King v. Social Security Administration

Filing 21

REPORT AND RECOMMENDATION re 15 First MOTION for Judgment on the Record filed by Willie King. The undersigned RECOMMENDS that the Plaintiff's motion for judgment on the record (DE 12 ) be DENIED, Defendant's motion for judgment on the record be GRANTED, and the ALJ's decision denying DIB be AFFIRMED. Signed by Magistrate Judge Joe Brown on 1/23/14. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(la)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NORTHEASTERN DIVISION

William Frank King, Jr.,

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Plaintiff,
vs.
CAROLYN W. COLVIN,
COMMISSIONER OF
SOCIAL SECURITY

CASE No. 2:13-cv-0009
SENIOR JUDGE NIXON
MAGISTRATE JUDGE BROWN

Defendant.
To: The Honorable John T. Nixon, Senior United States District Judge
Report and Recommendation
This action was brought under 42 U.S.C. §§ 405(g) to obtain judicial review of the final
decision of the Social Security Administration (“SSA”) upon an unfavorable decision by the
SSA Commissioner (“the Commissioner”) regarding plaintiff’s application for Disability
Insurance Benefits (“DIB”) under Title II of the Social Security Act (“the Act”) 42 U.S.C. §§
416(i), 432(d), and for benefits under Title XVI of the Supplemental Social Security Income Act
(“SSI”) 42 U.S.C. §§ 416(i), 1382(c).

For the reasons explained below, the undersigned

RECOMMENDS that the Plaintiff’s motion for judgment on the record be DENIED, the
Defendant’s motion for judgment on the record be GRANTED, and the ruling of the
Commissioner be AFFIRMED.
I.

PROCEDURAL HISTORY

William Frank King, Jr. (“Plaintiff”) filed for DIB under Titles II & XVI of the Social
Security Act, 42 U.S.C. §§ 416(i) and 1382(c), on December 11, 2009. (Administrative Record
(“A.R.”), Docket Entry (“DE”) 11, pp. 102-16.) Plaintiff claimed DIB based upon the adverse

effects of having an aortic valve replacement and high blood pressure (A.R., DE 11, p. 132.), but
conditions of hypertension, peripheral vascular disease, and a spinal impairment were considered
as part of the Commissioner’s ultimate determination. (A.R., DE 11, p. 16.) Plaintiff’s request
was denied on March 16, 2010 and upon reconsideration on June 24, 2010. (A.R., DE 11, pp.
57-68.) Plaintiff’s requested a hearing before an Administrative Law Judge (“ALJ”) which was
conducted before Douglas J. Kile on August 4, 2011. (A.R., DE 11, p. 37) Present for the
hearing were Plaintiff, his attorney David Downard, and vocational expert (“VE”) Dr. J. D.
Flynn. (A.R., DE 11, p. 14.)
The ALJ denied Plaintiff’s application for DIB on September 6, 2011 and Plaintiff
requested review of the ALJ’s determination on October 24, 2011. (A.R., DE 11, pp. 7-10, 1122.) The SSA Appeals Council denied review of the ALJ’s determination on December 6, 2012,
rendering the ALJ’s decision the Commissioner’s final determination at that time. (A.R., DE 11,
pp. 1-6.)
The plaintiff brought this action in district court on February 1, 2013 seeking judicial
review of the Commissioner’s decision. (DE 1.) The defendant filed an answer and a copy of
the administrative record on April 22, 2013. (DE 10, 11.) On September 5, 2013, the plaintiff
moved for judgment on the administrative record (DE 15), to which the Commissioner filed a
response on October 16, 2013. (DE 19.)
This matter is properly before the court.
II.

THE RECORD BELOW

A. Medical Evidence
Plaintiff underwent heart surgery in 2000 to have an aortic valve replacement. (A.R., DE
11, p. 205.) On April 3, 2003, Plaintiff’s cardiologist, Dr. Paul Liccini, reported that although

