O'Laughlin v. Commisioner of Social Security et al

Filing 16

REPORT AND RECOMMENDATIONS - IT IS THEREFORE RECOMMENDED THAT: 1. The Commissioner's non-disability decision dated March 25, 2013 be affirmed; and 2. The case be terminated on the Court's docket. Objections to R&R due by 8/3/2015. Signed by Chief Magistrate Judge Sharon L. Ovington on 7/15/2015. (rms)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JAMES B. O’LAUGHLIN,
Plaintiff,

:
:
Case No. 3:14cv00191

vs.

:

CAROLYN W. COLVIN,
Commissioner of the Social
Security Administration,
Defendant.

:

District Judge Walter Herbert Rice
Chief Magistrate Judge Sharon L. Ovington

:
:

REPORT AND RECOMMENDATIONS1

I.

Introduction
Plaintiff James B. O’Laughlin brings this case challenging the Social Security

Administration’s denial of his applications for Disability Insurance Benefits and
Supplemental Security Income. He contends that Administrative Law Judge Mary F.
Withum – who denied his applications – made multiple errors that led to her to incorrectly
find that he was not under a “disability” and therefore not eligible for benefits.
The case is presently before the Court upon Plaintiff’s Statement of Errors (Doc.
#10), the Commissioner’s Memorandum in Opposition (Doc. #14), Plaintiff’s Reply (Doc.
#15), the administrative record (Doc. #6), and the record as a whole.

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Attached hereto is NOTICE to the parties regarding objections to this Report and
Recommendations.

Plaintiff seeks an Order reversing the Administrative Law Judge’s nondisability
decision and remanding this matter to the Social Security Administration for payment of
benefits. The Commissioner seeks an Order affirming the denial of Plaintiff’s
applications.
II.

Plaintiff’s Background
Plaintiff asserts here, as he did before the Social Security Administration, that he is

under a benefit-qualifying disability in part due to severe pain, particularly cervical and
shoulder pain from a broken neck and fusion surgery; traumatic brain injury; hernia and
surgical removal of muscle from his right abdomen; and bowel incontinence. Plaintiff
maintains that these and other health problems caused him to be unable to perform
substantial paid work starting on February 11, 2005.
Plaintiff was 29 years old on the date his alleged disability began, placing him in
the category of a “younger person” for purposes of resolving his applications for benefits.
See 20 C.F.R. §§ 404.1563(c); 416.963(c).2 He has a high-school education. A vocational
expert testified during an administrative hearing that Plaintiff’s past relevant employment
involved work as a “setter.”3 (Doc. #6, PageID# 116).
Plaintiff was seriously injured in a motor vehicle accident in early 2005. (PageID#

2

The remaining citations will identify the pertinent DIB Regulations with full knowledge of the
corresponding SSI Regulations.
3

The vocational expert meant “machine setter” or “machinist, as seen in his citation to the
Dictionary of Occupational Titles, 600.360-014. A machinist sets up and adjusts machine tools such as
lathes, milling machines, or drills and punch presses. Id.

