Rowland v. Commissioner of Social Security
REPORT AND RECOMMENDATION that Plaintiff's Statement of Errors (Doc. 13 ) be OVERRULED and that judgment be entered in favor of Defendant. Objections to R&R due by 4/14/2017. Signed by Magistrate Judge Kimberly A. Jolson on 3/31/2017. (agm)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
CHARLES WILLIS ROWLAND,
Civil Action 2:16-cv-481
Judge George C. Smith
Magistrate Judge Jolson
COMMISSIONER OF SOCIAL
REPORT AND RECOMMENDATION
Plaintiff, Charles Willis Rowland, 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
(“Commissioner”) denying his applications for social security disability insurance benefits
(“DIB”) and supplemental security income (“SSI”).
For the reasons that follow, it is
RECOMMENDED that Plaintiff’s Statement of Errors be OVERRULED, and that judgment
be entered in favor of Defendant.
A. Prior Proceedings
Plaintiff applied for supplemental security income on July 12, 2012, and filed for
disability benefits on July 26, 2012. (Doc. 9, Tr. 201–203, 212, PAGEID #: 239–241, 250). In
both applications, Plaintiff alleged a disability onset date of November 23, 2008. 1 (Id.). His
application was denied initially on November 1, 2012 (Id. at Tr. 125, PAGEID #: 163), and
In a letter to the ALJ dated November 4, 2014, Plaintiff’s counsel sought to amend the alleged onset date to March
15, 2012. (Doc. 9, Tr. 247, PAGEID #: 285). However, the ALJ’s opinion on December 8, 2014, notes an alleged
onset date of November 23, 2008. (See id. at Tr. 12, PAGEID #: 50). For purposes of this review, the Court will
assume the alleged onset date is November 23, 2008.
upon reconsideration on February 4, 2013. (Id. at Tr. 134, PAGEID #: 172). Administrative
Law Judge Edmund Round (the “ALJ”) held a hearing by video teleconference on November
10, 2014 (id. at Tr. 31, PAGEID #: 69), after which he denied benefits in a written decision on
December 8, 2014 (id. at Tr. 9, PAGEID #: 47). That decision became final when the Appeals
Council denied review on March 24, 2016. (Id. at Tr. 1, PAGEID #: 39).
Plaintiff filed this case on March 31, 2016 (Doc. 1), and the Commissioner filed the
administrative record on August 5, 2016 (Doc. 9). Plaintiff filed a Statement of Specific Errors
on October 6, 2016 (Doc. 13), the Commissioner responded on November 25, 2016 (Doc. 14),
and Plaintiff replied on December 5, 2016 (Doc. 15).
B. Testimony at the Administrative Hearings
At the time of the hearing, Plaintiff was fifty-two years old with a ninth grade education.
(Doc. 9, Tr. 36–37, 74–75). During the administrative hearing, Plaintiff testified about his
former work framing houses, finishing concrete slabs, and working at a steel company. (Id. at
Tr. 37–39, PAGEID #: 75–77). Plaintiff described his biggest impediment to his ability to work
was “getting along with people” (id. at Tr. 43, PAGEID #: 81), but indicated he had not sought
mental health counseling or treatment (id. at Tr. 44, PAGEID #: 82).
When asked to describe the physical impairments that interfere with his ability to work,
Plaintiff stated he has “a lot of pain in [his] back” that he would rate as a constant five or six, but
a ten on a pain scale from one to ten when it’s at its worst. (Id. at Tr. 45–46, PAGEID #: 83–84).
Plaintiff indicated he is not currently taking any medication for the pain, but stated he had taken
oxycodone and OxyContin in the past. (Id. at Tr. 47–48, PAGEID #: 85–86). Plaintiff also said
he has sharp pain in his knee almost daily (id. at Tr. 51, PAGEID #: 89) and that he has pain in
his left shoulder “about every day” (id. at Tr. 52, PAGEID #: 90). Further, Plaintiff explained
that he is blind in his left eye and that it “just sort of came on.” (Id. at Tr. 53, PAGEID #: 91).
Plaintiff explained that even with glasses “the only thing [he] can see out of [the left eye] is
blurry. It’s like real foggy.” (Id. at Tr. 53–54, PAGEID #: 91–92). However, Plaintiff stated he
successfully renewed his driver’s license, despite the vision issues he alleged. (Id. at Tr. 54,
PAGEID #: 92).
In terms of daily activities, Plaintiff stated he drinks coffee in the morning, drives over to
a horse barn and racetrack owned by friends, cooks, and feeds his cat. (Id. at Tr. 55–57,
PAGEID #: 93–95).
