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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

James K. Owens,

Plaintiff

 v.

Commissioner of Social Security,

Defendant

:

:

:

:

:

Civil Action 2:11-cv-267

Judge Graham

Magistrate Judge Abel

REPORT AND RECOMMENDATION

Plaintiff James K. Owens brings this action under 42 U.S.C. §423 for review

of a final decision of the Commissioner of Social Security denying his application for

supplemental security income benefits. This case is now before the Magistrate

Judge for a report and recommendation on the disposition of this matter.

Summary of Issues. Plaintiff Owens filed an application for supplemental

security income in September 2006, alleging that he became disabled on August 15,

2006, at the age of 43, by spinal stenosis, fatigue, and depression. The

administrative law judge (“ALJ”) found that Owens retains the ability to perform a

limited range of light, unskilled work and a full range of sedentary, unskilled work. 

Owens argues that the decision of the Commissioner denying benefits should be

reversed because the ALJ gave inadequate weight to the opinions of Plaintiff’s

treating physician and improperly assessed his credibility. 

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Procedural History. Plaintiff James K. Owens filed his application for

supplemental security income on September 20, 2006, alleging that he had been

disabled since August 15, 2006 by spinal stenosis, fatigue, and depression. (R. 9.) 

The application was denied initially and upon reconsideration. Owens sought a de

novo hearing before an administrative law judge. On September 1, 2009, an

administrative law judge held a hearing at which Owens, represented by counsel,

appeared and testified. (R. 9.) An impartial medical expert and a vocational expert

also testified at the hearing. On November 27, 2009, the administrative law judge

issued a decision finding that Owens was not disabled within the meaning of the

Act. (R. 9-18.) On January 31, 2011, the Appeals Council denied Owens’ request

for review and adopted the administrative law judge’s decision as the final decision

of the Commissioner of Social Security. (R. 1.) Owens thereupon filed this appeal.

Age, Education, and Work Experience. Owens was born on October 25, 1962. 

(R. 41.) He attended high school through the twelfth grade, and then joined the

Army, where he served for four years, receiving an honorable discharge. Owens

later obtained a GED. (R. 44-45.) He had most recently worked as the manager of

a discount store in Kentucky, but when his mother suffered a stroke in 1999 he

moved to Columbus to care for her. (R. 46, 60.) Owens testified that he broke his

knee and ankle in an accident in 2000, and owing to subsequent surgery on his

cervical spine and rehabilitation had not been able to work since. (R. 46-48.) He

had previously worked as a restaurant manager and construction worker. (R. 16,

181.)

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Plaintiff’s Testimony. The administrative law judge summarized Owens’

testimony at the hearing as follows:

The claimant testified that he is disabled and unable to work primarily

because of spinal stenosis causing severe pain in his back and neck that

limits him at all exertional levels. The claimant rates his pain as being

on average, 5 out of 10 with 10 being the highest degree, and he says

some days his pain is at a 10. He represented that his pain keeps him

from sitting for more than 60 minutes, standing for more than 45 minutes

at a time, or walking more than a block. He said that he can only sit for

about 45 to 60 minutes before he must get up and walk around to relieve

his pain and discomfort. He acknowledges that he is able to cook simple

meals, wash dishes, grocery shop for himself, fold laundry and place it in

and take it out of the machine, make his bed, clean his room, dust, and

watch his friends’ children which has included feeding and dressing them.

He stated that he is able to independently bathe and dress himself and

attend to his own personal hygiene. For recreation he watches television,

reads, plays cards, and enjoys board games. For pain relief he takes only

over-the-counter Tylenol, and he states that his prescription medication

causes drowsiness.

(R. 13-14, citations omitted.)

In the interview for the initial field office disability report accompanying his

application for benefits, Plaintiff reported that he “can stand 45 min then must sit,

can sit for 60 min then must change positions, could walk 2 blocks then must rest”. 