2

367). Plaintiff informed Dr. Vitols, a consulting examiner, that he suffered a fracture of
the cervical spine, punctured liver and abdominal injuries that required a splenectomy. He
has undergone a cervical fusion. (Doc. #6, PageID# 630). He also told Dr. Vitols “that he
was paralyzed on the left side and that he could not walk. He was transferred to Drake
Center in Cincinnati where he underwent extensive rehabilitation ....” (PageID## 630-31).
And Dr. Vitols noted that Plaintiff “reports he apparently suffered breakage of the screw
and plate fixation of the cervical spine and reports that this was redone and estimates in
approximately 2009.” (PageID# 631).
During an administrative hearing in February 2003, Plaintiff testified that pain
medication prescribed by Dr. Allen helped to relieve his shoulder and upper-neck pain.
Unfortunately, his insurance would not continue to pay for that particular medication. At
the time of the hearing, he was taking Percoset, which helps ease his pain but does not
make him pain free and it causes constipation.
Plaintiff testified that he has 2 herniated discs in his lumbar spine (L4 and L5).
Injections helped alleviate his low-back pain for 3 to 4 weeks, but a physician told him that
he could only get an injection every 3 months. His pain is sharp “like a pulsating,
stinging.” (PageID# 99). On a good day when he takes medications, his pain level is
about 4 or 5 on a 1–10 pain scale (1 = light pain; 10 = emergency-room pain). Without
pain medication, his pain is usually 8 or 9, and it has reached the level of 10. He has
about an equal number of good days as bad each week. Plaintiff takes medication for
muscle spasms, but it makes him sick to his stomach.
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Plaintiff explained that he also experiences bowel incontinence that is
uncontrollable at times. He noted, “when it comes, I got to get up and go.... [I]t doesn’t
give me any warning.” (PageID# 101). This occurred about 3 to 4 times per month and
had happened since he began his home recovery in 2006, after his motor vehicle accident.
As to his daily activities, Plaintiff’s son usually wakes him up in the morning. He
makes his son something to eat, then lies down on the couch and watches his son watch
cartoons on TV. Depending on how much Plaintiff is hurting, he will get up and shower
around noon or 1:00 p.m. He usually accompanies his wife when she picks up his stepdaughter after school. Plaintiff added, “And that’s about the consistency of it. Me on the
couch....” (PageID# 103). He does the dishes and laundry but he cannot carry laundry
down steps. He cannot do laundry without his wife’s help because he cannot get up and
down the steps frequently enough. (PageID# 109). He sleeps “very uncomfortably” –
about 4 or 5 hours per night, at most. (PageID# 103). Sometimes he naps during the day
– sometimes 4 or 5 times; sometime no nap at all.
Plaintiff can walk about ½ block, then needs to take a break. He can stand for 10 or
15 minutes, then must sit down. He can alternate between sitting and standing if he
remains in one location. If Plaintiff sits in a reclined position, he can sit for 1 or 2 hours.
If he is not reclining, he can sit for 15 minutes at most before he starts hurting in his
“buttocks area.” (PageID# 106). He can kneel but is limited in his ability to stoop or
crouch because of low-back pain. He has lacked balance ever since his motor vehicle
accident. He uses the wall and counter tops when he walks in his house. He needs to use
4

the hand rails to walk down the stairs in his house.
Plaintiff has shoulder pain that does not prevent him from raising his arms in front
of him but limits his arm raising to the side. He estimated that he can lift about 10 to 15
pounds.
In 2012, not long before the administrative hearing, Plaintiff underwent surgery to
remove a “bulk mass” in his abdomen. Physicians were concerned it might be cancerous
(it wasn’t) so they removed part of his right oblique muscle. He testified that because of
this surgery, he had problems trying to sit up or move in certain positions.
III.

Medical Source Opinions
At the request of the Ohio Bureau of Disability Determinations, Dr. Vitols

examined Plaintiff in October 2011. Plaintiff reported to Dr. Vitols that he was
“independent with ADLs [activities of daily living]. He participates in household
activities and chores. He does not utilize any assistive devices for ambulation and does
drive. On an average day, he estimates that he can walk up to two to three city blocks. On
a flare up day or bad day, he reports he can barely leave the house.” (PageID# 631).
After examining Plaintiff, and considering his “clinical objective findings,” Dr. Vitols
opined that Plaintiff’s “functional capacity level is in the light capacity level.” (PageID#
636). Dr. Vitols explained, “He lost significant cervical motion and would have difficulty
performing activities that require cervical motion with associated muscle weakness of the
left arm, which adversely affects his ability to carry on work related activities on a
sustained level. [Plaintiff’s] right sacroiliitis likewise affects his ability to bend and twist at
5

