
room until the following day. She said they treated her with medications
and gave her a follow-up appointment with a physician. She said she
2

contacted workers' compensation, filed a claim and received benefits for a
year. She said the benefits stopped when her doctor “quit on her.” She
said she had recently been allowed to receive workers' compensation
again.
Ms. Hines testified the pain in the lower part of her back was constant and
8/10 on an average day. She said if she was walking too much or bending
too much or if she moved the wrong way, the pain would “shoot” down
her leg and intensify to 10/10. She said she would then need to lie down.
She said the sharp pain was intermittent, but the numbness and tingling
was constant. She said she had numbness in her foot.
The claimant testified her back pain had gotten worse and she had not
gotten the help she needed at that time. She said the pain goes through
her right leg and right hip and sometimes will go through her left leg. She
said her feel would swell. She said she had problems with stairs. She
said her right leg got weak sometimes. She said she would have a numbing feeling and could not hold the pedal down in her car. She said her leg
would shake. She said she took Cymbalta for sleep and pain to no avail.
She said she slept three to four hours at night because her back and leg
kept her turning to get in the right position. She said her energy was
down during the day, with bursts of energy. She said she napped three to
four times a day when she was lying down two hours at a time. She said
she used a cane when her leg gave out. She said she would elevate her
leg four to six hours intermittently during the day and use ice for the
swelling in her feet. Other times she said she would just lie down. She
estimated she could stand for 30 minutes; sit for 30 minutes; and walk for
20 minutes. She said her medication caused her to experience nausea,
weakness, confusion and drowsiness. She said she did not drive because
of the drowsiness.
Ms. Hines testified she had tried physical therapy, aqua therapy and
chiropractic care in the past. She said she had been seeing a physician
who had her on Percocet, but the last time she saw him he said he did not
know what else to do for her. She said she was seeing a new physician
and had not received any injections in her back because the injections had
only recently been approved through workers’ comp.
(PageID 175-76.)

3

Medical Evidence of Record.1 The administrative law judge’s decision fairly sets
out the relevant medical evidence of record. This Report and Recommendation will
only briefly summarize the relevant evidence.
Hines suffered an industrial injury to her back and hips while working on October 5, 2007. (PageID 492, 665.)
Doctor’s Hospital North. Hines presented to the emergency room for her industrial injury on October 17, 2007, complaining of low back pain. (PageID 1045-47.) Physical examination revealed Hines’s gait was slightly antalgic. All her movements were
cautious. She had tenderness with palpation of the low back area, with a slight preference on the right. She had a little tenderness on the left. She had limited lumbar flexion. She had intact deep tendon reflexes patellar and calcaneal tendon. Sensory function intact to light touch. Hines was able to bear weight on her heels and on toes.
(PageID 1046.) She was prescribed Percocet. (Id.)
OSU Medical Center Occupational Health Department Hines began treating
with Eric A. Schaub, M.D., on November 1, 2007. She complained of pain to her lower
back and right leg. Dr. Schaub diagnosed Hines with a lumbar strain, prescribed Vicodin and recommended that she return to work the following day with a maximum lift-

Plaintiff focuses her contentions on her physical work limitations rather than her
mental work limitations (Doc. 11, 17), and consequently, a detailed description of her mental
impairments is unwarranted.
1

