Harris v. Commissioner of Social Security

Filing 20

REPORT AND RECOMMENDATIONS re 3 Complaint filed by Rashawn Harris. It is RECOMMENDED that this action be REMANDED to the Commissioner of Social Security, pursuant to Sentence 6 of 42 U.S.C. § 405(g). Objections to R&R due by 6/1/2015. Signed by Magistrate Judge Norah McCann King on 5/15/2015. (pes)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
RASHAWN HARRIS,
Plaintiff,
vs.

Civil Action 2:14-cv-1226
Judge Frost
Magistrate Judge King

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
REPORT AND RECOMMENDATION
I.

Background
This is an action instituted under the provisions of 42 U.S.C. §

405(g) for review of a final decision of the Commissioner of Social
Security denying plaintiff’s applications for a period of disability,
disability insurance benefits, and supplemental security income.

This

matter is before the Court for consideration of Plaintiff’s Statement
of Errors (“Statement of Errors”), Doc. No. 13, and the Defendant’s
Memorandum in Opposition, Doc. No. 19.
Plaintiff Rashawn Harris protectively filed his applications for
benefits on February 27, 2012, alleging that he has been disabled
since August 1, 2004.

PAGEID 231, 397-410.

The claims were denied

initially and upon reconsideration, and plaintiff requested a de novo
hearing before an administrative law judge.
An administrative hearing was held on February 26, 2013, at which
plaintiff, represented by counsel, appeared and testified, as did
Timothy Shaner, who testified as a vocational expert.

PAGEID 246.

In

a decision dated March 29, 2013, the administrative law judge
concluded that plaintiff was not disabled from August 1, 2004, through
the date of the administrative decision.

PAGEID 231-41.

That

decision became the final decision of the Commissioner of Social
Security when the Appeals Council declined review on June 26, 2014.
PAGEID 32-35.
Plaintiff was 45 years of age on the date of the administrative
decision.

See PAGEID 241, 397.

Plaintiff was last insured for

disability insurance purposes on March 31, 2010.

PAGEID 233.

Plaintiff has at least a high school education, is able to communicate
in English, and has past relevant work as a vender, grill cook helper,
food preparer, and food server.

PAGEID 240.

He has not engaged in

substantial gainful activity since March 13, 2012, the date plaintiff
filed his application for supplemental security income.
II.

PAGEID 234.

Administrative Hearing
Plaintiff testified at the administrative hearing that he has

pain in his lower back and left leg resulting from an October 2011
accident in which he was hit by a car while riding a bicycle.
251, 254-55.

PAGEID

Plaintiff has to alternate between sitting and standing,

because engaging in either activity for too long causes pain in his
left leg.

PAGEID 252.

Plaintiff is unable to get out of bed a couple

days per week because of pain.

PAGEID 258.

Lying in the fetal

position helps relieve the pain, but that also causes headaches that
last one to four hours.

PAGEID 258, 261.

Plaintiff can walk one or

two blocks, using a cane, before he must stop.

2

PAGEID 255.

He cannot

bend at the waist, squat, or lift anything.

PAGEID 258-59. His pain

has not been alleviated by injections, chiropractic treatment, or
physical therapy.
his pain.

PAGEID 256-57.

PAGEID 258.

Cold or wet weather also aggravate

Plaintiff does not currently take pain

medication because he cannot afford it.

PAGEID 260.

When plaintiff

did take medication, the medication made him drowsy and interfered
with his ability to pay attention at work.

Id.

Plaintiff testified that he also has constant numbness and
tingling in his left hand from a gunshot wound that severed the medial
nerve.

PAGEID 260.

He cannot lift more than two or three pounds and

he has no ability to grip when his hand is cold.

Id.

Plaintiff’s

fiancée helps get him dressed and does the cooking and cleaning.
PAGEID 261.
The vocational expert was asked to assume a claimant with
plaintiff’s vocational profile and the residual functional capacity
(“RFC”) eventually found by the administrative law judge.
67.

PAGEID 266-

According to the vocational expert, such an individual could not

perform plaintiff’s past relevant work as a vendor, food preparer,
grill cook, and food server, but could perform such jobs as packager,
assembler, and inspector.

Id.

III. Administrative Decision
The administrative law judge found that plaintiff did “not
establish[] the existence of any medically-determinable impairments
through March 31, 2010, the date of last insured.”

PAGEID 233.

administrative law judge therefore denied plaintiff’s claim for

3

The

disability insurance benefits at step two of the sequential evaluation
process.
With regard to plaintiff’s claim for supplemental security
income, the administrative law judge found that plaintiff’s severe
impairments consist of lumbar radiculitis, mild degenerative changes
at the L4-L5 and L4-S1 disc levels, without critical central spinal
stenosis or critical narrowing of the neuroforamina or nerve root
impingement, thoracic degenerative disc disease, and tobacco abuse.
PAGEID 234.

