Groves v. Commissioner of Social Security

Filing 12

ORDER THAT: (1) THE ALJS NON-DISABILITY FINDING IS SUPPORTED BY SUBSTANTIAL EVIDENCE, AND AFFIRMED; AND (2) THIS CASE IS CLOSED. Signed by Judge Timothy S. Black on 1/3/12. (mr1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
BILL GROVES,
Plaintiff,
vs.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

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Case No. 3:11-cv-105
Judge Timothy S. Black

ORDER THAT: (1) THE ALJ’S NON-DISABILITY FINDING IS SUPPORTED
BY SUBSTANTIAL EVIDENCE, AND AFFIRMED;
AND (2) THIS CASE IS CLOSED
This is a Social Security disability benefits appeal. At issue is whether the
administrative law judge (“ALJ”) erred in finding the Plaintiff “not disabled” and
therefore unentitled to disability insurance benefits (“DIB”). (See Administrative

Transcript (“Tr.”) (Tr. 26-30) (ALJ’s decision)).
I.
Plaintiff filed an application for disability insurance benefits on May 5, 2005,
alleging disability since July 18, 2002. (Tr. 61). Plaintiff alleged disability due to
vertebrogenic disorder, carpal tunnel syndrome, hypertension, panic attacks, diabetes, and
anxiety. (Tr. 16). Plaintiff’s claim was denied initially and upon reconsideration. (Tr.
46, 50). Plaintiff timely filed a request for a hearing. (Tr. 53). A hearing was held before
an ALJ on April 22, 2008. (Tr. 500-16). The ALJ denied the claim in a decision dated
July 11, 2008, finding that Plaintiff could perform other work. (Tr. 393-407).

Plaintiff requested review of the decision to the Appeals Council and filed a
supporting memorandum. (Tr. 33-35, 38-39). The Appeals Council issued an order of
remand on May 13, 2009, finding that a medical expert was needed to clarify the extent of
Plaintiff’s limitations. (Tr. 408-11).
On remand, the ALJ held a new hearing on November 24, 2009. (Tr. 517-55).
Plaintiff appeared with counsel and testified. Also testifying were Dr. Brahms, a medical
expert, and Vanessa Harris, a vocational expert. (Tr. 16). The ALJ denied the claim in a
decision dated January 22, 2010, again finding that Plaintiff could perform other work.
(Tr. 13-30). Plaintiff again requested review of this decision to the Appeals Council. (Tr.
11-12). The Appeals Council denied review in a decision dated February 2, 2011,
making the ALJ’s decision the Commissioner’s final decision. (Tr. 6-8). Plaintiff
commenced this civil action in federal court pursuant to 42 U.S.C. Section 405(g) for
judicial review of the Commissioner’s final decision.
Plaintiff was 46 years old on his date last insured, a younger person in the eyes of
Social Security. (Tr. 28). He has a high school equivalent education. (Id.) Plaintiff
worked in the past primarily as a truck driver. (Tr. 72, 541). The ALJ found that Plaintiff
could not return to his past relevant work and there is no evidence of transferable skills.
(Tr. 28).
The ALJ’s “Findings,” which represent the rationale of his decision, were as
follows:
1.

The claimant met the insured status requirements of the Social
Security Act through December 31, 2005, but not thereafter.

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2.

The claimant did not engage in substantial gainful activity during the period
from his alleged onset date of July 18, 2002 through his date last insured of
December 31, 2005 (20 CFR 404.1520(b) and 404.1571 et seq.).

3.

Through his date last insured, the claimant had the following impairments
which were severe for Social Security purposes: cervical degenerative disc
disease, a history of recurrent bilateral carpal tunnel syndrome, mild to
moderate level morbid obesity, dysthymia, and a pain disorder secondary to
a combination of physical problems and anxiety (20 CFR 404.1520(c)).

4.

Through the date last insured, the claimant did not have an impairment or
combination of impairments that met or medically equaled one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525, and 404.1526).

5.

