IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Jerry R. Clemons, :

Plaintiff : Civil Action 2:10-cv-00892

v. : Judge Graham

Michael J. Astrue, : Magistrate Judge Abel

Commissioner of Social Security,

Defendant :

REPORT AND RECOMMENDATION

Plaintiff Jerry R. Clemons brings this action under 42 U.S.C. §§405(g) and

1383(c)(3) for review of a final decision of the Commissioner of Social Security denying

his application for Supplemental Security Income benefits. This matter is before the 

Magistrate Judge for a report and recommendation on the parties’ cross-motions for

summary judgment.

Summary of Issues.

Plaintiff Jerry R. Clemons asserts he became disabled at age 50 by arthritis, back

pain, hepatitis C with joint arthralgia, a dysthymic disorder, and a generalized anxiety.

He was 54 years old when the administrative law judge issued the decision denying

benefits. The administrative law judge found that Clemons retained the ability to

perform a reduced range of jobs having light exertional demands.

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

reversed because:

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• The administrative law judge committed reversible error in refusing to

give controlling weight or at least great weight to the opinion of plaintiff’s

treating doctor;

• The administrative law judge improperly assessed plaintiff’s credibility;

and,

• The administrative law judge failed to consider Medical Vocational

Guideline 201.12.

Procedural History. Plaintiff Jerry R. Clemons filed his application for disability

insurance benefits on June 9, 2006, alleging that he became disabled on July 1, 2006, at

age 50, by arthritis, back pain, nerve damage in his left arm and hand, and hepatitis C. 

(R. 90, 121.) The application was denied initially and upon reconsideration. Plaintiff

sought a de novo hearing before an administrative law judge. On November 10, 2009, an

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

appeared and testified. (R. 23.) On January 26, 2010, the administrative law judge

issued a decision finding that Clemons was not disabled within the meaning of the Act. 

(R. 59.) On September 1, 2010, the Appeals Council denied plaintiff’s request for review

and adopted the administrative law judge’s decision as the final decision of the

Commissioner of Social Security. (R. 1-5.)

Age, Education, and Work Experience. Jerry R. Clemons was born January 11,

1956. (R. 100.) He completed his GED. (R. 124.) He has worked as a general laborer for a

temporary agency. (R. 122.) He last worked October 15, 2000. (R. 121.) 

Plaintiff’s Testimony. Plaintiff testified that he had been homeless, living on the

streets for almost ten years. He had worked at a temporary agency. He received food

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from soup kitchens. He was incarcerated two times for robbery and breaking and

entering. He said he was a lousy thief and that he got caught at everything he

attempted. He indicated that he had done some very stupid things in his lifetime. In the

past he abused cocaine, but he stopped using cocaine for his health. He received

medical insurance and food stamps from the state. At the time of the hearing, he was

living was his mother. He reported that he could not get a job because no one would

hire him when then learned of his medical conditions. 

He had had hepatitis C for at least ten years. It drained all of his energy, caused

him pain, and aggravated his other conditions. He underwent treatment for hepatitis C

but it did not work. He took two naps a day because he had no energy. He woke up

hourly at night. He had had weeks where he had only slept six to eight hours the whole

week. 

He reported that he was not able to do very much of anything because of his

degenerative disc disease. Although his doctor had instructed him not to engage in

certain activities, he would attempt something anyway and end up hurting himself.

Vicodin provided some pain relief and gave him a false sense of security. Although it

did not cause him pain to lift something, afterwards he had pain. Sitting also caused

him back pain. He could only sit for ten or fifteen minutes before needing to move.

Walking and standing also gave him difficulty. He could only walk two to four blocks

before he began to experience pain. He had problems with his feet that made walking

and standing painful. His neck also caused him continuous pain. He had arthritis and

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tendonitis in his hands, which made his hands stiff and hard to bend. His left hand was

much worse than his right. When he held things, his hands would go numb and cause

him to drop things. 