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Plaintiff complained of chest pain, he had experienced no adverse effects from the valve
replacement, was able to work installing plaster and stucco, and any chest pain was “clearly noncardiac and was probably musculoskeletal.” (A.R., DE 11, p. 211.) Dr. Liccini prescribed “30
more Darvocets” for pain. (A.R., DE 11, p. 211.) In April of 2004, Plaintiff experienced a
“pop” in his chest while attempting to lift a 180 pound fish tank, and, upon arriving at the
emergency room, he complained of chest pain but denied dyspnea, 1 either at rest or upon
exertion, and advanced “[n]o other complaints at all.” (A.R., DE 11, p. 288.) The emergency
room physician prescribed Percocet for pain and sent Plaintiff home. (A.R., DE 11, p. 289.)
Subsequently, Plaintiff continually complained of pain in his chest that he characterized
as being stuck with a pin. (A.R., DE 11, p. 211.) These complaints occurred throughout 2003
and 2004 during emergency room visits for injuries sustained while preparing for a hurricane,
from falling off of a scaffold, and from lifting his daughter who weighed 40 pounds. (A.R., DE
11, pp. 273-77,281-85.) Any discomfort reported by Plaintiff was “positional and [was] not
worse with exertion” and any shortness of breath was “[a]ssociated with quick movement not
exertion . . . [but r]esolve[d] very quickly.” (A.R., DE 11, pp. 205, 798.)
Dr. Liccini, as did other treating physicians in Tennessee after Plaintiff moved there,
observed that the pain complained of by Plaintiff was accompanied by tenderness and swelling
above the sternum, and concluded that the pain was attributable to a wire placed around
Plaintiff’s sternum during the valve replacement in 2000. (A.R., DE 11, p. 210, 249, 250, 254,
268, 273, 282, 285, 288-89.) This pain was treated from 2003 through 2006 with a variety of
pain medications. (A.R., DE 11, pp. 206, 210, 211, 274, 277, 282, 284, 289.) There is no

1

Dyspnea is defined as “breathlessness or shortness of breath; difficult or labored breathing.” Dorland’s
Illustrated Medical Dictionary 582 (32nd Ed. 2012).

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mention of chest pain after March of 2006 when Plaintiff was referred to a cardiovascular
surgeon to have the wire removed. (A.R., DE 11, pp. 254, 314.)
According to Plaintiff’s cardiologists, other than the pain attributable to the sternum wire,
Plaintiff experiences no adverse limitations from the heart valve replacement. Medical tests
reveal no physical or exertional limitations from the heart valve replacement. (A.R., DE 11, pp.
205-16, 254-72, 275, 278-80, 286-87, 297-99, 311-14, 667-69, 673-74, 895-97, 901-02, 949-962,
1021, 1062.) While Plaintiff complained of shortness of breath in May and June of 2010, a heart
catheterization procedure revealed only mild regurgitation and no adverse arterial angiography.
(A.R., DE 11, pp. 798, 952-53, 1033.) As recently as March of 2011, Doctors at the Tennessee
Heart, PLLC noted that Plaintiff was stable, “continues to do well,” and experienced only mild
regurgitation from the prosthetic valve. 2 (A.R., DE 11, p. 1021-24.) Other than Plaintiff’s
complaints in 2010 and those concerning the sternum wire, he has consistently denied chest pain,
shortness of breath, or any other symptom of heart problems subsequent to the heart valve
replacement. 3
In addition to the issues stemming from heart valve replacement surgery, Plaintiff has
been treated for pain management with “chronic narcotic therapy,” likely due to a myriad of
injuries. (A.R., DE 11, pp. 474, 1033.) In addition to injuries sustained in Florida prior to 2005,
Plaintiff was involved in many mishaps subsequent to his move to Tennessee at the end of 2004
or the beginning of 2005. On each occasion, Plaintiff’s primary care physicians prescribed
painkillers—Ultram and hydrocodone—to alleviate the pain.
2

Regurgitation is “the backflow of blood from the aorta into the left ventricle” of the heart due to the placement
of the valve. Dorland’s Illustrated Medical Dictionary 1621 (32nd Ed. 2010).

3

See A.R., DE 11, pp. 205, 220, 225, 319, 324, 330, 357, 362, 368, 374, 379, 383, 391, 395, 398, 402, 428, 432,
438, 441, 445, 448, 452, 464, 471, 488, 493, 507, 510, 514, 519, 524, 530, 537, 540, 545, 549, 553, 557, 562,
566, 570, 575, 579, 584, 588, 597, 602, 606, 609, 613, 617, 623, 626, 630, 633, 637, 657, 663, 670, 681, 684,
687, 692, 698, 784, 802, 814, 825, 841, 846, 885, 898, 909, 912, 915, 920, 926, 933, 938, 942, 945, 1009,
1017.

