Weber v. Commissioner of Social Security et al
REPORT AND RECOMMENDATION: Magistrate Judge RECOMMENDS that Plaintiff's Statement of Errors be OVERRULED and that judgment be entered in favor of Defendant. Objections to R&R due by 6/15/2017. Signed by Magistrate Judge Kimberly A. Jolson on 6/1/2017. (ew)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
DAVID M. WEBER,
Civil Action 2:16-cv-741
Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Jolson
COMMISSIONER OF SOCIAL
REPORT AND RECOMMENDATION
Plaintiff, David M. Weber, filed this action seeking review of a decision of the
Commissioner of Social Security (“Commissioner”) denying his application for both disability
insurance benefits and supplemental security income.
For the reasons that follow, it is
RECOMMENDED that Plaintiff’s Statement of Errors (Doc. 17) be OVERRULED, and that
judgment be entered in favor of Defendant.
A. Prior Proceedings
Plaintiff filed for disability insurance benefits (“DIB”) and supplemental security income
(“SSI”) on March 7, 2012. (Doc. 10-3, Tr. 84, 105, PAGEID #: 119, 140). In both applications,
Plaintiff alleged a disability onset date of February 15, 2010. 1 (Id.). His claims were denied
initially on March 5, 2013 (id.), and upon reconsideration on June 1, 2013 (id., Tr. 92,
PAGEID #: 133). Administrative Law Judge John Robert Montgomery (the “ALJ”) held a
hearing on October 30, 2014 (Doc. 10-2, Tr. 49, PAGEID #: 83), after which he denied benefits
Although this is the alleged disability onset date in Plaintiff’s applications, and the date the Administrative Law
Judge cited to in his opinion, during the hearing Plaintiff testified he felt he became disabled around October 2011.
(Doc. 10-2, Tr. 58–59, PAGEID #: 92–93). To remain consistent, the undersigned will use February 15, 2010, as
the disability onset date.
in a written decision on May 26, 2015 (id., Tr. 28, PAGEID #: 58). That decision became final
when the Appeals Council denied review on May 27, 2016. (Id., Tr. 1, PAGEID #: 35).
Plaintiff filed this case on July 28, 2016 (Doc. 1), and the Commissioner filed the
administrative record on October 24, 2016 (Doc. 10). Plaintiff filed a Statement of Specific
Errors on February 22, 2017 (Doc. 17), the Commissioner responded on April 10, 2017 (Doc.
18), and no Reply was filed.
B. Relevant Testimony at the Administrative Hearing
Plaintiff testified that he lives at home with his fiancée and two of his young children.
(Doc. 10-2, Tr. 53, PAGEID #: 87). When the ALJ asked what Plaintiff felt was the major thing
that would keep him from working on a full-time basis, he responded that he doesn’t have
strength. (Id., Tr. 60, PAGEID #: 94). For example, Plaintiff stated he struggles to hold his 17pound son. (Id., Tr. 60–61, PAGEID #: 94–95). However, when asked by the ALJ how much he
could lift with his non-dominant extremity, Plaintiff stated 15 to 20 pounds. (Id., Tr. 66,
PAGEID #: 100).
Plaintiff’s issues with alcohol were also discussed. Plaintiff admitted he used to “selfmedicate” with alcohol. (Id., Tr. 64, PAGEID #: 98). Plaintiff testified that when he “started
losing everything” he started drinking heavily and engaging in cocaine use, although he stated he
no longer is using those substances. (Id., Tr. 70, PAGEID #: 104). Specifically, Plaintiff stated
the last time he drank heavily was “[t]he last time I found myself in a mental institution.” (Id.,
Tr. 71, PAGEID #: 105). Plaintiff admitted he suffered a major depression after he lost the
ability to provide for his seven children. He takes Prozac but does not receive any type of mental
health counseling. (Id., Tr. 71–73, PAGEID #: 105–07).
In terms of daily activities, Plaintiff reported that he helps his two-year old child get
dressed, dresses himself, showers, cooks occasionally, does some housework, and attends
church. (Id., Tr. 68, 74–75, PAGEID #: 102, 108–09). He testified that he wasn’t “an invalid or
anything” he “[j]ust can’t do the activities [he] used to.” (Id., Tr. 68, PAGEID #: 102). Plaintiff
stated his condition “changed [his] whole life” and that he used to play the drums but hasn’t been
able to hold onto the drumsticks for three years. (Id.).
