Bullman v. Commissioner of Social Security

Filing 18

ORDER THAT: (1) THE ALJ'S NON-DISABILITY FINDING IS FOUND NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, AND REVERSED; AND (2) THIS MATTER IS REMANDED TO THE ALJ UNDER THE FOURTH SENTENCE OF 42 U.S.C. § 405(g). Signed by Judge Timothy S. Black on 9/23/2014. (mr1) Modified on 9/23/2014 (mr1).

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

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Case No. 3:13-cv-202
Judge Timothy S. Black

ORDER THAT: (1) THE ALJ’S NON-DISABILITY FINDING IS FOUND NOT
SUPPORTED BY SUBSTANTIAL EVIDENCE, AND REVERSED; AND
(2) THIS MATTER IS REMANDED TO THE ALJ
UNDER THE FOURTH SENTENCE OF 42 U.S.C. § 405(g)
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 not entitled to supplemental security income (“SSI”) and disability insurance
benefits (“DIB”). (See Administrative Transcript at Doc. 7 (“PageID”) (PageID 47-61)
(ALJ’s decision)).
I.
Plaintiff filed an application for SSI and DIB on May 21, 2010. (PageID 244-53).
Plaintiff alleged disability beginning in 1991 due to “fibromyalgia in feet and legs,
clubbed feet, bipolar disorder, nerve damage in right arm and leg, and depression.”
(PageID 202, 209, 278). Plaintiff later amended his onset date to March 22, 2010,
although he did not stop working until April 6, 2010. (PageID 241, 278).

A hearing was held on December 5, 2011 before an ALJ. (PageID 81). Plaintiff
was represented at the hearing by an attorney. (Id.) Both a vocational expert and a
medical expert appeared and testified by telephone. (Id.)
On March 20, 2012, the ALJ denied Plaintiff’s claim for benefits. (PageID 4466). Plaintiff’s request for review was denied by the Appeals Council, making that
decision the final administrative disposition of Plaintiff’s claim. (PageID 34-43).
Plaintiff then commenced this action in federal court for judicial review of the
Commissioner’s decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
Plaintiff was born on August 15, 1971 and was 38 years old at the time of his
hearing before the ALJ. (PageID 59). Plaintiff graduated from high school. (Id.)
Plaintiff’s past relevant work 1 includes 14 years as a production assembler as well as
shorter periods as an industrial sweeper/cleaner and a lawn mower. (PageID 97). 2
The ALJ’s “Findings,” which represent the rationale of his decision, were as
follows:
1. The claimant meets the insured status requirements of the Social Security Act
through September 30, 2015.
2. The claimant has not engaged in substantial gainful activity since March 22,
2010, the amended alleged onset date (20 CFR 404.1571 et seq.).

Past relevant work experience is defined as work that the claimant has “done within the last 15
years, [that] lasted long enough for [the claimant] to learn to do it, and was substantial gainful
activity.” 20 C.F.R. § 416.965(a).
1

Plaintiff worked at the same company from 1995 through March 2010, but was let go due to
“inappropriate action.” (PageID 431). Specifically, Plaintiff was suspended from work for using
marijuana. (PageID 51).
2

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3. The claimant has the following severe impairments: healed fractured right
clavicle; migraine headaches, status post jaw fracture and splenectomy;
cannabis abuse; diabetes mellitus; chronic pain; and bipolar disorder. (20 CFR
404.1520(c)).
4. The claimant does not have an impairment or combination of impairments that
meets or medically equals the severity of 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. The undersigned finds that the claimant has the residual functional capacity to
perform sedentary work as defined in 20 CFR 404.1567(a) subject to: lifting
and carrying 20 pounds occasionally and 10 pounds frequently;
standing/walking for two hours in an eight-hour day and sitting for six hours in
an eight-hour day; occasional climbing of ramps or stairs; no climbing of
ladders, ropes, no scaffolds; frequent bending, stooping, crouching, and
kneeling; occasional balancing; no overhead reaching on the right; no use of
hand controls on the right; no foot controls; no fine manipulation on the right;
occasional interaction with coworkers, supervisors, and the public; tasks that
are simple, routine, and repetitive in nature; no fast paced production quotas; in
a static low stress environment.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on August 15, 1971 and was 38 years old, which is
defined as a younger individual age 18-44, on the amended disability onset
date (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).
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. Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform (20 CFR 404.1569 and
404.1569(a)).
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11. The claimant has not been under a disability, as defined in the Social Security
Act, from April 1, 1991, through the date of this decision (20 CFR
404.1520(g)).
(PageID 49-60).
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 SSI or DIB. (PageID
60).
On appeal, Plaintiff argues that the ALJ erred by: (1) failing to acknowledge that
Plaintiff has “virtually no use” of his right, dominant upper extremity; (2) failing to
adequately establish the availability of other jobs through the vocational expert’s
testimony; (3) failing to incorporate migraine related limitations in the assigned RFC;
(4) failing to properly weigh the record’s treating and examining source evidence; and
(5) failing to articulate a proper credibility finding. The Court will address each error 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

