UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

EVELYN PARKER,

Plaintiff,

Civil Action 2:10-cv-00971

vs. Judge Gregory L. Frost

Magistrate Judge E.A. Preston Deavers

COMMISSIONER OF SOCIAL 

SECURITY ADMINISTRATION,

Defendant.

REPORT AND RECOMMENDATION

I. INTRODUCTION

Plaintiff, Evelyn Parker, filed this action seeking review of a final decision of the

Commissioner of Social Security (“Commissioner”) denying her application for social security

disability insurance benefits. In her application, which she filed on September 14, 2006, Plaintiff

alleged that she has been disabled since January 29, 2005, due to depression, migraines, rotator

cuff tear, bulging disc, upper and lower back sprain, left knee, morbid obesity, diabetes, deafness

in the right ear, and limited hearing in her left ear. (R. at 92–94, 107.)

After initial administrative denials of her claim, Plaintiff appeared and testified at a

hearing before an Administrative Law Judge (“ALJ”) on May 11, 2009. (R. at 23–53.) A

vocational expert also testified at the hearing. (Id.) On August 28, 2009, the ALJ issued an

unfavorable decision denying benefits. (R. at 9–22.) This decision became the final decision of

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the Commissioner when the Appeals Council denied review on August 26, 2010.1

 (R. at 1–5.)

Plaintiff thereafter timely commenced this civil action. In her Statement of Errors,

Plaintiff contends that the ALJ erred in rejecting the opinion her treating physician and in

assessing her credibility. Following the Commissioner’s response in opposition and Plaintiff’s

reply, the matter is now ripe for decision. For the reasons that follow, it is RECOMMENDED

that the Court REMAND this case for further consideration consistent with this Report and

Recommendation.

II. PLAINTIFF’S TESTIMONY

Plaintiff, who was forty five years old at the time of the administrative hearing, has a

tenth grade education. (R. at 103, 114.) Her past relevant work was as a security guard, mental

retardation aid, and quality parts inspector. (R. at 48, 108, 120.)

At the administrative hearing, Plaintiff testified that she was 5'7" tall and weighed 363

pounds. (R. at 28.) Plaintiff reported gaining approximately forty pounds in the prior two

months due to steroid treatment. (Id.) She last worked in January 2005, when she fell on the job

and injured herself. (R. at 29–30.) Plaintiff stated that her most significant problem is her back. 

(R. at 31.) She testified to experiencing constant lower back pain due to herniated discs and

arthritis. (R. at 31.) Her back pain radiated to her right hip and leg, and her right leg often went

1

 In requesting review from the Appeals Council, Plaintiff submitted new evidence. (See

R. at 5, 513–69.) Although the Appeals Council considered this evidence and included it within

the record, it ultimately denied review, making the ALJ’s decision the Commissioner’s final

decision. The Court, therefore, cannot consider this new evidence in reviewing the ALJ’s

decision. See Bass v. McMahon, 499 F.3d 506, 513 (6th Cir. 2007) (“‘[W]here the Appeals

Council considers new evidence but declines to review a claimant’s application for disability

insurance benefits on the merits, the district court cannot consider that new evidence in deciding

whether to uphold, modify, or reverse the ALJ’s decision.’”) (quoting Cline v. Comm’r of Soc.

Sec., 96 F.3d 146, 148 (6th Cir. 1996)).

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numb. (R. at 32.) Treatment for her back included a TENS unit, Percocet, and physical therapy. 

(R. at 35.) Plaintiff indicated that she took Percocet every four to five hours. (R. at 42.) She

used Fentanyl patches in three-day cycles, but reported that they did not help. (Id.) Plaintiff

rated her pain level at a 9 to 10 on a 10 point severity scale when she was on her feet and moving

around. (R. at 33.) She estimated that her pain reduced to 5 to 6 out of ten 10 she was sitting in

a recliner. (Id.)

In addition to her back pain, Plaintiff testified to having problems with her shoulder and

hip. (R. at 34.) She noted constant pain in her right shoulder due to tendonitis. (R. at 34–35.) 

Plaintiff indicated that her range of motion in her shoulder is limited due to this pain. (R. at 34.) 

Plaintiff also reported having migraine headaches two or three times a week due to a bulge in her

neck. (R. at 37.) Plaintiff further testified that she has no hearing in her right ear. (R. at 37.) 

She slept only two hours a night due to her sleep apnea, back, and leg pain. (R. at 32.) Plaintiff

used a C-PAP device at night for sleep apnea, but did not find it helpful. (R. at 38.) Plaintiff

stated that she had no energy. (Id.) Finally, Plaintiff testified to suffering from depression,

noting one period where she was hospitalized because she wanted to kill herself. (R. at 39, 43.)

Plaintiff guessed that she spent about twelve hours a day sitting in a reclined position. 

(R. at 33.) Plaintiff testified that she folded laundry and cooked, but when she cooked she sat on

her walker. (R. at 41.) She did not go to the grocery store by herself and used a scooter when

she shopped. (R. at 41.) She also testified that she was able to drive her car once a week to go to

the grocery store. (R. at 29.) Plaintiff estimated that she could lift five to six pounds. (R. at 40.) 

She could only sit up for twenty to thirty minutes at a time. (R. at 33.)

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III. MEDICAL RECORDS

A. Dr. Connor

1. Treatment Notes

John C. O’Connor, M.D., of Maple Leaf Family and Sport Medicine, began treating

Plaintiff in 1998. (R. at 342.) Dr. Connor saw Plaintiff on January 14, 2005 for complaints of

lower back pain. (R. at 300.) On examination, her weight was 322 lbs. (Id.) Plaintiff's range of

motion in her hips and knees was normal, but back movement was limited in all directions and

she was “difficult to examine due to spasm.” (Id.) Dr. O’Connor diagnosed low back pain and

ordered an MRI. (R. at 300–01.) The MRI showed mild degenerative changes in the facet joints

at L4-5 and L5-S1. (R. at 226.) 