4

ing of 5 pounds; sitting with stand/walk for brief periods as needed and she should
avoid bending. (PageID 487, 493.)
Hines returned on November 8, 2007, reporting that her symptoms were unchanged. Hines rated her pain at a level of 8 on a 0-10 visual analog scale. Hines had
not returned to light duty at work. On examination, Dr. Schaub found tenderness over
the lumbar spine and no radicular symptoms with straight leg raising. He diagnosed
Hines with a lumbar strain with symptoms suggestive of right leg radiculopathy and
requested an MRI. Dr. Schaub continued Hines’s medication, Naprosyn and Vicodin.
(PageID 488.)
The MRI of Hines’s lumbar spine taken on November 19, 2007 was “unremarkable.” (PageID 491.)
On November 29, 2007, Dr. Schaub reevaluated Hines for her “persistent low
back pain.” On examination, Hines appeared to be moderately uncomfortable with
tenderness over the lumbar spine from L2-L5 and limited right hip flexion. Dr. Schaub
found no spasm of the lumbar paraspinal muscles. (PageID 489.) Dr. Schaub assessed a
sacroiliac strain (allowed condition) and noted Hines also appeared to have lumbar
strain and right hip strain with possible right hip bursitis. He recommended physical
therapy and told Hines that “she needs to continue to try to work through the light duty
process, as [he] believe it will benefit her to continue to be active.” (PageID 489- 90.)
When seen on December 20, 2007, Hines reported that her pain improved. Dr.
Schaub found Hines appeared to be comfortable sitting on the table during examina5

tion. He also noted that they were awaiting approval for physical therapy and that
Hines was not having to take as much medication and was looking for a new job.
(PageID 486.)
In March 2008, Hines reported that she was making some progress in physical
therapy. On examination, Dr. Schaub found tenderness over the lumbar spine, but
otherwise benign findings. (PageID 483.)
On May 27, 2008, Dr. Schaub asked Hines to undergo a random urine drug
screen which she was unable to provide. Hines reported she had to leave the facility.
Dr. Schaub informed Hines that he would be unable to continue to prescribe further
narcotics. (PageID 465.)
In June 2008, Hines noted that her pain remained at 7/10. Dr. Schaub scheduled
Hines for physical therapy. (PageID 460.) Hines continued to see Dr. Schaub approximately every two months though January 2009. At that time, Hines reported that her
pain remained at 6/10. On examination, Dr Schaub found minimal tenderness of the
lumbar spine, but otherwise benign findings. Dr. Schaub recommended chiropractic
treatment. (PageID 398.)
Stephen T. Woods, M.D. On January 10, 2008, Dr. Woods, a physical medicine
and rehabilitation specialist, evaluated Hines for Dr. Schaub. Hines described her low
back pain as aching and stabbing with intermittent numbness and tingling over the
right anterior lateral thigh. A physical examination revealed normal findings, including
full range of motion in all planes of her lumbar spine. A straight leg raise test was also
6

negative. Dr. Woods diagnosed persistent low back pain, with sprain and strain. Dr.
Woods noted that “it appears as though she has primarily mechanical discomfort and
issues.” He recommended conservative care, including physical therapy, medication,
and spinal injections. (PageID 811-13.)
Gregory Jewell, M.D. On March 13, 2008, Hines was seen for an independent
medical evaluation for her workers’ compensation (“BWC”) claim by Dr. Jewell. At the
time of this evaluation, Hines reported “she is doing fine.” She reported back pain
aching in nature and localized more to the right side, with occasional sharp pain with
movement. Hine complained of pain occasionally radiated as far as the right hip, with
less tingling of the right thigh, but she no longer had pain down her leg. Hines felt that
physical therapy was helping. Based on his review of Hines’s medical records and
examination, he diagnosed a sprain to the lumbar region. Dr. Jewell felt that at that
time, Hines should be limited to sedentary exertion as long at the work allowed her to
change positions between sitting and standing as necessary and she should probably
limit her lifting to 10 pounds between mid-thigh and midchest area and avoid frequent
or prolonged bending. He also felt at that time that Hines had not reached maximum
medical improvement as she was continuing to improve in terms of her symptoms and
findings with the physical therapy she was receiving. (PageID 409-13.)
Alan H. Wilde, M.D. Hines underwent another independent medical examination for her BWC claim on September 29, 2008, with Dr. Wilde. An examination showed no spinal listing, normal lumbar curvature, no palpable spasms, tenderness at L3-4
7