the waist on an ongoing basis....” (PageID# 636).
Plaintiff’s treating physician Dr. Allen completed a form titled, “Functional
Capacity Evaluation,” in May 2012. He checked boxes indicating that Plaintiff had
significantly reduced range of motion, spinal deformity, impaired sleep, tenderness,
muscle spasm, muscle atrophy, and muscle weakness. Another checkmark indicated
Plaintiff was in “Severe Pain (would preclude the activity precipitating the pain.).”
(PageID# 767). Dr. Allen opined that Plaintiff could continuously sit for 2 hours,
continuously stand for 2 hours, and continuously walk for 2 hours. (PageID# 768). Dr.
Allen further believed that during an 8-hour workday, Plaintiff needed to walk 60 minutes
a day, 5 minutes at a time. Dr. Allen checked additional boxes indicating that Plaintiff
needed a job that permits him to shift position from sitting, standing, and walking; could
stand and walk, each less than a total of 2 hours during an 8-hour workday; and could sit
about less than 2 hours during an 8-hour workday. According to Dr. Allen, Plaintiff could
occasionally lift and carry up to 20 pounds in a competitive work situation, and he could
not bend, squat, crawl, climb, stoop, crouch, or kneel. He could occasionally reach for
things. Dr. Allen anticipated that Plaintiff’s impairments or treatment would cause him to
be absent from work, on average, 3 or more times per month. Significantly, Dr. Allen
believed that the earliest date Plaintiff’s limitations – i.e., those Dr. Allen identified –
applied was January 18, 2012. (PageID# 771)
The administrative record contains over 1100 pages, most of which are Plaintiff’s
medical records. A detailed description of these records is unnecessary because the
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undersigned has reviewed the entire administrative record and because both the ALJ and
Plaintiff’s repeatedly discuss the relevant records. The Commissioner defers to the ALJ’s
decision and otherwise discusses the relevant medical evidence in the course of her
arguments.
IV.

“Disability” Defined and ALJ Withum’s Decision
To be eligible for Disability Insurance Benefits or Supplemental Security Income a

claimant must be under a “disability” as the term is defined in the Social Security Act. See
42 U.S.C. §§423(a), (d), 1382c(a). The definition of the term “disability” is essentially the
same for both benefit programs. See Bowen v. City of New York, 476 U.S. 467, 469-70
(1986). Narrowed to its statutory meaning, a “disability” includes only physical or mental
impairments that are both “medically determinable” and severe enough to prevent the
applicant from (1) performing his or her past job and (2) engaging in “substantial gainful
activity” that is available in the regional or national economies. See Bowen, 476 U.S. at
469-70.
As noted previously, it fell to ALJ Withum to evaluate the evidence connected to
Plaintiff’s benefit applications. She did so by considering each of the 5 sequential steps
set forth in the Social Security regulations. See 20 C.F.R. § 404.1520(a)(4). Although she
reached significant conclusions at each sequential step, her more pertinent findings
occurred at Steps 2, 3, and 4.
At step 2, ALJ Withum found that Plaintiff has the severe impairments of
degenerative disc disease in the lumbar spine and cervical spine, left shoulder arthritis, and
7

depression. She further found that Plaintiff had non-severe impairments including “shaken
baby syndrome,” hypertension, broken neck, broken collarbone, neuropathy, headaches,
bowel incontinence, hip arthralgia, and hernia. (Doc. #6, PageID# 62).
At step 3, the ALJ concluded that Plaintiff does not have an impairment or
combination of impairments that meets or equals the severity of one in the Commissioner’s
Listing of Impairments.4 (PageID# 63).
At step 4, the ALJ concluded that the most Plaintiff could do in the workplace
despite his impairments – his so-called “residual functional capacity,” 20 C.F.R.
§404.1545(a) – consisted of the following:
[He] has the residual functional capacity to perform sedentary work ...
except that [he] must be allowed to alternate between sitting and standing at
will provided that he is not off task more than 5% of the work period. [He]
can never climb ladders, ropes, or scaffolds and must avoid all exposure to
unprotected heights. [He] can only occasionally climb ramps or stairs, stoop,
crouch, kneel, but no crawling. [He] can only push or pull with his left arm
and can only frequently bilaterally reach on the side. [He] can never reach
overhead bilaterally. [He] cannot repetitively rotate, flex, or extend his neck.
[He] is capable of understanding and carrying out multiple instructions and
can only occasionally interact with co-workers and supervisors.
(PageID# 65). The ALJ found that in light of these maximum workplace abilities,
Plaintiff could no longer work as a machinist. Further, at step 4, the ALJ recognized,
“There is no evidence in the record for treatment from 2005 through 2009.” (PageID#
66).
Still, there were other existing jobs he could do – polishing machine operator,

