Faust v. Commissioner of Social Security

Filing 21

OPINION AND ORDER: The Commissioner of Social Securitys non-disability finding is REVERSED and this case is REMANDED to the Commissioner and the ALJ under Sentence Four of § 405(g) for further consideration consistent with this Opinion. Signed by Magistrate Judge Elizabeth Preston Deavers on 3/27/2017. (kdp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

RYAN FAUST,
Plaintiff,
Civil Action 2:15-cv-3000
vs.
Magistrate Judge Elizabeth P. Deavers

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

OPINION AND ORDER
Plaintiff, Ryan Faust, brings this action under 42 U.S.C. §§ 405(g) for review of a final
decision of the Commissioner of Social Security (“Commissioner”) denying his application for
disability insurance benefits. This matter is before the Court on Plaintiff’s Statement of Errors
(ECF No. 15), the Commissioner’s Memorandum in Opposition (ECF No. 20), and the
administrative record (ECF No. 10). For the reasons that follow, the Commissioner’s decision is
REVERSED and this case is REMANDED.
I.

BACKGROUND

Plaintiff filed his application for benefits on December 10, 2012, alleging that he has
been disabled since April 4, 2011, due to chronic pain from fused vertebrae causing mobility
depression; chronic back, neck and back of head pain; severe scoliosis; multiple fused vertebrae
in his neck; arthritis; nerve damage; depression; and high blood pressure. (R. at 84.) Plaintiff’s
application was denied initially and upon reconsideration. Plaintiff sought a de novo hearing

before an administrative law judge. Administrative Law Judge John Shailer (the “ALJ”) held a
hearing on June 17, 2014, at which Plaintiff, represented by counsel, appeared and testified. (R.
at 34-75.) Physician and board certified orthopedic surgeon, Ronald Kendrick, M.D., appeared
and testified at the hearing. (R. at 61-65.) Bruce Groieg, a vocational expert, also appeared and
testified at the hearing. (R. at 65-74.) On July 11, 2014, the ALJ issued a decision finding that
Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 16-28.) On
October 6, 2015, the Appeals Council denied Plaintiff’s request for review and adopted the
ALJ’s decision as the Commissioner’s final decision. (R. at 1-3.) Plaintiff then timely
commenced the instant action.
II. HEARING TESTIMONY
A.

Plaintiff’s Testimony
Plaintiff testified at the administrative hearing that he attended about a year of college

classes but never obtained a degree. (R. at 38.) He has not worked since his alleged onset date,
in April 2011. (Id.) In the 15 years prior to the alleged onset, he worked for Adrian Typewriter
Sales as an office supply deliveryman. (R. at 39.) He has also worked at the Y, as well as at
Kroger. (R. at 39-40.) Finally, he worked at FedEx where he was loading and unloading trucks
for roughly six months, driving a local delivery van for about a year and then working as a yard
switcher. (R. at 40-41.) As a yard switcher, Plaintiff testified he drove trucks and backed the
trailers up to the dock. (R. at 40.)
Plaintiff testified that he suffers from pain in his neck due to fusions. As a result, his
neck mobility is limited when turning to the left and when looking up and moderately limited
when turning to the right or looking down. (R. at 43-44.) Plaintiff mostly feels the pain in his
2