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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).
A.
The record reflects that:
1. Claimant’s testimony and background
Plaintiff testified that he was in a serious motor vehicle accident in 1988 which
fractured his neck, jaw, right hip, multiple bones in his left leg, his left clavicle, and his
left elbow. (PageID 643-44). The crash also ripped his right arm out of its socket
causing extensive nerve damage. (Id.) Plaintiff underwent numerous surgical procedures

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to address these injuries and was placed in a halo. (Id.) He was only 16 years old at the
time. (PageID 645).
Plaintiff is right handed, but alleges that he has no good strength or use of his right
arm for performing tasks. (PaegID 646). Plaintiff claims that he cannot even open his
right hand without assistance from his left. (PageID 646-47). While the right arm
problems relate back to his car accident, they became significantly worse as he aged.
(PageID 647). When Plaintiff was working, he had some strength in his arm and was
able to use it to assist his left arm in performing work tasks, but that strength eroded and
ultimately disappeared over time. (PageID 650). Plaintiff explained that his right arm
could not assist because of his deteriorating condition. (PageID 676). Plaintiff’s feet also
bother him and make it difficult to stand or walk. (PageID 652-53). Plaintiff also suffers
migraine headaches lasting an average of five hours two or three times each month.
(PageID 654). When he is experiencing a migraine, he sits in one place and keeps his
head down. (PageID 673).
In addition to his physical problems, Plaintiff also struggles with bipolar disorder.
(PageID 671-72). He gets agitated and is not always successful in calming himself down
before snapping at others. (Id.) He also has bad depression days a couple of times per
month where he keeps to himself and generally stays in his bedroom. (PageID 672-73).
He has tried different medications in the past to improve his mental health, but only the
recent addition of Lithium led to improvement in his symptoms. (PageID 674).