4

The Listings appear in the Regulations at 20 C.F.R. Part 404, Subpart P, Appendix 1.

8

sorting machine operator, and rotor assembler. He was therefore not under a disability,
according to ALJ Withum.
V.

Judicial Review
The Social Security Administration’s denial of Plaintiff’s applications for benefits –

here, embodied in ALJ Withum’s decision – is subject to judicial review along two lines:
whether the ALJ applied the correct legal standards and whether substantial evidence
supports the ALJ’s findings. Blakley v. Comm’r of Social Sec., 581 F.3d 399, 405 (6th Cir.
2009); see Bowen v. Comm’r of Social Sec., 478 F3d 742, 745-46 (6th Cir. 2007).
Reviewing the ALJ’s legal criteria for correctness may result in reversal even if the record
contains substantial evidence supporting the ALJ’s factual findings. Rabbers v. Comm’r
of Social Sec., 582 F.3d 647, 651 (6th Cir. 2009); see Bowen, 478 F3d at 746.
The substantial-evidence review does not ask whether the Court agrees or
disagrees with the ALJ’s factual findings or whether the administrative record contains
evidence contrary to those factual findings. Rogers v. Comm’r of Social Sec., 486
F.3d 234, 241 (6th Cir. 2007); see Her v. Comm’r of Social. Sec., 203 F.3d 388, 389-90
(6th Cir. 1999). Instead, substantial evidence supports the ALJ’s factual findings when “a
‘reasonable mind might accept the relevant evidence as adequate to support a
conclusion.’” Blakley, 581 F.3d at 406 (quoting Warner v. Comm’r of Social Sec., 375
F.3d 387, 390 (6th Cir. 2004)). Substantial evidence consists of “more than a scintilla of
evidence but less than a preponderance...” Rogers, 486 F.3d at 241.
VI.

Discussion
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A.

Medical Source Opinions

Plaintiff argues that the ALJ failed to properly apply the treating physician rule
when evaluating the opinion of his treating physician, Dr. Allen. Plaintiff reasons that Dr.
Allen’s opinion was based on medical evidence that Dr. Vitols did not have when he
evaluated Plaintiff. He further reasons that the ALJ should have credited Dr. Allen’s
opinions because he based them on objective test, MRIs, and pain management
procedures.
Social security regulations recognize several different types of medical sources:
treating physicians, nontreating yet examining physicians, and nontreating/recordreviewing physicians. Gayheart v. Comm’r Social Sec., 710 F.3d 365, 375 (6th Cir. 2013).
As a general matter, an opinion from a medical source who has
examined a claimant is given more weight than that from a source who has
not performed an examination (a “nonexamining source”), and an opinion
from a medical source who regularly treats the claimant (a “treating source”)
is afforded more weight than that from a source who has examined the
claimant but does not have an ongoing treatment relationship (a “nontreating
source”). In other words, “[t]he regulations provide progressively more
rigorous tests for weighing opinions as the ties between the source of the
opinion and the individual become weaker.” Soc. Sec. Rul. No. 96–6p, 1996
WL 374180, at *2 (Soc. Sec. Admin. July 2, 1996).
Gayheart, 710 F.3d at 375 (citing, in part, 20 C.F.R. §§ 404.1527(c)(1) and (2) (eff. April
1, 2012)).5 To effect this hierarchy, the Regulations adopt the treating physician rule. See
Gayheart, 710 F.3d at 375; see also Rogers, 486 F.3d at 242; cf. Bauer v. Astrue, 532 F.3d