neck area but it can also radiate into his left shoulder. It negatively affects his ability to reach
overhead. (R. at 44.) Plaintiff further testified that he can pick up items weighing ten pounds
but he would not be able to sustain the weight for up to two hours at a time. (R. at 45.) He also
opined that he could likely sit or stand for up to 30 minutes at a time before the discomfort in his
neck and back became prohibitive. (R. 46.) He can walk for up to half a mile at a time before
needing to rest for about an hour. (R. at 47-48.)
Plaintiff testified that his pain symptoms prevent him from maintaining regular
employment. For example, the ALJ questioned whether Plaintiff was able to perform requisite
work on a conveyor belt assembly line, to which Plaintiff responded he would not last two hours
doing so. (R. at 49.) Similarly, his work for FedEx became untenable because of the pain he
experienced when turning his head while driving. (R. at 50.) With respect to loading and
unloading, Plaintiff testified that it strained his back pain due to his scoliosis. (R. at 51.)
Plaintiff stated that he is taking Tramadol, Advil and Hydrocodone for the pain. (Id.) He
reported that the medications “[t]ake some of the edge off.” (R. at 47.) In addition to the
medication, Plaintiff ices and heats his neck to relieve the pain. (R. at 56.) He has also found
some relief from the pain by reclining with a pillow under his neck two to three times throughout
the day for a total of roughly thirty minutes. (R. at 56-57.)
Plaintiff also testified that his depression negatively affects his ability to sustain
employment. (R. at 51-52.) Plaintiff does not see a separate specialist in order to treat his
depression. (R. at 55.)
Plaintiff lives in a house with his wife and children. (R. at 58.) He is not able to perform
household tasks such as mowing the lawn, shoveling snow, or other outside work, so his wife
3

does so. (Id.) Plaintiff testified that he is not able to run or pick up and carry his children. (R. at
52.) He also has trouble getting dressed or bending over due to stiffness in the morning. After a
few hours, however, the stiffness loosens to the point of being able to pick things up off the
ground, though bending consistently causes some discomfort. (R. at 53.) He is, however, able to
vacuum, cook and perform other household chores by breaking up tasks into increments so that
he may utilize rest periods in between. (R. at 57-58.) Plaintiff also engages in an hour of
stretching/inversion table therapy daily at home. (R. at 59.)
Plaintiff further testified that, while his neck pain is constant, his lower back pain comes
and goes. A few times per year, he specified, he will have a bad back day during which he is
“laid up for the day, but that’s a rarity.” (R. at 60-61.) Otherwise, the “normal ebbs and flows of
the pain in [his] back is just uncomfortable,” but he is able to “deal with it.” (R. at 61.)
B.

Medical Expert Testimony
Ronald Kendrick, M.D. (Dr. Kendrick), examined Plaintiff’s medical record for physical

impairments, and testified that Plaintiff has been diagnosed with Klippel-Feil syndrome, which is
“a congenital fusion of a couple of cervical vertebrae, associated with a short neck, which he
doesn’t have and a low hairline, which he doesn’t have.” (R. at 62.) As a result, Dr. Kendrick,
stated that he is “a little bit dubious about that diagnosis.” (Id.) The record reflects Plaintiff has
also had C3-C4 fusion in the past, as well as a degenerative disk disease in multiple areas of his
cervical spine. Additionally, he has had “congenital scoliosis in the dorsal spine extending from
T3 to T11. . . .” (R. at 62.) Dr. Kendrick did not address any mental or psychological
impairments. (Id.)

4

Dr. Kendrick opined that Plaintiff’s physical conditions do not meet the requisite
definition of disabled. (R. at 62-63.) From the alleged onset date, Dr. Kendrick opined that
Plaintiff’s physical limitations would be pain-related, placing him in the light to sedentary work
profile range. (R. at 63.) Specifically, Dr. Kendrick testified, Plaintiff was able to stand or walk
for four out of eight hours, sit for six to eight, with restricted bending, stooping, kneeling and
only occasional crawling or overhead reaching, but otherwise unrestricted use of his upper
extremities. (Id.)
C.

Vocational Expert Testimony
The vocational expert (“VE”) testified at the administrative hearing that Plaintiff

previously held the jobs of delivery driver, a semi-skilled and medium physically demanding
position; material handler, a heavy and unskilled position; and courtesy driver, a light, semiskilled position. (R. at 66.)
The ALJ proposed hypotheticals regarding Plaintiff’s residual functional capacity
(“RFC”) to the VE. (R. at 67.) Based on Plaintiff’s age, education, and work experience and the
RFC ultimately determined by the ALJ, the VE testified that a similarly-situated hypothetical
individual could not perform Plaintiff’s past work, but could perform sedentary, unskilled jobs in
the national economy such as an office clerk, and work order clerk. (R. at 68-69.) The VE also
testified if Plaintiff was required to take an hour-long break each day to engage in stretching and
inversion therapy, he would not be able to engage in competitive employment. (R. at 69-70.)
The VE testified that Plaintiff could not maintain competitive employment without
accommodations, such as a sheltered workshop, if he was unable to maintain attention and
concentration, to even a simple task for at least a two-hour segment. (R. at 71.)
5