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Unfortunately, his medications also come with significant side effects including daily
diarrhea. (PageID 674-75). He also generally naps after taking his medications. (Id.)
In terms of daily activities, Plaintiff watches television and naps. (PageID 655).
Occasionally, he watches movies with his children. (PageID 658). He eats simple meals,
like a bowl of cereal, a sandwich, or a can of soup. (PageID 655-56). He typically only
leaves his home two or three times per month. (PageID 656). He is not able to do much
to help around the house other than occasionally straightening up his room and
sometimes doing his laundry. (PageID 656-57).
2. Medical evidence of record
At all relevant times since 2005, Plaintiff’s primary care physician has been Dr.
Kanomata. (PageID 341-420, 442-560, 611-18). Dr. Kanomata’s notes largely reflect
treatment for periodic illnesses and Plaintiff’s bipolar disorder. (Id.) On January 18,
2005, Plaintiff began complaining to Dr. Kanomata of severe headaches. (PageID 370).
These complaints persisted and remained a major focus of Dr. Kanomata care. (PageID
367, 370-73, 379). On March 8, 2005, Dr. Kanomata diagnosed Plaintiff with migraine
headaches, noting that they have no definite triggers and were not alleviated by
medication. (PageID 374). Plaintiff continued to report headaches to Dr. Kanomata from
2005 through his hearing in 2011. (PageID 348, 350, 371, 444, 466, 470, 612).
Plaintiff underwent a leg length study on February 25, 2005. (PageID 577). The
study revealed that Plaintiff’s left leg was shorter than his right. (Id.) This was attributed
to marked medial compartment narrowing and overlap in Plaintiff’s left knee. (Id.)
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On March 12, 2005, Plaintiff consulted with a neurologist, Dr. Meltzer, regarding
his headaches. (PageID 333-35). Plaintiff explained that he has headaches at least every
three weeks and they last up to five hours. (Id.) He had no luck identifying any triggers
for them. (Id.) Dr. Meltzer opined that Plaintiff’s headaches are likely migraines and
prescribed medication. (Id.)
Plaintiff also consulted with a podiatrist, Dr. Joseph, on November 6, 2006. (Tr.
549). Dr. Joseph diagnosed Plaintiff with the residuals of his club foot deformity and an
infection of his left large toenail. (Id.)
On April 21, 2010, Plaintiff underwent a psychological evaluation with Dr.
Ramirez. (PageID 425-29). Plaintiff’s speech was pressured, his psychomotor activity
was hyperactive, and he demonstrated tangential thought associations and flight of ideas.
(PageID 427). Dr. Ramirez diagnosed bipolar disorder and assigned a GAF score of 50. 3
(PageID 429).
On July 8, 2010, Plaintiff was examined by a state agency consultant, Dr.
Onamusi. (PageID 431-37). Dr. Onamusi noted that Plaintiff walked with a mild,
unsteady, and somewhat wide-based gait. (PageID 432). He had difficulty getting on
and off the examination table due to his right arm. (Id.) Dr. Onamusi’s examination of
Plaintiff’s upper extremities was notable for “considerable atrophy and weakness in the
right upper extremity with diminished to absent reflexes.” (Id.) Dr. Onamusi noted that
The Global Assessment of Functioning (“GAF”) is a numeric scale (0 through 100) used by
mental health clinicians and physicians to rate subjectively the social, occupational, and
psychological functioning of adults. A score of 41-50 indicates serious symptoms or any serious
impairment in social, occupational, or school functioning.
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Plaintiff had lost the extension functions in his hand and wrist. (Id.) He diagnosed
Plaintiff with status post motor vehicle accident with multiple injuries and right upper
extremity weakness from a brachial plexus injury as well as bilateral clubbed feet with
deformities and gait disturbance. (PageID 433). Ultimately, Dr. Onamusi opined:
Based on information obtained during this evaluation, it is my opinion
that this patient should be able to engage in light physical demand
activities. He however has virtually no use of the right upper extremity
and therefore he would be able to engage only in one-handed light
physical demand level work activities.
(Id.)
In late 2010, two other state agency consultants also reviewed Plaintiff’s file and
commented upon his limitations. (PageID 135-45, 147-57). These consultants concluded
that Plaintiff was limited in his ability to use his right upper extremity for both gross and
fine manipulation; however, the extent of this limitation was not quantified. (PageID
141, 153). The state agency physicians opined that Plaintiff can use his right upper
extremity to push or pull objects for up to one third of each given workday. (Id.) They
also concluded that despite Plaintiff’s club foot deformities and the residuals of his
serious accident, he had no significant limitations in his ability to stand or walk as a part
of sustained work activity. (PageID 140, 152).
On October 18, 2010, Plaintiff’s longtime treating physician, Dr. Kanomata,
prepared a letter regarding Plaintiff’s impairments and limitations. (PageID 445). Dr.
Kanomata opined that Plaintiff’s right hand “is now atrophic and useless for any
meaningful occupation.” (Id.) He further explained that Plaintiff’s “inability of using the
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right hand makes it difficult to find any occupation.” (Id.) Dr. Kanomata ultimately
concluded that Plaintiff is not able to maintain gainful employment. (Id.) In October
2010, Dr. Kanomata also completed a brief questionnaire for Social Security. (PageID
565-66). In the questionnaire, Dr. Kanomata indicated that Plaintiff was unable to do all
activities due to his right arm injury because he is right-hand dominant. (Id.) Dr.
Kanomata also opined that Plaintiff is unable to stand for greater than one hour secondary
to his clubbed feet. (Id.)
A clinical psychologist, Dr. Kravitz, reviewed Plaintiff’s file and testified
regarding his mental impairments via telephone at the administrative hearing. (PageID
659-71). Dr. Kravitz limited his testimony to a discussion of Plaintiff’s psychological
impairments. (PageID 661). Dr. Kravitz explained that Plaintiff’s mental health
diagnoses include bipolar disorder and cannabis abuse in partial remission. (PageID 66162). Dr. Kravitz opined that Plaintiff’s daily activities are fairly limited, but that this is
primarily due to his physical condition. (PageID 663). Ultimately, Dr. Kravitz
concluded that Plaintiff has mild to moderate mental health related limitations and would
be limited to simple, repetitive tasks in a work setting requiring only occasional
superficial interactions with others and without frequent changes in the work routine.
(PageID 664-65).
3. The vocational expert’s testimony
A vocational expert, Suman Srinivasan, testified at Plaintiff’s administrative
hearing. (PageID 676-90). When posed a hypothetical mirroring the assigned residual
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functional capacity, she testified that such a worker could not perform Plaintiff’s past
relevant work, but that there would be other jobs at the sedentary level which could be
performed. (PageID 681-83). She later opined that if the hypothetical worker were offtask for greater than 3% of the workday, he would be unable to sustain any of the jobs
she identified. (PageID 687-88). When asked a hypothetical involving “virtually no
functional use” of the right upper extremity, Ms. Srinivasan testified that it would be
“very difficult” for such a worker to perform “any competitive work.” (PageID 689).
Lastly, she opined that the level of absenteeism consistent with Plaintiff’s migraine
headaches would be work preclusive. (Id.)
4. The ALJ’s decision
The ALJ found that Plaintiff has not engaged in substantial gainful activity since
his alleged onset date. (PageID 49). The ALJ determined that Plaintiff suffers from the
severe impairments of a healed fracture of his right clavicle, migraine headaches, status
post jaw fracture and splenectomy, cannabis abuse, diabetes mellitus, chronic pain, and
bipolar disorder. (PageID 49-54).
The ALJ’s residual functional capacity (“RFC”) 4 finding reads:
The undersigned finds that the claimant has the residual functional
capacity to perform sedentary work as defined in 20 CFR 404.1567(a)
subject to: lifting and carrying 20 pounds occasionally and 10 pounds
frequently; standing/walking for two hours in an eight hour day;
occasional climbing of ramps or stairs; no climbing of ladders, ropes,
or scaffolds; frequent bending, stooping, crouching, and kneeling;
occasional balancing; no overhead reaching on the right; no use of
“Residual functional capacity” is defined as the most a claimant can still do despite his or her
limitations. 20 C.F.R. § 404.1545(a).
4