with no scarring on the spine, no guarding or sensory loss, negative straight leg raising
test, normal motor power, no reflex change, and normal gait. Dr. Wilde determined
that Hines had reached the maximum medical improvement, as her physical examination was normal. Further, Dr. Wilde noted that the MRI from November 2007 was
normal and that someone doing even heavy work would recover from a lumbar sprain
within 35 days. Dr. Wilde opined that Hines could return to work as a customer service
representative. (PageID 402-03.)
Scott C. Gosselin, D.C. Hines received chiropractic treatment with Dr. Gosselin
in June and July 2009. (PageID 719-29.) By July 31, 2009, Dr. Gosselin noted that Hines
had responded maximally to the course of chiropractic treatment, but he did not feel
that she had reached maximum medical improvements. He believed that Hines would
obtain further pain relief is she lost 15-20 pounds, began stretching and exercising, and
stopped smoking. (PageID 728.)
An EMG performed on September 14, 2009, showed evidence of resolving chronic right S1 lumbar radiculopathy; clinical report of right extremity pain; and clinical
report of paresthesias of the extremity on the right. (PageID 711-18.)
Steven Cremer, M.D. Hines underwent another independent medical examination for her BWC claim on March 15, 2010, with Dr. Cremer. Hines reported she had
pain up into her back to her head and in her right leg to her toes. Hines classified her
pain as “minimal to slight in intensity.” Examination of her lumbar spine revealed
tenderness, spasms and guarding in the lumbar paraspinals; decreased sensation at
8

L4-5; and decreased range of motion. Dr. Cremer concluded that she has a 5% whole
personal impairment in the lumbar category. (PageID 698-99.)
Charles B. May. D.O. )n October 28, 2009, Hines began seeing Dr. May, a family
practice physician. (PageID 665-66.) Initially, Hines reported low back pain with pain
into her right hip, which was worse with sitting, standing or walking. (PageID 665.) On
examination, Dr. May found mildly restricted range of motion of the lumbar spine in all
planes; negative straight leg raising bilaterally; no axillary motor loss or sensory loss in
either lower extremities; and non-antalgic gait that did not require ambulatory aide.
(PageID 666.) Dr. May obtained new x-rays, which he felt showed some mild facet arthrosis at L5-S1. (Id.) The radiologist interpreted the results as normal. (PageID 1168.)
Dr. May requested BWC authorization for Hines to have a spine surgeon consultation.
(Id.)
When seen on December 6, 2010, for reevaluation of her low back pain, Hines
continued to complain of severe low back pain, with a stinging and burning sensation;
right lower extremity pain, paresthesias, weakness, and giving out of her right leg. Her
symptoms radiated to her toes on the right leg, and she described the radicular symptoms as “almost constant.” Dr. May found lumbar spine tenderness; myospasms and
trigger points in the lumbar region; decreased range of motion in all planes of the lumbar spine; 4/5 strength in the right leg and 5/5 in the left; and a positive straight leg test
on the right, while seated, at 70 degrees. Dr. May felt Hines suffered from radiculop-

9

athy and requested permission from the BWC to obtain a new EMG to ascertain if
Hines’s S1 radiculopathy was still present. (PageID 1169-70.)
A May 12, 2011 EMG noted the presence of right S1 radiculopathy. (PageID
1201.)
On May 24, 2011, Dr. May opined that that Hines “did not suffer from any preexisting conditions in the lumbar spine as evidenced by a so-called relatively normal
MRI scan six weeks after the date of injury.” Dr. May also opined,
Ms. Hines has developed a right paracentral annular fissure and disc protrusion at LS-SI with involvement of the right SI nerve root and resultant
right S1 radiculopathy as a direct and proximate result of her 10/05/2007
work injury. Although the actual disc protrusion and/or annular fissure
apparently was not visible on the MRI scan taken six weeks after the date
of injury, I do not believe that to be too unusual. The disc was injured on
the date of injury and it did take time for the disc to degenerate to the
point that we see the disc in the most recent MRI scan dated 08/18/2010.
The rate of change from normal to the abnormalities noted in 10/2010 is
much more rapid than one would expect with any so-called normal aging
or wear and tear process. It should also be noted that Ms. Hines has suffered from right leg radicular symptoms since the inception of this claim
and an EMG performed on 09/16/2009 also documented radiculopathy as
does the current EMG. There is obvious involvement of the LS-S1 nerve
root on the current MRI scan as well.
(PageID 1202-03.)
Gregory Mavian, D.O. On March 22, 2010, Dr. Mavian, a neurosurgeon, evaluated Hines at the request of Dr. May. Hines complained of lower back pain and right
radicular symptoms, with sitting, driving and walking. On examination, Dr. Mavian
found hyperesthesia to temperature in the right leg; decreased pinprick and temperature in the L5-S1 distribution of the right leg; diminished patellar and Achilles reflexes;
10