(R. 172.) He also reported that he “can walk just a couple of steps and then my legs

give out & never know when this will happen”. (R. 179.) Regarding housework, he

claimed that he could help out in the kitchen, but had to sit while doing so, and that

he could fold laundry but could not lift clothes or go down steps to launder them. 

(R. 179.) 

In conjunction with his application for benefits, Plaintiff completed 

symptoms and functional reports. (R. 189.) He stated that he felt constant pain,

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with weakness in his joints, legs, back, and hands. Plaintiff reported pain from his

spinal stenosis spreading to his legs, arms, small of back, and base of skull. (R.

190.) He also complained of having to sit or lie frequently, having difficulty

maintaining his balance, and feeling constant fatigue. (R. 192.) In addition,

Plaintiff reported that he had difficulty kneeling, squatting, or bending, because his

legs and back lacked strength, and that he could not reach over his head because of

neck and spinal pain. (R. 200.) In a disability report for the appeal of the ALJ’s

decision, Plaintiff reported that his condition had worsened. (R. 239.) He stated

that the pain in his legs, back, and spine had grown more severe since March 2007. 

(R. 240.)

Medical Evidence of Record.

Although the administrative law judge’s decision fairly sets forth the relevant

medical evidence of record, this Report and Recommendation will summarize that

evidence in some detail. Although Plaintiff underwent psychological examination,

Plaintiff’s assignments of error relate entirely to his physical impairments.

Physical Impairments.

Scott Elton, M.D. On November 13, 2011, prior to Plaintiff’s alleged date of

onset, he was admitted to Riverside Methodist Hospital with a diagnosis of multiple

thoracic stenosis with spinal cord compression. (R. 561.) Examination revealed

that Plaintiff had “essentially no sensation to pin prick below the waist.” (R. 561.)

Dr. Elton performed a posterior cervical laminectomy from T4 through T12. (R.

562-63.) 

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On October 31, 2003, Plaintiff was admitted to Riverside Methodist Hospital

with a diagnosis of C4 spinal stenosis with myelopathy. Dr. Elton performed an

anterior C4 vertebrectomy with allograft fusion of C3 to 5 and Codman plate

fixation of C3 to 5. (R. 270.) The admission record indicated that Plaintiff had

previously undergone a C3-4 discectomy for spinal cord compression, and that

imaging showed a broad spondylitic bar at the superior aspect of C4, which severely

compressed the spinal cord. (R. 270.)

On January 14, 2004, Dr. Elton wrote a letter to Dr. Beyer, Plaintiff’s

physician, which reported that Plaintiff had returned that day for follow-up from

surgery. Plaintiff reported continued substantial pain in his shoulders, arms, and

legs, and pain in his lower back. Dr. Elton found Plaintiff’s cervical and thoracic

incisions well healed, with 5/5 bilateral strength in biceps, triceps, and lower

extremities, and 4/5 strength in both right and leg intrinsic hand muscles. (R. 264.) 

He reported informing Plaintiff that “[h]e clearly has evidence of myelopathy, most

likely based on his significant prior spinal cord compression. I let him know that I

believe it is unlikely that he will recover, but he is still in too early in the recovery

phase from his most recent cervical surgery to know for certain.” (R. 264.)

On April 14, 2004, Dr. Elton wrote a letter to Dr. Beyer, which reported that

Plaintiff had returned that day for follow-up from surgery. Dr. Elton reviewed

Plaintiff’s cervical spine x-rays, finding that “bone has healed and fused quite well.” 

(R. 263.) However, Plaintiff reported worsening of hand grasp, and Dr. Elton’s

examination revealed atrophy of both arms. Dr. Elton, “concerned that [Plaintiff’s]

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symptoms are progression of his cervical myelopathy”, recommended a cervical CT

myelogram, as well as EMG and nerve conduction studies of his extremities, to

determine if continued compression of the spinal cord existed. (R. 263.)