Finally, the Vocational Expert (“VE”) testified that with limitations that the ALJ posed,
Plaintiff would be unable to perform any of his previous jobs. (Id., Tr. 77, PAGEID #: 111).
However, the VE testified that Plaintiff could work as a mail clerk, office helper, or an order
caller, all of which would not involve more than frequent handling, grasping or fingering. (Id.,
Tr. 78, PAGEID #: 112).
C. Relevant Medical Background
1. Physical Impairments
On March 30, 2010, Plaintiff was treated at Riverside Methodist Hospital for right
shoulder plan after slipping on ice and falling down a flight of stairs one month prior. (Doc. 107, Tr. 392, PAGEID #: 432). Treatment notes stated that after his fall, Plaintiff had persistent
pain in his right shoulder and complains of “bilateral and numbness and tingling as well as neck
pain[.]” (Id.). On April 7, 2010, Plaintiff saw Dr. Jonathan Forquer for, inter alia, his right
shoulder pain and neck pain. (Id., Tr. 521, PAGEID #: 561). Dr. Forquer noted Plaintiff
“[c]ontinues to have radicular symptoms, numbness, tremor, and weakness of bilateral [upper
extremities].” (Id.). An MRI showed cervical stenosis at the C6-C7 and facet arthropathy. (Id.).
As a result of this numbness, Plaintiff saw Dr. Girish Hiremath on February 22, 2012.
(Id., Tr. 540, PAGEID #: 580). Because of the “severe stenosis at C6-C7,” Dr. Hiremath
recommended an anterior cervical discectomy with fusion and plate fixation. (Id., Tr. 541,
PAGEID #: 581). Plaintiff agreed and underwent surgery on March 15, 2012. (Id., Tr. 711,
PAGEID #: 751). In a follow-up with Dr. Hiremath on March 28, 2012, it was noted that
Plaintiff’s preoperative symptoms of significant shoulder pain had resolved almost completely,
his complaint of right upper extremity numbness had improved significantly, and there was only
minimal numbness in the fingertips of his right hand. (Doc. 10-8, Tr. 1097, PAGEID #: 1138).
However, Plaintiff reported migraine headaches that began after his surgery. (Id.).
Several weeks later, on April 9, 2012, Plaintiff saw Dr. Forquer for these headaches.
(Doc. 10-7, Tr. 432, PAGEID #: 472). The following month, Dr. Forquer recommended that
Plaintiff see a neurologist. (Id., Tr. 429, PAGEID #: 469). Despite his complaints to Dr. Forquer
of continuing headaches, at a follow-up appointment with Dr. Hiremath on May 29, 2012,
Plaintiff reported that his migraine headaches and neck pain had significantly improved. (Doc.
10-8, Tr. 1091, PAGEID #: 1132). At that same appointment, it was noted that Plaintiff had 5/5
strength in grip and a well-healed anterior cervical incision. (Id.).
On July 16, 2012, Plaintiff saw Dr. Herbert A. Grodner for a Social Security Disability
physical examination. (Doc. 10-7, Tr. 741, PAGEID #: 781). Upon examination, Dr. Groder
noted that Plaintiff had “decreased range of motion of the cervical spine,” but strength was 5/5 in
all muscle groups and that his grip strength was 12 PSI on the right and 8 PSI on the left with the
dynamometer. (Id., Tr. 743, PAGEID #: 783). Further, “[g]rasp and manipulation [were]
normal.” (Id.). Ultimately, Dr. Grodner concluded:
Plaintiff “would have difficulty with activities that require significant physical
exertion which would include repetitive lifting more than 20 or 25 pounds,
climbing such as ladders or scaffolding or stairs repetitively . . . [Plaintiff] would
have difficulty with activities that require using his upper extremity repetitively
and turning his head repetitively. I do feel however, that he could at least attempt
some type of sedentary activity.”
(Id., Tr. 744, PAGEID #: 784).