The administrative law judge also found that plaintiff’s

impairments neither meet nor equal a listed impairment and leave
plaintiff with the RFC to
perform sedentary work as defined in 20 CFR 416.967(a) such
that
the
claimant
can
lift
and
carry
10
pounds
occasionally, sit for a total of 6 hours in an 8-hour
workday, with normal breaks, stand and walk for a total of
2 hours in an 8-hour workday, with normal breaks and for no
more than 15 minutes at a time, and push and pull within
these limitations.
He can occasionally climb ramps and
stairs, but never ladders, ropes, or scaffolds.
In
addition, the claimant can occasionally stoop.
PAGEID 234-35.

Although this RFC precludes the performance of

plaintiff’s past relevant work as a vender, grill cook helper, food
preparer, and food server, the administrative law judge relied on the
testimony of the vocational expert to find that plaintiff is
nevertheless able to perform a significant number of jobs in the
national economy, including such representative jobs as packager,
assembler, and inspector.

PAGEID 240-41.

Accordingly, the

administrative law judge concluded that plaintiff was not disabled

4

within the meaning of the Social Security Act from August 1, 2004,
through the date of the administrative decision.
IV.

PAGEID 241.

Discussion
Pursuant to 42 U.S.C. § 405(g), judicial review of the

Commissioner’s decision is limited to determining whether the findings
of the administrative law judge are supported by substantial evidence
and employed the proper legal standards.

Richardson v. Perales, 402

U.S. 389 (1971); Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595
(6th Cir. 2005).

Substantial evidence is more than a scintilla of

evidence but less than a preponderance; it is such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.
See Buxton v. Haler, 246 F.3d 762, 772 (6th Cir. 2001); Kirk v. Sec’y
of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1981).

This

Court does not try the case de novo, nor does it resolve conflicts in
the evidence or questions of credibility.

See Brainard v. Sec’y of

Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989); Garner v.
Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
In determining the existence of substantial evidence, this
Court must examine the administrative record as a whole.
F.2d at 536.

Kirk, 667

If the Commissioner's decision is supported by

substantial evidence, it must be affirmed even if this Court would
decide the matter differently, see Kinsella v. Schweiker, 708 F.2d
1058, 1059 (6th Cir. 1983), and even if substantial evidence also
supports the opposite conclusion.

Longworth, 402 F.3d at 595.

5

In his Statement of Errors, plaintiff first argues that the
administrative law judge erred in failing to find a severe impairment
prior to the date last insured for purposes of disability insurance
benefits and in failing to find that plaintiff’s other impairments are
severe.

Statement of Errors, pp. 5-7.

Plaintiff insists that he “has

other severe impairments, including pain in the MTP joint (Tr 777).
The post hearing records show Herniated Nucleus Pulposis and lumbar
radiculopathy. (Tr 192) disc herniation.

The claimant also has

headaches (Tr. 573, 634) and cervical spine issues (Tr 572-678).”

Id.

at p. 6 [sic].
A “severe impairment” is defined as an impairment or combination
of impairments “which significantly limits [the claimant’s] physical
or mental ability to do basic work activities.”
404.1520(c), 416.920(c).

20 C.F.R. §§

Basic work activities include “the abilities

and aptitudes necessary to do most jobs,” including physical functions
“such as walking, standing, sitting, lifting, pushing, pulling,
reaching, carrying, or handling.”
416.920(c).

20 C.F.R. §§ 404.1520(c),

The United States Court of Appeals for the Sixth Circuit

has held that an impairment is not severe only if it is a “̔slight
abnormality which has such a minimal effect on the individual that it
would not be expected to interfere with the individual's ability to
work, irrespective of age, education, or work experience.’”

Farris v.

Sec’y of Health & Human Servs., 773 F.2d 85, 89-90 (6th Cir. 1985)
(quoting Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984)).
burden is on the claimant to establish the existence of a severe

6

The

impairment.

Bowen v. Yuckert, 482 U.S. 137 (1987).

Nevertheless, if

the effect of the claimant’s impairments is not clear, the
administrative law judge should continue the five-step evaluation.
SSR 85-28, 1985 WL 56856 (Jan. 1, 1985).

The goal of the step-two

severity inquiry is “to screen out totally groundless claims.”
Farris, 773 F.2d at 89.
In determining that plaintiff did not have a severe impairment
prior to March 31, 2010, the administrative law judge noted that
plaintiff’s “impairments and limitations appear[ed] to be largely due
to a bicycle accident in October 2011,” which “was well after his date
last insured.”

PAGEID 233.

The administrative law judge also noted

that the medical evidence was derived from dates subsequent to the
date last insured and that the state agency medical consultants
“opined that there is no medical evidence from the claimant’s alleged
onset date of October 13, 2004 to March 31, 2010.”

PAGEID 233-34.

Because he found that there was “no basis for reasonably relating back
the evidence from after his date last insured to find that he had a
severe impairment or combination of impairments by his date last
insured,” the administrative law judge found that plaintiff did not
have a severe impairment prior to the date on which he was last
insured.

Id.

These findings enjoy substantial support in the record,

as cited by the administrative law judge, and plaintiff has referred
to no evidence to suggest that he had a severe impairment prior to the
date on which he was last insured.