On June 18, 2004, Dr. Michael J. Meagher, M.D., sent a letter to Dr. Elton

informing him that he had seen Plaintiff that day in his absence. Dr. Meagher

reported that there was no record that the myelogram or nerve studies were ever

undertaken. Neurological examination revealed that Plaintiff walked without

difficulty, although bent forward. (R. 262.) Dr. Meagher reviewed April 2004 MRIs,

which showed adequate thoracic and cervical decompression, with no severe lumbar

spinal stenosis. He found some degenerative changes at the top end, and some

relative stenosis at the upper portion of the spine just above the decompression. (R.

262.) 

Jerry Bowman. Mr. Bowman, Plaintiff’s brother-in-law, completed a thirdparty function report on October 25, 2006. (R. 201-08.) Bowman reported that he

saw Plaintiff at least once per week, and that he had observable difficulty in lifting,

bending, and walking without falling. Plaintiff frequently had to sit to take breaks

from standing to avoid falls, and had to sit down while dressing himself. (R. 203-

04.) 

John B. Beyer, M.D. Dr. Beyer is Plaintiff’s primary care physician, and saw

him from at least October 2002 onward. He placed, and continued, Plaintiff on pain

medication, including Percocet, for his stenosis, seeing him at least seventy times

between 2002 and 2008. His treatment notes were largely records of Plaintiff’s

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pharmaceutical regimen, with periodic notes that Plaintiff’s paraspinal muscles

were “firm”. (R. 457-73.) 

On December 4, 2006, Dr. Beyer filled out a form physical capacity evaluation

at the request of a state disability determination agency. (R. 416-18.) He diagnosed

Plaintiff with lumbar and thoracic disc disease with spinal stenosis, as well as

cervical disc disease. Dr. Beyer opined that Plaintiff’s condition originated from a

January 1999 fall and spinal injury, and said that despite numerous medications he

continued to suffer “marked paraspinal muscle spasm from neck to sacrum”. (R.

417.) He concluded that Plaintiff’s neck and lower back pain affected his ability to

lift and bend, and that he could not do even moderate physical exertion. Dr. Beyer

limited him to part-time light work for three to four hours per day. (R. 418.)

On May 9, 2007, Dr. Beyer filled out another form physical capacity

evaluation at the request of a state disability determination agency. (R. 444-45.) 

He opined that Plaintiff’s medications and pain regimen permitted him to perform

normal activities of daily living with “tolerable pain”, but that his neck and back

pain had produced substantial muscle weakness, precluding physical work and

permitting only part-time employment. (R. 445.)

On January 16, 2008, Dr. Beyer filled out a form physical capacity

evaluation. (R. 454-56.) He opined that Plaintiff could carry no more than ten

pounds occasionally, and five pounds frequently, that Plaintiff could stand and walk

no more than four hours in an eight-hour day, and that he could sit for no more

than two hours in a workday. (R. 454.) Dr. Beyer also stated that Plaintiff would

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need to lie down twice during a workday, and could sit, stand, or walk for no more

than 45 minutes at a time. He limited Plaintiff to rare twisting, stooping, bending,

or crouching, with only occasional climbing of stairs and no climbing of ladders. (R.

455.) Dr. Beyer opined generally that Plaintiff could perform such vocational tasks

for less than three days per week, and less than four consecutive weeks per month,

and that his limitations had been present since November 2001. (R. 456.) Dr.

Beyer gave no response to the form question “[w]hat medical findings support the

limitations described above?” (R. 455.)

On July 16, 2008, Dr. Beyer completed a form physical capacity evaluation. 

(R. 478-80.) The evaluation was generally identical to the January 2008 form,

except that Dr. Beyer added a notation that Plaintiff’s “physical condition is

deteriorating gradually”. (R. 480.) In addition, Dr. Beyer listed “disc problems both

cervical thoracic and lumbar” as medical findings supporting the limitations

described. (R. 479.)