He testified that some days were better than others. Occasionally he was able to

vacuum the floor without too much difficulty. He made an effort to help around the

house even if it caused him pain later. (R. 27-40.) 

Medical Evidence of Record. Although the administrative law judge’s decision

fairly sets out the relevant medical evidence of record, this Report and

Recommendation will summarize that evidence in some detail.

Physical Impairments. 

Mount Carmel West. On January 15, 2006, plaintiff was treated at the hospital for

cellulitis on his left elbow. An x-ray revealed extensive, chronic appearing bone and

joint changes at the left elbow. (R. 295-97.) On March 19, 2006, plaintiff presented at the

emergency room because he had accidently cut his right dorsal hand. He had significant

pain and redness. (R. 290-91.) 

Grant Medical Center. On March 14, 2007, plaintiff presented at the emergency

room with complaints of pain in his back and neck. He came to the emergency room

after becoming severely dizzy with symptoms of vertigo when he looked up while in an

elevator. Clemons was counseled regarding the possibility of vertebral artery disease.

(R. 264-65.)

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Myung Cho, M.D. On July 3, 2007, Dr. Cho , a state agency physician, reviewed

the medical evidence and made a physical residual functional capacity assessment. Dr.

Cho stated the opinion that Clemons could occasionally lift and/or carry 50 pounds and

frequently lift and/or carry 25 pounds. He could stand and/or walk about 6 hours in an

8-hour day. He could sit for about 6 hours in an 8-hour day. He was unlimited in his

ability to push and/or pull. Dr. Cho said that plaintiff’s allegations were partially

consistent with the medical evidence. (R. 326-33.)

Jennifer J. Hartman, M.D. On March 4, 2007, plaintiff began seeing Dr. Hartman,

a general practitioner. He reported that he was having more difficulties with his hands

and feet. Dr. Hartman indicated that plaintiff had arthraligias in his knuckles and

numbness and tingling in his feet. His toes crossed outward on his feet. Plaintiff’s pain

made it difficult for him to sleep. (R. 346.) 

On March 26, 2007, Clemons reported that he was having pain in his neck, back

and left hip. He rated his pain as a seven on a ten-point scale. Clemons tested positive

for hepatitis C. (R. 275-76.) On April 9, 2007, Clemons reported that he had been

experiencing numbness, tingling and pain. (R. 266.)

An April 11, 2007 x-ray of plaintiff’s lumbar spine revealed mild thoracic

scoliosis convex to the left with the superior aspect of the thoracic spine. An x-ray of the

cervical spine showed neural foraminal narrowing bilaterally possibly due to mild

uncovertebral joint spurring. An x-ray of his right hand showed no acute bony or joint

abnormality. An x-ray of his left hand was normal. An x-ray of the lumbar spine

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revealed degenerative changes at L5-S1 with disc space narrowing, spurring, and facet

joint hypertrophy. (R. 351.) 

On May 11, 2007, Dr. Hartman noted that plaintiff was depressed because his

brother had died under suspicious circumstances. Clemons reported decreased energy

and concentration. (R. 343.) On July 18, 2007, Dr. Hartman stated the opinion that

plaintiff was unable to do manual labor. (R. 242.) 

A July 2, 2007 surgical pathology report was consistent with a clinical history of

hepatitis C. (R. 360-61.) An August 23, 2007 nuclear medicine cardiolite examination

showed no evidence for myocardial ischemia. The patient achieved 71% of the

maximum predicted heart rate. (R. 350.) 

On August 20, 2007, Clemons reported that he was experiencing increased body

pain and worsening arthritis. (R. 338.) 

A February 20, 2008 x-ray of plaintiff’s cervical spine showed degenerative disc

disease and facet arthropathy in the mid cervical spine. There was mild to moderate

disc space narrowing and minor end plate osteophyte formation at C5-6. Minor facet

arthropathy was noted on the right at C3-4 and on the left at C4-5. (R. 444.) A February

20, 2008 x-ray of his left foot showed moderate first metatarsophalangeal and sesamoidmetatarsal joint osteoarthritis. There was mild hallux valgus deformity. (R. 445.) An xray of his right foot, showed moderate degenerative arthrosis and narrowing of the first

metatarsophalangeal joint. (R. 446.) An x-ray of the right knee was unremarkable. (R.

