IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Edward Charles Foreman, :

Plaintiff, :

v. : Case No. 2:10-cv-1008

Commissioner of Social Security, JUDGE MICHAEL H. WATSON

 Magistrate Judge Kemp

 Defendant. :

 REPORT AND RECOMMENDATION

 I. Introduction

 Plaintiff, Edward Charles Foreman, filed this action seeking

review of a decision of the Commissioner of Social Security

denying his application for a period of disability and social

security disability benefits. That application was filed on

March 16, 2007, and alleged that plaintiff became disabled on

January 15, 2006. 

After initial administrative denials of his claim, plaintiff

was given a hearing before an Administrative Law Judge on

December 23, 2009. In a decision dated February 23, 2010, the

ALJ denied benefits. That became the Commissioner’s final

decision on September 16, 2010, when the Appeals Council denied

review.

After plaintiff filed this case, the Commissioner filed the

administrative record on January 18, 2011. Plaintiff filed his

statement of specific errors on February 16, 2011. The

Commissioner filed a response on April 20, 2011. Plaintiff filed

a reply brief on April 27, 2011, and the case is now ready to

decide.

II. Plaintiff’s Testimony at the Administrative Hearing

 Plaintiff’s testimony at the administrative hearing is found

at pages 12 through 28 of the record. The following is a summary

of the facts to which plaintiff (who was 57 years old at the time

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of the hearing and has an eleventh grade education) testified.

Plaintiff was a sales representative and then a manager for

Hostess Cake and at some point appears to have acquired a

Pepperidge Farm franchise. As a manager, he built displays,

covered sales routes for other employees, loaded trucks, and

supervised 23 people. He stopped working in 2006 because he was

physically unable to do some of the requirements of the job such

as servicing displays or shelving products. 

Plaintiff testified to constant pain in his lower back,

radiating down his right leg, to pain in his hands, shoulders,

and neck, and to serious headaches. He uses a cane for walking,

which was prescribed by his doctor, and also has been prescribed

a TENS unit. He has had cortisone shots and epidural injections,

but without significant relief. 

He also talked more about his job duties. He was required

to load and unload a truck each day, and boxes of cookies could

weigh as much as fifty pounds. He had to bend and stoop. He has

little energy and suffers from sleep apnea. He uses a C-PAP

machine at night, but naps several times during the day. His

physical problems have caused him to isolate himself and have

affected his concentration. Sitting in one place is difficult

due to pain. 

III. The Medical Records

The medical records in this case are found beginning on page

212 of the administrative record. They can be summarized as

follows. 

Plaintiff’s knees, hands and feet were x-rayed on September

26, 2006. The most significant findings were some degenerative

changes in the wrists; the findings concerning plaintiff’s knees

and feet were minimal. A physical examination done by Dr.

Schlessel yielded an impression of chronic musculoskeletal pain

with some tender points noted as well as a limited lumbar range

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of motion and paralumbar tenderness. Dr. Schlessel suspected a

fibromyalgia component to plaintiff’s complaints of pain,

swelling and stiffness in his joints. Prior office notes from

plaintiff’s treating physician, Dr. Koch, show treatment for

depression and sleep apnea.

Plaintiff was evaluated by Mr. Loomis, a psychologist, on

May 18, 2007. He reported suffering from high blood pressure,

arthritis, degenerative joint disease, gastroesophageal reflux

disease, and sleep apnea. He had not sought mental health

treatment but his family doctor had prescribed an antidepressant.

He did not report any problems getting along with others but did

describe a lack of energy and a low sense of self worth. He

described his daily activities as including driving and

performing various household chores. He also visited with

neighbors. Mr. Loomis diagnosed an adjustment disorder with

mixed anxiety and depressed mood and rated plaintiff’s GAF at 60-

65. His most significant impairment was in the area of coping

with work stress; that impairment was described as mild to

moderate based on symptoms of anxiety and depression coupled with

plaintiff’s perception of his physical condition. A subsequent

state agency reviewer, Dr. Melvin, concluded that any mental

impairment was not severe, explaining that plaintiff’s

“psychological symptoms are, at most, mild.” (Tr. 314).