positive straight leg raising test on the right; tenderness over the lumbosacral region;
reduced range of motion of the lumbar spine; and an antalgic gait. Dr. Mavian diagnosed Hines with lumbosacral back pain, with associated right lower extremity radiculopathy; rule out nerve root compression. Dr. Mavian ordered an updated MRI. (PageID 701-03.)
The lumbar spine MRI taken on October 18, 2010 noted the presence of degenerative disease at L5-S1; a right paracentral annular fissure and disc protrusion at L5-S1,
contacting the right S1 nerve root; and mild biforaminal narrowing at L5-S1, due to a
bulging disc. (PageID 1148-49.)
Hines followed up with Dr. Mavian on November 8, 2010 and after reviewing
the MRI results and examining Hines, Dr. Mavian felt she should be referred to a pain
management specialist, further testing by way of a discogram, and possible surgical
intervention if Hines was interested. (PageID 1136-37.)
Grant Medical Center. On August 18, 2010, Hines presented to the emergency
room for chronic back pain; she was out of medication. On examination, she had no
lower extremity weakness, no numbness or tingling; no loss of bowel /bladder; negative straight leg raise on the left and pain at 15 degrees on right. Hines had a normal
neurologic examination with normal sensation, reflexes, and gait. (PageID 1087-93.)
Kalyan Lingam, M.D. Hines consulted with pain specialists, Dr. Lingam on
February 6, 2012 on referral from Dr. May. After reviewing her history and examining,
Hines, Dr. Lingam assessed lumbar disc herniation, lumbar radiculitis, and lumbar
11

sprain and requested BWC approval for right-sided lumbar medial branch blocks.
(PageID 1263-64.)
Nick Albert, M.D./Leanne M. Bertani, M.D. On November 15, 2010, Dr. Albert, a
state agency physician, conducted a physical residual functional capacity assessment
based on Hines’s record. (PageID 120-26.) Dr. Albert found Hines could lift 20 pounds
occasionally, 10 pounds frequently, stand and walk about 6 hours in an 8-hour workday, sit about 6 hours in an 8-hour workday, and he's limited in his ability to push and
or pull in the upper extremities. (PageID 125.) Hines can occasionally stoop, kneel,
crawl, and crouch; frequently climb ramps/stairs but never climb ladders, rope, or
scaffolds. (PageID 125.) Dr. Albert also determined that Hines is only partially credible
given her normal motor, sensation and reflexes, normal gait, and that she is going to
school and raising a 7 year old son. (PageID 124.) Another state agency reviewing
physician, Dr. Bertani reviewed the updated file on March 4, 2011. Dr. Bertani found
Hines slightly more restricted. According to Dr. Bertani, Hines was limited to standing
and/or walking only 4 hours in an 8-hour workday; she can never climb ladders, rope,
or scaffolds, and occasionally balance; and she must avoid unprotected heights due to
antalgic gait. (PageID 149-50.)
Administrative Law Judge’s Findings. The administrative law judge found
that:
1.