447.) An x-ray of left knee revealed no specific abnormality. (R. 448.)

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On April 17, 2008, Clemons had just started on Celexia. He complained that his

Vicodin was not strong enough. The diagnoses were hepatitis C, arthritis secondary to

the hepatitis, and depression. (R. 418.)

On August 28, 2008, Dr. Hartman noted that Clemons had started his treatment

regimen for hepatitis C and was extremely irritable and volatile. She referred him to a

psychologist because his psychological symptoms "were a little more complicated" than

those of patients with "simple anxiety/depression." (R. 408.) 

On January 13, 2009, Dr. Hartman examined Clemons. Clemons reported pain in

his joint that he rated as an eight on a ten-point scale. His hand joints were stiff and

sore, and he had some mild joint swelling in his left thumb, pinky finger and middle

finger. Dr. Hartman diagnosed hepatitis C, degenerative disc disease of the lumbar

spine, arthropathy not otherwise specified, and an episodic mood disorder.(R. 456-58.) 

On February 27, 2009, Clemons reported that he continued to have pain in his

hands, but it had also progressed into his wrists. He reported that his back was getting

worse. He used to have difficulty when he first woke up. He reported that his legs did

not move when he got up. This occurred two times a week and lasted for less than a

minute. (R. 479-81.) 

On April 28, 2009, Dr. Hartman completed a physical capacity evaluation. Dr.

Hartman said that plaintiff’s maximum ability to lift and carry occasionally was 1-2

pounds. The maximum plaintiff could lift and carry frequently was 1-2 pounds. He

could stand for less than 30 minutes per day, and he could only stand for 15 minutes

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before needing to sit. He could sit for less than thirty minutes a day, and he could only

sit for 15 minutes before needing to stand. Clemons must walk every 30 minutes for five

minutes at a time. He had to lie down two to three times in an 8-hour working day.

He could twist, stoop, bend and climb stairs only very occasionally. He could

occasionally crouch. He could never climb ladders. He had difficulty balancing on

narrow, slippery, or erratically moving surfaces. He could occasionally reach, feel, push

or pull. He could rarely perform handling or fingering. He should avoid all exposure to

hazards, moderate exposure to vibration, and concentrated exposure to extreme cold,

extreme heat, wetness, humidity, and fumes, odors, or dust. He could sometimes

understand, remember and carry out simple instructions. He could make simple workrelated decisions. (R. 466-69.) 

A March 3, 2009 MRI of plaintiff’s lumbar spine revealed multilevel degenerative

changes of the lumbar spine with disc bulges and osteophytes resulting in narrowing of

the neural foramina. There were annular fissures present at L2-3 and l4-5. The disc

narrowing was most severe at L5-S1. (R. 471-72.) On March 19, 2009, Dr. Hartman

reviewed plaintiff’s MRI results with him.(R. 485.)

On July 16, 2009, plaintiff reported that his back had been hurting more. (R. 496.) 

Ohio Gastroenterology Group, Inc. In a June 28, 2007 letter, Raghuram Reddy,

M.D. and Joseph Checca, Jr. summarized their evaluation of Clemons’ hepatitis C.

Clemons complained of some occasional but slight nausea. He did not have abdominal

pain or a significant rash. He occasionally had some pruritis. He had jaundice six

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months to a year ago, although he acknowledged that at that time he was drinking two

40-ounce bottles of beer per day. He reported abusing cocaine in the 1980s. He had

multiple tattoos and pierced ears. He also reported symptoms of a rheumatoid-like

syndrome involving joint discomfort and ulnar deviation in his hands. Clemons was

diagnosed with chronic active hepatitis C, genotype 1A probably of long-standing

duration. (R. 369-70.) 