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hand controls on the right; no foot controls; no fine manipulation on
the right; occasional interaction with coworkers, supervisors, and the
public; tasks that are simple, routine, and repetitive in nature; no fast
paced production quotas; in a static low stress environment.
(PageID 56).
The ALJ concluded that Plaintiff is incapable of returning to his past work.
(PageID 59). However, based upon Ms. Srinivasan’s testimony, there are a significant
number of jobs in the national economy which he can perform. (PageID 59-60). As a
result, the ALJ found that Plaintiff was not disabled under the Social Security Act.
(PageID 60).
B.
First, Plaintiff claims that the vocational expert’s (“VE”) testimony fails to
adequately establish the availability of other jobs. Specifically, Plaintiff argues that the
ALJ’s hypothetical questions to the VE were improper, because they did not include the
full extent of his right arm limitations or his migraine headaches.
First, with regard to migraines, counsel asked the VE whether Plaintiff would be
able to work if he was absent from work one to three times per month due to headaches.
(PageID 689). However, no medical professional, including Plaintiff’s own treating
physician, said his migraines would result in any absences from work. Plaintiff’s reports
of migraines and even their diagnosis does not prove their severity, nor does it translate
into any absences from work. Young v. Sec’y of HHS, 925 F.2d 146, 151 (6th Cir. 1990)
(diagnosis of impairment does not indicate severity of impairment). Accordingly, the
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ALJ was not required to include this limitation in the RFC. Casey v. Sec’y of HHS, 987
F.2d 1230, 1235 (6th Cir. 1993) (“It is well established that an ALJ may pose
hypothetical questions to a vocational expert and is required to incorporate only those
limitations accepted as credible by the finder of fact.”). The ALJ properly incorporated
Plaintiff’s limitations into the hypothetical question. Stanley v. Sec’y of HHS, 39 F.3d
115, 118 (6th Cir. 2004) (“the ALJ is not obliged to incorporate unsubstantiated
complaints into his hypotheticals”).
With respect to the right arm impairments, the VE was aware that Plaintiff’s right
arm injury dated back to 1988, that Plaintiff was right handed, and that he had a 15 year
working history subsequent to the injury. (PageID 643-645, 677). The VE clearly stated
that she had read Plaintiff’s file and listened to his testimony about these issues. (PageID
677). When the VE was asked a hypothetical question regarding Plaintiff’s ability to
work, including restrictions for “no overhead reaching on the right; no use of hand
controls on the right;” and “no fine manipulation on the right” (PageID 55, 682), the VE
testified that a significant number of regional jobs would be available. (PageID 683685). However, the ALJ failed to address the fact that Plaintiff was restricted in his
ability to perform gross manipulation. (PageID 141, 153). 5 Additionally, the assumption
that the hypothetical worker’s non-restricted hand would have necessarily taken over “the