After careful consideration of the entire record, the undersigned finds that,
through the date last insured, the claimant lacked the residual functional
capacity to: 1) lift more than five pounds occasionally or ten pounds
frequently; 2) do any job where he was not free to alternate positions
between sitting and standing at thirty-minute intervals throughout the
workday; 3) crawl or climb ladders or scaffolds; 4) more than occasionally
crouch, stoop, kneel, or climb stairs; 5) reach above shoulder level more
than occasionally; 6) perform fingering with either hand more than
occasionally; 7) perform work involving significant exposure of the upper
extremities to vibration; 8) follow complex instruction; or 9) do other than
low stress work activity (i.e., no job involving fixed production quotas or
otherwise involving above average pressure for production, work that is
other than routine in nature, or work that is hazardous). Therefore, he was
limited to a reduced range of sedentary work as of his date last insured.

6.

Through the date last insured, the claimant was not capable of performing
his past relevant work as a tractor trailer truck driver.

7.

The claimant was born on September 9, 1959, and was 46 years old on the
date last insured, which classifies him as a younger individual age 45-49 for
the purpose of this decision (20 CFR 404.1563).

8.

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

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9.

Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a
finding that the claimant is “not disabled,” whether or not the claimant has
transferable job skills (see SSR 82-41 and 20 CFR Part 404, Subpart P,
Appendix 2).

10.

Through the date last insured, considering the claimant’s age, education,
work experience, and residual functional capacity, there were jobs that
existed in significant numbers in the national economy that he could have
performed (20 CFR 404.1560(c) and 404.1566).

11.

The claimant was not under a disability, as defined in the Social Security
Act, at any time from July 18, 2002, the alleged onset date, through
December 31, 2005, his date last insured or thus through the date of this
decision (20 CFR 404.1520(g)).

(Tr. 16-30).
In sum, the ALJ concluded that Plaintiff was not under a disability as defined by
the Social Security Regulations and was therefore not entitled to disability insurance
benefits. (Tr. 30).
On appeal, Plaintiff argues that: (1) the ALJ erred at Step 5 of the sequential
evaluation where his finding conflicts with Social Security’s rules and the vocational
expert testimony conflicts with the dictionary of occupational titles; (2) the ALJ erred in
his RFC1 finding where he failed to properly evaluate the opinion of Dr. Chiappone and
the other psychological and pain evidence of record; and (3) the ALJ erred in his RFC
analysis, where he improperly evaluated for pain and other symptoms.

1

The Residual Functional Capacity (“RFC”) is defined as the most a claimant can still
do despite his or her physical or mental limitations.” Leckenby v. Astrue, 487 F.3d 626, 631 n. 5
(8th Cir. 2007). “The ALJ bears the primary responsibility for determining a claimant’s RFC
and because RFC is a medical question, some medical evidence must support the determination
of the claimant’s RFC.” Vossen v. Astrue, 612 F.3d 1011, 1016 (8th Cir. 2010).
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The Court will address each argument in turn.
II.
The Court’s inquiry on appeal is to determine whether the ALJ’s non-disability
finding is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is
“such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). In performing this
review, the Court considers the record as a whole. Hephner v. Mathews, 574 F.2d 359,
362 (6th Cir. 1978). If substantial evidence supports the ALJ’s denial of benefits, that
finding must be affirmed, even if substantial evidence also exists in the record upon
which the ALJ could have found plaintiff disabled. As the Sixth Circuit has explained:
“The Commissioner’s findings are not subject to reversal
merely because substantial evidence exists in the record to
support a different conclusion. The substantial evidence
standard presupposes that there is a “zone of choice” within
which the Commissioner may proceed without interference
from the courts. If the Commissioner’s decision is
supported by substantial evidence, a reviewing court must
affirm.”
Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994).
The claimant bears the ultimate burden to prove by sufficient evidence that he is
entitled to disability benefits. 20 C.F.R. § 404.1512(a). That is, he must present
sufficient evidence to show that, during the relevant time period, he suffered an
impairment, or combination of impairments, expected to last at least twelve months, that
left him unable to perform any job in the national economy. 42 U.S.C. § 423(d)(1)(A).