C. Relevant Medical Background
Although unrelated to the impairments at issue, two hospital visits in the year of the
alleged onset date are worth noting. First, Plaintiff was treated at the Knox Community Hospital
Emergency Room (“ER”) on January 6, 2008, complaining of tooth pain. (Doc. 9, Tr. 303,
PAGEID #: 341). Plaintiff requested a prescription for hydrocodone but was given Amoxil and
Vicodin instead. (Id. at Tr. 303–04, PAGEID #: 341–42). A few months later, Plaintiff was seen
at the same ER after being struck in the head with a floor joist. (Id. at Tr. 293, PAGEID #: 331).
Upon the doctor prescribing him Ultram, Plaintiff argued that he wanted something stronger and
that the prescribed medication was “worthless.” (Id. at Tr. 296–97, PAGEID #: 334–35). After
the doctor explained to Plaintiff that because of his head injury, he did not want him to take
anything stronger, Plaintiff signed his discharge, yelling expletives as he left. (Id.).
On June 20, 2008, Plaintiff had a CT scan of his lumbrosacral spine. (Id. at Tr. 250,
PAGEID #: 288). The scan revealed normal alignment and curvature of the spine with no
fractures or dislocations. (Id.). There was mild concentric disc bulging at the L3-L4 level with
minimal impingement on the exiting L4 nerve root. (Id.). Additionally, there were minimal
degenerate changes of the facet joints and the L5-S1 level showed mild facet arthrosis. (Id.).
Plaintiff presented to the Knox Community Hospital ER on December 15, 2011, after
twisting his right knee several days prior. (Id. at Tr. 281, PAGEID #: 319). A physical exam
revealed that Plaintiff was weight-bearing, had no swelling, and exhibited full range of motion.
(Id. at Tr. 281, PAGEID #: 319). An MRI taken the same day of his knee and ankle revealed no
abnormal findings, and showed no fractures, dislocations or evidence of bone or joint disease.
(Id. at Tr. 279, PAGEID #: 317). Plaintiff was discharged and given prescriptions for Vicodin
and Motrin. (Id. at Tr. 285, PAGEID #: 323).
Plaintiff returned to the ER on February 23, 2012, complaining of back pain that was
made worse after “mucking out [horse] stalls last night.” (Id. at Tr. 267, 274, PAGEID #: 305,
312). Plaintiff reported taking Motrin and oxycodone in the past to control pain and discomfort.
(Id. at Tr. 277, PAGEID #: 315). After examination, Plaintiff was diagnosed with an acute
lumbrosacral strain, his condition was noted as “good,” and he was sent home with prescriptions
for Vicodin, Amoxil, Motrin, and Flexeril. (Id. at Tr. 269, 272, PAGEID #: 307, 310).
On April 27, 2012, Plaintiff went to the ER yet again, complaining of low back pain after
shoveling horse stalls. (Id. at Tr. 255, PAGEID #: 293). Plaintiff was diagnosed with a lumbar
strain and muscle spasms (id.), and was proscribed Vicodin, Flexeril, and Naprosyn. (Id. at Tr.
260, PAGEID #: 298). His medical records made several references to the fact that this was an
“acute” injury, as opposed to chronic. (Id. at Tr. 265, PAGEID #: 303).
Plaintiff saw Dr. Sushil M. Sethi for his shoulder, back, and knee pain on August 15,
2012. (Id. at Tr. 350, PAGEID #: 388). At the appointment, Plaintiff reported having taken no
medication at all for three years, although he admitted that he used to take OxyContin, Percocet
and Soma. (Id.). The physical examination revealed that Plaintiff’s left knee had no effusion or
laxity of ligaments, and that Plaintiff walked with a normal gait, was able to walk on tiptoes and
heels, and could squat.
(Id. at Tr. 351, PAGEID #: 389).
Both shoulders showed mild
tenderness in the AC joint with bony crepitus at +1. (Id. at Tr. 351–52, PAGEID #: 389–90).
The cervical spine showed mild tenderness at the C6-7 level but there was no swelling, redness
or deformity and no curvature abnormality. (Id. at Tr. 352, PAGEID #: 390). It was also noted
that Plaintiff’s right eye was 20/20 and his left eye was 20/200, yet he arrived at the examination
with no glasses. (Id. at Tr. 351, PAGEID #: 389). Overall, Dr. Sethi opined that there were
minimal arthritic findings and no neuromuscular deficits. (Id. at Tr. 352, PAGEID #: 390). In
terms of work limitations, Dr. Sethi stated Plaintiff could sit 4–6 hours, stand 3–4 hours, and
walk 3–4 hours in an 8-hour shift, as well as lift and carry 20-25 pounds frequently. (Id.).