On May 29, 2008, Dr. Reddy evaluated plaintiff and initiated treatment for his

chronic active hepatitis C. (R. 387.) Four weeks into his treatment, Clemons experienced

shortness of breath, fatigue, weakness, and lightheadedness when he stood up. Other

than these complaints, he was tolerating the medication fairly well. He reported some

changes in his vision. He also reported increased depression and anxiety. (R. 385-86.)

On August 18, 2008, plaintiff complained of fatigue, light-headedness, and occasional

shortness of breath on exertion. He reported increased irritability. His labs showed that

he was anemic, although his liver enzymes were relatively normal. (R. 384.) 

Amy M. Kopp. M.D. On October 16, 2007, plaintiff was evaluated for possible

glaucoma. (R. 373-81.) On November 19, 2007, Dr. Kopp diagnosed Clemons with

normal tension glaucoma in the right eye. Clemons was prescribed Isatol. She noted

that interferon therapy for treatment of hepatitis C could result in ischemic retinopathy,

hemorrhages, cotton wool spots, and ischemic optic neuropathy that could significantly

worsen his glaucomatous damage. Dr. Kopp recommended that plaintiff be closely

followed and undergo vision and pressure checks. (R. 382-83.) 

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In a July 20, 2007 letter, Drs. Reddy and Checca discussed the necessary steps

plaintiff must take prior to beginning treatment for hepatitis C. The treatment could

cause major depression or cardiac problems. As a result, a psychiatric evaluation and

cardiac stress test was recommended prior to treatment. Plaintiff had a 45% chance of

responding to treatment. (R. 366-67.) 

Kevin Lutz, D.P.M. On February 20, 2008, Dr. Lutz examined plaintiff at the

request of his primary care physician. Clemons had reported bilateral foot pain for

some time. He indicated that he had degenerative joint disease in both feet. He had

bilateral pes planus in both feet in a weight bearing and non-weight bearing position.

Range of motions in all joints was slightly diminished. Musculoskeletal strength in the

lower extremities was severely impaired. Bilateral hallux abductor valgus deformity

was noted with the left being worse than the right. Dr. Lutz opined that Clemons’

degenerative joint disease was likely to continue, although attempts could be made to

slow its progression. He recommended that plaintiff purchase an over-the-counter

insert. (R. 430-31.) On March 19, 2008, Dr. Lutz examined plaintiff to follow-up on his

complaints of bilateral foot pain. Dr. Lutz diagnosed tarsal tunnel and deep peroneal

neuritis of the right foot. (R. 425-26.) 

Scott R. Littrell, D.P.M. On April 23, 2008, Dr. Littrell examined plaintiff for

follow-up care of his tarsal tunnel and deep perineal neuritis. Clemons complained of

stiffness in his mid-foot and an inability to raise and lower his right lower extremity. At

his last appointment, Clemons was given a metatarsal pad to alleviate pain, and it was

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recommended that he obtain over-the-counter orthotics for arch support. Clemons

reported continued stiffness and aching pain. Dr. Littrell opined that a weakness of

bilateral lower extremities with burning and shooting pain from the back going down

the course of his entire lower extremities bilaterally was more likely the result of

radiculopathy. He recommended that plaintiff be seen by a back specialist. (R. 414-15.) 

Psychological Impairments. 

Scott Lewis Donaldson, Ph.D. On June 18, 2007, Dr. Donaldson, a psychologist,

evaluated plaintiff. Clemons reported that he had been addicted to Valium. He said that

he did not use alcohol or illicit substances. On mental status examination, Clemons

exhibited flat affect with an agitated mood. His eye contact was adequate. He reported

difficulty falling asleep. He woke up frequently throughout the night and required naps

during the day. He reported suicidal ideation without intent stating the he did not care

if he died. He suffered from feelings of hopelessness and helplessness. He experienced

mood swings throughout the day and symptoms of depression which included

diminished interest in activities, insomnia, psychomotor agitation, fatigue, difficulty

concentrating, and thoughts of death. Clemons reported suffering from anxiety and

worrying about everything. He reported being restless, edgy, irritable, and easily

fatigued. When he was incarcerated, he experienced panic-like symptoms. Clemons was

oriented in three spheres. His memory for past and recent events appeared intact. His

overall intelligence fell within the average range. 