When given a new hypothetical, the VE testified that a person who can lift and carry less
than five pounds on a frequent basis, up to ten pounds occasionally, stand and/or walk for three
to four hours out of an eight-hour workday, no more than 30 minutes at a time, sit for three to
four hours per workday, no more than 30 minutes at a time, perform postural activities
occasionally and lift frequently would not be able to perform work of a competitive nature due to
specific restrictions on pushing and pulling. (R. at 72-73.)
III.

MEDICAL RECORDS

Plaintiff has a congenitally deformed spine, known as Kleppel-Feil syndrome, resulting
in fusion of multiple cervical vertebrae, as well as congenital scoliosis in his dorsal spine
extending from T3-T11, and multilevel degenerative disc disease of the cervical spine. (R. at
240, 274, 351.) In 2002, Plaintiff was diagnosed with mechanical low back pain, probably in
association with the lower lumbar segment and a 55 degree congenital scoliosis. (R. at 274.) In
April 2004, an MRI of Plaintiff’s cervical spine showed congenital fusions of levels C4-5 and
C6-7, as well as scoliosis of C6-7 and C7-1. (R. at 272.) An MRI of Plaintiff’s lumbar spine
showed narrowing at L2-3 and L4-5, with moderate facet arthopathy at L4-5 and L5-S1. (Id.)
In November 2005, Plaintiff underwent an anterior discectomy, partial corpectomy and
C3-4 fusion due to neck pain and symptoms. (R. at 242.) Subsequently, pieces of the hardware
broke which required corrective surgery in May 2006. (R. at 235.) In 2010, Plaintiff was treated
for increasing pain and occasional headaches. (R. at 288.) In March 2012, neurosurgeon Dr.
Robert A. Dixon, D.O., evaluated Plaintiff due to increased frequency of neck pain and
headaches, which were not responding to chiropractic adjustment. Dr. Dixon concluded that
Plaintiff’s symptoms were “sufficiently severe . . . they are affecting his activities of daily
6

living.” (R. at 247.) Dr. Dixon stated that Plaintiff’s average daily neck pain was eight out of
ten and observed that Plaintiff was taking daily medication. Upon examination, Dr. Dixon
assessed neck pain localized to the cervicothoracic junction. He found anterolisthesis of C5 on
C6, as well as a congenital block fusion of C6-7. In recommending further treatment, Dr. Dixon
expressed concern that further fusion intervention would concentrate stress at the residual levels,
particularly for a cervical occipital junction and C1-2 articulation. Due to the concern, Dr. Dixon
recommended “additional conservative treatment measures to include medial branch blockade, in
addition [sic] of cervical traction, and continued adjustment therapy.” (Id.)
Dr. Dixon referred Plaintiff to Dr. Deborah Coates, who treated him in April 2012. Dr.
Coates’ evaluation stated that Plaintiff’s 2006 surgery helped with headaches he was having but
he told Dr. Coates that “it did not help very much with the neck pain. He did have a congenital
block fusion at C4-C5 and at C6-C7.” Plaintiff rated his pain at a five or six out of ten. Plaintiff
was taking medications, including Cymbalta, gabapentin, omeprazole, lisinospril, as well as
aspirin. (R. at 256.) Dr. Coates was not able to administer facet injections at that time due to the
high dosage of aspirin Plaintiff had been taking. (R. at 257-58.) On May 2, 2012, he was able to
undergo injections to his C4-5 and C6-7 levels. (R. at 267.) Plaintiff, however, reported on May
17, 2012 that the injections did not provide relief from his sharp and constant pain. (R. at 255.)
In April and May, respectively, both Drs. Coates and Osborn recommended that Plaintiff titrate
his Neurontin dose. (R. at 257, 278.) Dr. Osborn further recommended that Plaintiff consider
Lidoderm patches. (R. at 278.)
In November 2012, Plaintiff’s chiropractor, Chad D. Saathoff, D.C., noted that he
experienced reduced range of motion in the cervical and lumbar spine with moderate pain. (R. at
7