On September 18, 2012, Plaintiff saw Dr. Steven Meyer for a psychological evaluation to
assess his mental status. (Id. at Tr. 358, PAGEID #: 396). When asked about the nature of his
disability, Plaintiff replied that “he has back problems, has been in prison four times, and cannot
keep work and needs to go to a doctor.” (Id.). Plaintiff “denied having any problems getting
along with coworkers or supervisors in the past.” (Id. at Tr. 363, PAGEID #: 401). In terms of
daily activities, Plaintiff stated he drinks coffee, watches the news, eats breakfast, goes out to
search for aluminum cans, his sister stops by, he works in his garden, watches television, and
talks to neighbors. (Id. at Tr. 359, PAGEID #: 397).
Plaintiff was alert during the evaluation, but presented as confused at times and
evidenced mild comprehension problems. (Id.). Plaintiff reported that he had never been
hospitalized for psychiatric reasons, has never been involved in outpatient counseling, and has
never had psychological testing performed. (Id. at Tr. 360, PAGEID #: 398). During testing,
Plaintiff was cooperative for the most part, although attention and concentration were disrupted
and Plaintiff was distracted. (Id. at Tr. 361, PAGEID #: 399). It was noted that Plaintiff had “no
difficulty with his vision.” (Id.). Plaintiff obtained a Full Scale IQ score of 55 during the
evaluation, which falls in the Extremely Low range of functioning, although Dr. Meyer noted
that the score appeared to be “a low estimate of his abilities.” (Id. at Tr. 361–62, PAGEID #:
400–01). Ultimately, Dr. Meyer diagnosed Plaintiff with Depressive Disorder NOS, PTSD,
Personality Disorder NOS, Learning Disorder NOS, and Borderline Intellectual Functioning.
(Id. at Tr. 362, PAGEID #: 400).
Plaintiff visited the Knox Community Hospital ER again on January 8, 2016, after falling
on ice and twisting his left knee. (Id. at Tr. 365, PAGEID #: 403). The ER records show that
Plaintiff had no deformity, no swelling or effusion, and full range of motion, albeit with pain.
(Id.). Plaintiff’s x-rays were normal and he was diagnosed with a knee sprain/strain, and told to
follow up with Dr. Gregory Cush. (Id. at Tr. 370–71, 380, PAGEID #: 408–09, 418).
Plaintiff slipped on ice again on February 1, 2013, and returned to the ER claiming he
had re-injured his left knee. (Id. at Tr. 381, PAGEID #: 419). Upon evaluation, Plaintiff had a
normal gait and normal range of motion. (Id. at Tr. 383, PAGEID #: 421). Plaintiff’s neurologic
evaluation revealed he was alert and oriented with no impairment of recent memory, normal
sensation, and normal coordination. (Id.). Plaintiff was discharged and told to follow-up with
Dr. Cush as soon as possible. (Id.).
Plaintiff followed up with Dr. Cush regarding his left knee pain on February 12, 2013.
(Id. at Tr. 429, PAGEID #: 467). The onset of knee pain was described as acute, and upon
evaluation the knee there were no signs of swelling or effusion. (Id.). Dr. Cush ordered an MRI,
which revealed normal findings with “no meniscal nor ligamentous pathology.” (Id. at Tr. 430–
31, PAGEID #: 468–69). Plaintiff was told to ice, elevate, and take ibuprofen for his pain. (Id.
at Tr. 432, PAGEID #: 470).
Also in February 2013, Plaintiff saw Dr. Craig Cairns for pain in his low back, left knee,
left shoulder, and right ankle. (Id. at Tr. 385–86, PAGEID #: 423–24). It was noted that
Plaintiff had decreased visual acuity in his left eye and was scheduled to see an ophthalmologist
for consideration of cataract extraction. (Id. at Tr. 386, PAGEID #: 424). Plaintiff admitted to
being mildly depressed, “however this has not been severe and he denie[d] any suicidal thoughts
or intent.” (Id.). Dr. Cairns stated that the auditory hallucinations Plaintiff described were
troublesome, but “his mental status seem[ed] normal otherwise.” (Id.). Overall, Dr. Cairns
described Plaintiff’s functional abilities regarding “work at this time” to be limited with respect
to bending at the waist, standing, walking, lifting, and using his left arm, although it was noted
these limitations were temporary, expected to last only between 30 days and 9 months. (Id. at
Tr. 387, 392 PAGEID #: 425, 430).
Plaintiff saw Dr. Ripal Parikh on April 15, 2013, for treatment options related to his
lower back pain. (Id. at Tr. 441, PAGEID #: 479). Dr. Parikh believed Plaintiff had chronic
back pain from a combination of lumbar disk herniation and potentially radiculitis, spondylosis,
and spasms. (Id. at Tr. 442, PAGEID #: 480). Dr. Parikh’s plan was to get an x-ray of Plaintiff’s
lumbar spine, prescribe oxycodone for the pain following a urine drug screen, and start him in
physical therapy. (Id.). The x-ray of the lumbar spine showed only mild facet arthropathy at L4L5 and L5-S1 with no significant disc space narrowing, no spoylolysis or spondylolisthesis. (Id.
at Tr. 426, PAGEID #: 464).