On September 9, 2009, in conjunction to Plaintiff’s appeal of the

administrative law judge’s opinion, Dr. Beyer completed a form medical

questionnaire. (R. 252.) He stated that the necessity for a one and a half to two

hour nap per day, as Plaintiff had represented, was a reasonable side effect from his

medications, Oxycodone and Robaxin. (R. 252.)

Riverside Methodist Hospital. On February 19, 2007, Plaintiff went to the

hospital for neck pain, complaining that he had fallen off a ladder and landed on

snow and ice. He complained of neck and back pain, as well as numbness and

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tingling in his arms and legs. (R. 422.) Physical examination demonstrated that

Plaintiff had a full range of motion bilaterally without pain. His grip strength was

equal in the upper extremities, but weak. His lower extremity strength was equal. 

(R. 422.) An MRI was taken of Plaintiff’s cervical spine, which showed multilevel

degenerative changes in the cervical spine, but no cord signal abnormality. (R.

428.) It demonstrated mild central canal stenosis overall, with mild-moderate right

foraminal stenosis. (R. 427.) 

On January 15, 2008, Plaintiff went to the hospital complaining of swelling

and pain for the past several days in his right elbow. He stated that the swelling

was causing pain and numbness in his right forearm. (R. 540.) The examining

physician found full hand grasp with full range of motion of the digits, as well as

full range of motion in the elbow and shoulder.

On January 22, 2008, Plaintiff went to the hospital complaining of chest pain

and shortness of breath. (R. 532.) He was diagnosed with pneumonia and treated

with antibiotics. (R. 533.) Physical examination demonstrated normal motor

strength in all extremities. In response to Plaintiff’s complaints of a tearing

sensation in his back, a CT of his chest was taken; this demonstrated multilevel

spondylosis of the thoracic spine similar to a CT examination of February 2006,

with no definite central canal stenosis. (R. 534.)

On April 2, 2008, Plaintiff went to the hospital complaining of nausea,

vomiting, and diarrhea, with abdominal pain. (R. 518-20.) He reported chronic

pain from spinal stenosis. (R. 519.) Examination demonstrated a full range of

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motion of upper and lower extremities. (R. 519.)

On August 7, 2008, Plaintiff went to the hospital complaining of nausea,

vomiting, and diarrhea, with abdominal pain. Upon review of symptoms, Plaintiff

reported chronic lower back pain, but no problems with ambulation. (R. 504.) 

Examination revealed some muscle wasting, mostly at the calves and lower leg. His

strength was normal. (R. 505.)

On October 19, 2008, Plaintiff went to the hospital after having tripped,

fallen, and suffered head trauma with brief lack of consciousness. (R. 482.) On

admission, Plaintiff had a CT of head and cervical spine which did not reveal any

acute abnormality. MRIs of the cervical, thoracic, and lumbar spine did not show

any acute fracture. No evidence of cervical spinal stenosis was found, but x-rays

demonstrated multilevel degenerative spondylosis in the thoracic spine. (R. 489.) 

Examination revealed significant foraminal stenosis of C6-C7, possible

myelomalacia of T7 and T8, and no acute abnormality on the lumbar spine. 

Plaintiff complained of right leg pain. After physical and occupational therapy, in

which Plaintiff “did well”, he was released to be discharged home. (R. 482.)

In June 2009, Plaintiff went to the hospital for chest pain. (R. 564-65.) 

While at the hospital, he received a thoracic spine x-ray, which noted mild thoracic

dextroscoliosis, and anterior fusion hardware in the cervical spine. No acute

process was found. (R. 564.) He also received a lumbar spine x-ray, which found

partial ankylosis of the superior sacroiliac joints, but no acute findings. (R. 564.) 

Plaintiff also had a CT scan performed on his neck, which found extensive

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multilevel degenerative disc disease with foraminal stenosis at two levels and mild

central canal stenosis at two levels. It found no acute abnormality, and “[o]verall,

no change since 10/19/2008.” (R. 564.)