Dr. Koch referred plaintiff to Dr. Kemp for a neurological

assessment, which took place on June 18, 2007. Plaintiff

reported back pain, leg pain, severe leg cramps, and difficulty

walking. An MRI was reviewed and showed degenerative changes at

L4-5 and L5-S1 with some disc bulging. Any stenosis was mild to

moderate. His history was consistent with spinal stenosis but

vascular disease was also possible. He was referred for further

testing. A subsequent lumbar myelogram showed no evidence of

instability but some left-sided nerve root sleeve amputation, and

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a CT scan showed degenerative changes with bilateral recess

stenosis at L4-5. Dr. Kemp subsequently reported that the

vascular studies were normal and that there was not any

clinically significant spinal stenosis. He saw no need for

surgical intervention and suspected a generalized arthritic

process.

Dr. McCloud, also a state agency reviewer, assessed

plaintiff’s physical capacity on July 11, 2007. He concluded

that plaintiff could lift 50 pounds occasionally and 25 pounds

frequently and could stand, walk and sit for six hours during the

work day. He did not believe there were any postural or

manipulative limitations and thought plaintiff’s statements about

difficulty standing or getting up from a kneeling or stooping

position were only “partially credible,” as was his statement

that he could not walk for more than five minutes. (Tr. 355-56).

Dr. Koch completed a form on or about August 14, 2007, and

attached many of his office notes. On the form, he stated that

plaintiff could not walk or stand for more than five minutes. He

also wrote a prescription note on December 26, 2007, stating that

“it is medically necessary for patient to carry his cane & TENS

unit at all times for low back pain.” (Tr. 774). That exhibit

(Exhibit 29F) does not appear in the list of exhibits considered

by the ALJ, however.

Plaintiff was admitted to the hospital on June 14, 2008, for

treatment of an acute myocardial infarction. He was also

diagnosed with severe coronary artery disease. He was discharged

in stable and improved condition after a stent was implanted. He

was also hospitalized for treatment for chronic major depression

in July of 2009; he had been seeing a mental health counselor for

some time prior to that for treatment for recurrent, atypical

depression and alcohol abuse. Finally, a form prepared by Dr.

Schlessel and dated February 19, 2010, showed that plaintiff was

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essentially limited to sedentary work with a sit-stand option but

also would miss four or more days of work per month. (Tr. 698-

702). Some additional records, including another hospitalization

for plaintiff’s cardiac condition, were submitted after the date

of the ALJ’s decision. 

 IV. The Vocational Testimony

Mr. Hartung, a vocational expert, also testified at the

administrative hearing. He characterized plaintiff’s past work

as a route sales driver as medium and semi-skilled. His

supervisory job was skilled and light, and his franchise owner

position was skilled and medium. If plaintiff could do a full

range of medium work, he could return to those jobs. If,

however, plaintiff’s ability to lift and carry were more

restricted, or if he had to take unscheduled breaks or naps

during the day, he could not do any of his past work. (Tr. 24-

26). 

 V. The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 35

through 46 of the administrative record. The important findings

in that decision are as follows.

The Administrative Law Judge found, first, that plaintiff

met the insured status requirements of the Social Security Act up

to December 31, 2010. The ALJ next found that plaintiff had not

engaged in substantial gainful activity from his alleged onset

date of January 26, 2006 forward.

As far as plaintiff’s impairments are concerned, the ALJ

found that plaintiff had severe impairments including arthritis,

degenerative disc disease, stenosis, coronary artery disease, and

status post heart attack. He also found that these impairments

did not meet or equal the requirements of any section of the

Listing of Impairments (20 C.F.R. Part 404, Subpart P, Appendix

1).

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Moving to the next step of the sequential evaluation

process, the ALJ found that plaintiff had the residual functional

capacity to perform a full range of medium work. That was the

exertional level of plaintiff’s prior work, and the vocational

expert testified that someone with only that limitation could

return to that work. As a result, the ALJ concluded that

plaintiff had not demonstrated an entitlement to benefits.

VI. Plaintiff’s Statement of Specific Errors

 In his statement of specific errors, plaintiff raises the

following issues. First, he contends that the ALJ erred by

relying on the report of Dr. McCloud, who never examined

plaintiff and who did not have the benefit of the entire medical

record when he prepared his report. Second, he argues that

insufficient weight was given to the opinions of the treating

physicians. Third, he asserts that his need to use a cane was

not properly factored into the ALJ’s residual functional capacity

finding. Fourth, he takes issue with the ALJ’s failure to find

that he suffered from fibromyalgia. Fifth, he contends that the

ALJ did not accurately evaluate his credibility or his subjective

complaints of pain. Sixth, and last, he argues that it was error

to have relied on the vocational testimony because various

physical and mental impairments were not included in the

questions asked to him. The Court reviews that decision under

this legal standard:

Standard of Review. Under the provisions of 42 U.S.C.