In April 2005, Plaintiff reported having problems with her depression. (R. at 299.) Dr.

O’Connor started Plaintiff on Cymbalta and recommended counseling. (Id.) In May 2005,

Plaintiff stated she was doing well on her medication for depression. (R. at 298.)

Dr. O’Connor saw Plaintiff for swollen knees on June 1, 2005. (R. at 297.) Dr.

O’Connor noted tenderness on examination and diagnosed Plaintiff with patelleofemoral

syndrome. (Id.) On June 10, 2005, Dr. O’Connor saw Plaintiff for continued knee pain. (R. at

296.) She had tenderness and a positive patellar compression test. (Id.) In July 2005, Dr.

O’Connor examined Plaintiff after she had fallen in the tub and hurt her left shoulder. (R. at

292.) At this time, her weight was 346 lbs. (Id.) Plaintiff received injections for migraine pain

in August and October 2005. (R. at 287-88, 290-91.)

The records reflect that Dr. O’Connor continued to treat Plaintiff from January 2006

through November 2008. (R. at 401-57.) Over this period, Plaintiff received treatment for

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depression; anxiety disorder, not otherwise specified; migraine; diabetes, Type II; chronic back

pain; neck and shoulder pain; fatigue; chest pain; and shortness of breath. (Id.) Examinations

generally revealed normal gait, normal spine motion and straight leg raising, normal motor

strength, no sensory deficits, and symmetric reflexes. (Id.) Dr. O’Connor, however, frequently

found vertebral spine tenderness, paraspinal spasms, and mild tenderness on the SI joints upon

examination. (Id.) In providing Plaintiff’s history, Dr. O’Connor typically described the

severity of her lower back pain as moderate and he noted on multiple occasions that Plaintiff’s

back pain radiated down her right leg to the knee. (Id.) Plaintiff received medicine and

injections for migraines. (R. at 404, 414, 422, 431, 433, 439, 452, 457.) 

On April 24, 2006, Plaintiff reported suicidal thoughts. (R. at 432.) Dr. O’Connor

recommended inpatient treatment. (Id.) In May 2006, Plaintiff reported some improvement in

depression on her current medication.2

 (R. at 430.) Dr. O’Connor prescribed a handicap placard

on September 1, 2006. (R. at 429.) On October 24, 2006, Dr. O’Connor reported that Plaintiff

had depression, migraine headaches, morbid obesity, and chronic back pain. (R. at 235–36.) On

January 31, 2007, an MRI of the lumbar spine demonstrated a left para-midline and foraminal

disc herniation at L4-5 impinging on the left L4 nerve root and the foramen and degenerative

changes in the facet joints at L4-5 and L5-S1. (R. at 277.) In August 2007, Dr. O’Connor

started Plaintiff on physical therapy. (R. at 406.) At the request of Dr. O’Connor, Plaintiff

underwent a stress test on October 19, 2007, due to chest pain. (R. at 319-20.) Results were

normal. (R. at 320.)

2

 The record also reflects that Plaintiff received counseling from Adkin and Affiliates in

2006. (R. at 229–33.)

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2. Evaluations

On February 6, 2007, Dr. O’Connor submitted a form regarding Plaintiff’s condition. (R.

at 272–73.) He diagnosed Plaintiff with depression, morbid obesity, and chronic low back pain. 

(R. at 272.) He reported that based on his clinical examination findings Plaintiff was in constant

severe pain. (Id.) He indicated that Plaintiff was compliant with treatment. (R. at 273.)

Dr. O’Connor responded to interrogatories on November 17, 2007. (R. at 342–47.) He

noted that he first treated Plaintiff in 1998 and last saw her on October 17, 2007. (R. at 342.)

According to Dr. O’Connor, Plaintiff would be able to be prompt and regular in attendance;

respond appropriately to supervision, co-workers, and customary work pressures; demonstrate

reliability; and respond appropriately to changes in routine work setting. (R. at 343–46.) Dr.

O’Connor opined, however, that Plaintiff was unable to withstand the pressure of meeting

normal standards of work productivity and work accuracy without significant risk of physical or

psychological decompensation or worsening of her physical and mental impairments; sustain

attention and concentration to meet normal standards of work productivity and work accuracy;

maintain concentration and attention for extended periods of time; get along with co-workers or

peers without unduly distracting them; sustain ordinary routine without special supervision;

work in coordination with others without being unduly distracted by them; and accept

instructions and respond appropriately to criticism from supervisors. (R. at 344–47.) Dr.

O’Connor determined that Plaintiff’s depression inhibited her ability in all of these categories. 

(Id.) Additionally, Dr. O’Connor submitted that Plaintiff would not be able to complete a

normal work day or work week without interruptions from psychologically and/or physically

based symptoms and perform at a consistent pace without unreasonable number and length of

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rest periods because of her physical limitations. (R. at 345–46.)

Dr. O’Connor also completed a “Medical Assessment of Ability to do Work-Related

Activities (Physical)” on November 19, 2007. (R. at 338-41.) Dr. O’Connor opined that

Plaintiff could occasionally and frequently lift or carry five pounds. (R. at 338.) Plaintiff could

stand for two hours out of an eight-hour workday and without interruption for two hours. (Id.) 

She could sit for two hours out of eight and uninterrupted for one hour. (Id.) Dr. O’Connor

indicated that he based these opinions on Plaintiff’s pain. (Id.) Dr. O’Connor also opined that

Plaintiff’s pain and obesity resulted in a number of postural limitations. (R. at 339.) According

to Dr. O’Connor, Plaintiff was never to climb, stoop, crouch, kneel, or crawl. (Id.) She could

occasionally balance. (Id.) She had limitations in her ability to reach, handle, finger, push, and

pull. (Id.) Plaintiff was restricted from heights, moving machinery, and vibration. (R. at 340.) 