Jerry McCloud, M.D. On November 20, 2006, Dr. McCloud, a state agency

physician, conducted a form physical residual functional capacity assessment based

upon the record. (R. 408-415.) Dr. McCloud found that Plaintiff retained the ability

to occasionally lift 50 pounds, frequently lift 25 pounds, stand or walk about six

hours in an eight-hour workday, and to push or pull to an unlimited extent. (R.

409.) He found no postural, manipulative, visual, communicative, or environmental

limitations, and concluded that Plaintiff’s symptoms were attributable to a

medically determinable impairment. (R. 411-13.) However, he stated that the

severity and duration of Plaintiff’s symptoms was disproportionate to that expected, 

and that his “allegations of limitation are inconsistent with the objective medical

findings. Allegations of severity of condition partially credible.” (R. 413.)

Leslie Green, M.D. On July 17, 2007, Dr. Green, a state agency physician,

conducted another physical residual functional capacity assessment based upon

Plaintiff’s record. (R. 446-453.) Dr. Green found that Plaintiff retained the ability

to occasionally lift 20 pounds, frequently lift ten pounds, sit, stand or walk for about

six hours in an eight-hour workday, and push and pull to an unlimited extent. (R.

447.) He opined that Plaintiff should never climb ladders, ropes, or scaffolding. (R.

448.) Dr. Green found no postural, manipulative, visual, communicative, or

environmental limitations, aside from avoiding concentrated exposure to hazards. 

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(R. 448-50.) He concluded that Plaintiff’s symptoms were attributable to a

medically determinable impairment, and that such impairment could reasonably be

expected to produce the alleged symptoms. (R. 451.) However, Dr. Green

concluded, “[t]he claimant’s statements concerning the intensity, duration and

limiting effects of these symptoms are not entirely credible.” (R. 451.)

Paul Gatens, M.D. Dr. Gatens was the testifying medical expert at Plaintiff’s

hearing before the administrative law judge. Dr. Gatens reviewed Plaintiff’s

records, and questioned Plaintiff briefly. (R. 72-73.) He identified spinal stenosis,

myelopathy, and cervical degenerative joint disease among Plaintiff’s impairments

documented by objective medical evidence. (R. 74-76.) Based upon Plaintiff’s

record, Dr. Gatens opined that Plaintiff should be able to lift twenty pounds

occasionally, and ten frequently, although he could only stand or walk for four to

five hours in an eight-hour workday, with breaks every 45 minutes to an hour. (R.

76-77.) Dr. Gatens also opined that Plaintiff should be able to sit for six to eight

hours in a workday, as long as he could change positions every 45 minutes to an

hour to alleviate stiffness. (R. 77.) He found no limitations in fine or gross

manipulation. (R. 78.) 

Administrative Law Judge’s Findings. The administrative law judge found

that Owens had severe impairments of spinal stenosis, status-post cervical and

lumbar laminectomies, inguinal hernia, a history of alcohol abuse, and a history of

marijuana abuse. (R. 11.) He concluded that although Owens had demonstrated

pain, muscle spasm, and some limitation in range of motion, his musculoskeletal

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impairment did not meet the criteria of a listed spinal disorder, and that the

evidence demonstrated that he had never exhibited significant motor loss with

muscle weakness and sensory and reflex loss following his surgery. (R. 12.) He

noted that the medical expert had testified that Owens did not have an impairment

or combination of impairments that met or medically equaled a listed impairment. 

(R. 12.) The ALJ determined specifically that Owens retained the residual

functional capacity to sit for 45 minutes at a time for a total of 6 hours in an 8 hour

workday, and that he could stand and walk for a total of 45 minutes at a time for no

more than 4 hours total in an 8 hour workday. Owens required the ability to

change positions every 45 minutes. He could lift 10 pounds frequently and 20

pounds occasionally. He was unable to climb stairs, ladders, ropes, or scaffolding,

or to work around unprotected heights, hazardous machinery, or drive

commercially. (R. 12.)