Moreover, the “post hearing

records show[ing] Herniated Nucleus Pulposis and lumbar

7

radiculopathy,” cited by plaintiff, Statement of Errors, p. 6, were
submitted after the administrative law judge’s decision and, thus,
cannot be considered by this Court for purposes of substantial
evidence review.

See Foster v. Halter, 279 F.3d 348, 357 (6th Cir.

2001).
Plaintiff also argues that the administrative law judge erred,
in evaluating plaintiff’s claim for supplemental security income, by
not including in plaintiff’s recognized severe impairments plaintiff’s
claimed “pain in the MTP joint,” “Herniated Nucleus Pulposis and
lumbar radiculopathy,” and headaches.

Statement of Errors, p. 6.

The

finding of a severe impairment at step two of the sequential analysis
is, however, only a threshold determination; where the administrative
law judge has found at least one severe impairment, the sequential
analysis will continue and the failure to include other severe
impairments is not itself reversible error.

See Maziarz v. Sec’y of

Health & Human Servs., 837 F.2d 240, 244 (6th Cir. 1987).

In the case

presently before the Court, the administrative law judge found at step
two of the sequential analysis that plaintiff’s severe impairments
consist of lumbar radiculitis, mild degenerative changes at the L4-L5
and L4-S1 disc levels, without causing critical central spinal
stenosis or critical narrowing of the neuroforamina or nerve root
impingement, thoracic degenerative disc disease, and tobacco abuse.
PAGEID 234.

The administrative law judge’s failure to find additional

severe impairments at step two is “legally irrelevant,” see McGlothin
v. Comm’r of Soc. Sec., 299 F. App’x 516, 522 (6th Cir. 2008), so long

8

as the administrative law judge continued the sequential analysis and
considered plaintiff’s severe and non-severe impairments in
determining plaintiff’s residual functional capacity.

See id.;

O’Neill v. Comm’r of Soc. Sec., No. 1:11-cv-1181, 2013 WL 1436648, at
*5 (W.D. Mich. Apr. 9, 2013); Dodson v. Comm’r of Soc. Sec., No. 1:12cv-109, 2013 WL 4014715, at *2 (E.D. Tenn. Aug. 6, 2013).

Here, the

administrative law judge found that plaintiff suffers from severe
impairments and, continuing the sequential analysis, considered
plaintiff’s severe and non-severe impairments, including his lower
extremity and back pain and headaches, in determining plaintiff’s RFC.
See PAGEID 236-39.

Accordingly, the administrative law judge did not

err in his step two determination.

See McGlothin, 299 F. App’x at

522; O’Neill, 2013 WL 1436648 at *5; Dodson, 2013 WL 4014715 at *2.
Plaintiff next argues that the administrative law judge erred
in evaluating the medical opinions of record.

Plaintiff specifically

argues, first, that the administrative law judge erred in evaluating
the opinion of treating physician John G. O’Handley, M.D.
of Errors, pp. 7-9.

Statement

According to plaintiff, the administrative law

judge failed to provide “sufficient reasons” for discounting Dr.
O’Handley’s opinion and failed to consider the appropriate factors.
Id.

Plaintiff also argues that Dr. O’Handley’s opinion is supported

by a December 12, 2012 MRI that shows degenerative changes of the
lumbar spine, disc desiccation, and high and posterior protrusion of
the disc.

Id.

9

The opinion of a treating provider must be given controlling
weight if that opinion is “well-supported by medically acceptable
clinical and laboratory diagnostic techniques” and is “not
inconsistent with the other substantial evidence in [the] case
record.”

20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).

Even if the

opinion of a treating provider is not entitled to controlling weight,
an administrative law judge is nevertheless required to evaluate the
opinion by considering such factors as the length, nature and extent
of the treatment relationship, the frequency of examination, the
medical specialty of the treating physician, the extent to which the
opinion is supported by the evidence, and the consistency of the
opinion with the record as a whole.

20 C.F.R. §§ 404.1527 (c)(2)-(6),

416.927(c)(2)-(6); Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406
(6th Cir. 2009); Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th
Cir. 2004).

Moreover, an administrative law judge must provide “good

reasons” for discounting the opinion of a treating provider, i.e.,
reasons that are “‘sufficiently specific to make clear to any
subsequent reviewers the weight the adjudicator gave to the treating
source’s medical opinion and the reasons for that weight.’”

Rogers v.

Comm’r of Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007) (quoting SSR
96-2p, 1996 WL 374188, at *5 (July 2, 1996)).

This special treatment

afforded the opinions of treating providers recognizes that
“these sources are likely to be the medical professionals
most able to 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 or from

10

reports of individual examinations, such
examinations or brief hospitalizations.”

as

consultative

Wilson, 378 F.3d at 544 (quoting 20 C.F.R. § 404.1527(d)(2)).
Dr. O’Handley completed a residual functional capacity
questionnaire on January 31, 2013 in which he opined that plaintiff
could frequently reach above shoulder level, occasionally lift or
carry 10 pounds, occasionally squat, and occasionally climb with the
assistance of a cane.