He concluded that Plaintiff could not perform sedentary work activity. (R. at 341.) She would

miss work more than three times a month. (Id.) Dr. O’Connor recommended a functional

capacity evaluation to fully assess Plaintiff’s ability. (Id.)

B. Dr. Hussein

Consulting neurologist, Hakim A. Hussein, M.D., saw Plaintiff on referral from Dr.

O’Connor on October 5, 2004, due to migraine headaches. (R. at 194-96.) Plaintiff reported that 

seven months prior her headaches changed in severity and frequency. (R. at 194.) She also

complained of dizzy spells and jerking of her arms and legs. (Id.) Examination of the head and

neck region showed tenderness in both suboccipital regions worse on the right than the left. (R.

at 195.) Sensory examination including light touch, pinprick, vibration, and position sense were

normal. (Id.) Her neck flexion, extension, and lateral rotation were normal. (Id.) She was able

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to flex her back without restrictions. (Id.) Plaintiff was treated with a occipital nerve block on

October 12, 2004. (R. at 193.) On October 14, 2004 an MRI taken of Plaintiff's brain was

normal. (R. at 192.) 

On November 9, 2004, Plaintiff reported a fifty percent reduction in her headaches with

the nerve block. (R. at 191.) Plaintiff's EEG and the computer assisted EEG and brain mapping

were normal. (Id.) Dr. Hussein diagnosed episodic migraine headaches, intractable;

cervicalgia with possible right C5-6 radiculopathy; history of bilateral occipital neuralgia status

with post bilateral occipital nerve block with good response; and obesity and possible

pseudotumor cerebri. (Id.) Plaintiff underwent another occipital nerve block on May 9, 2005,

noting that she experienced “a great response” with the previous one. (R. at 186.)

C. Mary Rutan Hospital and Corporate Health Services

The medical records reflect that Plaintiff originally injured her right shoulder on October

7, 2004. (R. at 220.) Plaintiff fell striking her shoulder and neck. (Id.) Plaintiff received care

from Corporate Health Services and Dr. Annette Malone from October 2004 through March

2006. (R. at 352-400.) Dr. Malone diagnosed Plaintiff with cervical sprain, shoulder sprain, and

upper part thoracic sprain. (R. at 400.) Treatment and examination notes from this period reflect

that Plaintiff was experiencing various symptoms including spasms, weakness, and a restricted

range of motion in her upper extremity and her cervical spine. (R. at 352-400.)

A cervical spine MRI taken on December 20, 2004, revealed a small right paramidline

disc bulge at C5-6 approximating the right C6 nerve root. (R. at 275, 388.) Although Dr.

Malone initially reported that Plaintiff could return to work with restrictions, on January 28,

2005, Dr. Malone found Plaintiff unable to return to work. (R. at 389, 397.) In February 2005

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Dr. Malone ordered an MRI of the right shoulder. (R. at 223.) The MRI revealed tendinosis and

peritendinitis of the supraspinatus tendon, arthropathy of the acromioclavicular joint, and mild

lateral arch stenosis. (Id.) On April 1, 2005, Dr. Malone prescribed a TENS unit. (R. at 380.)

Dr. Malone referred Plaintiff to the Mary Rutan Hospital Rehabilitation Center for

massage and physical therapy. Plaintiff attended message therapy for neck sprain and right

shoulder pain from March 3, 2005 through May 20, 2005. (R. at 348-51.) The record shows that

Plaintiff missed and cancelled several appointments. (R. at 349-51.) Plaintiff reported no

improvements in her right shoulder and neck pain. (R. at 348.)

The record also contains physical therapy treatment records dated from March 2005 to

August 2005. (R. at 200-16.) Plaintiff attended 27 sessions for her shoulder. (R. at 201.) 

Physical therapy notes reflect Plaintiff was experiencing crepitus and a reduced range of motion. 

(R. at 214–16.) Plaintiff reported no improvement in her pain and functioning. (R. at 201, 211.)

On March 21, 2005, Plaintiff saw Robert C. Anderson, M.D. of the Mary Rutan Hospital

for an orthopedic consultation. (R. at 220–21.) Dr. Anderson’s examination findings included

full range of motion in Plaintiff’s right shoulder; no significant tenderness at the AC joint; and

mildly positive impingement signs. (R. at 220.) Dr. Anderson noted that most of Plaintiff’s

discomfort seemed to be over the coracoid and anterior edge of the acromion. (Id.) Plaintiff

received a corticosteroid injection and Dr. Anderson recommended six more weeks of therapy.

(R. at 221.) He opined that Plaintiff should be lifting no more than 10 pounds with her right arm

and shoulder if she returned to work. (Id.) Dr. Anderson believed that Plaintiff stood a good

chance of recovering shoulder function without surgical intervention. (Id.)

Plaintiff presented to the Mary Rutan Hospital emergency room on April 10, 2005. (R. at

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176-84.) Plaintiff was hyperventilating and reported depression and suicidal thoughts. (R. at

177.) Plaintiff was discharged in stable condition after signing a contract for safety. (Id.) On

April 24, 2006, Plaintiff was hospitalized for suicidal ideation. (R. at 479–88.) At this time she

reported depression due to recent deaths in her family and marital problems. (R. at 486.) 

Plaintiff was discharged on April 28, 2006. (R. at 484.)

On June 10, 2005, Dr. Malone reported that Plaintiff needed vocational rehabilitation. 

(R. at 372.) On March 3, 2006, Dr. Malone opined that Plaintiff could return to work with

restrictions. (R. at 353.) Dr. Malone limited Plaintiff to lifting/carrying ten pounds occasionally

and five pounds frequently. (Id.) She was not to perform work above the shoulder on the right

and she could not bend more than twenty-five percent. (Id.)