Overall, it was noted that the imaging revealed minimal
degenerative changes. (Id.). The urine drug screen revealed the presence of non-prescribed
oxycodone and benzodiazepine. (Id. at Tr. 433, 440 PAGEID #: 471, 478). According to Dr.
Parikh, Plaintiff stated he was prescribed oxycodone four to five years ago, and “even tried to
explain that he had one saved up from years ago, which he did not admit to prior.” (Id. at Tr.
440, PAGEID #: 471).
As a result of the “inappropriate urine drug screen, showing 2
medications that were not prescribed to him recently and he did not admit to,” Dr. Parikh opined
that he did “not feel that [Plaintiff] is a good candidate for opioid medications.” (Id.). Dr. Parikh
offered other treatment options, such as injections, but Plaintiff turned him down. (Id.).
Plaintiff did start physical therapy on April 17, 2013, as Dr. Parikh recommended, for his
back pain as well as reported numbness and tingling in bilateral extremities. (Id. at Tr. 419,
PAGEID #: 457). However, Plaintiff attended only five physical therapy sessions, during which
it was noted on several occasions that it was questionable whether Plaintiff was completing his
recommended exercises and stretches at home. (Id. at Tr. 396, 399, 401, PAGEID #: 434, 437,
439). Plaintiff’s treatment notes reflected that he “apparently self-discharged” himself on May
10, 2013, because he stopped contacting the clinic. (Id. at Tr. 394, PAGEID #: 432).
D. State Agency Assessments
State Agency psychologist Dr. Arcelis Rivera opined on October 26, 2012, that Plaintiff’s
restriction of activities of daily living was mild, his difficulty in maintaining social functioning
was moderate, his difficulty maintaining concentration, persistence, or pace was moderate, but
there were no episodes of decompensation. (Id. at Tr. 78, PAGEID #: 116). Overall, Dr. Rivera
found Plaintiff did not meet criteria C of the Listings. (Id.). On January 29, 2013, Dr. Roseann
Umana noted similar concentration, understanding, and memory limitations and opined that
Plaintiff needed a work environment that is static, but found Plaintiff was not disabled. (Id. at
Tr. 110, PAGEID #: 148).
On October 28, 2012, Dr. Leanne Bertani found Plaintiff to be only partially credible
based on the fact that his complaints of pain were inconsistent with his activities of daily living
and medical records showing he has “good movement and strength throughout his body.” (Id. at
Tr. 79, PAGEID #: 117). Dr. Bertani noted some minor postural and manipulative limitations
but ultimately found Plaintiff was not disabled. (Id. at Tr. 81–84, PAGEID #: 119–22). On
January 29, 2013, Dr. Gary Hinzman reached a similar conclusion in terms of limitations and
similarly found Plaintiff was not disabled. (Id. at Tr. 108, PAGEID #: 146).
E. The ALJ’s Decision
The ALJ found that Plaintiff had not engaged in substantial gainful activity since
November 23, 2008, the alleged onset date. (Id. at Tr. 14, PAGEID #: 52). Moving to step two,
the ALJ found that Plaintiff suffered from one severe impairment—borderline intellectual
functioning—because it “ha[d] caused the claimant more than minimal limitations in the ability
to engage in basic work-related activities for at least a continuous twelve-month period[.]” (Id.).
The ALJ also addressed Plaintiff’s non-severe impairments, which included back pain from
“minimal” degenerative changes and “mild” disc bulging and knee pain associated with “mild”
osteoarthritis. (Id. at Tr. 15, PAGEID #: 53). At step three, the ALJ found that Plaintiff did not
have an impairment or combination of impairments that met or medically equaled a listed
impairment. (Id. at Tr. 17, PAGEID #: 55).
According to the ALJ, after considering Plaintiff’s severe mental impairment, it did not
meet the level of severity required by the Listing of Impairments. (Id.). Specifically, the ALJ
No treating or examining physician has indicated findings that would satisfy the
severity requirements of one of the Listed Impairments at 20 CFR Part 404
Appendix 1. Specifically, the claimant’s mental impairment has been considered
under the requirements of listing 12.05 for intellectual disability. Intellectual
disability refers to significantly subaverage general intellectual functions with
deficits in adaptive function initially manifested during the development period;
i.e., the evidence demonstrates or supports onset of the impairment before age 22.