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In July of 2005, Plaintiff reported right arm pain after striking himself with a 25 pound
hammer while attempting to drive a fence post into the ground (A.R., DE 11, pp. 245.), and back
pain after driving his lawn mower off of the back of his truck. (A.R., DE 11, p. 246.) In August
of 2005, Plaintiff reported “chronic” back pain from driving a tractor for a living and chest pains
after a refrigerator fell onto his chest. (A.R., DE 11, p. 245.) X-rays, however, revealed nothing
serious. (A.R., DE 11, p. 245.) In September, Plaintiff reported hip and chest pain subsequent to
a fall, but X-rays were again unremarkable. (A.R., DE 11, p. 244.) In October, Plaintiff reported
that his arm was injured by a branch when he attempted to push it out of the way while riding his
lawn mower. (A.R., DE 11, pp. 233, 243, 501.) Plaintiff’s right shoulder was injured in
November when a board fell onto it at work. (A.R., DE 11, pp. 230, 498.) Plaintiff was
involved in a motor vehicle accident in December that aggravated his injuries from September.
(A.R., DE 11, pp. 225, 493.)
In January of 2006, Plaintiff reported that he was experiencing pain from a fall in which
he had broken his tailbone. (A.R., DE 11, p. 220.) Plaintiff’s primary care physicians did not
order X-rays to confirm Plaintiff’s claims, but X-rays taken in October of 2006 and April of
2007 show no signs of a past fracture to Plaintiff’s tailbone. (A.R., DE 11, pp. 404-14, 975-79.)
Plaintiff again reported lower back pains in March of 2006 after being involved in another motor
vehicle accident. (A.R., DE 11, p. 323.) Plaintiff’s chronic back pain was further aggravated by
riding his lawn mower in April of 2006 (A.R., DE 11, p. 321), and in July when a cow
apparently pinned Plaintiff against a fence. (A.R., DE 11, pp. 351, 391, 537.) X-rays after the
July incident were unremarkable. (A.R., DE 11, pp. 351, 391, 537.)
An 80 pound gate fell on Plaintiff in September of 2006 injuring his right foot and
shoulder. (A.R., DE 11, pp. 980-86.) X-rays performed at the time reveal “no acute traumatic

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abnormality” but showed “mild arthritis in the right clavicle.” (A.R., DE 11, pp. 980-86.)
Plaintiff reported lower back and tail bone pain after a fall in October , but X-rays taken after the
incident were unremarkable. (A.R., DE 11, pp. 975-59.) In November of 2006, while playing
football, Plaintiff was tackled by a 240 pound individual. (A.R., DE 11, p. 971.) Afterward,
Plaintiff reported injuries to his right arm, but X-rays revealed no breaks or changes since the
cow incident in July. (A.R., DE 11, pp. 973-74.) Plaintiff continued to receive pain medications
for “chronic” pain during the remainder of 2006. (A.R., DE 11, pp. 374, 379, 545-49, 562-69,
969-74.)
In January of 2007, Plaintiff reported head and neck pain after being hit by a large limb
while riding a tractor. (A.R., DE 11, pp. 372, 422-23, 557, 584.) X-rays and a CT performed on
January 15th revealed no issues with soft tissue or cervical alignment but reflected “mild
degenerative changes [and n]o acute irregularities” in the cervical spine. (A.R., DE 11, pp. 42223.) In March, Plaintiff reported back pain and bruising due to a slip and fall. (A.R., DE 11, pp.
588-90.) Plaintiff reported, yet again, pain stemming from injuries to his tail bone after falling
off of his truck in April. (A.R., DE 11, pp. 404-14, 453, 637.) X-rays taken revealed no
evidence of past or current breaks or showed any changes from X-rays taken after the January
2006 incident. (A.R., DE 11, pp. 404-14.)
In May, Plaintiff reported to an emergency room triage nurse that he had been run over
by his lawn mower after falling off of it. (A.R., DE 11, pp. 963-66.) The nurse noted, however,
that Plaintiff was able to “ambulate[] well.” (A.R., DE 11, p. 964.) In July of 2007, for the first
time since his heart valve replacement, Plaintiff reported right leg numbness and pain that had
persisted since the 2000 surgery. (A.R., DE 11, pp. 441-626.) In September, Plaintiff reported
pain from a “stretched” anterior cruciate ligament (A.R., DE 11, p. 609), and severe pain and