Plaintiff attended physical therapy from March 27, 2007 to November 27, 2007, for

lumbar spine pain. (R. at 462-78.) Upon initially examined, the physical therapist noted severe

lordosis with guarding, a slow gait, and tenderness in the lumbar spine into the hip. (R. at 474.) 

Plaintiff was discharged due to a lack of attendance. (R. at 462.)

C. Dr. Mueller

On August 9, 2005, Robert W. Mueller, M.D., an orthopedic and sports medicine

specialist, saw Plaintiff on referral from Dr. Malone. (R. at 282-83.) Upon examination, Dr.

Mueller noted that Plaintiff was morbidly obese, had a positive impingement sign, and

tenderness. (R. at 283.) He further noted that a recent MRI showed some peri-cuff tenderness as

well as A-C joint degeneration/inflamation. (Id.) Dr. Mueller diagnosed right shoulder

impingement and rotator cuff strain, A-C joint pain, and possible carpal tunnel syndrome on the

right. (Id.) He recommended an arthroscopy of the right shoulder, which would include a

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subacromial decompression and a distal clavicle excision and possible rotator cuff repair if he

found a rotator cuff tear during the arthroscopy. (Id.)

D. Dr. Terebuh

Boris Terebuh, M.D., evaluated Plaintiff on March 27, 2007 for her lumbar pain. (R. at

313-14.) At this time, Plaintiff weighed 352 lbs. (R. at 313.) Dr. Terebuh found Plaintiff was

very tender to palpation and noted that her pain responses were out of proportion with the

stimulation he applied. (Id.) Examination revealed that pain significantly limited Plaintiff’s

motion, extension, and flexion; Plaintiff’s reflexes were mildly diminished; she had a positive

pin prick test; and her gait was mildly antalgic. (R. at 313–14.) Dr. Terebuh diagnosed facet

joint pain at L4-5 and L5-S1. (R. at 314.) Dr. Terebuh discussed the importance of

progressively increasing physical activity. (Id.) 

On June 8, 2007, Plaintiff reported that her symptoms had worsened. (R. at 310.) 

Plaintiff reported numbness traveling down into her right leg while sitting. (Id.) Dr. Terebuh

noted that “the most important treatment intervention” for Plaintiff’s condition was increasing

physical activity. (Id.) Plaintiff received corticosteroid injections on June 13, 2007. (R. at 309.) 

During a June 29, 2007 examination, Dr. Terebuh found tenderness in the lower lumbar region;

trunk range of motion painful with extension, but relieved with flexion; normal sensation; absent

reflexes; normal motor findings in the distal lower limbs; and a normal gait. (R. at 305.) On

July 10, 2007 and July 26, 2007, Plaintiff underwent facet joint nerve blocks. (R. at 306-07.) 

On August 30, 2007, Plaintiff indicated a 10% improvement following the facet joint

nerve procedures. (R. at 303.) She had painful hip joint range of motion, problems transitioning

from sitting to standing, and an antalgic gait. (Id.) Plaintiff inquired about an electric

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wheelchair, but Dr. Terebuh recommended a walker instead. (Id.) 

On October 1, 2007, Dr. Terebuh wrote that Plaintiff had chronic lumbar pain associated

with degenerative changes and opined that Plaintiff's “body weight is a significant contributing

factor to her chronic pain symptoms.” (R. at 302.) Dr. Terebuh concluded that “[a] significant

weight loss would be expected to help ease the biomechanical burden on the degenerative

segments in the lumbar spine and result in an improvement in her chronic pain status.” (Id.) 

X-rays of Plaintiff’s hips taken on October 11, 2007 were normal. (R. at 321.) 

E. Dr. Goodwin

Plaintiff saw Jeffrey E. Godwin, M.D., from June 5, 2007 to September 27, 2007 for

possible sleep apnea. (R. at 322-36.) Two sleep studies revealed mild to moderate obstructive

sleep apnea. (R. at 322.) Dr. Godwin prescribed a CPAP machine. (R. at 323.) Dr. Godwin

noted on September 27, 2007, that Plaintiff had been noncompliant in quitting smoking and

using the Chantix medication he had prescribed. (R. at 322.) He was not optimistic that Plaintiff

was going to follow through on his advice. (Id.)

F. Dr. Stokes

Plaintiff received some treatment from Dr. Malcolm Stokes for her depression in 2008. 

(R. at 459–61.) On March 23, 2009, Dr. Stokes indicated that Plaintiff had missed ten

appointments, while only keeping four. (R. at 458.) Dr. Stoke’s notes reflect that he diagnosed

Plaintiff with major depression and generalized anxiety disorder. (Id.)

G. State Agency Evaluations

State agency physician Esberdado Villanueva, M.D., reviewed the record and provided a

physical residual functional capacity assessment on November 20, 2006. (R. at 263–70.) He

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opined that Plaintiff could lift/carry up to fifty pounds occasionally and frequently twenty-five

pounds frequently. (R. at 264.) She could stand/walk for six hours out of eight and sit for six

hours out of eight. (Id.) She was limited in her ability to push/pull. (Id.) Dr. Villanueva based

these opinions on Plaintiff’s 2005 MRI results demonstrating right shoulder rotator cuff

tendinosis, mild impingement syndrome, and mild degenerative changes in the facet joints at L4-

5 and L5-S1. (Id.) Additionally, Dr. Villanueva opined that Plaintiff was never to climb ladders,

ropes, and scaffolds; had a limited ability to reach in all directions; and was to avoid

concentrated exposure hazards. (R. at 265–67.) Dr. Villanueva noted that Plaintiff’s symptoms

were attributable to a medically determinable impairment, the severity or duration of the

symptoms were not disproportionate to the expected severity of expected duration on the basis of

the her medically determinable impairments, and that her allegations were consistent to the

objective medical evidence. (R. at 268.) On March 27, 2007, Diane Manos, M.D., reviewed the

record at the request of the State agency and affirmed Dr. Villanueva's assessment. (R. at 281.)