Every medical source, including the state agency reviewers, opined that Plaintiff was limited in
his ability to use hand controls and perform both fine and gross manipulation. (Id.) No physician
opined consistent with the ALJ’s findings that Plaintiff’s only right arm limitations involve hand
controls, overhead reaching, and fine manipulation. Accordingly, failure to adopt such
restrictions is not supported by the record.
5

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functions of the dominant hand,” was not based upon any vocational observation or
occupational research, but instead on her own “little knowledge” of “the body.” (Id.)
This assumption undermines the reliability of the VE’s testimony because the VE was
plainly unqualified to offer this kind of quasi-medical opinion regarding the human body.
See 20 C.F.R. § 404.1527(2) and § 404.1513.
Accordingly, the ALJ’s reliance on the VE’s testimony that there were a
significant number of jobs for someone with Plaintiff’s right hand/arm restrictions is not
supported by substantial evidence. 6
C.
Plaintiff also argues that the ALJ erred when he found migraines to be a severe
impairment, but then failed to incorporate migraine related limitations in the assigned
RFC.
The ALJ noted that an MRI of Plaintiff’s head was normal, and in September 2011
Plaintiff reported that his migraines were under control with medication. (PageID 49,
51). No doctor ever rendered an opinion about any possible functional limitations
Plaintiff might have from his alleged migraine headaches. Ealy v. Comm’r of Soc. Sec.,
594 F.3d 504, 514 (6th Cir. 2010) (“the physicians who treated Ealy for these things
never recommended any ongoing significant restrictions.”). Furthermore, no treating

If the VE determines that Plaintiff’s gross right hand manipulation limitations are work
preclusive, the ALJ must determine the disability onset date, because it is nonsensical that
Plaintiff was disabled due to his right hand/arm on March 22, 2010, yet he continued to work
until April 6, 2010, when his job was terminated due to marijuana use.
6

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source ever opined as to what Plaintiff could or could not do because of his headaches,
and, therefore, the ALJ did not have an obligation to assign any weight to their treatment
notes. Bass v. McMahon, 499 F.3d 506, 510 (6th Cir. 2007) (“Since Dr. Naum made no
medical judgments, the ALJ had no duty to give such observations controlling weight or
provide good reasons for not doing so.”).
Moreover, many of the ALJ’s restrictions accounted for Plaintiff’s migraines. For
example, Plaintiff was restricted to simple, routine, repetitive tasks in a “static low stress
environment,” which would account for any concentration or attention problems his
migraines caused. (PageID 56). Additionally, a restriction to standing and walking only
two hours a day would allow Plaintiff to sit for the majority of the day, which would
account for the physical restrictions headaches may impose. (PageID 55).
Accordingly, the ALJ did not err when he failed to expressly incorporate migraine
related limitations in the assigned RFC.
D.
Next, Plaintiff claims that the ALJ failed to properly weigh the record’s treating
and examining source evidence. In assessing the physicians, the Court will also address
Plaintiff’s argument that the ALJ erred by failing to acknowledge that he has “virtually
no use” of his right, dominant upper extremity.
Generally, the medical opinions of treating physicians are afforded greater
deference than those of non-treating physicians. Rogers v. Comm’r of Soc. Sec., 486 F.3d
234, 242 (6th Cir. 2007). “Because treating physicians are ‘the medical professionals
15