Plaintiff saw neurologist, Dr. William Mayr, for his migraines. (See Doc. 10-8, Tr. 1086,
PAGEID #: 1127). At an appointment on November 27, 2012, Dr. Mayr noted that Plaintiff’s
“[h]eadaches continued unabated” yet he “is still drinking caffeine daily, and he is still
smoking.” (Id., Tr. 1083, PAGEID #: 1124). Dr. Mayr opined though that he was “reassured by
his MRI and blood work” since they were normal. (Id.). Dr. Mayr also noted that Plaintiff
complained of upper extremity tremors since 2006–2007, but since “this is not a major issue, we
will not focus on this[.]” (Id., Tr. 1084, PAGEID #: 1125). Ultimately, Dr. Mayr diagnosed new
onset intermittent migraine without aura as well as mild chronic daily headache, and
recommended lifestyle modifications to include no caffeine, tobacco cessation, monitoring
anxiety/depression with a regular doctor, sleep hygiene techniques, and instituting regular
exercise. (Id., Tr. 1083, PAGEID #: 1124).
On December 18, 2012, Plaintiff saw Dr. Hiremath for a postoperative follow up. (Id.,
Tr. 1082, PAGEID #: 1123). At that time, Dr. Hiremath noted that Plaintiff had “a mild resting
tremor in the left hand, but no significant rigidity,” as well as 5/5 strength in grip. (Id.).
A year and a half later, at another follow-up appointment on March 18, 2014, Dr. Hiremath
opined as follows:
Postoperatively, he did well with significant improvement in his symptoms
suggestive of mylopathy as well as radicular arm pain. However, two months
ago, he was working on a ladder and was lifting an object above his head when he
had the sudden onset of right-sided radicular arm pain that follows in general C7
and possible the C8 distribution. Over the last two months, the symptoms have
not improved. He notices subjective sensation of weakness into the right upper
extremity as well as some difficulty with regard to the ability to grasp objects
using the right hand. He denies any significant left-sided symptoms.
(Id., Tr. 1080, PAGEID #: 1121).
Dr. Hiremath ordered an MRI to evaluate further Plaintiff’s symptoms, which showed a
synovial cyst versus a nerve root sleeve cyst at the right C7-T1 foramen, likely resulting in
compression of the right C8 nerve root. (Id., Tr. 1077, PAGEID #: 1118). Dr. Hiremath also
noted Plaintiff still complained of symptoms suggestive of C8 radiculopathy, such as numbness
and weak grasp of his right hand. (Id.). On that same day, April 28, 2014, Dr. Hiremath wrote a
note stating Plaintiff “is unable to care for his child 100% of the time because of significant
weakness in the right upper extremity as a result of cervical spine disease.” (Id., Tr. 1079,
PAGEID #: 1120).
On July 17, 2014, Plaintiff saw Dr. Yeshwant Reddy for consideration of cervical
epidural steroid injections. (Id., Tr. 1062, PAGEID #: 1103). Upon examination, Dr. Reddy
noted that Plaintiff had diminished range of motion in his cervical spine, some diminished range
of motion in his right shoulder, but strength in the upper extremity of 5/5. (Id.). Ultimately, Dr.
Reddy recommended a series of cervical epidural steroid injections. (Id., Tr. 1063, PAGEID #:
2. Mental Impairments
Upon request of the Ohio Division of Disability Determination, Dr. Margaret G. Smith
evaluated Plaintiff on May 9, 2012. (Doc. 10-7, Tr. 726, PAGEID #: 766). Dr. Smith noted that
there were no manifest signs of anxiety observed and Plaintiff “presented as fully oriented to
time, date, setting and circumstance.” (Id., Tr. 729, PAGEID #: 769). Although Plaintiff
reported having more difficulty staying focused, however Dr. Smith opined that while “the
claimant may experience the subjective sense of reduced effectiveness . . . objective changes at a
level prompting performance concerns by others are not expected.” (Id., Tr. 731, PAGEID #:
771). Further, Dr. Smith stated that Plaintiff had no limitations in his abilities to conform to
social expectations in a work setting and that he “would be competent to handle workplace
pressures for tasks that do not require much multi-tasking.” (Id.).
Plaintiff was hospitalized on March 26, 2013 until March 28, 2013, for chief complaints
of chest pain and hand laceration, although he was also evaluated regarding his depression and
suicidal ideation. (Doc. 10-9, Tr. 1116, 1121, PAGEID #: 1158, 1163). Treatment notes state
that Plaintiff had been off his medication for one month prior to his hospitalization, and the
treatment plan moving forward was for him to restart Prozac. (Id., Tr. 1135, PAGEID #: 1177).
Further, Plaintiff stated “that he’d never actually kill himself because of his six children.” (Id.,
Tr. 1153, PAGEID #: 1195).