James C. Tanley, Ph.D., conducted a clinical interview of Plaintiff in June 2009. (R. at

504–11.) Dr. Tanley found Plaintiff to be unimpaired in her ability to relate to others,

understand and follow simple instructions, and maintain attention to perform simple/repetitive

tasks. (R. at 506.) He found Plaintiff’s ability to withstand the stress of daily work to be

moderately impaired. (Id.) Dr. Tanley diagnosed Plaintiff with adjustment disorder with

depressed mood. (Id.) He concluded Plaintiff was moderately limited in being able to make

complex work-related decisions, but only mildly limited in understanding, remembering, and

carrying out simple instructions. (R. at 508.) He opined that Plaintiff was moderately limited in

her ability to interact appropriately with the public, supervisors, and co-workers. (R. at 509.) 

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Dr. Tanley also concluded Plaintiff was moderately limited in responding appropriately to usual

work situations and changes in routine work setting. (Id.) 

IV. EXPERT TESTIMONY

Vanessa Harris testified as a vocational expert at the administrative hearing. (R. at

46–50.) The ALJ asked Ms. Harris to consider a person at the sedentary level with various other

limitations that the ALJ later incorporated into his RFC. Ms. Harris opined that such a person

could perform about 3,500 jobs in the relevant region. Ms. Harris further opined that, if

accepted, the restrictions Dr. O’Connor assigned to Plaintiff were work preclusive. 

V. ADMINISTRATIVE DECISION

The ALJ found that Plaintiff was not disabled within the meaning of the Social Security

Act in his August 28, 2009 decision. The ALJ found that Plaintiff met the insured status

requirements of the Social Security Act through March 31, 2010. (R. at 12.) At the first step of

the sequential evaluation process,3

 the ALJ found that Plaintiff had not engaged in substantial

3

 Social Security Regulations require ALJs to resolve a disability claim through a

five-step sequential evaluation of the evidence. See 20 C.F.R. §404.1520(a)(4). Although a

dispositive finding at any step terminates the ALJ’s review, see Colvin v. Barnhart, 475 F.3d

727, 730 (6th Cir. 2007), if fully considered, the sequential review considers and answers five

questions:

1. Is the claimant engaged in substantial gainful activity?

2. Does the claimant suffer from one or more severe impairments?

3. Do the claimant’s severe impairments, alone or in combination, meet or

equal the criteria of an impairment set forth in the Commissioner’s Listing

of Impairments, 20 C.F.R. Subpart P, Appendix 1?

4. Considering the claimant's residual functional capacity, can the claimant

perform his or her past relevant work?

5. Considering the claimant's age, education, past work experience, and

residual functional capacity, can the claimant perform other work

available in the national economy?

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gainful activity since the January 29, 2005 alleged disability onset date. (Id.)

Next, the ALJ found that Plaintiff has the severe impairments of lumbar degenerative

disc disease, morbid obesity, sleep apnea, right shoulder rotator cuff impingement, loss of right

ear hearing, and depressive disorder NOS. (Id.) At step three, the ALJ then determined that

Plaintiff does not have an impairment or combination of impairments that meets or medically

equals one of the listed impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R.

at 14.)

At step four of the sequential process, the ALJ evaluated Plaintiff’s residual functional

capacity (“RFC”). The ALJ concluded that Plaintiff has the ability to perform a reduced range of

sedentary work. (R. at 16-17.) The ALJ concluded that Plaintiff lacked the capacity to:

[L]ift more than five pounds frequently or ten pounds occasionally; 2) stand and

walk combined more than two hours in an eight hour work day; 3) crawl or climb

ladders or scaffolds; 4) do greater than occasional crouching, stooping, kneeling, or

reaching above shoulder level; 5) work at unprotected heights or around moving

machinery, or where there is considerable background noise; 6) have greater than

occasional contact with the public, supervisors, or co-workers; or 7) do other than

low stress work activity (i.e., no job involving fixed production quotas or otherwise

involving above average pressure for production, work that is other than routine in

nature, or work that is hazardous).

(Id.) 

In reaching his conclusions regarding Plaintiff's RFC, the ALJ found that Plaintiff’s

herniated disc condition in the lumbar spine with nerve root impingement, the combination of

her significant obesity and back pain, and her shoulder condition all limited Plaintiff’s ability to

perform work. (R. at 17.) The ALJ also concluded that the effects of Plaintiff’s mental

See 20 C.F.R. §404.1520(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009);

Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001).

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impairments reduced her ability to work. (Id.) The ALJ gave Dr. O’Connor’s opinion little

weight, finding that Dr. O’Connor’s own physical examination findings did not support his

restrictions. (R. at 19.) The ALJ explicitly noted that no controlling or deferential weight can be

given to the opinion of Dr. O’Connor in view of its lack of supportability in the medical record. 

(Id.) The ALJ also rejected the opinion of state agency reviewer that Plaintiff could perform

medium work, because he was unaware of Plaintiff’s significant low back condition at the time

of his review. (R. at 18.) Finally, the ALJ found Plaintiff to be not credible to the extent her

testimony was inconsistent with the RFC assessment. (R. at 19-20.)

Based on the above RFC and the vocational expert’s testimony, the ALJ found that

Plaintiff could not perform her past relevant work. (R. at 20.) Nevertheless, applying the

Medical Vocational Guidelines as a frame of reference, and relying on the vocational expert

testimony, the ALJ found that Plaintiff could perform a significant number of jobs in the national

economy. (R. at 21.) Accordingly, the ALJ found that Plaintiff was not disabled within the

meaning of the Social Security Act. (R. at 22.) 

VI. STANDARD OF REVIEW

When reviewing a case under the Social Security Act, the Court “must affirm the

Commissioner’s decision if it ‘is supported by substantial evidence and was made pursuant to

proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009)

(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. §

405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if supported by

substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial evidence is

defined as ‘more than a scintilla of evidence but less than a preponderance; it is such relevant

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evidence as a reasonable mind might accept as adequate to support a conclusion.’” Rogers, 486

F.3d at 241 (quoting Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir.