The required level of severity for this disorder is met when the requirements in
paragraphs A, B, C, or D are satisfied.
The ALJ then analyzed each paragraph in detail, ultimately finding that Plaintiff’s
condition did not meet the requirements. (Id. at Tr. 18–19, PAGEID #: 56–57).
As to Plaintiff’s residual functional capacity (“RFC”), the ALJ stated:
[Plaintiff] has no exertional limitations. He is limited to simple, routine, lowstress tasks. This means that he is precluded from tasks that involve fast-paced
production environments, and from tasks that required arbitration, negotiation,
confrontation, directing the work of others, or being responsible for the safety of
(Id. at Tr. 19, PAGEID #: 57). The ALJ also found Plaintiff’s “allegations related to his inability
to work [were] overstated and unsupported by the record as a whole.” (Id. at Tr. 21, PAGEID #:
59). Specifically, “the medical evidence does not establish pain or limitation of the level and
severity that would result in debilitation limitations.” (Id.).
Relying on these and other considerations, the ALJ ultimately concluded that Plaintiff
was capable of performing past relevant work as a concrete laborer. (Id. at Tr. 22, PAGEID #:
60). The ALJ also made the alternative finding that there are other jobs existing in the national
economy that Plaintiff is able to perform. (Id. at Tr. 23, PAGEID #: 61).
STANDARD OF REVIEW
The Court’s review “is limited to determining whether the Commissioner’s decision is
supported by substantial evidence and was made pursuant to proper legal standards.” Winn v.
Comm’r of Soc. Sec., 615 F. App’x 315, 320 (6th Cir. 2015); see 42 U.S.C. § 405(g).
“[S]ubstantial 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.’” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)
(quoting Cutlip v. Sec’y of HHS, 25 F.3d 284, 286 (6th Cir. 1994)). “Therefore, 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 (6th Cir. 2009) (quoting Key v. Callahan, 109 F.3d 270,
273 (6th Cir. 1997)).
In his Statement of Specific Errors, Plaintiff argues that the ALJ’s evaluation of his
physical and mental impairments were not supported by substantial evidence. (Doc. 13 at 5, 7).
In particular, Plaintiff believes the ALJ did not perform the proper analysis in evaluating
Plaintiff’s “back and knee impairments, his left eye blindness, his shoulder impairments, and his
coexisting psychological diagnoses” at step two, or elsewhere in the decision. (Id. at 4).
A. Physical Impairments Evaluation
Plaintiff alleges the ALJ’s failure to mention his shoulder problems and left eye
blindness, despite the record containing information regarding these impairments, shows that the
ALJ’s final decision was not supported by substantial evidence. (Id. at 5–6). Further, Plaintiff
argues that the ALJ’s determination that his back and knee problems are non-severe is also
“unsupported by substantial evidence.” (Id. at 6).
1. Shoulder Problems
In his Disability Report dated July 27, 2012, Plaintiff was asked to “[l]ist all of the
physical or mental conditions (including emotional or learning problems) that limit your ability
to work.” (Doc. 9, Tr. 216, PAGEID #: 254). Plaintiff answered that he was unable to work due
to knee and back injuries. (Id.). In his “Disability Report – Appeals,” dated December 12, 2012,
Plaintiff indicated that he had developed new physical and mental limitations—eye problems and
bipolar disorder. (Id. at Tr. 27, PAGEID #: 265). Notably absent from Plaintiff’s disability
reports were any allegation that he had any shoulder impairment. Accordingly, the ALJ’s failure
to analyze Plaintiff’s alleged shoulder injury does not constitute reversible error. Charrette v.
Comm’r of Soc. Sec., No. CV 15-10930, 2016 WL 7985332, at *7 (E.D. Mich. Aug. 4, 2016),
report and recommendation adopted, No. 15-CV-10930, 2016 WL 4561333 (E.D. Mich. Sept. 1,
2016) (holding that the ALJ did not commit reversible error in failing to evaluate several
impairments alleged by Plaintiff that were not alleged in her disability report because “there is no
need to impose limitations based on a condition that . . . was not even alleged by the claimant to
be severe in the first instance”) (citing Smith v. Colvin, No. 13-12700, 2014 U.S. Dist. LEXIS
58243, at *19 (E.D. Mich. Mar. 18, 2014)); see also Sebastian v. Comm’r of Soc. Sec., No. 1:13CV-792, 2014 WL 5040574, at *5 (W.D. Mich. Sept. 24, 2014) (holding that the ALJ’s failure to
address plaintiff’s obesity was not an error and “understandable because plaintiff did not claim
obesity as an impairment in her original disability report or her disability report on appeal.”).