On April 25, 2013, Plaintiff was hospitalized after a reported suicide attempt via “an
unknown drug ingestion.” (Doc. 10-8, Tr. 1016, PAGEID #: 1057). Plaintiff expressed severe
depression and hopelessness but denied any current suicidal intent when he was evaluated. (Id.,
Tr. 1035–36, PAGEID #: 1076–77). Following his release, Plaintiff was admitted to Twin
Valley Behavioral Healthcare Unit K9 on April 29, 2013. (Id., Tr. 906, PAGEID #: 947).
Plaintiff stated that all he remembers was “drinking a glass of wine, a couple of beers, and taking
his muscle relaxant and one Dilaudid.” (Id.). Treatment notes state that upon admittance to the
hospital on April 25, 2013, he reportedly expressed “passive suicidal thoughts,” but after his
admission at Twin Valley he consistently denied any suicidal thoughts.
(Id., Tr. 906–09,
PAGEID #: 947–50). Plaintiff was discharged on May 7, 2013, in stable condition. (Id., Tr.
908, PAGEID #: 949).
Plaintiff was again admitted to the hospital for what was described as “suicidal ideation”
on January 7, 2014 until January 8, 2014. (Id., Tr. 929, PAGEID #: 970). However, Plaintiff
stated he did not feel well, had too much to drink, and “he made some stupid choices and that’s
why he is admitted.” (Id.). Plaintiff admitted that he drinks three or four drinks a day and has
more than six drinks weekly. (Id., Tr. 930, PAGEID #: 971).
D. State Agency Assessments
State Agency consultant Dr. Mel Zwissler opined on March 23, 2012, that Plaintiff
suffered from several severe mental impairments that led to moderate restrictions of daily living,
mild difficulties in maintaining social functioning, moderate difficulties in maintaining
concentration, persistence or pace, and no episodes of decompensation. (Doc. 10-3, Tr. 95–96,
PAGEID #: 130–31). Dr. Zwissler also noted that the record evidence did not establish the
presence of “Paragraph C” criteria. (Id., Tr. 96, PAGEID #: 131). Dr. Cynthia Waggoner
reached the same conclusions on May 30, 2013. (Id., Tr. 139, PAGEID #: 174).
On March 5, 2013, Dr. Diane Manos opined on Plaintiff’s physical limitations,
specifically that Plaintiff could occasionally lift twenty pounds, frequently lift ten pounds, and
although his reaching was limited, his handling, fingering, and feeling was unlimited. (Id., Tr.
98–99, PAGEID #: 133–34). Dr. Leigh Thomas made identical conclusions on May 31, 2013.
(Id., Tr. 143, PAGEID #: 178).
E. The ALJ’s Decision
The ALJ found that since the alleged onset date of disability, Plaintiff has suffered from
the following severe impairments: coronary artery disease; status post coronary artery bypass
graft; degenerative disc disease of cervical and lumbar spine; status power cervical C6-7 fusion;
status posttraumatic laceration of the non-dominant hand; asthma; affective disorder; anxiety
disorder; personality disorder; and a history of substance abuse. (Doc. 10-2, Tr. 30, PAGEID #:
The ALJ also addressed Plaintiff’s bilateral upper extremity tremors and intermittent
migraine headaches, but noted they were both non-severe impairments. (Id., Tr. 31, PAGEID #:
As to Plaintiff’s RFC, the ALJ stated:
[T]he claimant retains the following residual capacity to stand and walk for 30
minutes at a time for at least 4 hours out of an 8 hour period; sit for 2 hours at a
time for at least 6 hours out of an 8 hour period; lift up to 10 pounds with the nondominant extremity, but lift 10 pound frequently and 20 pounds occasionally with
the dominant extremity; the claimant can frequently, but not constantly, perform
handling, fingering and grasping with the non-dominant extremity, and constantly
with the dominant extremity; he can occasionally bend, stoop, reach overhead; he
must avoid concentrated exposure to temperature extremes and humidity,
respiratory irritants; he would need to avoid use of ladders, ropes and scaffolds;
and because of some mental health and medication effects he is limited to simple,
routine tasks that are not changing through the workday and that are without strict
(Id., Tr. 35, PAGEID #: 69). In making this determination, the ALJ stated he had considered all
symptoms and the extent to which these symptoms could reasonably be accepted as consistent
with the objective medical evidence and other evidence. (Id.).