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bruising after dropping a 40 pound grate on his right foot and ankle in October. (A.R., DE 11,
pp. 606, 942.)
Remarkably, from November of 2007 through December of 2008 Plaintiff reported no
pain stemming from fresh injuries. However, Plaintiff continued to receive prescription pain
medications for “chronic” pain each and every month. (A.R., DE 11, pp. 648-701, 876-935.)
Eventually, on March 4, 2009, Plaintiff signed a pain management contract with his primary care
physician and continued to receive regular prescriptions for pain medications due to “chronic”
back pain until May of 2010. (A.R., DE 11, pp. 798-935.) Despite Plaintiff’s good luck over the
prior fourteen months, Plaintiff reported lower back pains from a slip and fall in January of 2009
that aggravated the broken tail bone Plaintiff claimed to have suffered three years prior. (A.R.,
DE 11, pp. 716-23.) X-rays performed at that time revealed “[m]inimal degenerative changes
[to] the lower thoracic and lumbar spine [and] . . . normal [d]isk spac[ing].” (A.R., DE 11, p.
722.)
In July of 2009, Plaintiff reported neck pain after running his lawn mower into a ditch.
(A.R., DE 11, pp. 731-39, 845.) In December of 2009, Plaintiff slipped on some ice and fell
(A.R., DE 11, pp. 777-82.), and, subsequently, injured his leg on a trailer. (A.R., DE 11, pp.
768-74.) In August of 2010, Plaintiff reported injuries to his foot that were sustained while
mounting his lawn mower, but X-rays revealed no break in the bone and only “mild degenerative
joint disease.” (A.R., DE 11, 1041-54.) During his August visit to the emergency room,
Plaintiff advanced no complaints of dizziness or shortness of breath, and the intake report shows
that Plaintiff’s blood pressure was 140/84 and his pulse was 75. (A.R., DE 11, p. 1041-54.) In
May of 2011, Plaintiff reported to an emergency room triage nurse that he had injured his back
while bending over to pick up a wooden bear. (A.R., DE 11, 1063-78.)

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On July 25, 2011, Dr. Chad Canaster submitted a Medical Source Statement (MSS)
detailing severe limitations imposed by Plaintiff’s heart valve replacement and chronic back pain
stemming from a bulging disc. (A.R., DE 11, pp. 1079-84.) According to Dr. Canaster, Plaintiff
may only lift or carry 10 pounds occasionally and may never lift or carry more than that. (A.R.,
DE 11, p. 1079.) Further, Plaintiff must alternate sitting, standing, or walking for fifteen minutes
at a time and, combined, may only do each activity for a total of two hours in an eight hour day.
(A.R., DE 11, p. 1080.) A bulging disc in Plaintiff’s lumbar spine limits Plaintiff to occasional
use of his hands and feet in work related activities (A.R., DE 11, p. 1081.), and the limitations
from valve replacement surgery prevent him from working in most positional attitudes and
environments. (A.R., DE 11, p. 1082.)
Despite Dr. Canaster’s MSS, Plaintiff completed a fatigue questionnaire and a disability
report stating that he was able to care for his daughter and help with her homework, go for walks
with her and occasionally throw a football with her, cook meals two or three times a week, clean
house for an hour every other day, cut grass on a lawn mower every other week, shop for food
and household items once or twice a month for 2 to 3 hours at a time, attend swap meets at a
local flea market or shop in a thrift store, and perform some household and automotive repairs.
(A.R, DE 11, pp. 148-49, 158-67.)
B. DDS Expert Opinions
SSA’s medical expert, Dr. Darrell M. Caudill M.D. (“Dr. Caudill”), completed a residual
functional assessment of Plaintiff in March of 2010. (AR pp. 320-31) Dr. Caudill found, based
upon the longitudinal history presented in the record, that Plaintiff’s medical conditions placed
some exertional and postural limitations upon him but no manipulative or visual limitations.
(A.R., DE 11, pp. 785-93.) According to Dr. Caudill, Plaintiff can occasionally lift up to 50