2. Eye Problems
Plaintiff also argues that the ALJ’s analysis is inadequate because it does not discuss
Plaintiff’s left-eye blindness. (Doc. 13 at 5). “There is no requirement, however, that  the
ALJ . . . must discuss every piece of evidence in the administrative record.” Hamper v. Comm’r
of Soc. Sec., 714 F. Supp. 2d 693, 703 (E.D. Mich. 2010) (citing Kornecky v. Comm’r of Soc.
Sec., 167 F. App’x. 496, 508 (6th Cir. 2006)). In fact, while an ALJ is required to consider all of
the relevant evidence in the record, there is no requirement that the ALJ expressly discuss each
piece of that evidence. Thurman v. Comm’r of Soc. Sec., No. 1:12-CV-2034, 2013 WL 2358579,
at *7 (N.D. Ohio May 29, 2013) (quoting Smith v. Comm’r of Soc. Sec., 2010 U.S. Dist. LEXIS
39785, 8–9, 2010 WL 1640271 (E.D.Va. Apr. 22, 2010); see also Kornecky, 167 F. App’x. at
508 (“An ALJ can consider all the evidence without directly addressing in his written decision
every piece of evidence submitted by a party.”).
Here, the only references in the record to eye issues are Plaintiff’s testimony at the
administrative hearing, Dr. Sethi’s one line note that Plaintiff’s left eye was 20/200 without
glasses (id. at Tr. 351, PAGEID #: 389), and Dr. Cairns’ short note that Plaintiff had decreased
visual acuity in his left eye and was scheduled to see an ophthalmologist for consideration of
cataract extraction (id. at Tr. 386, PAGEID #: 424). Under 20. C.R.F. § 416.981, an individual is
considered blind if there “is central visual acuity of 20/200 or less . . . with the use of a
correcting lens.” Here, Plaintiff has presented no evidence that his left eye has a visual acuity of
20/200 with correcting lenses. Thus, it is reasonable to assume that the ALJ considered the
evidence without directly addressing it in his written opinion because Plaintiff had not provided
evidence that he was blind or otherwise visually disabled. See 20 C.F.R. 416.912 (“In general,
you have to prove to us that you are blind or disabled.”); see also Owings v. Colvin, 133 F. Supp.
3d 959, 1000 (M.D. Tenn. 2015 (holding that because “plaintiff was represented by counsel in
the proceedings below, it was his responsibility to provide the results of a vision test to support
Accordingly, the undersigned finds that “[n]o purpose would be served by
remanding for the ALJ to explicitly address the shortcomings” of Plaintiff’s evidence in regards
to his alleged eye impairment. Kornecky, 167 F. App'x at 508 (citing Fisher v. Bowen, 869 F.2d
1055, 1057 (7th Cir. 1989) (citation omitted) (“No principle of administrative law or common
sense requires us to remand a case in quest of a perfect opinion unless there is reason to believe
that remand might lead to a different result.”).
3. Knee and Back Problems
The ALJ found that there was no evidence that the symptoms associated with Plaintiff’s
back and knee impairments persisted for a twelve month period, as required by 20 C.F.R. § Pt.
404, Subpt. P, App. 1. (Doc. 9, Tr. 16, PAGEID #: 54). In the alternative, the ALJ held that
even if the evidence established that Plaintiff’s physical impairment symptoms satisfied the
durational criteria, “the objective findings contain no more than ‘mild’ abnormalities at best,”
and thus were classified as non-severe. (Id.). Ultimately, the ALJ concluded that “the objective
evidence fail[ed] to support the claimant’s allegations of debilitating pain” and found “the
evidence fail[ed] to prove that claimant’s knee and back pain placed more than a minimal
limitation on his ability to perform basic work activities[.]” (Id. at Tr. 16, PAGEID #: 54).
Even if the Court assumes, arguendo, that the durational requirements were met, the
ALJ’s conclusion that Plaintiff’s back and knee impairments were mild, and thus non-severe, is
supported by substantial evidence.
Plaintiff claims the ALJ “substitut[ed]  his medical
judgment for that of the two consulting physicians and two reviewing physicians” who opined on
the limiting effects of Plaintiff’s impairments. (Doc. 13 at 7). However, the ALJ considered and
properly evaluated all four medical opinions.
First, the State Agency medical consultants opined that Plaintiff would be limited to work
at the medium exertional level with additional non-exertional limitations. (Doc. 9, Tr. 80–83,
107–110, PAGEID #: 118–21, 145–48). The consultants also indicated, however, that Plaintiff’s
statements about the intensity, persistence, and functionally limiting effects of the symptoms
were not substantiated by objective medical evidence alone, and they found Plaintiff to be only
partially credible based on his activities of daily living and movement and strength. (Id. at Tr.