5

The Social Security Administration has re-lettered 20 C.F.R. §404.1527 without altering the
treating physician rule or other legal standards. See Gentry, 741 F.3d at 723. The re-lettered version
applies to decisions, like ALJ Withum’s decision, issued on or after April 1, 2012.

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606, 608 (7th Cir. 2008) (“in fact the technical name for the ‘treating physician’ rule is the
‘treating source’ rule”). The rule is straightforward:
Treating-source opinions must be given “controlling weight” if two
conditions are met: (1) the opinion is “well supported by medically
acceptable clinical and laboratory diagnostic techniques” and (2) the opinion
“is not inconsistent with other substantial evidence in [a claimant’s] case
record.”
Gayheart, 710 F.3d at 376 (quoting 20 C.F.R. §404.1527(c)(2)); see Gentry, 741 F.3d at
723. If both conditions do not exist, the ALJ’s review must continue:
When the treating physician’s opinion is not controlling, the ALJ, in
determining how much weight is appropriate, must consider a host of
factors, including the length, frequency, nature, and extent of the treatment
relationship; the supportability and consistency of the physician’s
conclusions; the specialization of the physician; and any other relevant
factors.
Rogers, 486 F.3d at 242 (citing Wilson, 378 F.3d at 544).
As to non-treating medical sources, the regulations require ALJs to weigh their
opinions “based on the examining relationship, (or lack thereof), specialization,
consistency, and supportability, but only if a treating-source opinion is not deemed
controlling.” Gayheart, 710 F.3d at 376 (citing 20 C.F.R. §404.1527(c)).
In the present case, the ALJ’s evaluation of Dr. Allen’s opinions applied the correct
legal standards, and substantial evidence supports the ALJ’s decision to place little to no
weight on Dr. Allen’s opinion. The ALJ acknowledged that Dr. Allen was a treating
source under 20 C.F.R. § 404.1527(c)(2). Despite this treating relationship with Plaintiff,
however, the ALJ concluded that Dr. Allen’s highly restrictive opinions were not