The claimant meets the insured status requirements of the Social
Security Act through June 30, 2011.

12

2.

The claimant has not engaged in substantial gainful activity since
October 5, 2007, the alleged onset date (20 CFR 404.1571 et seq., and
416.971 et seq.).

3.

The claimant has the following severe impairments: lumbar strain
with sciatica; degenerative disc disease demonstrated at Exhibit
6F/2; depressive disorder; and generalized anxiety disorder (20
CFR 404.1520(c) and 416.920(c)).

4.

The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1
(20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and
416.926).

5.

After careful consideration of the entire record, the undersigned
finds that the claimant can occasionally lift and carry 20 pounds;
frequently lift and carry 10 pounds; push or pull to the same extent
using hand or foot controls; stand or walk about four hours; and sit
about six hours in an eight-hour work day. She cannot climb ladders, ropes or scaffolds; can occasionally climb ramps and stairs;
can occasionally stoop, balance, kneel, crouch and crawl; and must
avoid all exposure to unprotected heights and hazardous machinery. Due to mental impairments, she can understand and remember simple and some complex instructions, work where production quotas are not critical, and adapt to routine changes in a
static work setting.

6.

The claimant is unable to perform any past relevant work (20 CFR
404.1565 and 416.965).

7.

The claimant was born on July 3, 1983 and was 24 years old, which
is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563 and 416.963).

8.

The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564 and 416.964).

9.

Transferability of job skills is not material to the determination of
disability because applying the Medical-Vocational Rules directly
supports a finding of “not disabled,” whether or not the claimant
13

has transferable job skills (See SSR 82-41 and 20 CFR Part 404,
Subpart P, Appendix 2).
10.

Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform (20
CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).

11.

The claimant has not been under a disability, as defined in the
Social Security Act, from October 5, 2007, through the date of this
decision (20 CFR 404.1520(g) and 416.920(g)).

(PageID 171-89.)
Standard of Review. Under the provisions of 42 U.S.C. §405(g), “[t]he findings
of 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)). It is
“‘more than a mere scintilla.’” Id. LeMaster v. Weinberger, 533 F.2d 337, 339 (6th 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 (1950)); Wages v. Secretary of Health and
Human Services, 755 F.2d 495, 497 (6th Cir. 1985).
14

Plaintiff’s Arguments.
•

The administrative law judge committed reversible error in not finding that
plaintiff meets the requirements of listing 1.04a. Hines argues that her longstanding lumbar spine condition meets or equals the criteria of Listing 1.04A
based on MRI and EMG studies. Hines also argues that the administrative law
judge failed to discuss with specificity, the reasons for not crediting the opinion
of Dr. May. (Doc. 11 at PageID 1271-73.)

•

The administrative law judge to evaluate the plaintiff’s pain in relation to the
residual functional capacity. According to Hines, the administrative law judge
failed to consider that plaintiff’s persistent efforts to obtain pain relief enhanced
her credibility. Hines also argues that the administrative law judge did not consider the physical effects of plaintiff’s daily activities. (Id. at PageID 1273-75.)

•

The administrative law judge committed reversible error by not appointing a
medical expert to testify to the plaintiff’s limitations. Hines argues that there
should have been a medical expert present to properly evaluate the meaning of
the medical findings and to determine whether the plaintiff meets the criteria for
Listing 1.04A. (Id. at PageID 1275-76.)
Analysis.
1.