79, 106, PAGEID #: 117, 144). The ALJ gave some weight to those opinions, to the extent that
they recognized that Plaintiff’s physical impairments are not as limiting as alleged. (Id. at Tr. 16,
PAGEID #: 54). This decision is supported by the rest of Plaintiff’s medical record, which
contains very little objective, physical, or clinical evidence of disabling severity. The ALJ was
entitled, under these circumstances, to consider Plaintiff’s credibility, and substantial evidence
supports the ALJ’s adverse credibility finding. Walters v. Comm’r of Soc. Sec., 127 F.3d 525,
531 (6th Cir. 1997).
Indeed, the record supports that Plaintiff’s physical impairments are not as limiting as he
alleges. As the ALJ observed, imaging studies performed on Plaintiff after his alleged onset date
revealed fairly normal results or minimal or mild issues. (Id.) A CT scan of Plaintiff’s back in
June 2008 revealed only minimal degenerative changes, an x-ray on Plaintiff’s knee in December
2011 was normal, and another x-ray of Plaintiff’s knee in 2013 was once again normal. (Id.).
Additionally, Plaintiff frequently exhibited normal range of motion, normal gait, and normal
sensation. (Id.; see also id. at Tr. 351, 383, PAGEID #: 389, 421). Moreover, the ALJ found
further support that Plaintiff’s impairments were non-severe in his “questionable” compliance
with physical therapy and decision to discharge himself from the program. (Id. at Tr. 16,
PAGEID #: 54). See Zanders v. Comm’r of Soc. Sec., No. 1:13-cv-137, 2014 WL 272165, at *6
(S.D. Ohio Jan. 23, 2014); Simpson v. Comm’r of Soc. Sec., No. 1:14-cv-801, 2016 WL 74420, at
*11 (S.D. Ohio Jan. 6, 2016) (holding that because “[t]he record does not show that plaintiff
followed through on her treating orthopedist’s suggestions despite her complaints of disabling
pain” the ALJ was reasonable in discounting Plaintiff’s complaints). Finally, the fact that
Plaintiff was not interested in pursuing alternative treatment methods after Dr. Parikh decided
against prescribing opioids weighs in favor of his impairment being non-severe. See Strong v.
Soc. Sec. Admin., 88 F. App’x 841, 846 (6th Cir. 2004) (“In the ordinary course, when a claimant
alleges pain so severe as to be disabling, there is a reasonable expectation that the claimant will
seek examination or treatment. A failure to do so may cast doubt on a claimant’s assertions of
disabling pain.”). Accordingly, the medical record supports the ALJ’s decision to give weight to
the agency consultants’ opinions only to the extent that they opined Plaintiff’s limitations were
not as severe as he alleged.
As to the examining physicians, the ALJ gave some weight to both Dr. Cairns’ and Dr.
Sethi’s opined limitations. (Doc. 9, Tr. 17, PAGEID #: 55). The ALJ properly explained that
only some weight was given to both doctors’ findings because they were a reflection of acute
injuries, rather than a chronic impairment. (Id.). The ALJ’s conclusion is supported by hospital
records showing Plaintiff continuously sought treatment for acute injures, such as falling on ice
or shoveling horse stalls, rather than chronic injuries.
Additionally, Plaintiff was
diagnosed in February 2012 with an acute lumbrosacral strain (id. at Tr. 269, PAGEID #: 307),
and it was noted several times during his April 2012 ER visit that he was seeking treatment for
an “acute” injury, as opposed to a chronic one (id. at Tr. 265, PAGEID #: 303). Further, Dr.
Cairns himself indicated that Plaintiff’s functional limitations were expected to last for only
thirty days to nine months. Accordingly, the ALJ’s determination did not ignore the physicians’
opinions—instead it granted some weight based on the circumstances surrounding the
evaluation. Thus, the ALJ’s finding that Plaintiff’s knee and back impairments were not severe
is supported by substantial evidence.
B. Mental Impairments Evaluation
Plaintiff additionally argues that the ALJ improperly “provided his own diagnosis of [his]
psychological impairments and rejected the diagnoses of the psychological examiner chosen by
the Social Security Administration, as well as the conclusions of the psychologists who had
reviewed those diagnoses.” (Doc. 13 at 8). Consequently, Plaintiff argues that the ALJ erred by
failing to consider additional mental impairments beyond borderline intellectual functioning,
such as depressive disorder, post-traumatic stress disorder, a learning disorder, and a personality
disorder that were diagnosed by Dr. Meyer.
(Id. at 7–9).
Because the ALJ improperly
considered these other impairments, Plaintiff argues, the ALJ’s final decision was not supported
by substantial evidence. (Id. at 9).