304.) He diagnosed Plaintiff with degenerative disc disease of the lumbar and cervical spines as
well as scoliosis. (Id.) Plaintiff continued to receive chiropractic treatment form December 2012
through September 2013 for his neck and back pain and loss of motion. (R. at 366, 380.)
In April 2013, Plaintiff had an initial visit to the Ohio State University Comprehensive
Spine Center. (R. at 391.) He was diagnosed with Klippel-Feil syndrome as well as idiopathic
scoliosis and kyphoscoliosis. His pain score was reported at a seven. (Id.) Plaintiff was taking
Lisinopril, sertraline, omeprazole, Aspirin, and Hydrocodone-Acetaminophen for his conditions.
(R. at 391-92.) The treatments notes state that Plaintiff’s worsening constant back pain is
“limiting a lot of his daily activities.” (R. at 393.) The cervical spine pain “radiates distally into
the left arm.” While medications improve the pain, it becomes worse with activity. “Overall, the
pain is moderate and worsening.” (Id.) The to-date treatments of rest, over the counter
analgesics, prescription pain medications, opiods, physical therapy, and steroid injection had all
been ineffective. The treatment notes also indicate that scoliosis was detected in the lumbar
spine, in addition to muscle spasm, and a limited range of motion without pain. (R. at 395.) The
future treatment plan from the visit was to order additional diagnostics—full scoli films, cervical
MRI and CT, cost permitting. (R. at 395.) The treatment notes state that Plaintiff would not
benefit from physical therapy and should avoid chiropractic care “given the nature of his
syndrome.” (Id.) A few days after his visit, Plaintiff underwent X-ray examination of his
cervical spine. (R. at 398.) The X-ray depicted “[s]ignificant levoscioliotic curvature of the
upper thoracic spine on the AP image” in addition to “complete fusion at the posterior elements
of C4 and C5 and partial fusion at the vertebral body level.” (R. at 399.) The images also
showed “slight fusion at the anterior aspect of C3/C4 level.” The X-ray additionally revealed
8

degenerative disc disease at C3/C4, and minimal restrolisthesis of C3 over C4. (Id.) Plaintiff
visited the Spine Center again in May 2013 and the treatment notes once again indicated
decreased range of motion and spinal spasms. (R. at 404.)
From May 2013 through June 2013, Plaintiff continued to attend physical therapy until he
was discharged and recommended to continue a home exercise program of stretching. (R. at
415.) He reported some improvement in functionality as a result of the physical therapy in
addition to medications by March 2014. (R. at 445-450.) Yet, Plaintiff indicated to his
chiropractor in April and May 2014 that he continued to have decreased range of motion in the
cervical and lumbar spines with increased pain. (R. at 442.) Finally in May 2014, Dr. Osborne,
Plaintiff’s primary care physician, completed an assessment of physical limitations which stated
that Plaintiff was limited to lifting no more than 10 pounds, had limited standing and sitting
capacity, could only occasionally reach, and suffered from severe pain resulting in the need for
hours of rest per day, in excess of what is typically allowed for in a work setting. (R. at 455-56.)
IV. THE ADMINISTRATIVE DECISION
On November 10, 2014, the ALJ issued his decision. (R. at 16-28.) At step one of the
sequential evaluation process,1 the ALJ found that Plaintiff had not engaged in substantially

1

Social Security Regulations require ALJs to resolve a disability claim through a five-step
sequential evaluation of the evidence. See 20 C.F.R. §416.920(a)(4). Although a dispositive
finding at any step terminates the ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th
Cir. 2007), if fully considered, the sequential review considers and answers five questions:
1.
2.
3.