Section 405(g), "[t]he findings of the Secretary [now the

Commissioner] as to any fact, if supported by substantial

evidence, shall be conclusive. . . ." 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) (quoting Consolidated Edison Company v.

NLRB, 305 U.S. 197, 229 (1938)). It is "'more than a mere

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scintilla.'" Id. LeMaster v. Weinberger, 533 F.2d 337, 339 (6th

Cir. 1976). The Commissioner's findings of fact must be based

upon the record as a whole. Harris v. Heckler, 756 F.2d 431, 435

(6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366 (6th

Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir.

1984). In determining whether the Commissioner's decision is

supported by substantial evidence, the Court must "'take into

account whatever in the record fairly detracts from its weight.'" 

Beavers v. Secretary of Health, Education and Welfare, 577 F.2d

383, 387 (6th Cir. 1978) (quoting Universal Camera Corp. v. NLRB,

340 U.S. 474, 488 (1951)); Wages v. Secretary of Health and Human

Services, 755 F.2d 495, 497 (6th Cir. 1985). Even if this Court

would reach contrary conclusions of fact, the Commissioner's

decision must be affirmed so long as that determination is

supported by substantial evidence. Kinsella v. Schweiker, 708

F.2d 1058, 1059 (6th Cir. 1983).

Plaintiff first takes issue with the extent to which the ALJ

relied on the opinion of Dr. McCloud, who never treated or

examined him. In particular, he notes that many medical records

were submitted after Dr. McCloud reviewed the file, and argues

that the ALJ did not comment on any of them when he determined

that Dr. McCloud’s opinion was the most credible. He also faults

the ALJ for accepting Dr. Melvin’s opinion because the later

notes of mental health treatment were not reviewed by him. 

Because this argument is intertwined with the issue concerning

the weight given to the opinions of the treating doctors, the

Court will review the first two assignments of error together.

The ALJ reviewed the reports of plaintiff’s various physical

impairments and concluded that objective testing showed only mild

degenerative or arthritic changes in the spine. Also, his

physicians consistently reported a full range of motion for

plaintiff’s joints except for some loss of range of motion in the

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lumbar spine. Tests such as straight leg raising were normal as

was plaintiff’s gait. He appeared to have no complications after

his heart attack and did not report any weakness or shortness of

breath. Given all of this, the ALJ determined that Dr. Koch’s

opinion was unsupported by the medical record and also in

conflict with plaintiff’s statements concerning his activities of

daily living. The ALJ noted the absence of any prescription for

either a TENS unit or a cane. Consequently, the ALJ determined

that Dr. McCloud’s opinion was consistent with the objective

medical evidence and was entitled to be given the greatest

weight. Dr. Schlessel’s opinion was not mentioned. 

Additionally, the ALJ adopted Mr. Loomis’ opinion and found that

any psychological impairment was not severe.

As far as the treating physicians are concerned, it is

black-letter law that a treating physician's opinion is entitled

to weight substantially greater than that of a nonexamining

medical advisor or a physician who saw plaintiff only once. 

Lashley v. Secretary of H.H.S., 708 F.2d 1048, 1054 (6th Cir.

1983); Estes v. Harris, 512 F.Supp. 1106, 1113 (S.D. Ohio 1981). 

However, the weight given such a statement depends on whether it

is supported by sufficient medical data and is consistent with

other evidence in the record. 20 C.F.R. §404.1527; Harris v.

Heckler, 756 F.2d 431 (6th Cir. 1985). In evaluating a treating

physician’s opinion, the Commissioner may consider the extent to

which that physician’s own objective findings support or

contradict that opinion. Moon v. Sullivan, 923 F.2d 1175 (6th

Cir. 1990); Loy v. Secretary of HHS, 901 F.2d 1306 (6th Cir.

1990). The Commissioner may also evaluate other objective

medical evidence, including the results of tests or examinations

performed by non-treating medical sources, and may consider the

claimant’s activities of daily living. Cutlip v. Secretary of

HHS, 25 F.3d 284 (6th Cir. 1994).

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Even if there are good reasons for rejecting or discounting

the opinion of a treating physician, “[t]here is an additional

procedural requirement associated with the treating physician

rule.” Rogers v. Comm’r of Social Security, 486 F.3d 234, 242

(6th Cir. 2007), Under this procedural requirement, the

Commissioner must clearly articulate both the weight given to the

treating physician’s opinion and the reasons for giving it that

weight. Two reasons underlie this procedural requirement. 