most able to provide a detailed, longitudinal picture of [a claimant’s] medical
impairment(s) and may bring a unique perspective to the medical evidence that cannot be
obtained from the objective medical findings alone,’ their opinions are generally
accorded more weight than those of non-treating physicians.” Id. at 242 (quoting 20
C.F.R. § 416.927(d)(2)). A treating physician’s opinion is given “controlling weight” if it
is supported by “medically acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with other substantial evidence in the case record.” Id.
When a treating source opinion is not entitled to controlling weight, the
regulations provide that the ALJ must consider several factors when determining what
weight to give the opinion. 20 C.F.R. § 404.1527(d)(2), 416.927(d)(2). The factors
include: the examining relationship, the treating relationship (its length, frequency of
examination, and its nature and extent), the supportability by clinical and laboratory
signs, consistency, specialization, and other enumerated criteria. 20 C.F.R.
§ 404.1527(d), 416.927(d).
With respect to Dr. Kanomata’s opinion that Plaintiff was unemployable, the ALJ
explained that this opinion was given no weight since the determination of whether a
person is disabled requires application of law to fact, and is a matter “reserved to the
Commissioner.” SSR 96-5p (“Whether an individual is ‘disabled’ under the Act. The
regulations provide that the final responsibility for deciding issues such as these is
reserved to the Commissioner.”). The ALJ gave only limited weight to the rest of Dr.
Kanomata’s opinion because it was not “well supported by medically acceptable clinical
16