PAGEID 830.

Plaintiff would be unable to use

his left hand for fine manipulation and he would be unable to use his
right foot for repetitive movements or operation of foot controls.
Id.

Plaintiff had mild restrictions of activities involving

unprotected heights, being around machinery, exposure to marked
changes in temperature and humidity, and exposure to dust, fumes, and
gases.

PAGEID 831.

According to Dr. O’Handley, plaintiff could not

return to full time employment.

Id.

Dr. O’Handley opined that

plaintiff’s limitations had begun in October 2011 and would last more
than 12 months.

Id.

Dr. O’Handley’s opinion consists primarily of

check-the-box responses; his “comments” indicate that “Patient has
been seen at OSU back clinic.”

Id.

The administrative law judge characterized Dr. O’Handley as a
treating source and evaluated his opinion as follows:
The undersigned affords minimal weight to the opinion of
Dr. John G. O’Handley, the claimant’s treating physician.
In January 2013, Dr. O’Handley assessed the claimant’s
physical residual functional capacity. (Exhibit 12F).
As
interpreted by counsel, Dr. O’Handley found that over an
entire 8 hour work day, the claimant could sit for 20
minutes, stand for 20 minutes and walk for 1-2 blocks and
could not use the left hand for fine manipulating.
In
addition he checked off that the claimant would be unable

11

to engage in full time employment and would be disabled for
12 continuous months. He could occasionally lift 10 pounds
and could climb with a cane.
Despite his status as the
claimant’s treating physician, Dr. O’Handley’s opinion is
inconsistent with the record as a whole.
Initially it must be noted that finding that the claimant
could sit for 20 minutes, stand for 20 minutes and walk for
1-2 blocks over the course of an entire work day is
preposterous.
Such limitations would leave the claimant
essentially bed bound and are inconsistent with even his
appearing at the hearing.
Also Dr. O’Handley simply
checked off boxes giving no explanation for his findings
other than that the claimant is being treated elsewhere for
his back, which would suggest that he is not in a
particularly good position to evaluate the claimant’s
limitations. The reason for giving deference to a treating
physician opinion is that the physician by reason of the
familiarity accompanying the treatment status is in the
best position to evaluate the limitations.
That does not
appear to be the case here.
Further, in order for a treating physician’s opinion to be
given controlling weight, it must be well supported by
medically acceptable clinical and laboratory diagnostic
techniques.
See, Social Security Ruling 96-2p.
Dr.
O’Handley’s opinion is not well supported by medically
acceptable clinical and laboratory diagnostic techniques.
As discussed above, physical examination notes fail to
support the notion that the claimant is limited to the
extent
that
Dr.
O’Handley
suggests.
Specifically,
examination
findings
revealed
that
the
claimant
was
consistently not in acute distress and grossly intact
neurologically, with no new focal sensory or motor deficits
noted – despite limited lumbar range of motion and an
antalgic gait with a cane. (Exhibit 9F).
The claimant was also assessed as having full strength
bilaterally in his lower extremities, notwithstanding some
pain throughout.
(Id.).
An inspection of the cervical
spine showed no palpable tenderness or step deformity and
full range of motion in the cervical spine.
(Id.).
An
inspection of the claimant’s back was assessed as normal,
as his muscle tone was normal without spasm, the detection
of some paraspinal tenderness diffusely in the lumbar
spine, and noted limited range of motion with pain.
(Exhibit 11F). The claimant’s physician also noted that it
was difficult to evaluate the claimant’s strength due to
poor effort, but he did display full strength in both lower
extremities.
(Id.).
Moreover, despite the complaints of

12

chronic back pain, the claimant testified that he is
currently not taking any medications for the symptoms.
(Hearing Testimony).
The objective medical evidence also failed to support Dr.
O’Handley’s opinion.
X-rays of the claimant’s cervical,
thoracic, and lumbar spine showed no acute fracture or
subluxation of the cervical spine, stable degenerative disc
disease at the L4-5 and L5-S1 levels, mild endplate
degenerative changes of the thoracic and lumbar spine
without evidence of compression fracture, mild degenerative
changes at the T12-L1 and L1-L2 levels, and stable facet
joints – despite arthritic changes in the sacroiliac joints
and some multilevel degenerative changes of the cervical
spine.
(Exhibits 1F and 9F).
A MRI of the claimant’s
lumbar spine revealed only mild degenerative changes at the
L4-5 and L4-S1 disc level, without causing critical central
spinal stenosis or critical narrowing of the neuroforamina
or nerve root impingement.
(Exhibits 10F and 11F).
The
spinal cord was also assessed as normal, and bone marrow
was evaluated as unremarkable. (Id.).
Thus, Dr. O’Handley’s physical residual functional capacity
assessment fails to reveal the type of significant clinical
and laboratory abnormalities one would expect if the
claimant were limited to anywhere near the extent he
described – and the doctor did not specifically address
this weakness.
There are no other opinions from an
examining, treating or reviewing medical source that
support the extreme limitations described by Dr. Handley.
Accordingly, the undersigned finds Dr. O’Handley’s opinion
merits limited weight. His limitation to lifting 10 pounds
is adopted. Since this Administrative Law Judge was unsure
how the claimant could climb with a cane, as indicated by
Dr. O’Handley, this residual functional capacity eliminates
any climbing of ropes, ladders and scaffolds and reduced
climbing ramps and stairs to an occasional basis.
His
limitations on sitting, standing, walking and using his
left hand, as interpreted by counsel, are not adopted for
the numerous reasons set out above.
PAGEID 238-39.
The administrative law judge did not violate the treating
physician rule in evaluating Dr. O’Handley’s opinion.