First, it assists the claimant to understand why the Commissioner

has concluded, contrary to what the claimant has been told by his

or her treating doctor, that the claimant is not disabled. 

Second, it ensures that the Commissioner has correctly applied

the substantive law applicable to opinions of treating sources

and that an appellate court can review that application in a

meaningful way. Id. 

Where the Commissioner does not follow this procedural

requirement at the administrative level, the Court cannot simply

fill in the required analysis based on the evidence of record.

Rather, “[b]ecause of the significance of the notice requirement

in ensuring that each denied claimant receives fair process, a

failure to follow the procedural requirement of identifying the

reasons for discounting the opinions and for explaining precisely

how those reasons affected the weight accorded the opinions

denotes a lack of substantial evidence, even where the conclusion

of the ALJ may be justified based upon the record.” Id. at 243,

citing Wilson v. Comm’r of Social Security, 378 F.3d 541, 544

(6th Cir. 2004).

Here, at least as far as Dr. Koch is concerned, the ALJ both

had and articulated valid reasons for discounting his opinion. 

Dr. Koch imposed severe limitations on plaintiff’s ability to do

any physical activities. As the ALJ noted, there are simply no

objective tests, clinical findings, or other support for that

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type of limitation. The reports from the specialists to whom

plaintiff was referred do not appear to suggest such severe

limitations, and, as the ALJ also noted, plaintiff testified to

daily activities that are inconsistent with Dr. Koch’s views. 

Clearly, no error was committed when the ALJ decided not to give

Dr. Koch’s views controlling or even significant weight.

The issue concerning Dr. Schlessel’s opinion is more

troubling. The Commissioner argues that he was not a treating

source but that, even if he was, this is one of those rare cases

where, under Wilson, the error in not articulating reasons for

discounting Dr. Schlessel’s report can be treated as harmless. 

That may be the case if the opinion which is not mentioned by the

ALJ is “so patently deficient that the Commissioner could not

properly credit it” or if the administrative decision “has met

the goal of ... the procedural safeguard of reasons.” Wilson, 378

F.3d at 547. Plaintiff, on the other hand, disputes that any

error was harmless, and also cites to Blakley v. Commissioner Of

Social Sec., 581 F.3d 399 (6th Cir. 2009) for the proposition

that it was error for the ALJ not to explain why this opinion,

which was also not reviewed by Dr. McCloud, did not affect the

weight given to Dr. McCloud’s opinion.

Blakley involved a case where the ALJ adopted the opinions

of a consultative examiner and two state agency physicians, the

last of which was rendered in September, 2005. However, after

that date, the claimant continued to seek treatment, and in

December, 2005, his treating orthopedic surgeon limited him to a

level of work that was inconsistent with the limitations found by

the prior examiners and reviewing physicians. An additional

consultative examination was performed the following year and the

results of that examination also conflicted with the views 

expressed in 2005. After finding that the ALJ did not adequately

articulate reasons for discrediting the opinions of the

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claimant’s treating sources, the Court of Appeals also held that

the ALJ had not adequately explained why greater weight was given

to the opinions of physicians who had not reviewed the entire

record, especially when that record included much additional

treatment history and opinions based on that history. 

Here, as the Commissioner points out, Dr. Schlessel’s

opinion consists of boxes checked on a form, and he did not

specifically describe the reasons for the limitations he imposed. 

Further, Dr. McCloud clearly had before him the same test results

which Dr. Schlessel used to derive his opinion, and the ALJ

reviewed not only those test results but additional medical

evidence, including evidence going beyond what Dr. McCloud had

before him, when he explained why Dr. Koch’s opinion was not

given much weight. This latter explanation cures any issue under

Blakley, because it demonstrates that the ALJ did consider that

additional evidence which, according to plaintiff, made Dr.

McCloud’s opinion less reliable. 

The Wilson question is a closer one. It is difficult to say

that Dr. Schlessel’s opinion could not possibly have been

credited, although given the fact that it was one of the reports

that apparently formed the basis for Dr. Koch’s opinion and Dr.

Koch’s opinion was deemed wholly unsupported by the record, it is

extremely unlikely that the ALJ would have given it much weight. 

That seems especially likely to be true because Dr. Schlessel did

not find any evidence of most of the problems he tested plaintiff

for, did not really prescribe any treatment beyond some pain

medication, only saw plaintiff two or three times, and did not

indicate what symptoms or test results his opinion was based on. 