and laboratory diagnostic techniques.” (PageID 52). Cutlip v. Sec’y of HHS, 25 F.3d
284, 287 (6th Cir. 1994) (treating physician opinions are “only accorded great weight
when they are supported by sufficient clinical findings and are consistent with the
evidence”).
Specifically, Defendant criticizes Dr. Kanomata for failing to explain how Plaintiff
was able to maintain gainful employment from 1995 through 2010 despite his injury.
However, the Defendant fails to consider that there is no factual dispute that Plaintiff’s
condition and capabilities deteriorated over time. Dr. Kanomata’s opinion indicates that
Plaintiff’s right hand is “now atrophic and useless for any meaningful occupation
[emphasis supplied],” explaining that Plaintiff’s hand was not useless in the past, but had
atrophied to that point by the date he drafted his opinion. (PageID 445). Therefore, the
fact that Plaintiff was able to maintain gainful employment from 1995 through April 6,
2010 does not undermine Dr. Kanomata’s October 18, 2010 opinion that Plaintiff’s hand
is not atrophic, it simply creates an issue of fact as to when (between April 6, 2010 and
October 18, 2010) the hand atrophied to the point that it was “useless.”
With respect to Dr. Onamusi, a one-time examining source, the ALJ determined
that Dr. Onamusi did not adequately account for Plaintiff’s walking and standing
limitations. (PageID 50). Specifically, the ALJ discounted Dr. Onamusi’s opinion that
Plaintiff had “virtually no use of the right upper extremity and therefore he would be able
to engage in only one-handed light physical demand work.” (PageID 50, 433). The ALJ
discounted the opinion because it was not consistent with Dr. Onamusi’s notation that
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Plaintiff was able to drive, do housework, do laundry, manage his grooming, and lift and
carry up to 20 pounds. (PageID 431). However, there is no indication that Plaintiff
performs any of these activities with his right arm and/or hand. Defendant also claims
that Dr. Onamusi’s opinion regarding Plaintiff’s right arm was inconsistent with his
findings that Plaintiff’s “muscle power and tone were normal in all muscle group”; he
had “full and summetric reflexes in the elbows and wrists”; and “sensation to light touch
and pain was preserved in all extremities.” (PageID 432). However, Dr. Onamusi also
detailed that
Examination of the extremities revealed considerable atrophy and
weakness in the right upper extremity with diminished to absent reflexes
in the right upper extremity. He has predominantly loss of extension
functions in the hands and wrists and also weakness in the extensors in
the elbow. He also did have subjective sensory loss both to pain and
light touch and sensory discrimination in the right upper extremity.
(Tr. 432). Dr. Onamusi’s notations regarding normal extremity findings were plainly not
meant to apply to Plaintiff’s right upper extremities. Accordingly, the Court does not
find Dr. Onamusi’s opinion inconsistent.
The ALJ gave more weight to the assessment of Drs. Bolz and McCloud, the state
agency reviewing physicians, who concluded that despite Plaintiff’s migraine headaches,
history of club feet, and allegations of nerve damage in his right arm and leg, Plaintiff
could still perform light exertional work. Wisecup v. Astrue, No. 3:10cv325, 2011 U.S.
Dist. LEXIS 85455, at *19 (S.D. Ohio July 15, 2011) (“opinions of non-examining state
agency medical consultants have some value and can, under some circumstances, be
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given significant weight”). In November 2010, W. Jerry McCloud, M.D., completed a
separate review of Plaintiff’s medical record and affirmed Dr. Bolz’s recommendations
of light exertional work with some postural and right arm limitations. (PageID 152-154).
The ALJ noted that Drs. Bolz and McCloud’s conclusions that Plaintiff could perform
light work were consistent with Dr. Onamusi’s ultimate conclusion that Plaintiff was
capable of light exertional demands. (PageID 52, 433). Still, the ALJ found Drs. Bolz
and McCloud’s “assessment to be too optimistic in light of the claimant’s problems with
his feet.” (PageID 50-51). Therefore, the ALJ gave Plaintiff the benefit of the doubt and
“restricted [him] to standing and walking only two hours in an eight-hour day for
sedentary exertion.” (PageID 51). It is the Commissioner’s function to weigh the
medical evidence and resolve any conflicts. Hardaway v. Sec’y of HHS, 823 F.2d 922,
928 (6th Cir. 1987).
The state agency reviewers also opined that Plaintiff was limited in his ability to
use hand controls and to perform both fine and gross manipulation. (Tr. 141, 153).
However, the ALJ only limits Plaintiff’s use of hand controls and ability to perform fine
manipulation. (Tr. 56). The ALJ did not limit Plaintiff’s gross manipulation in either his
RFC or his hypotheticals to the VE. (Tr. 56, 682). The ALJ’s omission of gross
manipulation limitations and Dr. Onamusi’s “virtually no use” restriction is not harmless
because Plaintiff established that he cannot perform his past relevant work (Tr. 59), and
therefore it was the Commissioner’s burden to show that other work would be available
to Plaintiff despite his impairments. Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir.
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1994). That burden cannot be met here, where the hypotheticals used to elicit jobs from
the vocational expert do not accurately reflect all of Plaintiff’s limitations. Ealy v.
Comm’r, 594 F.3d 504 (6th Cir. 2010). This is particularly true since the VE testified
that Dr. Onamusi’s restriction about hand manipulation would compromise a worker’s
ability to perform any competitive job. (Tr. 689). No physician opined consistent with
the ALJ’s findings that Plaintiff’s only right arm limitations involve hand controls,
overhead reaching, and fine manipulation.
Accordingly, the ALJ failed to properly weigh the medical opinion evidence to
account for Plaintiff’s right arm limitations.
E.
Finally, Plaintiff maintains that the ALJ’s denial of benefits is not reasonably the
product of a supported and articulated credibility finding.
This Court is to “accord the ALJ’s determinations of credibility great weight and
deference particularly since the ALJ has the opportunity, which we do not, of observing a
witness’s demeanor while testifying.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 476
(6th Cir. 2003). See also SSR 96-7p (“In instances where the individual attends an
administrative proceeding conducted by the adjudicator, the adjudicator may also
consider his or her own recorded observations of the individual as part of the overall
evaluation of the credibility of the individual’s statements.”).
The ALJ discussed the fact that good reasons existed for questioning the reliability
of Plaintiff’s subjective complaints. (PageID 49-59). Cruse v. Comm’r of Soc. Sec., 502
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F.3d 532, 543 (6th Cir. 2007) (“[T]he record is replete with medical evidence that
Cruse’s symptoms were not as severe as she suggested.”). 7 For example, the ALJ
documented that Plaintiff’s medicine seemed to effectively control his mood and pain.
(PageID 51). In December 2010, medication had stabilized Plaintiff’s mood and he was
“doing well.” (Id.) In September 2011, Plaintiff reported that his migraines were under
good control with medication. (Id.) The ALJ also mentioned that Plaintiff’s treatment
was conservative and that he had no hospitalizations for either physical or mental
conditions. (PageID 52). Moon v. Sullivan, 923 F.2d 1175, 1183 (6th Cir. 1990)
(“Simply stated, though Moon alleges fully disabling and debilitating symptomatology,
the ALJ may distrust a claimant’s allegations of disabling symptomatology if the
subjective allegations, the ALJ’s personal observations, and the objective medical
evidence contradict each other.”).
Additionally, the ALJ noted that Plaintiff had stopped working, not due to any
physical or mental limitations, but because he was disciplined for using marijuana.
(PageID 51). Furthermore, despite complaints of chronic pain, Plaintiff did not attend
pain management or physical therapy which could address these issues. (PageID 58-59).
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