Is the claimant engaged in substantial gainful activity?
Does the claimant suffer from one or more severe impairments?
Do the claimant’s severe impairments, alone or in combination, meet or
equal the criteria of an impairment set forth in the Commissioner’s Listing of
Impairments, 20 C.F.R. Subpart P, Appendix 1?
9

gainful activity since April 4, 2011, the alleged onset date. (R. at 18.) The ALJ found that
Plaintiff had the severe impairments of Klippel-Feil Syndrom, status post fusion at C3-4,
degenerative disc disease at multiple levels in the cervical spine, and congenital scoliosis in the
dorsal spine extending from T3-T11. (Id.) He further found that Plaintiff did not have an
impairment or combination of impairments that met or medically equaled one of the listed
impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 20.)
The ALJ found that the evidence of record “does not document sufficient objective
medical evidence to substantiate the severity of the pain and symptoms and degree of functional
limitations alleged by [Plaintiff].” (R. at 21.) At step four of the sequential process, the ALJ set
forth Plaintiff’s RFC as follows:
After careful consideration of the record, the undersigned finds that the claimant
has the residual functional capacity to lift 15 pounds occasionally and 10 pounds
frequently, stand or walk for a total of 4 hours in an 8-hour day, and sit for a total
of 6 hours in an 8-hour day. He can occasionally bend, stoop, kneel, and crawl.
He can only occasionally reach overhead, but otherwise has unrestricted use of his
upper extremities.
(Id.)
The ALJ found that the Plaintiff’s impairments “do not cause functional limitations that
exceed” the aforementioned RFC. (R. at 22.) Specifically, in examining the evidence of record,
the ALJ stated that Plaintiff “has done well with residual symptoms of neck pain since his fusion

4.
5.

Considering the claimant's residual functional capacity, can the claimant
perform his or her past relevant work?
Considering the claimant's age, education, past work experience, and residual
functional capacity, can the claimant perform other work available in the national
economy?

See 20 C.F.R. §416.920(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009);
10

and his symptoms have responded well to chiropractic treatment on average twice per year until
March 2012.” (Id.) The ALJ highlighted that, while Plaintiff noticed increased frequency of
neck pain and headaches at that time, “only further conservative treatment of medial branch
blockage, cervical traction, and pain management was recommended” due to the fact that
“diagnostic evidence showed the C2-3, C5-6, and C1-2 articulation to be relatively wellmaintained, only mild anterolisthesis of C5 on C6, and well maintained disc height at C5-6.”
(Id.) Additionally, the ALJ noted, an examination in April 2012 “had a normal neurological
exam and his extremities did not show any atrophy or decrease in strength.” (Id.) Furthermore,
an injection in October 2012 provided pain relief, and diagnostic testing completed in May 2013
“showed only mild degenerative changes of the spine.” (Id.) (emphasis in original). Treatment
notes from December 2013 also showed Plaintiff “had not been in the office for the past year and
a subsequent progress note from March 20, 2014 indicated that he was doing very well on his
medications.” (Id.) Finally, Plaintiff was not taking narcotic pain medications and, therefore,
“would not need to be restricted from exposure to dangerous machinery as argued by counsel.”
(Id.)
In reaching his determination, the ALJ gave “significant weight” to Dr. Kendrick’s
opinion due to the fact that it was “well supported by the medical evidence of record and is an
accurate representation of the claimant’s physical status.” (Id.) The ALJ found that Dr.
Kendrick’s “assessment as to medical severity is more probative and reliable than the analysis
from the State Agency reviewing sources.” (Id.)

Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001).
11

The ALJ accepted the State Agency medical consultants’ physical assessments “to the
extent that they provide that the claimant is limited in overhead reaching with his upper
extremities, which is consistent with the totality of the medical evidence of record.” (R. at 23.)
Less weight, however, was given to the remainder of their assessments “as the totality of the
medical evidence of record, including the credible opinion of Dr. Kendrick, supports a finding
that the claimant is somewhat more limited than assessed by the State Agency Consultants.”
(Id.)
The ALJ likewise gave less weight to the opinions of Dr. Osborn due to the fact that they
were “inconsistent with the totality of the medical evidence of record including Dr. Osborn’s
own treatment notes.” (Id.) Additionally, the ALJ gave less weight to the opinions of Plaintiff’s
chiropractor, Saathoff because the “extensive limitations including related to [Plaintiff’s] ability
to lift and carry, as well as sit, stand or walk for only 30 minutes at a time, are inconsistent with
the totality of the medical evidence of record . . . the credible medicals opinions of Dr. Kendrick
and the State Agency medical consultants, and the [Plaintiff’s] presentation at the hearing as [he]
was able to move his head in a limited range and was cheerful.” (Id.) The ALJ also found that a
chiropractor is not an “‘acceptable medical source,’ as defined in 20 CFR 404.1513 and therefore
the opinion is, pursuant to 20 CFR 404.1527, not a ‘medical opinion’ and the opinion is
considered only to the extent that it helps understand how an impairment affects the ability to
work.” (Id.)
Finally, the ALJ found that, in addition to a lack of objective evidence to support
Plaintiff’s subjective complaints, other considerations weighed against his overall credibility.
For example, Plaintiff’s daily activities were not restricted to the extent that he would be
12

precluded from employment. Specifically, Plaintiff was able to “provide care for his daughters
including getting them ready for school, and he is able to make the bed, feed the dog, do chores
‘a little at a time’ , and go shopping.” (R. at 23-24.) Moreover, while Plaintiff testified to “doing
stretching, inversion table and exercising several times a day, as well as lying down 10 minutes
at a time 2-3 times per day” the ALJ concluded that “there is no evidence in the record to support
a finding that these stretching activities and breaks needs [sic] to be performed during the work
day at unscheduled break times that would be able to be completed before or after the work day
or during regularly scheduled breaks.” (R. at 24.)
Relying on the VE’s testimony, the ALJ concluded that Plaintiff is not able to perform
past relevant work, but can perform the requirements for 60-70% of all sedentary and unskilled
jobs in the regional economy, amounting to about 45,000 jobs, including office clerk, and work
order clerk. (R. at 26.) He therefore concluded that Plaintiff was not disabled under the Social
Security Act. (R. at 27.)
V. STANDARD OF REVIEW
When reviewing a case under the Social Security Act, the Court “must affirm the
Commissioner’s decision if it ‘is supported by substantial evidence and was made pursuant to
proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009)
(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. at 2007)); see also 42
U.S.C. § 405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if
supported by substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial
evidence is defined as ‘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.’”
13

Rogers, 486 F.3d at 241 (quoting Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286
(6th Cir. 1994)).
Although the substantial evidence standard is deferential, it is not trivial. The Court must
“‘take into account whatever in the record fairly detracts from [the] weight’” of the
Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting
Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, “if substantial
evidence supports the ALJ’s decision, this Court defers to that finding ‘even if there is
substantial evidence in the record that would have supported an opposite conclusion.’” Blakley v.
Comm’r of Soc. Sec., 581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir.
1997)).
Finally, even if the ALJ’s decision meets the substantial evidence standard, “‘a decision
of the Commissioner will not be upheld where the SSA fails to follow its own regulations and
where that error prejudices a claimant on the merits or deprives the claimant of a substantial
right.’” Rabbers, 582 F.3d at 651 (quoting Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th
Cir. 2007)).
VI.