Nevertheless, the limitations he imposed were not as severe as

those imposed by Dr. Koch, and not completely inconsistent with

plaintiff’s daily activities, so that the ALJ would have had to

have used a slightly different rationale for rejecting that

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opinion.

Nevertheless, the Court concludes that, on this record, the

goal of §1527(d)(2) has indeed been met even though there may not

have been strict compliance with that regulation. The detailed

discussion of Dr. Koch’s opinion, the reasons given for

discounting it, and the reasons advanced in support of the ALJ’s

decision to give Dr. McCloud’s opinion controlling weight are

sufficiently related to Dr. Schlessel’s opinion as well so that

the Court has a rationale to review, and the plaintiff has been

provided with an explanation about why Dr. McCloud was deemed the

most believable physician. That explanation would not have been

substantially different had Dr. Schlessel’s opinion (as opposed

to his reports) been specifically mentioned. Thus, to the extent

that Dr. Schlessel could be considered a treating source, the

error in failing to explain why his opinion was rejected is

harmless, and a remand on that issue would be an exercise in

futility.

Next, plaintiff argues that his use of a cane was medically

necessary but was not factored into the ALJ’s findings. He notes

that one of the items which Dr. Schlessel checked on the form he

completed was that plaintiff needed to use a cane while engaging

in occasional walking. The vocational expert was not asked to

assume this limitation, so there is no testimony in the record

concerning how the use of a cane would affect plaintiff’s ability

to perform his past work or other jobs at the medium exertional

level. The Commissioner responds, briefly, that the ALJ’s

conclusion that no one had prescribed plaintiff with a cane was

supported by the record and that most treatment notes indicated

his gait was normal and did not state that he was using, or

needed to use, a cane.

Social Security Regulation (SSR) 96-9p provides that the

occupational base for an individual who needs to use a cane or

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other hand-held assistive device “may be significantly eroded”

and that it may be necessary to obtain vocational evidence on

that issue. The regulation also states, however, that “there

must be medical documentation establishing the need for a handheld assistive device to aid in walking or standing, and

describing the circumstances for which it is needed.” The ALJ,

without specifically mentioning Dr. Schlessel’s report, states

simply that “there is no evidence in the record of the claimant

requiring any ambulatory assistance or being prescribed one.” 

(Tr. 40). It can be inferred from that statement that the ALJ

overlooked the notation in Dr. Schlessel’s report, even though

that report is one of the exhibits that the ALJ lists as having

reviewed.

It has been held that “isolated notations” in the medical

record concerning the use of a cane are not enough to trigger the

application of SSR 96-9p. See, e.g., Rivera v. Astrue, 2009 WL

235353, *5 (E.D. Pa. January 29, 2009). Certainly, this single

note, made long after Dr. Schlessel examined plaintiff and

unsupported by any reference to a condition which would affect

plaintiff’s balance or strength to the point where he would need

to use a cane, can properly be characterized as an “isolated

notation.” Although Dr. Koch apparently prescribed a cane, the

evidence of that fact was not before the ALJ, so the ALJ could

hardly have erred by finding that such a prescription had never

been issued. And this is not a case like Parker v. Astrue, 597

F.3d 920 (7th Cir. 2010); there, the issue was not whether there

was or was not medical documentation for the use of cane so that

vocational testimony had to be obtained on the subject, as

required by SSR 96-9p, but whether the claimant’s use of a cane

without a prescription was “suspicious” and called her

credibility into doubt. Overall, there is substantial support in

this record for the ALJ’s finding that plaintiff’s use of a cane

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did not satisfy the requirements of SSR 96-9p and that the

vocational expert did not have to be asked to take that use into

account in evaluating plaintiff’s ability to perform his past

relevant work. 

Plaintiff next argues that the ALJ erred by failing to find

that he suffered from fibromyalgia. His entire argument on this

point appears to be that certain tender points (one of the

hallmarks of fibromyalgia) were found during Dr. Schlessel’s

examinations. Dr. Schlessel, however, never diagnosed

fibromyalgia (nor did any other physician), but simply stated

that there was a “suggestion” of that disease. Given the record,

the ALJ did not err in finding that plaintiff did not suffer from

fibromyalgia.

Plaintiff’s fifth argument is that his credibility was not

properly evaluated. In support of this argument, he contends

that the ALJ made factual errors in interpreting the record as to

his daily activities, noting that many of the activities which

the ALJ found he could do were things he was capable of before,

and not after, his accident. He also argues that the ALJ

misstated the types of medications he took for his pain, and that

the combination of these factual errors and the misinterpretation

of the objective medical evidence substantially undermines the

ALJ’s finding that plaintiff’s testimony could not be credited

fully.