11

consistent with the evidence in the record, including his own treatment notes. (PageID
#70). Substantial evidence supports this reason for discounting Dr. Allen’s opinions. For
example, in January 2012, Dr. Allen noted that Plaintiff only needed pain management
since he had no acute complications. (PageID## 70, 685-86). In July 2012, only one
month after completing the May 2012 functional capacity evaluation, Dr. Allen noted that
Plaintiff’s shoulder injections worked well for Plaintiff, and he had normal range of
motion in his neck. (PageID## 70, 959). Thus, the ALJ reasonably found that Dr. Allen’s
own treatment notes showing a favorable response to treatment contradicted his very
restrictive May 2012 functional assessment. (PageID# 70); cf. Her v. Comm’r of Soc.
Sec., 203 F.3d 388, 389-90 (6th Cir.1999) (“Even if the evidence could also support
another conclusion, the decision of the Administrative Law Judge must stand if the
evidence could reasonably support the conclusion reached.”). In addition, Dr. Allen
repeatedly referred to Plaintiff’s “chart” without providing any meaningful explanation in
support of his opinions. (PageID## 765-71). Given this, the “supportability” factor did
not favor crediting Dr. Allen’s opinions. The regulations explain, “The better an
explanation a source provides for an opinion, the more weight we will give that
opinion....” 20 C.F.R. §404.1527(c)(3); see White v. Comm’r of Soc. Sec., 572 F.3d 272,
286 (6th Cir. 2009) (“[C]onclusory statements from physicians are properly discounted by
ALJs.”).
Further, Dr. Allen’s findings were inconsistent with other evidence in the record,
such as the contemporaneous May 2012 examination by orthopedist Dr. James
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Decaestecker, who found that Plaintiff had normal range of motion, no edema, and no
tenderness. (PageID## 70, 1039). Given this, Dr. Allen’s opinions were not due
controlling weight under the treating physician rule, and the “consistency” factor weighed
against fully crediting Dr. Allen’s opinions. See 20 C.F.R. §§ 404.1527(c)(2)-(3). The
ALJ properly considered that, unlike Dr. Decaestecker, Dr. Allen is a general practitioner,
not an orthopedic specialist. (PageID## 70, 681-763). Additionally, some of Dr. Allen’s
findings had no basis, such as a limitation to driving only occasionally, which contradicted
Plaintiff’s testimony that he drove often. (PageID## 70, 93, 770). The ALJ also properly
considered that Dr. Allen had a limited treatment history with Plaintiff and had only seen
him on a monthly or bimonthly basis since the beginning of 2012 at the time of his May
2012 opinion. (PageID## 70, 681-763); see 20 C.F.R. §404.1527(c)(2)(i) (the longer and
the more frequently a medical source has treated a claimant justifies placing more weight
on that treating source’s opinions).
Plaintiff further contends that the ALJ erred by not considering Dr. Vitols’s October
2011 finding that he could not carry on work-related activities on a sustained level. Yet,
Dr. Vitols did not make this finding. Rather, based on the findings of his October 20, 2011
examination, Dr. Vitols found that Plaintiff was capable of doing the exertional demands
of light work. (PageID# 636). Dr. Vitols also found that, because Plaintiff had lost
significant cervical motion, he would have difficulty performing activities that required
cervical motion with associated weakness of the left arm, and that this specific difficulty
would adversely affect his ability to carry out work related activities on a sustained level.
13

(PageID# 636). In other words, Plaintiff’s cervical-motion loss adversely affected his
ability to perform work activities requiring cervical motion on a sustained basis. Thus, the
ALJ correctly determined that these findings were not work preclusive, but instead were
limitations as to the frequency and type of movements Plaintiff could perform with his
neck, shoulders, and arms. (PageID# 70). The ALJ specifically noted that the limitations
she incorporated into her assessment of Plaintiff’s residual functional capacity dealt with
the cervical conditions noted by Dr. Vitols, as well as other objective medical evidence.
(PageID# 70, n.3). Specifically, the ALJ limited Plaintiff to “no repetitive rotation,
flexion, or extension of the neck,” and restricted him from more than occasionally pushing
or pulling with his left arm and from more than frequent bilaterally side-reaching. Id.
Plaintiff also could never reach bilaterally overhead or crawl. Id. Additionally, the ALJ
also found that Plaintiff had additional nonexertional restrictions (PageID 65). The ALJ
then posed to the vocational expert a hypothetical incorporating Plaintiff’s residual
functional capacity, which included these nonexertional limitations plus the ability to do
sedentary work and the need to alternate between sitting and standing at will. (PageID##
1116-20). The vocational expert testified that there was work existing in significant
numbers that such an individual with these limitations could perform. Id. In light of this,
the ALJ reasonably found that the cervical limitations noted by Dr. Vitols were not
work-preclusive. (PageID# 70).
Accordingly, Plaintiff’s challenges to the ALJ’s weighing of the medical source
opinions lack merit.
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B.