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A.
The medical record reflects that:
Plaintiff’s primary problem involves his hands and neck. In June 2002, Plaintiff
reported difficulty with swelling in his hands to his primary care physician, Noel J.
Watson, M.D. (Tr. 289). Dr. Watson perscribed Plaintiff nonsteroidal antiinflammatories with some improvement until Plaintiff returned to work. (Tr. 288). Dr.
Watson ordered an x-ray of the cervical spine, which showed small spurs anteriorly at the
C3-4 and the C4-5 levels. (Tr. 287). Dr. Watson felt that Plaintiff had a hand problem
and hence sent him to Robert J. Roman, M.D. for evaluation.
On examination, Dr. Roman noted tenderness in both hands, mostly in the
distribution of the median nerve, with diminished light touch sensation. (Tr. 209). An
EMG showed severe right carpal tunnel syndrome on the right and moderate to severe
carpal tunnel syndrome on the left. Dr. Roman recommended surgery. (Tr. 208). In late
August 2002, Plaintiff underwent a right open carpal tunnel release. (Tr. 206). In followup, Plaintiff continued to have some difficulty, especially in his thumb. (Tr. 204-05).
In January 2003, Plaintiff underwent surgery on the left carpal tunnel. (Tr. 201).
A month after the surgery, Plaintiff felt his left hand was better. (Tr. 197). During his
recovery, however, Plaintiff reported having difficulty extending his neck past neutral.
Dr. Roman diagnosed a possible cervical radiculitis. (Tr. 204). An MRI of the cervical
spine showed degenerative changes at C3-4, C4-5 and C5-6 with more severe findings at
C6-7. (Tr. 198). Dr. Roman recommended that Plaintiff see a neurosurgeon for his neck

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problems. (Tr. 196). The neurosurgeon, Marcos Amongero, M.D., did not feel that
surgery was justified since the MRI showed left-sided disc herniation, and Plaintiff
experienced right-sided symptoms. (Tr. 194).
Plaintiff’s pain continued. (Tr. 280-81). In February 2004, he sought out a second
opinion from neurosurgeon Gary E. Kraus. Dr. Kraus found decreased sensation to the
right thumb and first finger. He noted that Plaintiff complained of neck pain and
tenderness along his shoulders and neck. (Tr. 171). He recommended a repeat MRI,
which again showed the multilevel findings with the most prominent finding being a
leftward disc herniation at C6-7. There was also a significant centralized disc herniation
at C7-T1, which showed a significant inferior and slight superior migration into the
anterior epidural space. This finding was similar to those described on the MRI in
February 2003. (Tr. 170). Dr. Kraus recommended therapy. (Tr. 169). Plaintiff attended
therapy to learn a home exercise program in May 2004. (Tr. 172-74). He was also given
a home traction unit. (Tr. 176).
However, Plaintiff continued to have pain. In July 2004, he reported to Dr. Kraus

that he continued to have pain from the neck down through both upper extremities.
Plaintiff felt it traveled in the right upper extremity to the first, second, and third digits,
and on the left upper extremity to the thumb. Mr. Gross also had a repeat MRI of the
cervical spine performed on July 15, 2004. This showed herniated nucleus pulposus at
C6-7 with a compression of the dural sac on the anterior and along the cervical cord,

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greater on the left than on the right. There was a small disc bulge at C7-T1, compressing
this cord slightly to the right of midline. Dr. Kraus discussed options with Plaintiff and
recommended a discectomy. (Tr. 256). A cervical fusion at C6-7 and discectomy was
carried out on September 3, 2004. (Tr. 180).
A month after surgery, Plaintiff reported to Dr. Watson that he was pushing to get
his arms and thumbs to work so that he could go back to work. However, whenever he
pushed himself to work he got more pain. (Tr. 277). In May 2005, Plaintiff reported to
Dr. Watson that when he uses his arms they "quit working or they feel like his hands are
swelling." (Tr. 274). He felt his hands were less coordinated. He described, for example
that "he was trying to drive some screws that he could not completely screw in and he
tried to tap them in and suddenly he realized that his right arm was slow to come up, he
could not hit the nail or it was not producing any force or any coordination." (Id.) Dr.
Watson continued to monitor Plaintiff’s pain. (Tr. 271). He sent Plaintiff for physical
therapy. Plaintiff attended three sessions. (Tr. 267).
In July 2005, the State Agency sent Plaintiff to Loraine Glasser, M.D. for physical
examination. (Tr. 210-18). Dr. Glasser noted that Plaintiff was a massively obese
middle-aged man who ambulated with a normal gait and had limited range of motion of
the cervical spine. (Tr. 211). A State Agency physician reviewed the file following this
examination and concluded that Plaintiff could perform medium work exertionally. (Tr.
243). However, he noted that postural limitations could not be performed more than
occasionally. (Tr. 244).