The ALJ also found that while Plaintiff does have an underlying medically determinable
impairment that could reasonably cause some symptomatology, upon review of the record, the
evidence does not “substantiate the severity of the pain and degree of functional limitations
alleged by the claimant.” (Id., Tr. 35–36, PAGEID #: 69–70). Specifically, the ALJ noted
various inconsistencies in Plaintiff’s testimony and evidence in the record. For example, the ALJ
noted that Plaintiff testified in October 2014, that he was unable to hold drumsticks for the last
three years as a result of his hand impairments. (Id., Tr. 38, PAGEID #: 72). Yet, on January 4,
2013, the claimant presented to the emergency room complaining of chest pain that began after
performing the night before as a drummer. (Id.).
Accordingly, when taking these factors into account, and in considering Plaintiff’s age,
education work experience, RFC, and VE testimony, the ALJ found that there were jobs that
existed in significant numbers in the national economy that Plaintiff could perform. (Id., Tr. 41,
PAGEID #: 75).
The ALJ noted, however, that he mistakenly “confused the limitations
regarding the dominant and non-dominant extremity, asking the vocational expert to assume
greater limitations on the dominant extremity rather than on the non-dominant extremity.” (Id.).
However, the ALJ concluded this would not change the VE’s ultimate conclusion.
[A]ll of the jobs identified by the vocational expert require no more than 10
pounds lifting and carrying and no more than frequent handling, fingering and
grasping. Therefore, the fact that the claimant can actually use one extremity for
greater lifting, carrying, handling, fingering and grasping than the other, would
not change the expert’s responses regardless of which extremity has the increased
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: (1) the ALJ erred in classifying
his bilateral upper extremity tremors, migraine headaches, and radiculopathy as non-severe (Doc.
17 at 2–4); (2) the ALJ erred in failing to give greater weight to evidence that showed he had
problems and limitations with his right dominant shoulder (id. at 4–5); (3) the RFC was not
supported by substantial evidence because his mental impairments were not correctly evaluated
(id. at 5–6); and (4) the RFC was not supported by substantial evidence because it failed to
properly account for handling, fingering, and lifting restrictions (id. at 6–8).
A. Classifying Impairments as Non-Severe
Under 20 C.F.R. § 404.1520(a)(4)(ii), at step two of the disability evaluation process, the
ALJ must determine the severity of Plaintiff’s alleged impairments.
“An impairment is
considered severe if it “significantly limits an individual’s physical or mental ability to perform
basic work activities,” which are defined as “those abilities and aptitudes necessary to do most
jobs.” Dyer v. Colvin, No. CV 14-156-DLB, 2016 WL 1077906, at *3 (E.D. Ky. Mar. 17, 2016)
(citing 20 C.F.R. § 404.1521(b)).” Plaintiff argues the ALJ erred in classifying his bilateral
upper extremity tremors, migraine headaches, and radiculopathy as non-severe. (Doc. 17 at 2).
The Sixth Circuit has explained the step two analysis as follows:
This circuit construes the step two severity regulation as a “de minimis hurdle,”
Rogers, 486 F.3d at 243 n. 2 (internal quotation marks and citation omitted),
intended to “screen out totally groundless claims.” Farris v. Sec’y of Health &
Human Servs., 773 F.2d 85, 89 (6th Cir.1985). Thus, if an impairment has “more
than a minimal effect” on the claimant’s ability to do basic work activities, the
ALJ must treat it as “severe.” Soc. Sec. Rul. 96–3p, 1996 WL 374181 at * 1
(1996). After an ALJ makes a finding of severity as to even one impairment, the
ALJ “must consider limitations and restrictions imposed by all of an individual’s
impairments, even those that are not ‘severe.’” Soc. Sec. Rul. 96–8p, 1996 WL
374184, at *5 (emphasis added). And when an ALJ considers all of a claimant’s
impairments in the remaining steps of the disability determination, an ALJ’s
failure to find additional severe impairments at step two does “not constitute
reversible error.” Maziarz v. Sec’y of Health & Human Servs., 837 F.2d 240, 244
(6th Cir. 1987).