1994)).

Although the substantial evidence standard is deferential, it is not trivial. The Court must

“‘take into account whatever in the record fairly detracts from [the] weight’” of the

Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting

Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, “if substantial

evidence supports the [Commissioner’s] decision, this Court defers to that finding ‘even if there

is substantial evidence in the record that would have supported an opposite conclusion.’” Blakley

v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir.

1997)). Finally, even if the Commissioner’s decision meets the substantial evidence standard,

“‘a decision of the Commissioner will not be upheld where the SSA fails to follow its own

regulations and where that error prejudices a claimant on the merits or deprives the claimant of a

substantial right.’” Rabbers, 582 F.3d at 651 (quoting Bowen v. Comm’r of Soc. Sec., 478 F.3d

742, 746 (6th Cir. 2007)).

VII. LEGAL ANALYSIS

Plaintiff sets forth two issues in her Statement of Errors. First, Plaintiff maintains that

the

ALJ erred in rejecting the opinions of Dr. O’Connor, her treating physician, who had assessed

Plaintiff’s RFC. Within this first contention of error, Plaintiff also indicates that in reaching his

decision, the ALJ substituted his own medical judgment in place of Dr. O’Connor’s opinion. 

Second, Plaintiff contends that the ALJ erred in finding that Plaintiff was not credible. For the

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reasons that follow, the undersigned concludes that the ALJ erred by relying on his own medical

judgment in weighing Dr. O’Connor’s opinion and determining Plaintiff’s RFC. Accordingly,

remand is necessary.4

A. Treating Physician Opinions

The ALJ must consider all medical opinions that he or she receives in evaluating a

claimant’s case. 20 C.F.R. § 404.1527(d). Certain types of opinions, however, are normally

entitled to greater weight. (Id.) For example, the ALJ generally gives deference to the opinions

of a treating source “since these are likely to be the medical professionals most able to provide a

detailed, longitudinal picture of [a patient’s] medical impairment(s) and may bring a unique

perspective to the medical evidence that cannot be obtained from the objective medical findings

alone . . .” 20 C.F.R. § 404.1527(d)(2); Blakley, 581 F.3d at 408.

If the treating physician’s opinion is “well-supported by medically acceptable clinical

and laboratory diagnostic techniques and is not inconsistent with other substantial evidence in

[the claimant’s] case record, [the ALJ] will give it controlling weight.” 20 C.F.R. §

404.1527(d)(2). In contrast, “‘[i]t is an error to give an opinion controlling weight simply

because it is the opinion of a treating source if it is not well-supported by medically acceptable

clinical and laboratory diagnostic techniques or if it is inconsistent the with other substantial

evidence in the case record.’” Blakley, 581 F.3d at 406 (quoting SSR 96-2p, 1996 WL 374188,

at *2 (July 2, 1996)). Even when an ALJ does not grant a treating physician’s opinion

controlling weight, “the ALJ must still determine how much weight is appropriate by

4

 Because the undersigned finds that the ALJ erred in assessing the opinion evidence and

that remand is appropriate, the undersigned finds it unnecessary to determine whether the ALJ

erred in assessing Plaintiff’s credibility.

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considering a number of factors, including the length of the treatment relationship and the

frequency of examination, the nature and extent of the treatment relationship, [and the]

supportability of the opinion . . . .” Id. (citing 20 C.F.R. § 404.1527(d)(2)). Furthermore, an

ALJ must “always give good reasons in [the ALJ’s] notice of determination or decision for the

weight [the ALJ] give[s] [the claimant’s] treating source’s opinion.” 20 C.F.R. § 404.1527(d)(2).

“While an ALJ is free to resolve issues of credibility as to lay testimony, or to choose

between properly submitted medical opinions, the ALJ cannot substitute his own lay ‘medical’

opinion for that of a treating or examining doctor.” Beck v. Comm’r of Soc. Sec., No.

1:10–cv–398, 2011 WL 3584468, at *14 (S.D. Ohio June 9, 2011) (Report & Recommendation

later adopted). It is well established that “an ALJ may not substitute his own medical judgment

for that of the treating physician where the opinion of the treating physician is supported by the

medical evidence.” Simpson v. Comm’r of Social Sec., 344 F. App’x 181, 194 (6th Cir. 2009)

(internal quotations omitted) (holding that an ALJ improperly relied upon his own medical

judgment in determining that the degree of pain resulting from claimant’s pelvic adhesions, with

otherwise normal examinations, could not plausibly lead to the restrictions the claimant’s

treating physician assigned); see also Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996) (“ALJs

must not succumb to the temptation to play doctor and make their own independent medical

findings.”); Bledsoe v. Comm’r of Social Sec., No. 1:09cv564, 2011 WL 549861, at *7 (S.D.

Ohio Feb. 8, 2011) (“An ALJ is not permitted to substitute her own medical judgment for that of

a treating physician and may not make her own independent medical findings.”); Brewer v.

Astrue, No. 1:10–cv–01224, 2011 WL 2461341, at *6 (N.D. Ohio June 17, 2011) (holding that

ALJ’s finding that a treating psychiatrist’s opinion was inconsistent with his treatment notes,

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constituted an insufficient interpretation of the medical data by the ALJ).

Finally, in weighing medical opinion evidence, the ALJ reserves the right to decide

certain issues, such as a claimant’s residual functional capacity. 20 C.F.R. § 404.1527(e). 