ANALYSIS

In his Statement of Errors, Plaintiff argues that: (1) the ALJ erred in failing to properly
evaluate Plaintiff’s pain and the effect of pain on Plaintiff’s capacity to perform work; (2) the
ALJ failed to consider the combined effect of all of Plaintiff’s impairments in assessing the RFC;
and (3) the ALJ failed to accord appropriate weight to the medical opinion of Dr. Saathof.
The Sixth Circuit has provided the following guidance in considering an ALJ’s
assessment of disabling pain:
14

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.
Felisky v. Bowen, 35 F.3d 1027, 1038–39 (6th Cir.1994). The court has “explicitly noted,
however, this test ‘does not require objective evidence of the pain itself.’” Id. at 1039 (quoting
Duncan v. Sec. of Health and Human Services, 801 F.2d 847, 853 (6th Cir. 1986)).
“The ALJ’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 F.
App’x 469, 475 (6th Cir. 2008) (citing Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th
Cir. 1997)); Sullenger v. Comm’r of Soc. Sec., 255 F. App’x 988, 995 (6th Cir. 2007) (declining
to disturb the ALJ’s credibility determination, stating that: “[w]e will not try the case anew,
resolve conflicts in the evidence, or decide questions of credibility” (citation omitted)). This
deference extends to an ALJ’s credibility determinations “with respect to [a claimant’s]
subjective complaints of pain.” Allen v. Comm’r of Soc. Sec., 561 F.3d 646, 652 (6th Cir. 2009)
(quoting Siterlet v. Sec’y of Health & Hum. Servs., 823 F.2d 918, 920 (6th Cir.1987)). Despite
this deference, “an ALJ’s assessment of a claimant’s credibility must be supported by substantial
evidence.” Walters, 127 F.3d at 531. Furthermore, the ALJ’s decision on credibility must be
“based on a consideration of the entire record.” Rogers, 486 F.3d at 247 (internal quotation
omitted). An ALJ’s explanation of his or her credibility decision “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.” Id. at 248; see also Mason v.
Comm’r of Soc. Sec. Admin., No. 1:06–CV–1566, 2012 WL 669930, at *10 (N.D. Ohio Feb. 29,
15

2012) (“While the ALJ’s credibility findings ‘must be sufficiently specific’, Rogers, 486 F.3d at
248, the intent behind this standard is to ensure meaningful appellate review.”).
Here, there is no dispute that Plaintiff has an underlying medical condition within the
requisite standard of Felisky. Thus, the Court’s analysis will proceed directly to the second
prong, which has two parts.
“It is important to note that these two parts are alternatives” and a “checklist of factors” is
used in evaluating symptoms. Id. Specifically, the list of factors includes: (1) Plaintiff’s daily
activities; (2) the location duration, frequency, and intensity of the pain; (3) precipitating an
aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medications taken
to alleviate the pain or other symptoms; (5) treatment, other than medication, received for relief
of the pain; and (6) any measures used to relieve the pain. Id. at 1039-40; accord 20 C.F.R. §§
404.1529(c)(3)(i)-(vii). “The ALJ need not analyze all seven factors identified in the regulation
but should provide enough assessment to assure a reviewing court that he or she considered all
the relevant evidence.” Cross v. Comm’r of Soc. Sec., 373 F. Supp. 2d 724, 733 (N.D. Ohio
2005). In addition to these factors, the court will also review the opinions and statements of the
plaintiff’s doctors. Id.
Here, the Court agrees with the Plaintiff’s assertion that the ALJ’s assessment did not
reflect consideration of all of the relevant evidence in the record. First, the ALJ pointed to
Plaintiff’s March 2012 visit with Dr. Dixon and concluded that Plaintiff was recommended to
pursue “only further conservative treatment of medial branch blockade, cervical traction, and
pain management.” (R. at 22.) The ALJ, however, failed to account for Dr. Dixon’s express
concern that further fusion intervention would cause further stress to Plaintiff’s spine,
16