Nejat v. Comm’r of Soc. Sec., 359 F. App’x 574, 577 (6th Cir. 2009). Because the regulations
require an ALJ to consider both severe and non-severe impairments in the remaining steps of the
disability determination analysis, once a severe impairment is found, all impairments, regardless
of how they are classified, will be analyzed in the ALJ’s determination. See Dyer, 2016 WL
1077906, at *3. “For this reason, the Sixth Circuit has consistently held that an ALJ does not
commit reversible error when he or she decides that some of claimant’s impairments are not
severe, but finds that other impairments are severe and proceeds with his or her analysis.” Id.
Here, the ALJ found numerous severe impairments and considered the effect of all of
Plaintiff’s impairments, both severe and non-severe. For example, the ALJ discussed Plaintiff’s
tremors but noted the frequent references in the record to his grasp and grip being normal and at
full strength. (Doc. 10-2, Tr. 31, PAGEID #: 65). Moreover, Dr. Mayr noted that the tremors
were not a “major issue.” Ultimately, the ALJ reasonably relied on this evidence in finding that
the tremors did not result in significant limitations. (Id.). As to the migraine headaches, the ALJ
relied on the fact that at Plaintiff’s most recent visit with his cardiologist, he made no complaints
of migraines, leading the ALJ to determine the frequency and severity of the migraines did not
cause any significant limitations. (Id.). Finally, the ALJ noted evidence in the record that
documented right cervical radiculopathy, but when considering Plaintiff’s testimony that he
could lift 15 to 20 pounds, the ALJ found the impairment did not pose any additional limitations.
(See id., Tr. 38, PAGEID #: 72).
Thus, regardless of whether the ALJ improperly classified Plaintiff’s impairments as nonsevere, he considered the issues “throughout the remaining steps of the analysis [thus]
render[ing] any error harmless.” Id.; see also Maziarz v. Sec’y of Health & Human Servs., 837
F.2d 240, 244 (6th Cir. 1987) (holding that because the ALJ properly considered the impairment
classified as non-severe “in determining whether claimant retained sufficient residual functional
capacity to allow him to perform substantial gainful activity,” the ALJ’s failure to classify that
impairment as severe “could not constitute reversible error.”).
B. Problems and Limitations With Right Extremity
Plaintiff also alleges that the ALJ erred in failing to give greater weight to evidence that
showed he had problems and limitations with his right extremity. (Doc. 17 at 4). Specifically,
Plaintiff argues that an April 24, 2014 MRI, coupled with Dr. Grodner’s findings that Plaintiff
had a diminished range of motion, should have been given greater weight. (Id. at 4–5).
However, the ALJ acknowledged and discussed Plaintiff’s upper extremity problems,
including his MRI and range of motion assessment in his opinion:
An MRI performed on April 24, 2014, of the claimant’s cervical spine, revealed
in part a new cystic lesion noted in the right lateral recess at the C&-T!, which
might have represented a synovial cyst versus peripheral nerve root sleeve cyst
with mass effect on the exiting right C8 nerve . . . The examination performed by
Dr. Grodner was largely normal, with a normal gait, without the use of an
ambulatory aid, the claimant was able to heel walk, perform tandem gait and
squat . . . Additionally, there was no atrophy and strength was 5/5 in all muscle
groups. There was some decreased cervical spine range of motion. During the
most recent examination in conjunction with the claimant’s cervical spine
problems, to evaluate for cervical epidural steroid injections, on July 17, 2014, the
claimant’s posture, transfers and gait were normal and he was able to heel and toe
walk. Although the claimant did have diminished range of motion in the cervical
spine, strength in the upper extremity was 5/5 and sensations were intact. The
claimant’s right shoulder examination did show also some diminished range of
motion in all directions compared to the left. There was also some pain on
abduction. The claimant’s lumbar spine examination was normal and the
claimant’s lower extremity neurological examination was normal.
(Doc. 10-2. Tr. 32–33, PAGEID #: 66–67).
This portion of the ALJ opinions makes it is clear that the ALJ explicitly considered the
evidence Plaintiff argues should have been given greater weight. Yet, the ALJ found that after
reviewing the record in its entirety, the objective evidence did not substantiate the severity of the
pain and degree of functional limitations alleged by Plaintiff. (Id., Tr. 36, PAGEID #: 70). And
when “objective medical evidence fails to confirm the severity of a claimant’s subjective
allegations, the ALJ ‘has the power and discretion to weigh all of the evidence and to resolve the
significant conflicts in the administrative record.’” Hohnberger v. Comm’r of Soc. Sec., 143 F.