At the hearing, the vocational expert testified that, given Owens’ restrictions,

he could not perform any of his past work. (R. 81.) However, a reduced number of

light, unskilled jobs existed which Owens could perform, along with a full range of

sedentary unskilled work. (R. 83.) Accepting that testimony, the ALJ determined

that Owens was not disabled. (R. 17.)

Standard of Review. Under the provisions of 42 U.S.C. §405(g), “[t]he

findings of 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.

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Perales, 402 U.S. 389, 401 (1971)(quoting Consolidated Edison Company v. NLRB,

305 U.S. 197, 229 (1938)). It means “‘more than a scintilla.’” 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 (1950)); Wages v.

Secretary of Health and Human Services, 755 F.2d 495, 497 (6th Cir. 1985). 

Plaintiff’s Arguments. Plaintiff argues that the ALJ committed reversible

error in refusing to give controlling weight or at least “great weight” to the opinions

of Dr. Beyer, and that the ALJ failed to correctly assess his credibility.

Analysis.

In his opinion, the ALJ found:

The opinion expressed by Dr. Beyer in regards to the claimant’s degree

of functional limitation and employability is accorded no weight

because Dr. Beyer did not reference specific medical findings within

the record and/or explain how those medical findings supported the

opinion expressed on a function by function basis as to the severity of

the claimant’s impairments. Dr. Beyer references the presence of pain

and spasms but provides no diagnostic or clinical support evidencing

marked or extreme neurological deficits or loss of muscle strength,

range of motion, sensation, or reflexes. Furthermore, the final

responsibility for determining whether a claimant is “disabled” or

“unable to work” is an area reserved to the Commissioner.

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(R. 15-16.)

Dr. Beyer was Plaintiff’s treating physician from 2002 onward. A treating

doctor's opinion is entitled to greater weight than that of a physician who has

examined a plaintiff on only one occasion or who has merely conducted a paper

review of the medical evidence of record. Hurst v. Schweiker, 725 F.2d 53, 55 (6th

Cir. 1984); Lashley v. Secretary of Health and Human Services, 708 F.2d 1048, 1054

(6th Cir. 1983). This is because a treating doctor has had the opportunity to

observe his patient's impairments over the course of time.

Furthermore, the Commissioner's regulations provide that he will generally

"give more weight to the opinion of a source who has examined you than to the

opinion of a source who has not examined you." 20 C.F.R. § 404.1527(d)(1). When a

treating source's opinion "is well-supported by medically acceptable clinical and

laboratory diagnostic techniques and is not inconsistent with the other substantial

evidence in your case record, we will give it controlling weight." 20 C.F.R. §

404.1527(d)(2). In determining the weight to assign a treating source's opinion, the

Commissioner considers the length of the relationship and frequency of

examination; nature and extent of the treatment relationship; how well-supported

the opinion is by medical signs and laboratory findings; its consistency with the

record as a whole; the treating source's specialization; the source's familiarity with

the Social Security program and understanding of its evidentiary requirements; and

the extent to which the source is familiar with other information in the case record

relevant to decision. Id.

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There is a rebuttable presumption that a treating physician’s opinion is

entitled to great deference. Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 242 (6th

Cir. 2007). However, for the treating physician's opinion to have controlling weight

it must have "sufficient data to support the diagnosis." Kirk v. Secretary of Health

and Human Services, 667 F.2d 524, 536, 538 (6th Cir. 1981); Harris v. Heckler, 756

F.2d 431, 435 (6th Cir. 1985). The Commissioner may reject the treating doctor's

opinions when "good reasons are identified for not accepting them." Hall v. Bowen,

837 F.2d 272, 276 (6th Cir. 1988); 20 C.F.R. § 404.1527(d)(2)("We will always give

good reasons in our notice of determination or decision for the weight we give your

treating source's opinion"); Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th

Cir. 2004).