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pounds, frequently lift 25 pounds, and can sit, stand and/or walk for about six hours in an eight
hour day with normal breaks. (A.R., DE 11, p. 790.) Further, Plaintiff can climb stairs, balance,
stoop, kneel, crouch, and crawl frequently but may only climb ladders, ropes, or scaffolds
occasionally. (A.R., DE 11, p. 787.)
On June 22, 2010, Dr. Frank R. Pennington M.D. confirmed Dr. Caudill’s findings, even
in light of Plaintiff’s claims of worsening conditions. (A.R., DE 11, p. 948.) Central to Dr.
Pennington’s assessment was the fact that Plaintiff had denied chest pains, palpitations, syncope,
dyspnea on exertion, and orthopnea in May of 2010, and that Dr. Caudill’s findings were
consistent with the findings of Plaintiff’s treating physicians included in the record. (A.R., DE
11, p. 948.)
C. Testimonial Evidence
1. Plaintiff’s Testimony
Plaintiff testified that he was fifty-two years of age at the time of the hearing, has a high
school education, and, thus, can read, write, add, and subtract. (A.R., DE 11, p. 30.) Plaintiff
also possesses a driver’s license but can drive only short distances before he has to stop and pull
over. (A.R., DE 11, p. 30, 36.) Plaintiff testified on four separate occasions that he has been
unable to work or to engage in any of his prior hobbies such as hunting, fishing, baseball, or
football since December of 2004. (A.R., DE 11, pp. 31, 35.) As a result, Plaintiff’s typical day
is spent either sitting or lying in front of the television. (A.R., DE, 11, p. 34.)
The predominant reason for Plaintiff’s inability to work or engage in his past hobbies is
the side effects of an aortic valve replacement in 2000. (A.R., DE 11, p. 32.) The blood thinner
that he takes due to the prosthetic heart valve causes him to bleed excessively and bruise easily.
(A.R, DE 11, p. 32.) He has a rapid heart rate and experiences shortness of breath and dizziness

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“after standing too long or moving too much.” (A.R., DE 11, p. 32.) According to his primary
care physician, “Dr. Chad Hancer” (sic), Plaintiff is restricted from lifting more than 10 pounds,
sitting or standing for more than two hours over an eight hour period, and prohibited from
reaching over head. (A.R., DE 11, p. 33.) Further, Plaintiff claims that he can walk no more
than 15-30 minutes before becoming dizzy and light headed. (A.R., DE 11, p. 34.) A bulging
disc in his back, according to Plaintiff, causes him difficulty bending, kneeling, or squatting.
(A.R., DE 11, p. 34.)
2. Vocational Expert’s Testimony
The ALJ posed the following hypothetical to the VE for his assessment:
assume that on the basis of the claimant’s record performing any of the claimant’s
exertional impairments, the claimant’s residual functional capacity, or a wide
range of light work on a sustained basis. Assume that [Plaintiff has] demonstrated
certain significant, non-exertional impairments physically relating to a[] heart
impairment, hypertension, peripheral cardio vascular disease, and spinal
impairments. Zoning the inability to work with heights or around moving
dangerous machinery, inability to handle the exposure of excessive dusts, smoke,
fumes, and obnoxious gases. Inability to handle excessive vibration, inability to
perform frequent squatting, inability to operate foot controls on a frequent basis.
Inability to perform frequent overhead motions, and the inability to perform
frequent bending and stooping. Taking into full account these non-exertional
restrictions and the claimant's age and education and prior work experience, are
there jobs existing in the general area that the claimant is [INAUDIBLE] that he
could perform with these limitations?
(A.R., DE 11, p. 39-40.)
In response, the VE testified that Plaintiff could find light duty work as a fast food
worker, cafeteria attendant, or as a cashier. (A.R., DE 11, p. 40.) The VE also stated that
environmental concerns, such as temperature and humidity, mild to moderate pain, and slight to
moderate fatigue would have no bearing on the vocational assessment. (A.R., DE 11, pp. 40-43.)
Additionally, the vocations identified by the VE would permit no more than two absences per
month and only three breaks during a typical work day, and the inclusion of a sit/stand options

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would eliminate all light duty jobs. (A.R., DE 11, pp. 41-42.) The VE also testified that a
person who suffered from the severe symptoms reported by Plaintiff would be unable to find
work on a sustained basis in either the Tennessee or National economy. (A.R., DE 11, p. 43.)
III.

ANALYSIS

A. Standard of Review
The District Court’s review of the Commissioner’s denial of DIB is limited to a
determination of whether those findings are supported by substantial evidence and whether
correct legal standards were applied. 42 U.S.C. § 405(g); Cole v. Astrue, 661 F.3d 931, 937 (6th
Cir. 2011). A finding of substantial evidence does not require all the evidence in the record to
preponderate in favor of the ALJ’s determination, but does require more than a mere scintilla of
support for a denial of DIB. Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).
The ALJ’s determination is entitled to deference where “a reasonable mind might accept
[evidence in the record] as adequate to support” the ALJ’s determination even though it could
also support a different conclusion. Rogers, 486 F.3d at 241; Her v. Comm’r of Soc. Sec., 203
F.3d 388, 389-90 (6th Cir. 1999). “[F]ailure to follow the rules” promulgated to control the
process of benefit determination “denotes a lack of substantial evidence, even where the ALJ’s”
determination is otherwise supportable. Cole, 661 F.3d at 937 (quoting Blakely v. Comm’r of
Soc. Sec., 581 F.3d 399, 407 (6th Cir. 2009)).
B. Assignments of Error
Plaintiff asserts that the ALJ’s decision to deny his claim to DIB was in error because the
ALJ failed to afford controlling weight to the opinion of Dr. Chad Canaster, and the ALJ’s
finding that Plaintiff has a residual functional capacity (“RFC”) permitting light work is not
supported by substantial evidence.