Supp. 3d 694, 701 (W.D. Mich. 2015) (citing Workman v. Comm’r of Soc. Sec., 105 F. App’x,
794, 801 (6th Cir. 2004)).
Here, the ALJ found the “modest findings” in the record were not indicative of
significant upper extremity problems. (Doc. 10-2, Tr. 37, PAGEID #: 71). Plaintiff himself
testified that he is responsible in part for the care of two children under three. (Id., Tr. 38,
PAGEID #: 72). Additionally, the ALJ noted that Plaintiff had full upper extremity strength,
performed “side work” for some friends until February 2012, and evidence suggests that he
continued as a drummer despite his testimony that his symptoms caused him to give up
drumming three years prior. Accordingly, with these inconsistencies present in the record, the
ALJ did not err in giving the MRI findings and range of motion limits less weight than Plaintiff
would have liked. Hairston v. Comm’r of Soc. Sec., No. 14-13218, 2015 WL 4633935, at *6
(E.D. Mich. Aug. 3, 2015) (noting that the “Sixth Circuit has consistently upheld the discretion
vested in ALJs to weigh conflicting record evidence in assessing a claimant’s disability status”)
(citing White v. Comm’r of Soc. Sec., 572 F.3d 272, 284 (6th Cir. 2009).
C. Mental Impairments Within RFC
In terms of mental impairments, the ALJ found Plaintiff had an affective disorder,
anxiety disorder, personality disorder, and history of substance abuse, all of which were deemed
severe. (See Doc. 10-2, Tr. 30, PAGEID #: 64). However, the ALJ ultimately found that these
severe impairments, considered singly and in combination, did not meet or medically equal the
criteria of listings 12.04, 12.06, 12.08 or 12.09. (Id., Tr. 33, PAGEID #: 67). In particular, the
ALJ found that Plaintiff did not meet the “paragraph B” or “paragraph C” criteria. (Id., Tr. 33–
34, PAGEID #: 67–68). The ALJ observed that to satisfy the “paragraph B” criteria, the mental
impairments must result in at least two of the following:
Marked restriction of activities of daily living; marked difficulties in maintain
social functioning; marked difficulties in maintaining concentration, persistence,
or pace; or repeated episodes of decompensation, each of extended duration. A
marked limitation means more than moderate but less than extreme. Repeated
episodes of decompensation, each of extended duration, means three episodes
within 1 year, or an average of once every 4 months, each lasting for at least 2
(Id., Tr. 33, PAGEID #: 67). Courts have held this recitation is an accurate summation of how
the Commissioner uses the four criteria in “paragraph B” to assess the severity of functional
limitations imposed by a mental impairment.” See Cooney v. Colvin, No. 4:14CV-00059-HBB,
2015 WL 632312, at *4 (W.D. Ky. Feb. 13, 2015) (citing 20 C.F.R. Pt. 404, Subpt. P, App. 1,
12.00C). The “paragraph C” criteria also requires that the mental impairment result in repeated
episodes of decompensation, each of extended duration. Id. at *8.
In evaluating Plaintiff’s mental impairments, the ALJ considered the state agency
opinions, the report of Dr. Smith, reports throughout the record, including the psychiatric
hospitalizations, as well as the hearing testimony. (Doc. 10-2, Tr. 33, PAGEID #: 67). After his
review, the ALJ concluded that “[w]hile the claimant does have functional limitations, these are
not at listing level.” (Id.). Specifically, the ALJ noted that Plaintiff had not experience any
episodes of decompensation. (Id., Tr. 34, PAGEID #: 68).
Plaintiff disagrees. He argues that the record documents several psychiatric episodes of
decompensation that meet the criteria. (Doc. 17 at 5). The ALJ held otherwise, finding that
Plaintiff’s mental health issues appeared situational in nature, noting that Plaintiff himself stated
his admissions were due to consuming too much alcohol, and the record reflects Plaintiff’s
denials that he had suicidal ideation upon admission. (Doc. 10-2. Tr. 39, PAGEID #: 73).