See also Chapman v. Astrue, No. 1:10cv155, 2011 U.S. Dist. LEXIS 53373, at *17 (S.D. Ohio
Mar. 10, 2011) (“[A]n ALJ is not required to accept a claimant’s subjective complaints and may
properly consider the credibility of a claimant when making a determination of disability.”).
7

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cast doubt on a claimant’s assertions of disabling pain.”). Additionally, Plaintiff had “no
treatment for his feet in the record” despite his allegations of club feet which make it
difficult for him to stand or walk. (Id.) SSR 96-7p (“the individual’s statements may be
less credible if the level or frequency of treatment is inconsistent with the level of
complaints.”). These inconsistencies negatively affect Plaintiff’s credibility. SSR 96-7p
(“One strong indication of the credibility of an individual’s statements is their
consistency, both internally and with other information in the case record”).
The ALJ also considered the fact that Plaintiff injured his right arm in a car
accident in 1988, yet earning records show substantial gainful activity from 1995 through
2010. (PageID 224). During this time, Plaintiff was able to walk and stand eight hours
per day and carry metal trays and coil that weighed between 20-25 pounds. (PageID 284285). Plaintiff also reported being able to do a wide variety of daily activities. Meyer v.
Comm’r of Soc. Sec., No. 1:09cv814, 2011 U.S. Dist. LEXIS 30490, at *32 (S.D. Ohio
Feb. 11, 2011) (“as a matter of law, the ALJ may consider [the claimant’s] household and
social activities in evaluating her assertions of pain or limitations”). For example, despite
his arm impairment, he noted that he was able to manage all of his self-care and personal
hygiene and that his arm only prevented him from working above shoulder height.
(PageID 297-298). Plaintiff was also able to do laundry, clean, drive a car, go to church,
shop for food at the grocery store, count change, and use a checkbook. (PageID 299300). He even retained the ability to lift and carry 20 pounds. (PageID 431). Smith v.
Comm’r of Soc. Sec., No. 1:09cv526, 2010 U.S. Dist. LEXIS 137391, at *17 (S.D. Ohio
22

Aug. 24, 2010) (“the ALJ also properly considered that plaintiff engaged in a variety of
daily activities, and it was appropriate for him to consider this factor in making his
credibility finding”).
Accordingly the ALJ’s credibility finding is supported by substantial evidence.
III.
A sentence four remand provides the required relief in cases where there is
insufficient evidence in the record to support the Commissioner's conclusions and further
fact-finding is necessary. See Faucher v. Sec’y of Health & Human Servs., 17 F.3d 171,
174 (6th Cir. 1994) (citations omitted). In a sentence four remand, the Court makes a
final judgment on the Commissioner’s decision and “may order the Secretary to consider
evidence on remand to remedy a defect in the original proceedings, a defect which caused
the Secretary’s misapplication of the regulations in the first place.” Faucher, 17 F.3d at
175. “It is well established that the party seeking remand bears the burden of showing
that a remand is proper under Section 405.” Culbertson v. Barnhart, 214 F. Supp. 2d
788, 795 (N.D. Ohio 2002) (quoting Willis v. Sec’y of Health & Human Servs., 727 F.2d
551 (6th Cir. 1984)).
IV.
The Court concludes that remand is appropriate in this matter because there is
insufficient evidence to support the ALJ’s decision.

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IT IS THEREFORE ORDERED that the decision of the Commissioner to deny
Brian Bullman benefits is REVERSED, and this matter is REMANDED under sentence
four of 42 U.S.C. § 405(g).
On remand, the ALJ shall: (1) pose hypothetical questions to the vocational expert
which accurately portray the claimant’s physical impairments – including, specifically,
restrictions for no right hand gross manipulation; (2) determine whether work is available
to Plaintiff despite his limitations; and (3) reassess Plaintiff’s residual functional capacity.
The Clerk shall enter judgment accordingly.
Date: 9/23/14

s/ Timothy S. Black
Timothy S. Black
United States District Judge

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