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1. Weight afforded to the opinion of Dr. Chad Canaster
As to the opinion of Dr. Chad Canaster, the ALJ found:
Dr. Chad Conaster, MD submitted a residual functional capacity assessment on
July 25, 2011. This doctor opined the claimant is limited to sedentary exertion; he
can only lift 10 pounds occasionally and never more than 10 pounds. The opinion
also contains severe walking, standing and sitting restrictions. The opinion states
the claimant can never perform any postural movements at all. The undersigned
gives this opinion little weight for several reasons. First, this physician admitted
his opinion was based on "old records". Moreover, it is not clear if this physician
examined or treated the claimant. It is not clear if this opinion relied solely on
medical records in which case it would deserve no more weight than any other
non-examining source. This opinion does not say how long the treating
relationship (if any) was. Additionally, the severity of limitations in this opinion
does not find support in the record.
(A.R., DE 11, p. 19.)
Plaintiff asserts that the ALJ’s finding that Dr. Canaster is a “non-treating medical
source” was in error. (Plaintiff’s Brief in Support of Motion for Judgment on the Record
(“Plaintiff’s Br.”), DE 16, p. 7.) According to Plaintiff, Dr. Canaster is Plaintiff’s treating
physician and his opinion is entitled to controlling weight. (Plaintiff’s Br., DE 16, p. 7.) Further,
because Dr. Canaster is a treating source, the ALJ’s treatment of his opinion does not comport
with Social Security Ruling 96-2p and the ALJ failed to state “good reasons” as to why that
opinion was afforded less than controlling weight. (Plaintiff’s Br., DE 16, p. 7.) In response, the
Commissioner asserts that there is insufficient evidence in the record to support a finding that Dr.
Canaster is a treating source and that Dr. Canaster’s opinion is unsupported by the evidence of
record. (Defendant’s Response to Plaintiff’s Motion for Judgment on the Record (“Defendant’s
R., DE 19, p. 17.)
The burden rests with Plaintiff to “prov[e] the existence and severity of limitations
caused by [his] impairments and the fact that [he] is precluded from performing [his] past
relevant work.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003) (citing Bowen

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v. Yuckert, 482 U.S. 137, 146 n.5 (1987)); See also 20 C.F.R. § 404.1520. As the Commissioner
aptly notes, this burden extends to establishing the existence of an “ongoing medical treatment
relationship with an acceptable medical source.” 20 C.F.R. § 404.1502, See Thompson v. Astrue,
No. 3:10-cv-01688, 2011 U.S. Dist. LEXIS 84542 at *30 (N.D. Ohio Aug. 2, 2011). A claimant
meets this burden when he furnishes sufficient medical evidence to establish that the claimant
“see[s], or ha[s] seen, the source with a frequency consistent with acceptable medical practice for
the type of treatment and/or evaluation required for [the claimant’s] medical condition.” 20
C.F.R. § 404.1502. As the ALJ found, Plaintiff failed to meet this burden.
As the ALJ noted, there are no other treatment notes in the record to establish the “length,
frequency, nature, and extent of the treatment relationship.” Gayheart v. Comm’r of Soc. Sec.,
710 F.3d 365, 376 (6th Cir. 2013). The only evidence of record attributable to Dr. Canaster is
the MSS prepared on July 25, 2011, some eleven days prior to the hearing. (A.R., DE 11, 1084.)
Dr. Canaster made no reference to independent medical findings or any specific objective
medical evidence in support of his ultimate conclusion regarding the severity of Plaintiff’s
impairments other than “old records” as the ALJ stated. (A.R., DE 11, 1083.) Moreover, as the
ALJ noted, the basis for Dr. Canaster’s opinion is not supported by the evidence of record. As
detailed supra at pp. 2-8, the record reveals no more than mild or minimal degenerative changes
in Plaintiff’s cervical or lumbar vertebrae and that Plaintiff’s exertional limitations are not nearly
as severe as even the ALJ found them to be.
Therefore, the Magistrate Judge finds substantial evidence to support the ALJ’s finding
that Dr. Canaster is not a treating source. As such, it is unnecessary to consider Plaintiff’s claims
that the ALJ failed to comply with SSR 96-2p or that he failed to provide “good reasons” for not
affording Dr. Canaster’s opinion controlling weight.