Plaintiff’s Remaining Contentions

Plaintiff contends that the ALJ erred by failing to find that his severe impairments
include “broken neck and bowel incontinence,” as well as the muscle mass in his abdomen
that he had for more than 12 months and that continued to limit him after it was surgically
removed.
As set forth previously, supra, §IV, ALJ Withum found that Plaintiff has the severe
impairments of degenerative disc disease in the lumbar spine and cervical spine, left
shoulder arthritis, and depression. These findings led the ALJ to continue her evaluation to
the remaining steps of the required sequential evaluation.
Generally speaking, under Sixth Circuit case law, once an ALJ finds one or more
severe impairments at step 2, “it is of little consequence” that the ALJ did not find other
additional severe impairments. Pompa v. Comm’r of Soc. Sec., 73 F. App’x 801, 803 (6th
Cir. 2003); see also Anthony v. Astrue, 266 F. App’x 451, 457 (6th Cir. 2008) (where the
ALJ found that claimant had a severe impairment, “[t]he fact that some of [claimant’s]
impairments were not deemed to be severe at step two is [] legally irrelevant.”); Maziarz v.
Sec’y of Health & Human Servs., 837 F.2d 240, 244 (6th Cir. 1987) (failure to find that an
impairment was not severe was not reversible error because the ALJ found that claimant
had other severe impairments). This general rule applies in the present case because
substantial evidence supports the ALJ’s findings regarding Plaintiff’s non-severe
impairments and because ALJ Withum considered the combined effects of Plaintiff’s
severe and non-severe impairments at step 4 of her sequential evaluation when assessing
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Plaintiff’s residual functional capacity.
With regard to “shaken baby syndrome,” which Plaintiff alleged was caused by his
2005 motor vehicle accident, there is little evidence showing that it qualified as a severe
impairment. As the ALJ reasonably noted, the record is devoid of any such diagnosis or
reference. (PageID# 62). Plaintiff argues that the ALJ’s finding that this syndrome was
not a medically determinable impairment “erodes the actual findings from the Drake
Hospital that [Plaintiff] suffered from the late effects of a traumatic brain injury in 2005.”
(Doc. #10, PageID# 1116). Yet, Plaintiff appears to acknowledge that he was not
diagnosed at that time with “shaken baby syndrome.” Plaintiff nevertheless suggests that
he experienced a severe brain injury. However, Plaintiff fails to point to any evidence of
functional limitations caused by this brain injury. Significantly, a computer tomography
(CT) scan in April 2005 failed to show any findings attributable to or associated with a
head injury. (PageID# 428). Substantial evidence therefore supports the ALJ’s residual
functional capacity.
Contrary to Plaintiff’s contention, the ALJ properly considered his broken neck and
broken collarbone caused by the 2005 motor vehicle accident. (PageID# 62). However,
the ALJ also noted that the record failed to show that Plaintiff underwent any further
treatment for these conditions. (PageID# 62). Accordingly, Plaintiff’s broken neck and
collarbone did not persist for more than 12 months and, therefore, were not medically
determinable impairments for purposes of deeming them “severe” at step two of the
sequential evaluation. (PageID# 62); see 20 C.F.R. § 404.1520(a)(4)(ii). And, even
16

though the ALJ found this impairment to be non-severe, she considered it when assessing
Plaintiff’s residual functional capacity by taking into account his loss of cervical motion.
(PageID# 65). Similarly, with regard to Plaintiff’s bowel incontinence, the ALJ properly
found that there was no evidence in the records of any diagnosis or treatment for this
condition. (PageID# 62). While Plaintiff is correct that he was diagnosed with neurogenic
bowel and bladder during his hospitalization following his 2005 motor vehicle accident,
treatment notes reflect the result was constipation and not incontinence. (PageID## 372,
374). Significantly, post-admission examinations the following month in April 2005 failed
to show a continued diagnosis or treatment for neurogenic bowel and bladder. E.g.
PageID# 427. Dr. Allen’s treatment notes do not confirm the presence of any
incontinence, let alone significant ongoing incontinence, in 2012. E.g., PageID## 686,
773, 780, 959, 962.
Plaintiff next argues that the ALJ erred in ignoring that Plaintiff had muscle
removed from his abdomen. The ALJ, though, considered that Plaintiff underwent surgery
to excise a flank mass and also pointed out that he had no further recurrence of muscular
pain after this surgery. (PageID# 63). Substantial evidence supports this finding. Dr.
Allen noted one week after Plaintiff’s first surgery, that his abdomen was “somewhat sore
from surgery” but was “recovering nicely.” (PageID# 772). Dr. Allen further reported,
“No further acute complaints were noted.” Id. Plaintiff’s large mass was surgically
removed about 1 month later, in May 2012, and no evidence of malignancy was found.
(PageID# 924). Although Plaintiff was experiencing abdominal pain in July 2012, he was
17