Plaintiff argues that Dr. Beyer’s form evaluations repeatedly and specifically

indicated severe limitations in his ability to perform the physical requirements of

full-time employment, and that his condition continued to worsen as time went on. 

He states that the ALJ should have taken proper account of these findings of his

long-time treating physician, in light of the length and extent of the treating

relationship. Finally, Plaintiff argues, Dr. Beyer’s opinions were supported by the

extant objective medical evidence concerning Plaintiff’s repeated spinal surgeries

and demonstrations on CT and MRI scans of degenerative spondylosis.

As the Commissioner points out, however, evidence supporting a diagnosis of

severe impairment is not the same thing as evidence supporting physical and

vocational limitations said to be caused by that impairment. The ALJ determined

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that Plaintiff’s spinal stenosis was a severe impairment. (R. 11.) The limits put

forth in Dr. Beyer’s repeated form functional capacity assessments, however, were

not supported by Beyer’s own records – which consisted largely of a transcript of

Plaintiff’s medication refills – or by evidence from Plaintiff’s repeated

hospitalizations or other examinations that Plaintiff’s severe impairment did, in

fact, render him unable to walk reliably or sit for more than 45 minutes at a time. 

The ALJ cited to numerous hospital records postdating Plaintiff’s 2004 surgeries

which referred only to mild or moderate cervical degeneration, and which described

normal range of motion and ability to ambulate. (R. 14.) Despite his treating

relationship, the opinions Dr. Beyer expressed did not have sufficient evidence to

support their severity, and it was not error for the ALJ to refuse to give them

controlling weight.

Plaintiff argues also that the ALJ failed to correctly assess his credibility:

The ALJ noted that Mr. Owens testified and/or reported that he was

able to cook simple meals, wash dishes, grocery shop for himself, fold

laundry and place it in and take it out of the machine, make his bed,

clean his room, dust, and watch his friends’ children including feeding

and dressing them. Mr. Owens was able to independently bathe and

dress himself and attend to his own personal hygiene. The ALJ cites

Mr. Owens’ testimony and [certain exhibits] to support his statement. 

However, review of these exhibits reveals no support for the ALJ’s

contentions. [...]

Mr. Owens’ testimony and reports have consistently shown that he is

only able to do simple activities for short periods of time due to his

impairments. Therefore, these daily activities (some of them not even

being on a daily basis) would certainly not contradict Mr. Owens’ own

statements regarding his physical limitations. It is clear that the ALJ

misstated and ignored many of Mr. Owens’ statements. Therefore, this

claim should be remanded for proper consideration of Mr. Owens’

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 Plaintiff also argues that there existed no evidence to support the ALJ’s

contentions that Plaintiff “would do laundry in and take it out of a washing

machine” or that Plaintiff could “grocery shop for himself”. (Doc. 11 at 30-31.) 

However, Plaintiff’s brother-in-law, Jerry Bowman, noted in his third-party

statement that “I’ve seen him do laundry, but he was unable to carry the laundry

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actual activities as stated in [the record] and through his own

testimony.

(Doc. 11 at 31, citations omitted.)

An ALJ “is not required to accept a claimant’s subjective complaints and may

... consider the credibility of a claimant when making a determination of disability.” 

Jones v. Comm’r of Soc. Sec., 336 F.3d at 469, 476 (6th Cir. 2003), citing Walters v.

Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997). An ALJ’s credibility

determinations about a claimant are to be given great weight. However, they must

also be supported by substantial evidence. Cruse v. Comm’r of Soc. Sec., 502 F.3d

532, 542 (6th Cir. 2007). “Discounting credibility to a certain degree is appropriate

where an ALJ finds contradictions among medical reports, claimant’s testimony,

and other evidence.” Walters, 127 F.3d at 531, citing Bradley v. Sec’y of Health &

Human Servs., 862 F.2d 1224, 1227 (6th Cir. 1988). 