The

administrative law judge’s analysis is sufficiently specific as to the
weight given to Dr. O’Handley’s opinion and the reasons for assigning

13

that weight.

The administrative law judge categorized Dr. O’Handley

as a treating physician, but discounted his opinion because it was
“inconsistent with the record as a whole” and “not well supported by
medically acceptable clinical and laboratory diagnostic techniques.”
Id.

These findings enjoy substantial support in the record, as cited

by the administrative law judge.

See id.

Moreover, it is evident

that the administrative law judge considered the appropriate factors
in evaluating Dr. Handley’s opinion.

Under the circumstances, a

formulaic recitation of factors is not required.

See Friend v. Comm’r

of Soc. Sec., 375 F. App’x 543, 551 (6th Cir. 2010) (“If the ALJ’s
opinion permits the claimant and a reviewing court a clear
understanding of the reasons for the weight given a treating
physician’s opinion, strict compliance with the rule may sometimes be
excused.”).
Plaintiff also argues that the administrative law judge erred by
relying on the opinion of state agency reviewing physician William
Bolz, M.D., because Dr. Bolz reviewed an incomplete record.
Plaintiff’s argument is not well taken.
Dr. Bolz reviewed the record and completed a residual functional
capacity assessment on September 13, 2012.

PAGEID 206-08.

Dr. Bolz

opined that plaintiff could lift and carry 20 pounds occasionally and
10 pounds frequently, stand and/or walk about six hours in an eighthour workday, and sit about six hours in an eight-hour workday.
PAGEID 207.

Dr. Bolz also opined that plaintiff could occasionally

14

stoop.

Id.

The administrative law judge evaluated Dr. Bolz’s opinion

as follows:
In September 2012, Dr. Bolz also evaluated the claimant’s
exertional, postural, manipulative, visual, communicative,
and environmental limitations over the course of an eighthour workday.
(Exhibit 5A).
After reviewing the
evidentiary record, Dr. Bolz surmised that the claimant
possesses the exertional ability to lift 20 pounds
occasionally, 10 pounds frequently, stand and walk for a
total of 6 hours in an 8-hour workday, with normal breaks,
sit for a total of 6 hours in an 8-hour workday, with
normal breaks, and unlimited pushing and pulling.
(Id.).
He
also
concluded
that
the
claimant
has
postural
limitations in the area of stooping.
(Id.).
Pursuant to
the consistency of their opinions with the record as a
whole, the undersigned finds Dr. Bolz’s opinions are
persuasive, and merit significant weight to the extent it
supports this residual functional capacity.
While this
residual functional capacity is slightly more restrictive,
this Administrative Law Judge had the advantage of hearing
the claimant’s testimony and seeing all the evidence. Dr.
Bolz’s opinon that the claimant can perform light work also
includes the ability to perform sedentary work.
See, 20
CFR 416.967.
As such it is fully supportive of this
residual functional capacity.
PAGEID 237-38.

The administrative law judge did not err in evaluating

Dr. Bolz’s opinion.
Social Security Ruling 96-6p provides, in part:
1. Findings of fact made by State agency medical and
psychological consultants and other program physicians and
psychologists regarding the nature and severity of an
individual's impairment(s) must be treated as expert opinion
evidence of nonexamining sources at the administrative law
judge and Appeals Council levels of administrative review.
2. Administrative law judges and the Appeals Council may not
ignore these opinions and must explain the weight given to
these opinions in their decisions.
SSR 96-6p, 1996 WL 374180 (July 2, 1996).

The Ruling does not require

an administrative law judge to reject a state agency medical opinion
when the claimant continues treatment after the opinion was formed or

15

when additional medical records are generated after the opinion is
rendered.

“[T]he regulations provide only that an [administrative law

judge] should give more weight to an opinion that is consistent with
the record as a whole.”

Williamson v. Comm’r of Soc. Sec., No. 1:11-

cv-828, 2013 WL 121813, at *7 (S.D. Ohio Jan. 9, 2013) (citing 20
C.F.R. §§ 404.1527(c)(4), 416.927(c)(4)).

It is true that remand may

be appropriate where the administrative law judge relied on an opinion
made without the benefit of substantial evidence generated after the
date of the opinion.

See e.g., Ford v. Astrue, No. 2:11-cv-1139, 2013

WL 372464, at *6 (S.D. Ohio Jan. 30, 2013) report and recommendation
adopted sub nom. Ford v. Colvin, 2:11-cv-1139, 2013 WL 765654 (S.D.
Ohio Feb. 28, 2013)).