Nevertheless, the ALJ must consider medical source opinions regarding the severity of a

claimant’s impairments. Id. Additionally, this Court has noted on at least one occasion, “[t]he

residual functional capacity opinions of treating physicians, consultative physicians, and medical

experts who testify at hearings are crucial to determining a claimant’s RFC because ‘[i]n making

the residual functional capacity finding, the ALJ may not interpret raw medical data in functional

terms.’” Isaacs v. Astrue, No. 1:08-CV-00828, 2009 WL 3672060, at *10 (S.D. Ohio Nov. 4,

2009) (quoting Deskin v. Comm’r Soc. Sec., 605 F.Supp.2d 908, 912 (N.D. Ohio 2008)).5

In this case, the opinions of Dr. O’Connor, Plaintiff’s treating physician, were more

severe than the RFC the ALJ ultimately assigned.6 Specifically, Dr. O’Connor opined that

5

 The Court recognizes some disagreement between district courts within this Circuit as

to the extent an ALJ must rely on opinion evidence in reaching an RFC determination. Compare

Deskin, 605 F. Supp. 2d at 912 (suggesting that although an ALJ may sometimes rely on

commonsense judgment, when a claimant’s functional ability is genuinely at issue an ALJ must

ordinarily rely on a medical source’s evaluation of the RFC); with Henderson v. Comm’r of Soc.

Sec., No. 1:08 CV 2080, 2010 WL 750222, at *2 (N.D. Ohio Mar. 2, 2010) (questioning Deskin

and emphasizing that an ALJ may consider medical evidence other than opinion testimony in

determining a claimant’s RFC). The undersigned finds it unnecessary to weigh in on this general

debate. As described further below, the undersigned simply concludes that given the complexity

of the medical records in this case, substantial evidence does not support the ALJ’s reliance on

his own personal interpretation of the medical data. 

6

 Dr. O’Connor gave opinions with regard to both Plaintiff’s physical and mental

abilities. In weighing Dr. O’Connor’s mental impairment opinions, the ALJ relied on contrary

opinion evidence from Dr. Tanley. Within her Statement of Errors, however, Plaintiff has

focused on the ALJ’s rejection of the physical limitations Dr. O’Connor assigned. Accordingly,

the undersigned reaches no decision as to the ALJ’s rejection of Dr. O’Connor’s opinions

relating to Plaintiff’s mental limitations.

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Plaintiff would only be able to sit two hours in an eight hour workday; could lift no more than

five pounds either occasionally or frequently; should never stoop, crouch, or kneel; and would

have to be absent more than three times a month due to her impairments. In assessing Plaintiff’s

RFC, the ALJ deviated from Dr. O’Connor’s opinion in multiple ways.7

 For example, the ALJ

did not assign a sitting restriction despite Dr. O’Connor’s opinion that Plaintiff could only sit for

two hours in a workday. The ALJ explained that he gave Dr. O’Connor’s physical limitation

opinions little weight because they lacked support from the medical record. The ALJ provided

two main reasons for this conclusion. First, the ALJ found that Dr. O’Connor’s physical

examinations and treatment notes did not support the restrictions he assigned. The ALJ

suggested that Dr. O’Connor’s examinations reported various unremarkable findings including

normal range of motion. Second, the ALJ criticized Dr. O’Connor for failing to provide

significant justification within the opinion form he submitted. The ALJ noted that Dr. O’Connor

“simply wrote in some physical restrictions, including just two hours of sitting and two hours of

standing a day, without elaboration . . . .” (R. at 19.)

The ALJ’s rejection of Dr. O’Connor’s opinions is not supported by substantial evidence. 

 Specifically, in giving little weight to Dr. O’Connor’s opinions, the ALJ substituted his own

medical judgment for that of Dr. O’Connor. The record in this case documents Plaintiff’s

extensive medical history, including over three years of examination notes describing Dr.

O’Connor’s regular treatment of Plaintiff. Plaintiff has received treatment for various conditions

including back and shoulder complications. She is also morbidly obese. A January 2007 MRI,

7

 Such deviations proved critical, as the vocational expert testified that Dr. O’Connor’s

restrictions would be work preclusive. (R. at 50.)

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which Dr. O’Connor ordered, revealed “[l]eft paramidline and foraminal disc herniation at L4-5

impinging on the left L4 nerve root and the foramen” as well as “[d]egenerative changes in the

facet joints . . . bilaterally at L4-5 and L5-S1.” (R. at 277.) In rejecting Dr. O’Connor’s

opinions, the ALJ selectively highlighted normal findings within Dr. O’Connor’s treatment

notes. Dr. O’Connor’s examination, however, also routinely revealed problematic and abnormal

findings including paraspinal spasms, vertebral spine tenderness, and tenderness on the SI joints. 

(See R. at 401-57.) Finally, the record contains no medical-source opinion evidence suggesting

that Dr. O’Connor’s opinions lack support. 

Given the relatively complex combination of Dr. O’Connor’s treatment notes and

Plaintiff’s test results, as well as the lack of medical-source opinion evidence addressing Dr.

O’Connor’s opinions, it is not readily apparent from the record that Dr. O’Connor’s opinions

lack medical support. Rather, it appears the ALJ was relying on his own personal medical

judgment in concluding that the Dr. O’Connor’s examinations and treatment notes did not justify

his opinions. Because the ALJ is not a medical expert, his conclusion lacks support.

Relatedly, the ALJ’s physical RFC determination also appears to be a product of his own

lay medical judgment. The record contains, and the ALJ addressed, two medical source opinions

detailing Plaintiff’s functional limitations.8

 Dr. Villanueva opined that Plaintiff could work at

the medium exertional level, with few postural limitations. The ALJ justifiably rejected the

8

 Within her treatment notes, Dr. Malone did provide a few “Employee Work Status

Report” forms. Between October 2004 to March 2006, Dr. Malone varied in whether she found

Plaintiff able to return to work. (See, e.g., 353, 355, 357, 399.) These forms generally offer little

detail regarding Plaintiff’s functional limitations, and Dr. Malone filled in these forms prior to

the January 2007 MRI showing a herniated disc. Furthermore, the ALJ did not identify Dr.

Malone’s opinions as a basis for his RFC determination.