Listing 1.04

The Sixth Circuit has long held “the burden of proof lies with the claimant at
steps one through four of the [sequential disability benefits analysis],” including prov15

ing presumptive disability by meeting or exceeding a Medical Listing at step three. Her
v. Comm’r of Soc. Sec., 203 F.3d 388, 391 (6th Cir. 1999). Thus, if plaintiff “can show an
impairment is listed in [20 C.F.R. part 404, subpart P] Appendix 1 (‘the [Listings’), or is
equal to a listed impairment, the administrative law judge must find the claimant disabled.” Burgess v. Sec’y of H.H.S., 835 F.2d 139, 140 (6th Cir. 1987). In order for plaintiff
“to qualify as disabled under a listed impairment, [she] must meet all the requirements
specified in the Listing.” (Id.). As the Commissioner notes, this must be done by presenting specific medical findings that satisfy the particular Listing. See Zebley, 493 U.S.
at 530-32. An impairment that manifests only some of the criteria in a particular Listing,
“no matter how severely, does not qualify.” (Id. at 530).
Plaintiff maintains that she meets Listing 1.04, which provides in pertinent part:
1.04 Disorders of the spine (e.g., herniated nucleus purposes, spinal
arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease,
facet arthritis, vertebral fracture), resulting in compromise of a nerve root
(including the cauda equina) or the spinal cord. With:
A. Evidence of nerve root compression characterized by neuro-anatomic
distribution of pain, limitation of motion of the spine, motor loss (atrophy
with associated muscle weakness or muscle weakness) accompanied by
sensory or reflex loss and, if there is involvement of the lower back,
positive straight-leg raising test (sitting and supine).
20 CFR Pt. 404, Subpt. P, App. 1. Here, there is no evidence of nerve root compression,
and plaintiff does not meet the requirements of 1.04A as a result.
In his decision, the administrative law judge first addresses Hines’s counsel’s
pre-hearing statement and determined that “the examining and treating physicians’

16

reports show no evidence of nerve root compression, spinal arachnoiditis, or lumbar
spinal stenosis resulting in pseudoclaudication, as required by Section 1.04 (Exhibits 1F,
2F, 3F, 4F, 5F, 6F, 8F, 10F, 11F, 13F, 15F, 16F, 17F, and 18F). The undersigned has considered the contentions of Mr. Woodrow, but has rejected them, as they are not supported by at least a preponderance of the evidence.” (PageID 172-73.) The administrative law judge also details a lengthy review of Hines’s medical history, describing her
impairments and summarizing her treatment history. (PageID 176–87.) For example,
plaintiff’s October 2010 MRI of the lumbar spine showed a disc protrusion at L5/S1
contacting the right S1 nerve root (PageID 1148-49), but there is no evidence of motor
loss characterized by neuro-anatomic distribution of pain, limitation of motion of the
spine, and motor loss accompanies by sensory or reflex loss. Examinations at that time
showed that plaintiff had normal muscle strength, normal sensation, and mostly negative straight leg raise testing during the relevant period. (See PageID 402-03, 666, 813).
Hines invokes the “treating physician” rule to argue that the administrative law
judge should have accepted the opinion of Dr. May and that he failed to discuss the
reasons for not crediting the opinion of Dr. May. Dr. May is a treating physician, but
the scope of his treatment is not apparent from the record. He is a family practice
physician that began treating Hines two years after her industrial accident. Dr. May did
provide an opinion as part of his treatment record, but he simply stated that Hines’
industrial accident caused her injury, not that she was unable to work. His opinion
contains a diagnosis and a conclusion, but no functional deficits resulting from Hines’
17

impairments. An opinion without supporting reasons is entitled to very little credibility
and the administrative law judge so concluded. The administrative law judge did note
that Dr. May completed certificates to return to work indicating Hines was under his
care on August 10, 2010, November 9, 2010, and November 25, 2010 and was able to
return to work or school. PageID 187, citing to PageID 1108, 1173-74. The Magistrate
Judge concludes that the administrative law judge did not err in his treat-ment of Dr.
May’s opinion. In addition, plaintiff points to no treating physician op-inions in the
record which set forth limitations inconsistent with those found by the administrative
law judge.
As such, plaintiff has not met her burden to prove that she met Listing 1.04.
2.