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In March 2006, Plaintiff was able to get into pain management at the Cincinnati
Center for Pain Relief where he was seen by various physicians. (Tr. 314-28). On initial
examination, Plaintiff could only flex and extend his neck minimally with some
discomfort. There was also discomfort with lateral rotation. (Tr. 327). Plaintiff also
reported tingling in his bilateral upper extremities. The pain doctor started Plaintiff on
Lyrica and Kadian. (Tr. 328). In June 2007, Jamal Jobalia, M.D. tried a series of cervical
epidural steroid injections. (Tr. 314, 316, 318, 356).
Plaintiff also began having greater difficulties with his hands. (Tr. 354). An EMG
of the upper extremities on January 30, 2008 showed moderately severe bilateral median
nerve lesions at the wrists. (Tr. 352, 392). Dr. Jobalia also felt that there was bilateral
old neural nerve entrapment at the elbow, which was moderately severe. He noted
continued problems with the neck as well. (Tr. 353).
Because of continued problems with his neck, Plaintiff saw another neurosurgeon,
John B. Jacquemin, M.D., on May 19, 2008. (Tr. 477-78). On physical examination,
there was a decrease in sensation throughout both hands. (Tr. 477). X-rays of the neck
showed a fusion at C6-7 with a plate. Dr. Jacquemin noted the patient appeared to have a
static retrolisthesis at C5 on C6 with disc degeneration. He recommended a new MRI of
the cervical spine. (Tr. 478). The MRI showed a moderate stenosis at C5-6 level. Dr.
Jacquemin recommended cervical revision of the neck with an autograft. (Tr. 476).

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Plaintiff underwent surgery on June 25, 2008, for removal of the anterior cervical
plate at C6-7. He also had a complete and radical discectomy at C5-6 with an autograft
fusion at that level and an anterior cervical plate. (Tr. 451). Dr. Jacquemin surgically
observed a “tremendous amount of scar tissue” in the neck, which had to be “taken
down.” (Tr. 452). Dr. Jacquemin also noted a “tremendous amount of scar tissue over
the transverse region of the old transverse carpal ligament and the nerve. (Tr. 453). The
nerve was dissected from the scar tissue and partially released. (Tr. 453).
Plaintiff reported doing well after surgery with noticeable improvement in his neck
pain and right upper extremity symptoms. (Tr. 474). By September 2008, Dr. Jacquemin
felt Plaintiff was doing well. Plaintiff was very happy with the improvement in his neck
and arm symptoms. Dr. Jacquemin recommended he continue activity as tolerated and
scheduled his left arm for surgery. Left ulnar nerve and decompression of the left carpal
tunnel release was performed in the fall of 2008. (Tr. 472). By mid-December 2008,
Plaintiff reported that he felt significantly better with respect to the neck and right arm.
He still had some posterior neck pain on the right but his right arm was 100% better.
Plaintiff felt that the left arm was getting better but it was not as dramatically improved.
(Tr. 471).
By April 2009, Plaintiff reported he was feeling much better and looking for work
though he did still have some numbness in his left hand. X-rays continued to show
hardware in the appropriate position and the fusion appeared complete. (Tr. 470).