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opinion that Plaintiff could work at the medium level because Dr. Villanueva was not aware of

the full extent of Plaintiff’s low back condition. Nevertheless, as detailed above, the ALJ also

gave the opinions of Dr. O’Connor little weight. Ultimately, the ALJ’s assigned RFC does not

track, or appear to credit, any medical opinion evidence. Nor does the ALJ’s RFC appear to be a

compromise based on the weighing of different RFC assessments. 

As the ALJ’s “Evidentiary Basis for Residual Functional Capacity” section suggests, the

ALJ’s physical RFC determinations are apparently founded on the ALJ’s personal interpretation

of what functional limitations should result from the medical data. (See R. at 17.) The

undersigned recognizes that the ALJ also partially based his RFC on the finding that Plaintiff

was not entirely credible. Even recognizing this credibility assessment, however, the ALJ’s own

written decision indicates that he based his RFC determination in large part on his own

consideration of what physical limitations the medical data justified. (See id.) Once again, given

the relative complexity of Plaintiff’s conditions and the medical record in this case, the ALJ

erred in relying on his own medical interpretations to reach his RFC determination.

Finally, to the extent the ALJ rejected Dr. O’Connor’s opinions for a lack of elaboration,

this reasoning is also unavailing. It is true that an ALJ is not bound by conclusory, unsupported

statements of doctors. Coldiron v. Comm’r of Soc. Sec., 391 F. App’x 435, 441 (6th Cir. 2010). 

Within the actual physical work-related activities opinion form he submitted, Dr. O’Connor was

terse, only referencing Plaintiff’s pain and obesity as findings supporting his physical limitation

assessments. Nevertheless, when viewed in context of the various medical records Dr.

O’Connor submitted, it is apparent that these opinions were founded on an extensive treating

relationship, including various physical examinations and test results. See Cox v. Barnhart, 345

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F.3d 606, 609 (8th Cir. 2003) (holding that treating physician’s opinion letter could not be

rejected as conclusory when “[v]iewed in context of her medical record, [the] letter is a

culmination of the numerous visits [the claimant] had with her past doctors”); Williams v.

Astrue, No. ED CV 08-549, 2010 WL 431432, at *5 (Feb. 1, 2010) (holding that when the

treating physicians opinion form was viewed in combination with his treatment notes, rather than

in isolation, the treating physicians opinions were not vague or conclusory); Cf. also Holohan v.

Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001) (providing that a doctors “statements must be

read in context of the overall diagnostic picture he [or she] draws”). Furthermore, Dr. O’Connor

did not simply opine that Plaintiff was unable to work or limited to a specific exertional level. 

Rather, in filling out the form, Dr. O’Connor provided specific functional limitations. (R. at

338–41.) Under these circumstances, the ALJ was not justified in rejecting Dr. O’Connor’s

opinions as overly vague or conclusory.

Accordingly, the ALJ erred in giving little weight to Dr. O’Connor’s physical limitation

opinions in reaching his ultimate RFC determination. Because the ALJ relied on his own

medical opinions, substantial evidence does not support his decision.9

B. Remand

If substantial evidence does not support the Commissioner’s decision, the Court must

9

 In opposing Plaintiff’s Statement of Errors, Defendant relies heavily on Blanch v. Sec’y

of Health & Human Servs., 927 F.2d 228 (6th Cir. 1990) for the proposition that the Sixth

Circuit has affirmed a non-disability finding where a claimant had more significant back

impairments than those of Plaintiff. This decision, however, is not controlling under the

circumstances of this case. The Blancha decision contained limited discussion of the medical

evidence within the record, making it unclear whether the claimant actually had more significant

impairments than Plaintiff. Furthermore, the Blancha decision did not explicitly address the

treating physician rule nor did it consider whether the ALJ substituted his or her own medical

judgment for that of a physician.

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decide the nature of remand. The Court has the discretion to enter “upon the pleadings and

transcript of the record, a judgment affirming, modifying, or reversing the decision of the

Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42

U.S.C. § 405(g). The United States Court of Appeals for the Sixth Circuit has emphasized that

“[i]f a court determines that substantial evidence does not support the Secretary’s decision, the

court can reverse the decision and immediately award benefits only if all essential factual issues

have been resolved and the record adequately establishes a plaintiff’s entitlement to benefits.” 

Faucher v. Sec’y of Health & Hum. Servs., 17 F.3d 171, 176 (6th Cir. 1994). In other terms, “[a]

judicial award of benefits is proper only where the proof of disability is overwhelming or where

the proof of disability is strong and evidence to the contrary is lacking.” Kennedy v. Astrue, 247

F. App’x 761, 768 (6th Cir. 2007).

As detailed above, the ALJ erred because he relied on his own medical judgment in

determining the supportability of Dr. O’Connor’s opinion. Nevertheless, this determination does

not necessarily mean that the ALJ’s ultimate conclusion was incorrect. Cf. Brewer, 2011 WL

2461341, at *6 (“Although the ALJ's assumption appears reasonable to a lay person and might

ultimately be correct, he has no special expertise to make such an assumption.”). Given the

circumstances of this case, and specifically the limited amount of opinion evidence in the current

record, the undersigned is unwilling to conclude that all essential factual issues have been

resolved. Accordingly, remand is proper.

VIII. CONCLUSION

For the foregoing reasons, it is RECOMMENDED that the Court REMAND this case

for further proceedings consistent with this Report and Recommendation.

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IX. NOTICE

If any party seeks review by the District Judge of this Report and Recommendation, that

party may, within fourteen (14) days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and Recommendation, and the part in

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). 

Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review by the District Judge and

waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to

magistrate judge's report and recommendation). Even when timely objections are filed, appellate

review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994

(6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to specify the

issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation omitted)).

Date: January 26, 2012 /s/ Elizabeth A. Preston Deavers 

 Elizabeth A. Preston Deavers

 United States Magistrate Judge

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