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2. The RFC assessed by the ALJ
Plaintiff mounts two separate but interrelated attacks on the RFC assessed by the ALJ.
First, Plaintiff asserts that the ALJ erroneously classified Plaintiff as a “younger individual”
rather than one “closely approaching advanced age.” (Plaintiff’s Br., DE 16, p. 9.) As an
individual who is “closely approaching advanced age,” according to Plaintiff, had the RFC
limited Plaintiff to sedentary work he would be disabled under Medical Vocational Rule 201.12
or 201.14. (Plaintiff’s Br., DE 16, p. 9.) Plaintiff concedes that the objective medical evidence
supports the ALJ’s RFC assessment but asserts that the ALJ made no specific credibility finding
in regard to Plaintiff’s statements and cited no reasons for discounting Plaintiff’s subjective
complaints. 4 (Plaintiff’s Br., DE 16, p. 9-12.)
In response, the Commissioner argues that the ALJ’s classification of Plaintiff as a
“younger individual” was a typographical error and that any error here is harmless. In order to
access the grid rules under Medical Vocational Rule 201.12 or 201.14, the ALJ’s RFC finding
must limit Plaintiff to sedentary work. (Defendant’s R., DE 19, p. 17.) According to the
Commissioner, because the ALJ’s credibility finding of Plaintiff’s subjective complaints finds
substantial support in the record, the ALJ’s RFC finding that Plaintiff is capable of light work
also finds substantial support in the record. (Defendant’s R., DE 19, pp. 9-14.) Thus, Plaintiff’s
argument here is moot. (Defendant’s R., DE 19, pp. 9-14.)
To substantiate entitlement to DIB under the SSI, a claimant must demonstrate “a
medically determinable physical or mental impairment which can be expected to result in death
or which has lasted or can be expected to last for a continuous period of not less than 12
4

In the concluding sentence of Plaintiff’s argument regarding the ALJ’s misclassification of his age, Plaintiff
simply asserts that “the claimant’s testimony is supported by the treatment records and his RFC finding should
have been less than sedentary at his AOD.” (Plaintiff’s Br., DE 16, p. 9.) Plaintiff did not allege that the
objective medical evidence does not support the ALJ’s RFC finding nor did he cite to any objective evidence
of record that would refute the ALJ’s finding that the Plaintiff can engage in light work.

14

months.” 42 U.S.C. §§ 423(a)(1)(E), (d)(1)(A). Determination of a “disability” under the SSA’s
rules requires a five-step sequential assessment of whether: 1) a claimant has engaged in
substantial gainful activity during the period under consideration; 2) the claimant has a severe
medically determinable physical impairment that significantly limits his ability to do basic work
activities; 3) the claimant has a severe impairment that meets or equals one of the listings in
Appendix I Subpart P of the regulations and meets the durational requirements; 4) the claimant’s
impairment prevents him from doing her past relevant work; and, if so, 5) whether the claimant
can transition to other work under the RFC. 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), (b)-(g).
Similarly, step four of the process requires a graduated approach. The ALJ must first
determine if the objective medical evidence of record demonstrates “the existence of a medical
impairment which . . . could reasonably be expected to produce the pain or other symptoms
alleged.” 20 C.F.R. § 404.1529 (b). Next, where a medical impairment is found, the ALJ is
required to assess the limiting effects imposed by that medical impairment or combination of
impairments. 20 C.F.R. § 404.1529 (c). Where objective medical evidence demonstrates severe
limitations, disability is proven conclusively.
However, whereas here, objective medical evidence fails to establish a medical
impairment with severe debilitating effects, the ALJ is required to consider other evidence
including subjective complaints of the claimant. 20 C.F.R. § 404.1520 (c)(2), SSR 96-7p.
Where subjective complaints are evaluated, a credibility finding must be made based upon the
case record as a whole. 20 C.F.R. § 404.1520 (c)(2), SSR 96-7p. Factors to be considered
include: 1) a claimant’s daily activities; 2) the purported location, duration, frequency, and
intensity of the symptoms; 3) precipitating and aggravating factors; 4) medications prescribed to
control symptoms and their effectiveness; 5) the effectiveness of treatments other than