The Administrative Law Judge’s Credibility Finding

Plaintiff also challenges the administrative law judge’s finding on the credibility
of her subjective complaints of pain. (Doc. 11 at PageID 1273-75).
In the administrative decision, the administrative law judge noted the following
as to Hines’s credibility:
The undersigned finds the claimant's allegations are not fully credible and
are inconsistent with the evidence of record. There are material inconsistencies in the reports of symptoms and limitations among the reports
by the claimant to the SSA (including testimony and Exhibits 1E, 2E, 3E,
4E, 6E, 7E, and 9E), evaluators, and treating sources, eroding the reliability
of those reports and the credibility of the claimant. There is significant
evidence of exaggeration of symptoms and limitations by the claimant in
testimony, eroding the claimant’s credibility. There is significant reliance
on leading questions that suggested the answers given, particularly with
respect to psychological symptoms, eroding the reliability of that testimony. The claimant professed to be a poor historian, eroding the reli18

ability of reports of symptoms and limitations. She has a history of refusing drug testing (Exhibit 1F/1). Her activities of daily living include that
she was still in school until six months earlier (Exhibit 13F/6 and testimony). She declined steroid injections at Exhibit 13F/8. There were no
restrictions in her return to work/school order at Exhibit 4F/11. A prescription for a cane (submitted after the hearing at Exhibit 17F) appeared
to be inconsistent with her activities of daily living and the medical evidence of record in general.
(PageID 180.) The administrative law judge continued with examples of inconsistent
statements and activities of Hines. (PageID 180-81.)
As the United States Court of Appeals for the Sixth Circuit has noted, “‘[C]redibility determinations with respect to subjective complaints of pain rest with the administrative law judge.’” Allen v. Comm’r of Soc. Sec., 561 F.3d 646, 652 (6th Cir. 2009) (quoting Siterlet v. Sec’y of Health & Human Servs., 823 F.2d 918, 920 (6th Cir.1987)). Furthermore, “[t]he administrative law judge’s assessment of credibility is entitled to great
weight and deference, since he [or she] had the opportunity to observe the witness’s
demeanor.” Infantado v. Astrue, 263 Fed. Appx. 469, 475 (6th Cir. 2008) (citing Walters v.
Comm'r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997)). Despite this deference, “an administrative law judge’s assessment of a claimant’s credibility must be supported by substantial evidence.” Walters, 127 F.3d at 531. The administrative law judge’s decision on
credibility must be “based on a consideration of the entire record.” Rogers, 486 F.3d at
247 (internal quotation omitted).
The United States Court of Appeals for the Sixth Circuit has developed a twostep process for evaluating a claimant’s complaints of pain:

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First, we examine whether there is objective medical evidence of an
underlying medical condition. If there is, we then examine: (1) whether
objective medical evidence confirms the severity of the alleged pain
arising from the condition; or (2) whether the objectively established
medical condition is of such a severity that it can reasonably be expected
to produce the alleged disabling pain.
Walters, 127 F.3d at 531 (quoting Felisky v. Bowen, 35 F.3d 1027, 1038-39 (6th Cir. 1994)).
In making determinations, “[d]iscounting credibility to a certain degree is appropriate
where an administrative law judge finds contradictions among the medical reports,
claimant's testimony, and other evidence.” (Id.) Furthermore, in assessing credibility,
the administrative law judge may consider a variety of factors including “the location,
duration, frequency, and intensity of the symptoms; ... [and] the type, dosage, effectiveness, and side effects of any medication taken to alleviate the symptoms ...” Rogers, 486
F.3d at 247.
The record indicates that substantial evidence supports the administrative law
judge’s credibility determination. The administrative law judge explained his decision,
making it clear the weight he gave plaintiff’s statements. See Rogers, 486 F.3d at 248
(noting that administrative law judge decisions “must be sufficiently specific to make
clear to the individual and to any subsequent reviewers the weight the adjudicator gave
to the individual's statements and the reasons for that weight”). The administrative law
judge applied the correct two-step standard in evaluating plaintiff’s complaints of pain.
First, the administrative law judge determined that “the claimant’s medically determinable impairments could reasonably be expected to produce the alleged symptoms.”