However, this is not such a case.

Notably,

plaintiff has referred to no evidence in support of his argument.
Moreover, the administrative law judge had the opportunity to review
the entire record, the RFC found by the administrative law judge is
more restrictive than that suggested by Dr. Bolz and, although the
administrative law judge relied on Dr. Bolz’s opinion, he discounted
the opinion to a degree because “this Administrative Law Judge had the
opportunity of hearing the claimant’s testimony and seeing all the
evidence.”

PAGEID 237-38. The Court finds no error in this regard.

Plaintiff next argues that the administrative law judge erred in
his credibility determination.

Plaintiff specifically argues that the

administrative law judge failed to note portions of plaintiff’s
testimony, including that plaintiff receives assistance and personal
care from his fiancée, that plaintiff suffers from “side effects of

16

pain medication as well as the effects of cold and wet weather,” and
that plaintiff exhibited pain at the administrative hearing.
Statement of Errors, pp. 12-13.

Plaintiff argues that his past

cocaine use is not relevant, that the administrative law judge failed
to consider that plaintiff could not afford medication, and that the
activities of daily living cited by the administrative law judge are
not inconsistent with disability.

Id.

A claimant's subjective complaints must be supported by objective
medical evidence in order to serve as a basis for a finding of
disability.

Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230,

1234 (6th Cir. 1993).

See also 42 U.S.C. § 423(d)(5)(A).

In

evaluating subjective complaints, it must be determined whether there
is objective medical evidence of an underlying medical condition.
Stanley v. Sec’ of Health & Human Servs., 39 F.3d 115, 117 (6th Cir.
1994).

If so, then the evaluator must determine (1) whether objective

medical evidence confirms the severity of the complaint arising from
the condition; or (2) whether the objectively established medical
condition is of such severity that it can reasonably be expected to
produce the alleged complaint.

Id.; Duncan v. Sec’y of Health & Human

Servs., 801 F.2d 847, 853 (6th Cir. 1986).
In evaluating a claimant’s credibility, an administrative law
judge should consider the objective medical evidence and the following
factors:
1. The individual's daily activities;
2. The location, duration, frequency, and intensity of the
individual's pain or other symptoms;

17

3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of any
medication the individual takes or has taken to alleviate
pain or other symptoms;
5.
Treatment,
other
than
medication,
the
individual
receives or has received for relief of pain or other
symptoms;
6. Any measures other than treatment the individual uses or
has used to relieve pain or other symptoms (e.g., lying
flat on his or her back, standing for 15 to 20 minutes
every hour, or sleeping on a board); and
7. Any other factors concerning the individual's functional
limitations and restrictions due to pain or other symptoms.
SSR 96-7, 1996 WL 374186 (July 2, 1996).

The administrative law

judge’s credibility determination is accorded great weight and
deference because of the administrative law judge’s unique opportunity
to observe a witness's demeanor while testifying.

Buxton v. Halter,

246 F.3d 762, 773 (6th Cir. 2001) (citing Gaffney v. Bowen, 825 F.2d
98, 973 (6th Cir. 1987)).
clearly explained.

However, credibility determinations must be

See Auer v. Sec’y of Health & Human Servs., 830

F.2d 594, 595 (6th Cir. 1987).

If the administrative law judge's

credibility determinations are explained and enjoy substantial support
in the record, a court is without authority to revisit those
determinations.

See Felisky v. Bowen, 35 F.3d 1027, 1036 (6th Cir.

1994); Beavers v. Sec’y of Health, Educ. & Welfare, 577 F.2d 383, 386–
87 (6th Cir. 1978).
In the case presently before the Court, the administrative law
judge summarized plaintiff’s subjective complaints and his testimony
at the administrative hearing, but found that plaintiff’s “allegations

18

concerning the intensity, persistence and limiting effects of these
symptoms are not consistent with the evidence as a whole, persuasive
or credible to the extent they are inconsistent with [the] residual
functional capacity finding.”

PAGEID 236-39.

As plaintiff argues,

the administrative law judge’s summary of plaintiff’s subjective
complaints and hearing testimony did not articulate all of plaintiff’s
complaints.

However, the administrative law judge noted that, “if all

of the allegations were fully credible, the claimant would not be able
to work.”

PAGEID 236.

The administrative law judge then evaluated

the medical evidence and explained why plaintiff’s complaints were
“inconsistent with the record as a whole.”

PAGEID 236-37.

The

administrative law judge also noted several factors that “reflect
disfavorably on the claimant’s allegations:”
As for the claimant’s allegations, a review of the
claimant’s work history shows that the claimant worked only
sporadically prior to the alleged disability onset date,
which raises a question as to whether the claimant’s
continuing
unemployment
is
actually
due
to
medical
impairments. (Exhibits 4D and 9D). The evidence presented
also indicates that the claimant’s questionable effort
during
physical
examinations
does
not
enhance
his
allegations (Exhibit 11F).
Moreover, the record indicates
that the claimant was discharged from physical therapy for
testing positive for illegal drugs, to wit cocaine.
(Exhibit 11F and Hearing Testimony). He is not taking any
medication (Testimony).
The claimant testified that he
cannot afford a doctor, but the evidence shows that he has
been receiving treatment (Exhibits 1F to 11F).
Taken
together
these
factors
reflect
disfavorably
on
the
claimant’s allegations.
PAGEID 239.