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medications on a claimant’s symptoms; 6) any additional measures used to alleviate symptoms;
and 7) any other relevant factors. 20 C.F.R. § 404.1529 (c)(3)(i)-(vii).
Contrary to Plaintiff’s claims, the ALJ found that Plaintiff’s “statements concerning the
intensity, persistence, and limiting effects of these symptoms are not credible,” and his claims of
“completely debilitating” symptoms “unpersuasive.” (A.R., DE 11, pp. 18-19.) In addition to
the contrary medical evidence cited in support of his finding, the ALJ offered:
The claimant has described activities of daily living that are not limited to the
extent one would expect, given the complaints of disabling symptoms and
limitations. The claimant helps cook dinner, helps daughter with homework and
helps get her ready for school (Exhibit 7E). He reports no problems with personal
care, and he can cook chicken, steak, spaghetti, French fries, sandwiches and
vegetables about 2 or 3 times a week. He helps wash dishes; he mows the yard,
and he does a few home repairs. He walks every day and he drives a vehicle. He
pays bills, counts change, and can handle a checkbook and savings account. He
enjoys reading, television and playing with his daughter. These do not seem to be
the activities of a completely disabled individual. Moreover, as discussed above,
the claimant's medications help to control the claimant's condition, pain and
symptoms effectively. The objective evidence shows only mild or moderate
findings.
There are disturbing inconsistencies in the claimant's allegations. At the hearing,
he testified he could only stand 2 hours a day or sit 2 hours a day, and he could
walk 15-30 maximum. However, in a Fatigue Questionnaire and a Function
Report (Exhibit 7E; 6E), he gave inconsistent answers. Moreover, he stated he
had difficulty with bending, standing, squatting, and sitting at the hearing, but he
did not indicate as much in his Function Report (Exhibit 7E).
(A.R., DE 11, p. 19.)
As detailed supra at pp. 9-10, the Magistrate Judge also notes that Plaintiff testified that
his heart condition caused his most severe limitations and that his back pain poses minor postural
concerns.

According to Plaintiff, any exertion on his part causes shortness of breath and

dizziness and has consistently prevented him from engaging in work related activities or any of
his prior hobbies since December of 2004. However, as detailed supra at pp. 2-4, prior to filing
his claim to DIB in December of 2009, Plaintiff consistently denied shortness of breath or

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cardiac chest pains to his treating physician and cardiologist. Further, as detailed supra at pp. 47, prior to receiving pain medications on a consistent basis in 2008, Plaintiff engaged in a myriad
of activities that are contrary to his claims of complete disability.
Plaintiff endeavored to lift a 180 pound fish tank, drive a fence post into the ground by
striking it repeatedly with a 25 pound hammer, drive a tractor for a living, lift a refrigerator, lift
boards at work while claiming disability that prevents work, work around livestock closely
enough to be pinned between a cow and a fence, lift an 80 pound gate and a 40 pound grate, and,
most notably, play full contact tackle football with individuals outweighing him by nearly 100
pounds.
The Magistrate Judge finds substantial evidence to support the ALJ’s credibility finding.
As such, the Magistrate Judge finds that the ALJ’s RFC finding that Plaintiff can engage in light
work is also supported by substantial evidence.
IV.

CONCLUSION

For the foregoing reasons, the Magistrate Judge finds the ALJ’s findings in regard to Dr.
Canaster and Plaintiff’s credibility to be supported by substantial evidence. Further, because
Plaintiff is capable of light work, the Magistrate Judge finds any error associated with the ALJ’s
misclassification of Plaintiff’s age is harmless.
V.

RECOMMENDATION

For the reasons stated above, the undersigned recommends that the plaintiff’s motion for
judgment on the record (DE 12) be DENIED, Defendant’s motion for judgment on the record be
GRANTED, and the ALJ’s decision denying DIB be AFFIRMED.
The parties have fourteen (14) days of being served with a copy of this R&R to serve and
file written objections to the findings and recommendation proposed herein. A party shall

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respond to the objecting party’s objections to this R&R within fourteen (14) days after being
served with a copy thereof. Failure to file specific objections within fourteen (14) days of receipt
of this R&R may constitute a waiver of further appeal. Thomas v. Arn, 474 U.S. 140, reh’g
denied, 474 U.S. 111 (1986); Cowherd v. Million, 380 F.3d 909, 912 (6th Cir. 2004).
ENTERED this 23rd day of January, 2014.

/s/Joe B. Brown
Joe B. Brown
Magistrate Judge

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