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In addition to his physical problems, Plaintiff has had significant problems with his
mental health. For example, as early as 1998, he reported problems with anxiety noting
that he shook and wrung his hands. His aunt gave him a sample of Xanax and that made
him feel like a miracle man. Dr. Watson continued Xanax for generalized anxiety
disorder. (Tr. 308). Dr. Watson's records indicate Plaintiff did well with anxiety but felt
he was completely dysfunctional without Xanax. (Tr. 298).
In addition to the anxiety, Plaintiff reported problems with depression due to his
continued pain. He was sent by the State Agency for a psychological evaluation in July
2005. (Tr. 219-223). During the evaluation, Dr. Chiappone noted that Plaintiff walked
slowly and awkwardly. He complained of pain and appeared uncomfortable sitting for
any duration. (Tr. 220). Plaintiff emphasized that he did not have a lot of pain with
sitting, but during the duration of the interview he appeared to have some difficulty.
(Tr. 221). Plaintiff came across as slightly anxious and uncomfortable being evaluated.
He appeared depressed with decreased energy and made depressive statements. Although
he stated he never cried, he teared up at one point during the interview. On mental status
examination Plaintiff remembered one of three objects with interference and three of
three objects with five-minute delay. (Tr. 221).
Dr. Chiappone diagnosed a pain disorder due to both psychological disorder and
general medical condition (depression), along with an anxiety disorder not otherwise

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specified. Dr. Chiappone assigned a Global Assessment of Functioning (“GAF”) of 48.2
(Tr. 222). Dr. Chiappone concluded that Plaintiff could understand simple one-and twostep instructions. Dr. Chiappone noted Plaintiff was mildly if not moderately impaired in
his ability to relate to coworkers, supervisors and the public. "He related fairly well with
the evaluation but he would have difficulty with give and take on job sites and would
have difficulty with crowds." (Tr. 221). Dr. Chiappone also noted that, “Given his pain,
he would probably have an overreaction to feedback in dealing with others. He is
moderately to severely impaired in his ability to carry-out and persist over time due to the
pain and depression." Id.
A State agency psychologist reviewed the file following this examination. He
concluded that Plaintiff would be able to perform simple repetitive tasks and stated the
opinion of the consultative examiner was given weight. (Tr. 224-241).
Plaintiff attended therapy with Thomas W. Heitkemper, Ph.D. beginning in July of
2006. (Tr. 329-45, 358-62, 456). In a letter dated March 17, 2008, Dr. Heitkemper
described the problems to the treating pain specialist Dr. Jobalia. He noted that his
working diagnosis for Plaintiff included major depressive disorder, anxiety not otherwise
specified, and a personality disorder not otherwise specified. (Tr. 358).

2

The Global Assessment of Functioning (“GAF”) is a numeric scale (0 through 100)
used by mental health clinicians and physicians to subjectively rate the social, occupational, and
psychological functioning of adults, e.g., how well or adaptively one is meeting various
problems-in-living. A score of 41-50 indicates serious symptoms (e.g., suicidal ideation, severe
obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or
school functioning (e.g., no friends, unable to keep a job).
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In addition to seeing Dr. Heitkemper, Plaintiff saw a nurse psychiatrist at the South
Suburban Mental Health Center for medication management. (Tr. 366-89, 492-499). A
certified nurse practitioner, S. Jean Budding, CNS, BC, also diagnosed Plaintiff with a
major depressive disorder and a generalized anxiety disorder. (Tr. 366).
In February 2008, Plaintiff was evaluated by Dennis J. Schneider, Ed.D. for a
possible spinal cord stimulator implant. (Tr. 466). Plaintiff acknowledged that he had
problems with depression. He noted symptoms that included the neglect of hygiene –
failing to bathe for two or three days. Also during these depressive episodes he will not
answer the phone or go outside if he is home. (Tr. 467). Plaintiff also reported problems
with anxiety attacks that occurred once or twice a month. He had been having these
attacks since 1998. On mental status examination, Dr. Schneider noted that Plaintiff’s
affect was appropriate but restricted. His speech volume was low and his rate of speech
was deliberate. His concentration was good and style of thinking was concrete. An
MMPI-23 was administered and showed no indications of symptom magnification or
exaggeration. (Tr. 468). However, because of Plaintiff’s significant level of
psychological distress and depression, Dr. Schneider did not feel Plaintiff was an optimal
candidate at the time for spinal cord stimulators. "It is quite likely that psychological
factors are playing a significant role in both his perception of pain, as well as maintaining