It was not improper for the ALJ to consider Plaintiff’s ability to engage in

activities of daily living in assessing the credibility of his claims to be unable to

work. Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 392 (6th Cir. 2004), citing

Walters, 127 F.3d at 532. Plaintiff objects largely to the ALJ’s characterization of

such activities as cooking simple meals and folding laundry as “certainly not

[supporting] a finding that he can perform work for 8 hours a day”.1

 However, the

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basket” and that Plaintiff does his own grocery shopping, which took a long time

“because he walks so slowly and must use the shopping cart for support”. (R. 203-

04.)

19

ALJ did not find that Plaintiff was capable of employment as a cook or launderer,

but that such “daily activities contradict the claimant’s own statements as to his

physical limitations and are not credibly restricted to the extent one would expect of

an individual alleging the type of severe, disabling pain and symptomatology the

claimant alleges.” (R. 15.) The ALJ also did not substantively misrepresent

Plaintiff’s testimony, whether or not he cast it in a light unfavorable to Plaintiff’s

claims. Another reviewer could have come to a contrary decision concerning

Plaintiff’s credibility, but the decision of the ALJ here must be upheld if the

findings and inferences reasonably drawn from the record are supported by

substantial evidence. Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir.

2005). 

Plaintiff also objects to the ALJ’s determination that his allegations that the

drowsiness caused by his medication was so severe that it rendered him unable to

work were not supported by any evidence in Plaintiff’s treatment records of

complaints about excessive drowsiness or attempts to eliminate or ameliorate these

effects. He contends specifically that Dr. Beyer’s objective records of frequent

adjustments or alterations of his medications support these claims, and that the

testifying medical expert conceded that Plaintiff’s alleged tiredness was reasonable

given his medications. Plaintiff is correct that Dr. Beyer’s records, for their part,

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2

 Plaintiff also notes that Dr. Beyer submitted a questionnaire after the

hearing which stated that Plaintiff’s medications would support his claims of

drowsiness and required naps, to which the ALJ made no reference. (Doc. 11 at 32-

33.) He does not actually claim that the ALJ’s failure to address this document is

itself grounds for remand. In any case, however, it is evident that the ALJ would

have assigned the same weight to this opinion by Dr. Beyer as he did to the others.

20

show changes in his medications, though these do not directly support Plaintiff’s

claims as to the severity of their effects.2

 However, at the hearing, Dr. Gatens

testified that the effects of Plaintiff’s medications “depends on how he’s taking

them. I mean, he could adjust that by cutting down Percocet during the day.” (R.

79.) Furthermore, Plaintiff’s extensive treatment records are again devoid of

complaints as to drowsiness so substantial as to require extensive naps during the

day, and such allegations are thus essentially based on his own testimony, which

the ALJ otherwise found exaggerated. Substantial evidence existed to support the

ALJ’s credibility determination as to Plaintiff’s drowsiness, as with his ability to

physically perform vocational tasks. The ALJ thus did not err in this finding.

Conclusions. For the reasons set forth above, I find that there is no basis to

overturn the decision of the Administrative Law Judge. Accordingly, I

RECOMMEND that Plaintiff’s objections be OVERRULED, and that this case be

DISMISSED.

If any party objects to this Report and Recommendation, that party may,

within fourteen (14) days, file and serve on all parties a motion for reconsideration

by the Court, specifically designating this Report and Recommendation, and the

party thereof in question, as well as the basis for objection thereto. 28 U.S.C.

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21

§636(b)(1)(B); Rule 72(b), Fed. R. Civ. P.

The parties are specifically advised that 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 judgement of the District Court. 

Thomas v. Arn, 474 U.S. 140, 150-52 (1985); United States v. Walters, 638 F.2d 947

(6th Cir. 1981). See also, Small v. Secretary of Health and Human Services, 892

F.3d 15, 16 (2d Cir. 1989).

s/Mark R. Abel 

United States Magistrate Judge 

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