The ALJ specifically acknowledged that in addition to borderline intellectual functioning,
Dr. Meyer also diagnosed Plaintiff with a depressive disorder, posttraumatic stress disorder
(PTSD), and a personality disorder. (Doc. 9, Tr. 20, PAGEID #: 58). Dr. Meyer opined that
because of Plaintiff’s depression and PTSD/anxiety symptoms, he would be “able to perform
only in a lower stress work setting, and with assistance as needed at times of change in routine.”
(Id. at Tr. 363, PAGEID: 401). The ALJ gave no weight to these diagnoses “because they [we]re
based on the claimant’s behavior and allegations during this one-time examination, and [we]re
unsupported by the record as a whole.” (Id. at Tr. 20, PAGEID #: 58). Specifically, the ALJ
noted that Plaintiff’s medical record provided no other evidence of these mental impairments.
(Id. at Tr. 21, PAGEID #: 59).
For example, Plaintiff had never been hospitalized for psychiatric reasons, nor had he
ever been involved in counseling. (Id. at Tr. 360, PAGEID #: 398). While failure to seek or
engage in mental health treatment does not necessarily “evidence a tranquil mental state . . . [a]
reasonable mind might find that the lack of treatment could indicate an alleviation of symptoms.”
Cole v. Comm’r of Soc. Sec., 105 F. Supp. 3d 738, 743 (E.D. Mich. 2015) (citing White v.
Comm’r of Soc. Sec., 572 F.3d 272, 283 (6th Cir.2009)) (internal quotation marks omitted); see
also Esch v. Comm’r of Soc. Sec., No. 1:09-CV-144, 2010 WL 432265, at *5 (W.D. Mich. Jan.
25, 2010) (stating the “general rule that a claimant’s failure to seek treatment over an extended
time period undercuts the claimant’s assertion that his impairment is disabling”).
Additionally, the records from one of Plaintiff’s numerous ER visits for a left-knee injury
in February 2013 stated “Not Present – Depression and Mood changes.” (Id. at Tr. 382,
PAGEID #: 420). Also, during an examination, Dr. Cairns opined that Plaintiff’s mental status
exam seemed normal, besides his own complaints of auditory hallucinations. (Id. at Tr. 387,
PAGEID #: 425). Plaintiff attempts to undermine these opinions by arguing that the physicians
were evaluating his physical condition only, rather than his mental health. (Doc. 13 at 8).
However, the fact that these doctors did not specialize in mental health did not preclude them
from evaluating Plaintiff’s mental health condition. See Wert v. Comm’r of Soc. Sec., 166 F.
Supp. 3d 935, 946 (S.D. Ohio 2016) (holding that a doctor’s “lack of mental-health
specialization does not disqualify him from opining as to Plaintiff’s mental status”) (citing
Mason v. Comm’r of Soc. Sec., No. 1:07–cv–51, 2008 WL 1733181, at *14 n. 5 (S.D. Ohio Apr.
Finally, Plaintiff’s own admissions support the ALJ’s conclusion. When Plaintiff saw
Dr. Parikh, Plaintiff completed a health questionnaire and answered “no” to whether he had a
“mental health condition.” (Id. at Tr. 427, PAGEID #: 465). Additionally, during an evaluation
with Dr. Cairns, Plaintiff stated he believed he was mildly depressed but admitted it had not been
severe. (Id. at Tr. 386, PAGEID #: 324). The ALJ properly considered these admissions in
evaluating Plaintiff’s mental health. See Sanders v. Comm’r of Soc. Sec., No. 1:15-CV-01268,
2017 WL 710257, at *6 (W.D. Mich. Feb. 23, 2017) (holding that the ALJ’s conclusion was
supported by substantial evidence, in part based on “Plaintiff’s own admissions”); Bell v.
Barnhart, 148 F. App’x 277, 284 (6th Cir. 2005) (holding that “[t]he ALJ was entitled to
consider [Plaintiff’s] own admission” regarding his abilities).
Accordingly, the ALJ properly evaluated Plaintiff’s alleged psychological impairments,
and substantial evidence supported his conclusion that these impairments were not severe.
For the reasons stated, it is RECOMMENDED that Plaintiff’s Statement of Errors (Doc.
13) be OVERRULED and that judgment be entered in favor of Defendant.
Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) days of the date of this Report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection is made, together with
supporting authority for the objection(s).
A judge of this Court shall make a de novo
determination of those portions of the report or specified proposed findings or recommendations
to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or
modify, in whole or in part, the findings or recommendations made herein, may receive further
evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C.
§ 636(b)(1). Failure to object to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and Recommendation de novo, and also
operates as a waiver of the right to appeal the decision of the District Court adopting the Report
and Recommendation. See Thomas v. Arn, 474 U.S. 140, 152–53 (1985).
IT IS SO ORDERED.
Date: March 31, 2017
/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE
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