necessitating the recommendation for conservative treatment measures. (R. at 247.) Second, the
ALJ noted that Plaintiff experienced improvement in his pain until 2012, but did not note the
medical evidence documenting a decline in the years following. (R. at 22.) Third, the ALJ noted
that the diagnostic testing completed in May 2013 showed only “mild degenerative changes of
the spine.” (R. at 22) (emphasis in original). Yet, the ALJ fails to note that the diagnostics
depicted levoscioliotic curvature of the upper thoracic spine, complete and partial fusions in parts
of the spine, degenerative disc disease and restrolisthesis. (R. at 399.) Finally, the ALJ
considered treatment notes from December 2013 that stated Plaintiff “had not been in the office
for treatment for the past year” with a subsequent progress note from March 2014 stated that he
was doing well on his medications. The ALJ further noted that Plaintiff was not taking any
narcotic pain medications and, as such, would not be restricted from exposure to dangerous
machinery in the workplace. (R. at 22.) Once again, the ALJ did not consider the rise in pain
level and decrease in functionality that the medical record indicates Plaintiff suffered subsequent
to December 2013. (R. at 442, 455-56.) The ALJ’s opinion also did not reflect consideration of
the notes in the medical record indicating that Plaintiff had tried prescription medications in the
past but did not experience success in pain reduction on them. Moreover, it was recommended
that he did not continue with chiropractic treatment or physical therapy in April 2013. (R. at
395.)
The medical record reflects evidence pertinent to the list of requisite factors for the
second-prong of the Felisky pain test that the ALJ’s written opinion does not acknowledge. For
example, while the ALJ noted that Plaintiff had the ability to care for his daughters in the home,
the ALJ failed to note that Plaintiff’s wife must perform all the outside work. Moreover, courts
17

have warned against crediting a claimant’s ability to perform household chores as an indication
of ability to engage in full-time employment. Lorman v. Comm’r of Soc. Sec., 107 F. Supp. 3d
829, 838 (S.D. Ohio 2015) (“there is a significant difference between doing minimal selfsustaining household chores and performing work 40 hours a week for 52 weeks per year”)
(citing Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 248 (6th Cir. 2007)). Here, the record
evidence of Plaintiff’s daily activities does not reflect an ability to perform full-time work. The
ALJ’s written opinion also does not reflect the replete evidence in the record of Plaintiff’s
frequency, intensity and duration of pain. Since his surgeries in 2005 and 2006, Plaintiff was
treated for severe neck and back pain in April 2012 (R. at 256), May 2012 (R. at 267), November
2012 (R. at 304), April 2013 (R. at 391), May 2013 (R. at 404), April 2014 (R. at 442), and May
2014 (R. at 455). Finally, the ALJ noted Plaintiff was not taking any prescription medications
and had temporal gaps in his treatment, but the ALJ did not point to the record evidence that
Plaintiff had attempted several methods of treatment—over the counter medications, analgesics,
pain relievers, opiates, physical therapy, steroid injection and chiropractic treatment, all of which
had failed. (R. at 395.)
Under these circumstances and upon a review of the medical record as a whole, the Court
finds the ALJ erred in failing to consider the totality of the evidence. See Rothgeb v. Astrue, 626
F. Supp. 2d 797, 808 (S.D. Ohio 2009) (ALJ erred in failing to consider entirety of treatment
notes); Hopkins v. Comm’r of Soc. Sec., No. 1:07-CV-964, 2009 WL 1360222, at *14 (S.D. Ohio
May 14, 2009) (“The ALJ must consider all the record evidence and cannot ‘pick and choose’
only the evidence that supports his position.”). Despite the deference due to the ALJ’s
assessment of Plaintiff’s credibility, the Court concludes that the determination is not supported
18

by substantial evidence and is not based on consideration of the entire record. Waters, 127 F.3d
at 531; Rogers, 486 F.3d at 247.2
VII. CONCLUSION
Due to the errors outlined above, Plaintiff is entitled to an order remanding this case to
the Social Security Administration pursuant to Sentence Four of 42 U.S.C. § 405(g).
Accordingly, the Commissioner of Social Security’s non-disability finding is REVERSED and
this case is REMANDED to the Commissioner and the ALJ under Sentence Four of § 405(g) for
further consideration consistent with this Opinion.

IT IS SO ORDERED.
Date: March 27, 2017

/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE

2

This finding obviates the need for in-depth analysis of Plaintiff’s remaining assignments of
error. Thus, the Court need not, and does not, resolve the alternative bases Plaintiff asserts
support reversal and remand.
19