3

The MMPI-2 is the most widely used and widely researched test of adult
psychopathology used by clinicians to assist with the diagnosis of mental disorders adn the
selection of appropriate treatment methods.
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it. Therefore he is at risk for having limited or no significantly relief from a spinal cord
stimulator." (Tr. 468). Dr. Schneider felt that continued psychotherapy would be
appropriate. (Id.)
At the hearing, Plaintiff agreed that his neck was much better since his surgery in
2008. "The surgery in 2008 was a successful as it was going to get, I do believe." (Tr.
525). Plaintiff noted that he was trying to go back to work, although he was unsure what
limitations he might have. (Tr. 525-26). Plaintiff testified that the first surgery on his
neck made his head tilt somewhat forward and his shoulders up and he had difficulty with
mobility in his neck. (Tr. 526). The second surgery put the fusion in a different place on
the right side where he complained his pain came from. This gave him greater range of
motion in his neck. (Tr. 527). Plaintiff testified that he still has problems with his
thumbs at their base. (Id.) He also still has some back issues. "There is pain in my neck
which doesn't allow me to get restful sleep." (Tr. 528). Additionally, Plaintiff has pain in
his left shoulder. (Tr. 528). Plaintiff estimated that now he could pickup a gallon of milk
but he cannot always pour it. (Tr. 529-30).
A medical expert, Dr. Malcolm Brahms, testified. (Tr. 530-39). After reviewing
the evidence, he concluded that Plaintiff did not meet or equal any listing, but he felt
Plaintiff would be limited to sedentary work. (Tr. 533). In addition, Dr. Brahms did not
think that Plaintiff could use his hands for fine manipulation or overhead work more than
occasionally. (Tr. 534). Dr. Brahms initially noted that he did not think there would be

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any restrictions on standing or walking. (Id.) However, on cross-examination, he agreed
that an ability to sit/stand at will would be a reasonable accommodation to help Plaintiff
complete an eight-hour workday, especially given his obesity. (Tr. 536-37, 539). Dr.
Brahms also agreed that it would be reasonable based on the record that Plaintiff would
sometimes be limited to working only about six hours a day. (Tr. 538).
A vocational expert testified at the hearing. She was asked to consider a person of
Plaintiff’s age, education, and work history who was limited in the manner ultimately
found by the ALJ. (Tr. 540-42). The vocational expert found there were other jobs such
a person could perform such as toy stuffer, nut sorter, and surveillance system monitor at
the sedentary level. She indicated these jobs were representative of approximately 3,500
jobs in the region. (Tr. 542).
At the April 22, 2008 hearing, Plaintiff testified that he stopped working in July
2002 after he was injured at work. He underwent cervical fusion surgery and carpal
tunnel syndrome release surgery which were both successful. He testified that he suffered
form depression and anxiety and did not want to be around other people and only left his
house if it was a “must.” If he did have to go to a store, he got nervous if there was a line,
and often walked out without buying what he had picked up.
Plaintiff testified that he spent a typical day listening to music or watching
television or otherwise just sitting and ruminating. He helped clean the dishes a little and
helped with laundry, but did not do other housework. He drove his car three or four times

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a month and went grocery shopping once or twice a month. He did not nap during the
day but slept only about five hours at night.4
Plaintiff alleges that the ALJ’s finding at Step 5 of the sequential evaluation is not
supported by substantial evidence or Social Security’s rules.
Social Security Rule 96-9p notes that:
Most unskilled sedentary jobs required good use of both hands
and the fingers; i.e., bilateral manual dexterity. Fine
movements of small objects require use of the fingers; e.g., to
pick or pinch. Most unskilled sedentary jobs require good use
of the hands and fingers for repetitive hand-finger actions.
Any significant manipulative limitation of an individuals ability
to handle and work with small objects with both hands will
result in a significant erosion of the unskilled sedentary
occupational base.
Plaintiff maintains that he does not have good use of his hands, and under this
Ruling, the unskilled sedentary occupational base is significantly eroded, and, therefore, a
finding of disability is appropriate. However, “the mere inability to perform substantially
all sedentary unskilled occupations does not equate with a finding of disability.” SSR 969p. Specifically, the Ruling advises the ALJ to consult with a vocational expert (“VE”)
or the DOT to determine the extent of any erosion of the occupational base and examples
of any work the claimant may still be able to perform. SSR 96-9p. This is precisely what
the ALJ did in the instant case. Upon presenting the VE with an accurate hypothetical,