The evaluation of a claimant’s credibility is largely

committed to the discretion of the Commissioner, and the findings

made in that regard are entitled to “great weight and deference.” 

Walters v. Commissioner of Social Security, 127 F.3d 525, 531

(6th Cir. 1997). However, “[i]f an ALJ rejects a claimant's

testimony as incredible, he must clearly state his reasons for

doing so.” Felisky v. Bowen, 35 F.3d 1027, 1036 (6th Cir. 1994). 

Further, those reasons must be tied to evidence in the record. 

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Id.

Here, the ALJ explained his credibility finding as follows. 

First, he concluded that the objective medical evidence did not

support plaintiff’s claim of debilitating pain, noting the

relatively benign findings on most objective tests and clinical

examinations, which contradicted not only plaintiff’s testimony

but Dr. Koch’s opinion that plaintiff could walk for only five

minutes at a time. He also noted that plaintiff had not been

recommended for surgery and was treated “primarily” by over the

counter medications, and that he had not done any physical

therapy or strengthening exercises despite recommendations that

he do so. (Tr. 41). Finally, the ALJ described plaintiff’s

daily activities as inconsistent with total disability, noting

that plaintiff “is able to cook, do the dishes, laundry, vacuum,

make the beds and perform light housekeeping” and can “read,

write, drive, and independently bathe and dress himself and

attend to his own personal hygiene.” Further, he “regularly

visits with family and friends and attends school functions,

namely T-ball and baseball games being played by his

grandchildren.” (Tr. 42). As support for these findings, the

ALJ cited to exhibits 4E, 5E, 12E, and 15E.

Exhibit 4E states that plaintiff can do dishes, shower,

vacuum, and fix dinner. Under “Hobbies and Interests” he listed

watching televison, listening to music, sitting outside, playing

on the computer, rebuilding tractors, mowing the lawn, yard work,

and playing music, stating that he was able to do these things

“all the time, very well.” (Tr. 142). He also stated he went to

ball games with his grandchildren. Similar activities are

described in Exhibit 5E. The ALJ does not appear to have made

any factual error by referring to these statements in his

credibility finding. Further, the ALJ did not find, as plaintiff

suggests, that he has never taken anything stronger than over the

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counter medications for his pain, only that such medications have

been the “primary” method of treatment. Again, there is support

in the record for this finding. Because the ALJ both made an

express credibility finding and, contrary to plaintiff’s

argument, it is based on evidence in the record, this Court

cannot disturb that finding.

Plaintiff’s sixth and final argument is that the

hypothetical question asked to the vocational expert was

incomplete. The matters supposedly left out deal with

plaintiff’s need to use a cane and his psychological impairment. 

The Court has already determined that the ALJ did not err in the

way in which these issues were evaluated, so there was no need to

incorporate such limitations into the questions asked to the

vocational expert. Therefore, this last assignment of error also

lacks merit, and the Court concludes that the Commissioner’s

decision, in its entirety, was supported by substantial evidence.

 VII. Recommended Decision

Based on the above discussion, it is recommended that the

plaintiff’s statement of errors be overruled and that the Clerk

be directed to enter judgment in favor of the defendant

Commissioner of Social Security.

VIII. Procedure on Objections

If any party objects to this Report and Recommendation,

that party may, within fourteen (14) days of the date of this

Report, file and serve on all parties written objections to

those specific proposed findings or recommendations to which

objection is made, together with supporting authority for the

objection(s). A judge of this Court shall make a de novo

determination of those portions of the report or specified

proposed findings or recommendations to which objection is

made. Upon proper objections, a judge of this Court may

accept, reject, or modify, in whole or in part, the findings

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or recommendations made herein, may receive further evidence

or may recommit this matter to the magistrate judge with

instructions. 28 U.S.C. §636(b)(1).

 The parties are specifically advised that failure to

object to the Report and Recommendation will result in a

waiver of the right to have the district judge review the

Report and Recommendation de novo, and also operates as a

waiver of the right to appeal the decision of the District

Court adopting the Report and Recommendation. See Thomas v.

Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d

947 (6th Cir. 1981).

/s/ Terence P. Kemp 

United States Magistrate Judge

Case: 2:10-cv-01008-MHW-TPK Doc #: 14 Filed: 07/14/11 Page: 17 of 17 PAGEID #: <pageID>