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(PageID 180). Second, the administrative law judge found that plaintiff’s statements
about the pain’s intensity were not credible “to the extent they are inconsistent with the
above residual functional capacity assessment . . . .” (Id.)
Because the administrative law judge’s decision provides adequate support for
the credibility determination, with respect to plaintiff’s subjective complaints of pain,
the Court defers to the administrative law judge on this issue, and finds no reversible
error.
3.

Appointment of a Medical Expert

Finally, plaintiff argues that the administrative law judge should have secured
the assistance of a medical expert to help explain the findings of plaintiff’s treating
physicians and to aid in determining whether plaintiff’s impairments met the criteria of
Listing 1.04A. As Hines notes, the primary reason an administrative law judge may
obtain a medical expert opinion is to gain information which will help him or her evaluate the medical evidence in a case, and determine whether the claimant is disabled or
blind. Wise v. Astrue, 2:09-CV-00355, 2010 WL 3075184 (S.D. Ohio Aug. 4, 2010). The
Commissioner's operations manual indicates that it is within the administrative law
judge’s discretion whether to seek the assistance of a medical expert. HALLEX I-2-5-32
(September 28, 2005).
Plaintiff contends that, “Instead of using his own biased lay opinion to conclude
that the EMG and MRI results do not provide evidence of nerve root compression, the
administrative law judge should have obtained testimony from a qualified medical
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expert.” (Doc. 11 at PageID 1276.) An administrative law judge must utilize the services
of a medical advisor only when it is unclear whether a claimant’s impairment is equivalent in severity to a listed impairment, see SSR 96-6p, 1996 WL 374180 (1996), or when
necessary to establish the onset of disability for slowly progressive impairments, see SSR
83-20, 1983 WL 31249 (1983). Otherwise, an administrative law judge has no duty to
seek the opinion of a medical advisor unless, by failing to do so, the administrative law
judge fails to fulfill his duty to adequately develop the record and
thereby prejudices the claimant. Brock v. Chater, 84 F.3d 726, 728 (5th Cir. 1996). See also
Richardson v. Perales, 402 U.S. at 408 (1971)(recognizing that resort to medical advisors in
explaining complex medical problems is permissible but not mandatory). Plaintiff has
offered no persuasive argument to support her position that the administrative law
judge in this case was required to seek the advice of a medical expert to determine the
severity of plaintiff’s pain, the credibility of plaintiff’s testimony or the extent of limitation caused by plaintiff’s medical condition. Moreover, plaintiff does not articulate how
the testimony of a medical advisor might have changed the result of the proceeding.
The undersigned concludes that the administrative law judge did not err in failing to
retain the services of a medical advisor.
The administrative law judge relied on the formal functional capacity evaluation,
and plaintiff’s own testimony regarding her activities of daily living to conclude that
she has the residual functional capacity to perform activities which, the vocational expert testified, would allow her to perform a significant number of jobs in the national
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economy. The findings of the administrative law judge in this regard are supported by
substantial evidence.
Conclusions. From a review of the record as a whole, the Magistrate Judge concludes that there is substantial evidence supporting the administrative law judge’s
decision denying benefits. Accordingly, it is RECOMMENDED that the decision of the
Commissioner of Social Security be AFFIRMED.
If any party objects to this Report and Recommendation, that party may, within
fourteen (14) days, file and serve on all parties a motion for reconsideration by the
Court, specifically designating this Report and Recommendation, and the part thereof
in question, as well as the basis for objection thereto. 28 U.S.C. §636(b)(1)(B); Rule 72(b),
Fed. R. Civ. P.
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District
Judge and waiver of the right to appeal the judgment of the District Court. Thomas v.
Arn, 474 U.S. 140, 150-52 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). See
also, Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989).

s/Mark R. Abel
United States Magistrate Judge

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