not experiencing “flank pain.” (PageID# 959). His main reason for seeing Dr. Allen at
that time was his pain shoulder. (PageID## 958-59). A follow-up visit to Dr. Allen in
September reveals that Plaintiff was negative for abdominal pain and negative for flank
pain. Again his main reason for this office visit was shoulder pain. (PageID# 962). The
same was true in November 2012 when Plaintiff was negative for both abdominal and
flank pain. (PageID# 965).
Arguing along another line, Plaintiff maintains that the ALJ’s hypothetical
questions to the vocational expert were based on her misunderstanding of the medical
records and were incomplete by not including sitting or lying-down limitations. Plaintiff
points out that the vocational expert clearly and unequivocally testified that if a claimant
needed to lie down because of pain, he would not be able to perform unskilled sedentary
work.
A proper hypothetical question posed to a vocational expert should accurately
describe the claimant “in all significant, relevant respects; for a response to a hypothetical
question to constitute substantial evidence, each element of the hypothetical must
accurately describe the claimant.” Felisky v. Bowen, 35 F.3d 1027, 1036 (6th Cir. 1994);
see Varley v. Sec’y of Health & Human Servs., 820 F.2d 777, 779 (6th Cir. 1987). “[T]he
ALJ is not obliged to incorporate unsubstantiated complaints into his hypotheticals.”
Stanley v. Sec’y of Health & Human Servs., 39 F.3d 115, 118 (6th Cir. 1994).
The hypothetical question posed to the vocational expert included all the limitation
the ALJ included in her assessment of Plaintiff’s residual functional capacity. Because
18

Plaintiff has not successfully challenged the ALJ’s assessment of her residual functional
capacity, there is no merit to his contentions that the ALJ should have included sitting and
lying-down limitations in her hypotheticals. “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.” Casey v. Sec’y of Health & Human
Servs., 987 F.2d 1230, 1235 (6th Cir. 1993). Because substantial evidence supports the
ALJ’s assessment of Plaintiff’s residual functional capacity, and because the hypothetical
question to the vocational expert properly included those pertinent limitations, the ALJ
properly relied on the vocational expert’s testimony in finding that Plaintiff could perform
a significant number of jobs in the regional and national economy. See Varley v. Sec’y of
Health & Human Servs., 820 F.2d 777 (6th Cir. 1987) (an ALJ may rely on the vocational
expert’s testimony in response to a hypothetical question if the question accurately
portrays a claimant’s impairments).
Accordingly, Plaintiff’s remaining challenges to the ALJ’s decision lack merit.
IT IS THEREFORE RECOMMENDED THAT:
1.

The Commissioner’s non-disability decision dated March 25, 2013 be
affirmed; and

2.

The case be terminated on the Court’s docket.

July 15, 2015
s/Sharon L. Ovington
Sharon L. Ovington
Chief United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within FOURTEEN days after
being served with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this
period is extended to SEVENTEEN days because this Report is being served by one of the
methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F). Such objections
shall specify the portions of the Report objected to and shall be accompanied by a
memorandum of law in support of the objections. If the Report and Recommendation is
based in whole or in part upon matters occurring of record at an oral hearing, the objecting
party shall promptly arrange for the transcription of the record, or such portions of it as all
parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned
District Judge otherwise directs. A party may respond to another party’s objections within
FOURTEEN days after being served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947,
949-50 (6th Cir. 1981).

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