4

The new evidence submitted by the Plaintiff is dated long after the Plaintiff’s date
last insured and shows that Plaintiff’s weight is now down to 265 pounds and that he has
continued to receive treatment for his impairments, with some improvement in his neck
symptoms following a second surgery in June 2008. (Tr. 23).
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including Plaintiff’s limited use of his hands – the ALJ considered the VE’s testimony,
identifying 3,500 jobs in the region. (Tr. 541-42).
This Court is mindful of the directive in SSR 96-9p; however, the VE’s testimony
supports a finding that jobs remain, even given limitations related to Plaintiff’s manual
dexterity. For disability determinations, the Commissioner may rely on the MedicalVocational Guidelines, even when there is a non-exertional impairment, as long as the
impairment does not significantly diminish an individual’s capacity to perform sedentary
work. Bapp v. Bowen, 802 F.2d 601, 605 (2n Cir. 1986). Moreover, it is critical to point
out that no physician ever opined that Plaintiff lacked the physical ability (or manual
dexterity) to perform work. The Medical Expert suggested a reduced range of sedentary
work, while the state agency physicians opined that Plaintiff could perform a reduced
range of medium work. (Tr. 25, 243-49, 533-35, 537-38). While this Court finds that
there is significant evidence that Plaintiff was in pain and had limitations, there is no
objective medical evidence that the pain was disabling.
Plaintiff’s representation that the VE was “mistaken” about the DOT requirements
for the nut sorter position does not require remand, because Plaintiff has not shown that
the ALJ was aware of the alleged conflict prior to issuing his decision. Martin v. Comm’r
of Soc. Sec., Case No. 04-4551, 170 Fed. Appx. 369, 374 (6th Cir. 2006) (while the court
agreed that a conflict existed between the VE’s testimony and the DOT, the conflict was
not apparent during the hearing and there is no affirmative duty on the ALJ to conduct an

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independent investigation into the testimony). Moreover, even if Plaintiff can point to
information in the DOT that is contrary to the VE’s testimony, he still has not shown an
actual conflict. Lindsley v. Comm’r. of Soc. Sec., 560 F.3d 601, 605 (6th Cir. 2009) (“the
DOT contains information about most, but not all, occupations. Moreover . . . the DOT’s
job classifications are collective descriptions of occupations that can encompass
numerous jobs . . . . The fact, therefore, that a VE and the DOT might use different
terminology to describe employment positions does not establish that a conflict exists.”).
To the extent an implied or indirect conflict exists, the VE adequately explained her
reasons for deviating from the DOT job descriptions. See Washington v. Astrue, No. 407-cv-770-Y, 2009 U.S. Dist. LEXIS 16621 at *3-4 (N.D. Tex. Mar. 3, 2009).
B.
Next, Plaintiff maintains that the ALJ erred in his evaluation of Plaintiff’s mental
impairments. Plaintiff focuses on the fact that Dr. Chiappone notes that “[g]iven his pain,
he would probably have an overreaction to feedback in dealing with others. He is
moderately to severely impaired in his ability to carry-out and persist over time due to the
pain and depression.” The ALJ discounted these limitations, based on the notes from
Plaintiff’s primary care physician, Dr. Watson, which indicate that “the claimant’s
anxiety caused not more than mild to moderate symptoms.” (Tr. 26).5 Moreover, Dr.