The administrative law judge’s credibility determination

is clearly explained, and his analysis enjoys substantial support in
the record.

This Court will not – and indeed may not - revisit that

19

credibility determination.

See Jones v. Comm’r of Soc. Sec., 336 F.3d

469, 476 (6th Cir. 2003).
In a related argument, plaintiff argues that the administrative
law judge erred in relying on the testimony of the vocational expert.
Statement of Errors, pp. 13-14.

Plaintiff specifically argues that

the hypothetical posed to the vocational expert was incomplete because
it was based on improper RFC and credibility determinations.

Id.

“In order for a vocational expert's testimony in response to a
hypothetical question to serve as substantial evidence in support of
the conclusion that a claimant can perform other work, the question
must accurately portray a claimant’s physical and mental impairments.”
Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 516 (6th Cir. 2010).
“Hypothetical questions, however, need only incorporate those
limitations which the [administrative law judge] has accepted as
credible.”

Parks v. Soc. Sec. Admin., 413 F. App’x 856, 865 (6th Cir.

2011) (citing Casey, 987 F.2d at 1235).
The administrative law judge posed to the vocational expert a
complete hypothetical question that incorporated all of plaintiff’s
impairments as found by the administrative law judge.

The vocational

expert responded that such an individual could not perform plaintiff’s
past relevant work as a vendor, food preparer, grill cook, and food
server, but could perform a significant number of jobs in the national
economy, including such representative jobs as packager, assembler,
and inspector.

PAGEID 266-67.

The administrative law judge relied on

this portion of the vocational expert’s testimony in determining that

20

plaintiff can perform a significant number of jobs that exist in the
national economy, even though he could not perform his past relevant
work.

PAGEID 240-41.

The administrative law judge therefore did not

err in relying on the vocational expert’s testimony in this regard.
See Parks, 413 F. App’x at 865 (“In order for a vocational expert's
testimony in response to a hypothetical question to serve as
substantial evidence in support of the conclusion that a claimant can
perform other work, the question must accurately portray a claimant's
physical and mental impairments. . . .

Hypothetical questions,

however, need only incorporate those limitations which the ALJ has
accepted as credible.”) (internal citations and quotations omitted).
V.

Sentence 6 Remand
Finally, plaintiff appears to seek remand under Sentence 6 of 42

U.S.C. § 405(g) for further administrative proceedings in light of new
evidence.

Compare Statement of Errors, pp. 10-11 (noting cases that

were remanded under Sentence 6 of 42 U.S.C. § 405(g)), with Statement
of Errors, p. 14 (seeking reversal under “the fourth sentence of 42
U.S.C. § 405(g)”).1

Plaintiff’s argument is as follows:

The post hearing MRI showed “1. At L4 L5, there is a
moderately sized paracentral to oubarticular disc extrusion
with inferior migration.
There is effacement of the left
lateral recess with moderate effacement of the left aspect
of the thecal sac. The herniated disc mildly displaces the
descending left L5 right nerve root as well as the
1

Although the Court interprets plaintiff’s Statement of Errors as seeking
remand under Sentence 6, the better practice would be for plaintiff to
expressly state that he seeks remand under Sentence 6 of 42 U.S.C. § 405(g).
Plaintiff’s failure to do so left the Commissioner and this Court guessing as
to plaintiff’s intentions. See Commissioner’s Response, p. 12 (“Plaintiff
appears to argue this Court should remand his case under sentence six of 42
U.S.C. § 4045(g) . . . .”).

21

remaining descending left-sided nerve roots. There is mild
bilateral foraminal stenosis. 2. At L5-S1 there is a small
central disc protrusion without central canal or foraminal
stenosis. (Tr. 185-86)
As a result the Plaintiff required surgical intervention.
(Tr. 85-86)
The MRI and surgery were anticipated at the time of the
hearing, the records were within 30 days of the decision
and clearly relate top [sic] the relevant time period.
Statement of Errors, p. 11.

The Commissioner argues that plaintiff

has not established that these records are related to the relevant
time period.

Defendant’s Memorandum in Opposition, p. 14.

The

Commissioner argues that the findings in the MRI and subsequent
surgery are unrelated to plaintiff’s severe back impairments and are
the result of a new back injury that occurred after the administrative
decision.

Id.

A district court may, under certain circumstances, remand a case
under Sentence 6 of 42 U.S.C. § 405(g) for further administrative
proceedings in light of new and material evidence.

Id.

The court . . . may at any time order additional evidence
to be taken before the Commissioner of Social Security, but
only upon a showing that there is new evidence which is
material and that there is good cause for the failure to
incorporate such evidence into the record in a prior
proceeding[.]
42 U.S.C. § 405(g).