However, even if we assume Plaintiff’s psychiatric hospitalizations were considered severe
enough to be classified as episodes of decompensation, as noted above, he would have needed to
have three episodes within 1 year, or an average of once every 4 months, each lasting for at least
2 weeks. Plaintiff’s hospitalizations do not meet that criteria, as his alleged episodes never lasted
the required two weeks. Thus, because Plaintiff has not suffered from repeated episodes of
decompensation, each of extended duration, the ALJ correctly opined that the “paragraph B” and
“paragraph C” criteria are not satisfied. See Morrison v. Comm’r of Soc. Sec., No. 1:13CV722,
2014 WL 7409752, at *8 (S.D. Ohio Dec. 31, 2014).
Further, Plaintiff argues the ALJ incorrectly failed to include any limitations in the RFC
reflecting his trouble being around people and out in public, or with his concentration issues due
to pain or anxiety. (Doc. 17 at 6). However, Dr. Smith found that there were no manifest signs
of anxiety observed and Plaintiff “presented as fully oriented to time, date, setting and
circumstance.” (Doc. 10-7, Tr. 729, PAGEID #: 769). Moreover, Dr. Smith noted limitations in
Plaintiff’s abilities to conform to social expectations in a work setting but ultimately found he
would be competent to handle workplace pressures for tasks that do not require much multitasking. (Id., Tr. 731, PAGEID #: 771). Thus, the ALJ’s reliance on Dr. Smith’s opinion, (Doc.
10-2, Tr. 40, PAGEID #: 74) (stating “the undersigned’s limitations arising out of mental
impairments are based on the opinion of Dr. Smith”), was reasonable and consistent with the
record. Accordingly, the ALJ properly evaluated Plaintiff’s mental impairments in reaching the
D. Handling, Fingering, and Lifting Restrictions Within RFC
Finally, Plaintiff argues that the RFC is not supported by substantial evidence because the
ALJ failed to give any restrictions regarding his handling and fingering with his right hand, as
well as lifting limitations due to significant weakness in his upper extremity as a result of his
cervical spine disease. (Doc. 17 at 7). Further, Plaintiff argues that because Dr. Hiremath stated
it would be difficult for Plaintiff to pick up his newborn child, the RFC finding that he can
occasionally lift twenty-pounds with the non-dominant extremity is not supported by substantial
evidence. (Id. at 8).
In determining whether Plaintiff’s RFC is supported by substantial evidence, the Court
“must look at the record as a whole.” Cole v. Comm’r of Soc. Sec., 105 F. Supp. 3d 738, 752
(E.D. Mich. 2015). This review encompasses examining the relevant evidence in Plaintiff’s case
record, including statements about what Plaintiff can do “‘provided by medical sources’ and
‘descriptions and observations of [Plaintiff’s] limitations from [his] impairment(s).’” Kingery v.
Comm’r of Soc. Sec., 142 F. Supp. 3d 598, 603 (S.D. Ohio 2015) (citing 20 C.F.R. §
The Court finds no error in the ALJ’s RFC determination. First, both state agency
examiners found that Plaintiff could occasionally lift twenty pounds, frequently lift ten pounds,
and although his reaching was limited, his handling and fingering was unlimited. (See Doc. 103, Tr. 98–99, 143 PAGEID #: 133–34, 178). Indeed, as the ALJ noted, Plaintiff admitted at his
hearing he could lift fifteen to twenty pounds with his non-dominant extremity. (Doc. 10-2, Tr.
66, PAGEID #: 100). Second, the ALJ recognized that Dr. Grodner opined that Plaintiff’s grasp
and manipulation were normal. (Id., Tr. 37, PAGEID #: 71). Finally, the ALJ noted the fact Dr.
Hiremath had opined Plaintiff would be unable to care for his child 100% of the time, but
explained that inconsistent statements from plaintiff detracted from his credibility. (Id., Tr. 38,
PAGEID #: 72). Thus, the hypothetical on which the VE relied accurately portrayed Plaintiff’s
As a final note, the ALJ recognized that he had mistakenly confused the limitations
regarding dominant and non-dominant extremities, but the Court agrees with the Commissioner
and the ALJ that this would not have changed the VE’s testimony. The jobs identified by the VE
required no more than ten pounds lifting and carrying, regardless of which extremity, nondominant or dominant, was more restricted. Accordingly, substantial evidence supports the
ALJ’s RFC determination. See Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 009)
(“Even if there is substantial evidence in the record that would have supported an opposite
conclusion[,]” the Court must give deference to the ALJ’s decision if it is supported by
For the reasons stated, it is RECOMMENDED that Plaintiff’s Statement of Errors (Doc.
17) 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: June 1, 2017
/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE
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