5

Additionally, Dr. Watson addressed Plaintiff’s functionality with medication. This is
substantial evidence that Plaintiff’s mental impairments were not disabling. See, e.g., Harris v.
Heckler, 756 F.2d 431, 436 n.2 (6th Cir. 1967) (“Sixth Circuit has consistently held that if a
condition is remediable through medication or treatment, it is not disabling for purposes of a
social security determination.”).
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Chiappone did not find that Plaintiff was unable to work – he opined simply that Plaintiff
had moderate-to-severe limitations in his persistence and assigned a functional GAF score
of 55, which is consistent with moderate limitations. (Tr. 221). Moreover, Dr.
Chiappone’s findings are addressed by the ALJ’s RFC limitations for non-complex and
low stress work (defined as no fixed production; no above average pressure for
production; no non-routine work; no hazardous work). Additionally, this Court declines
to give more deference to the opinion of a one-time examiner over Plaintiff’s long-time
treating physician. See 20 C.F.R. § 404.1527(d)(2).6
C.
Finally, Plaintiff alleges that the ALJ erred in his evaluation of pain and other
symptoms. Plaintiff alleges that his pain left him unable to sustain even the very limited
range of sedentary work identified by the ALJ until he recovered from the 2008 surgery.
Additionally, Plaintiff maintains that the ALJ never mentioned the significant amount of
scar tissue present in both his neck and wrists when Plaintiff finally found a surgeon
willing to address his pain problems. (Tr. 27).
First, no doctor ever opined that the 2008 surgical findings were present during the

6

However, this Court does acknowledge that Dr. Chiappone is a mental health
specialist, while Dr. Watson is not. However, on balance, considering the length of Dr. Watson’s
treatment, and the fact that Dr. Chiappone does not allege severe limitations or disability, the
Court finds that the ALJ properly considered Plaintiff’s mental impairments.
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relevant time frame,7 and even assuming that Plaintiff could prove a causal relationship
between the scar tissue found in 2008 and his pain, he has no evidence that the scar tissue
existed at any time prior to his date last insured. Torres v. Astrue, 1:10cv109, 2011 U.S.
Dist. LEXIS 81203, at *32 (S.D. Ohio July 26, 2011) (“documents generated after
expiration of insured status are generally only ‘minimally probative’ and courts consider
them only to the extent that they actually illuminate a claimant’s health before expiration
of insured status”).8 Moreover, the objective findings of Drs. Glaser and Kraus in 2004
and 2005 provided substantial evidence that Plaintiff, despite his pain, was not limited in
his neck movement, his strength, or his use of his hands. Additionally, Plaintiff fails to
point to any evidence indicating that the ALJ should have found him disabled based on
his allegations of pain.
Ultimately, while Plaintiff may disagree with the ALJ’s decision, his decision is
clearly within the “zone of choices” afforded to him. Mullen v. Bowen, 800 F.2d 535,
545 (6th Cir. 1986) (“The substantial evidence standard allows considerable latitude to
administrative decision makers. It presupposes that there is a zone of choice within which
the decision makers can go either way, without interference.”). Although this is a close

7

Plaintiff was required to establish that he was disabled on or before December 31,
2005, the date his insured status expired for purposes of Disability Insurance Benefits. Garner v.
Heckler, 745 F.2d 383, 390 (6th Cir. 1984). While Plaintiff was not required to prove he was
disabled for a full twelve months prior to the expiration of his insured status, he was required to
prove “the onset of disability” prior to the expiration of his insured status and that such disability
lasted for a continuous period of twelve months. Gibson v. Sec’y, 678 F.2d 653, 654 (6th Cir.
1982). 42 U.S.C. § 423(d)(1)(A).
8

See also Gober v. Astrue, No. 1:10cv532, 2011 U.S. Dist. LEXIS 78928, at *24 (S.D.
Ohio June 20, 2011) (“post insured status evidence of new developments in [a claimant’s]
condition is generally not relevant”).
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case, the issue is not whether the record could support a finding of disability, but rather
whether the ALJ’s decision is supported by substantial evidence. Casey v. Sec’y of
Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993). Accordingly, the Court
finds that the ALJ’s decision is supported by substantial evidence.
III.
For the foregoing reasons, Plaintiff’s assignments of error are unavailing. The
ALJ’s decision is supported by substantial evidence and is affirmed.
IT IS THEREFORE ORDERED THAT the decision of the Commissioner, that
Bill Groves was not entitled to disability insurance benefits, be found SUPPORTED BY
SUBSTANTIAL EVIDENCE, and AFFIRMED; and, as no further matters remain
pending for the Court’s review, this case be CLOSED.

1/3/2012

Date:
Timothy S. Black
United States District Judge

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