A plaintiff bears the burden under this portion

of the statute to demonstrate that the additional evidence presented
is both “new” and “material” and that there is “good cause” for the
failure to present this evidence to the administrative law judge.

See

Hollon ex rel. Hollon v. Comm’r of Soc. Sec., 447 F.3d 477, 483 (6th
Cir. 2006).

22

Evidence is “new,” for purposes of this provision, only if it was
“not in existence or available to the claimant at the time of the
administrative proceeding.”
626 (1990).

Sullivan v. Finkelstein, 496 U.S. 617,

Evidence is “material” only if there is “a reasonable

probability that the [Commissioner] would have reached a different
disposition of the disability claim if presented with the new
evidence.”

Sizemore v. Sec’y of Health & Human Servs., 865 F.2d 709,

711 (6th Cir. 1988).

See also Faucher v. Sec’y of Health & Human

Servs., 17 F.3d 171, 174 (6th Cir. 1994).

A plaintiff may establish

“good cause” by demonstrating a reasonable justification for the
failure to acquire and present the evidence at the administrative
hearing.

Foster, 279 F.3d at 357.

This standard applies to evidence

submitted for the first time to the Appeals Council.

Id.; Cline, 96

F.3d at 148.
Although plaintiff’s request to remand under Sentence 6 referred
this Court to only four pages of medical evidence, plaintiff actually
submitted nearly 200 pages of new medical records to the Appeals
Council.

See PAGEID 39-227.

The records are dated between April 24,

2013, and May 21, 2014, i.e., after the administrative decision was
issued on March 29, 2013. Most of these records relate to treatment
for a back impairment and back pain. On April 20, 2013, plaintiff
reported to the emergency department at Mount Carmel West hospital
after he stepped off a step and developed severe pain radiating into
the left hip, posterior thigh, and calf.
lumbar spine on April 24, 2013, revealed

23

PAGEID 225.

An MRI of the

1. At L4 L5, there is a moderately sized left paracentral
to oubarticular disc extrusion with inferior migration.
There is effacement of the left lateral recess with
moderate effacement of the left aspect of the thecal sac.
The herniated disc mildly displaces the descending left L5
right nerve root as well as the remaining descending leftsided nerve roots.
There is mild bilateral foraminal
stenosis.
2. At L5-S1 there is a small central disc protrusion
without central canal or foraminal stenosis.
PAGEID 217.

On April 25, 2013, plaintiff underwent surgery for an L4-

L5 left herniated nucleus pulposus with associated concordant
radiculopathy and left lower extremity foot drop.

PAGEID 115-17.

In

a June 3, 2013 follow up appointment, it was noted that the
decompression was successful and without complications, but that
plaintiff had suffered damage to his L4 nerve root and still
experienced foot drop.

PAGEID 114.

A September 16, 2013 MRI of the

lumbar spine showed “full decompression of this disc fragment and the
spinal canal neural foramina looked great, as good as it could
possibly look considering this large disc rupture.”

PAGEID 102.

Plaintiff was prescribed pain medication and referred to another
physician for consideration of a sympathetic block or steroid
injections for his pain.

Id.

Plaintiff received steroid injections

in early 2014, PAGEID 82, 98-99, but continued to complain of pain.
PAGEID 70-71.
The medical records submitted to the Appeals Council post-date
the March 29, 2013 decision of the administrative law judge.

The

Commissioner does not deny that these records are new or that good
cause exists for their late production.

The Commissioner does argue,

however, that the new evidence is not “material” because it does not

24

relate to the relevant time period and does not raise a reasonable
probability that the administrative law judge would have reached a
different decision.

Defendant’s Memorandum in Opposition, pp. 12-15.

Plaintiff represents that the “MRI and surgery were anticipated
at the time of the hearing, the records were within 30 days of the
decision and clearly relate top [sic] the relevant time period.”
Statement of Errors, p. 11. Although that representation is arguable,
this Court concludes that the new medical evidence of a severe back
impairment are sufficiently related to plaintiff’s preexisting back
impairments as to warrant remand under Sentence 6 of 42 U.S.C. §
405(g).
It is therefore RECOMMENDED that this action be REMANDED to the
Commissioner of Social Security, pursuant to Sentence 6 of 42 U.S.C. §
405(g), for consideration of new and material evidence.
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

28

Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the 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

25

appeal the judgment of the District Court.

See, e.g., Pfahler v.

Nat’l Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that
“failure to object to the magistrate judge’s recommendations
constituted a waiver of [the defendant’s] ability to appeal the
district court’s ruling”); United States v. Sullivan, 431 F.3d 976,
984 (6th Cir. 2005) (holding that defendant waived appeal of district
court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation).

Even when timely

objections are filed, appellate review of issues not raised in those
objections is waived.

Robert v. Tesson, 507 F.3d 981, 994 (6th Cir.

2007) (“[A] general objection to a magistrate judge’s report, which
fails to specify the issues of contention, does not suffice to
preserve an issue for appeal . . . .”) (citation omitted)).

May 15, 2015

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

26