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Dr. Donaldson diagnosed dysthymic disorder and a generalized anxiety

disorder. He assigned a current Global Assessment of Functioning (“GAF”) score of 55-

65. Dr. Donaldson opined that Clemons’ ability to understand, remember and carry out

one- or two- step job instructions did not appear to be impaired. His ability to perform

repetitive tasks was moderately limited by chronic pain and his physical status. His

level of motivation was lacking as a result of his depression and anxiety. His

interpersonal relationship skills, as well as his ability to relate to supervisors and coworkers, was moderately limited. His ability to withstand the stress and pressures

associated with day-to-day work appeared to be moderately limited. (R. 301-04.) 

Cindy Matyi, Ph.D. On June 26, 2007, Dr. Matyi, a psychologist for the state

agency, reviewed the psychological evidence and completed a mental and psychiatric

review technique assessment. Dr. Matyi noted that plaintiff was diagnosed with

dysthymia and a generalized anxiety disorder. Dr. Matyi concluded that plaintiff was

not significantly limited in his abilities to remember locations and work-like procedures

or to understand and remember short and simple instructions. He was moderately

limited in his ability to understand and remember detailed instructions. With respect to

sustained concentration and persistence, he was moderately limited in his abilities to

carry out detailed instructions, to maintain attention and concentration for extended

periods of time, to work in coordination with or proximity to others without being

distracted by them, and to complete a normal workday and workweek without

interruptions from psychologically based symptoms and to perform at a consistent pace

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without an unreasonable number and length of rest periods. With respect to social

interaction, plaintiff was moderately limited in his ability to interact with the general

public, to ask simple questions or request assistance, to accept instructions and respond

appropriately to criticism from supervisors, and to get along with coworkers or peers

without distracting them or exhibiting behavioral extremes. Plaintiff was moderately

limited in his ability to respond to changes in the work setting.

Plaintiff had moderate restriction of activities of daily living and moderate

difficulties in maintaining social functioning. He had only mild difficulties in

maintaining concentration, persistence or pace and no episodes of decompensation. (R.

308-25.) 

Karla Voyten, Ph.D. On October 31, 2007, Dr. Voyten, another state agency

psychologist, reviewed all the psychological evidence and affirmed Dr. Matyi's

assessment as written. (R. 357.) 

Christopher A. Kovell, D.O. On March 27, 2008, Dr. Kovell performed a

psychiatric evaluation at the request of his family physician and liver specialist because

he was under consideration for interferon therapy. Clemons reported an extensive

history with the criminal justice system. He acknowledged committing many crimes in

his life beginning at the age of 13. He was imprisoned three times. He was currently on

parole.

Clemons reported having been depressed for the past couple of years. He had

low energy and motivation. He reported irritability and symptoms of anxiety when in

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small spaces. Clemons was pleasant and cooperative throughout the assessment. He

had a depressed mood, but he denied any active suicidal thoughts. His insight and

judgment were intact. Dr. Kovell diagnosed dysthymic disorder and polysubstance

abuse in remission. Dr. Kovell believed that Clemons was an appropriate candidate for

interferon therapy. He prescribed him an antidepressant. (R. 420-22.)

Administrative Law Judge’s Findings. 

1. The claimant has not engaged in substantial gainful activity since

the alleged onset date of July 1, 2006 (20 CFR 416.971 et seq.).

2. The claimant has the following severe impairments: degenerative

disc disease of the cervical and lumbosacral spine with chronic

back pain; hepatitis C with joint arthralgias; dysthymic disorder;

generalized anxiety disorder; and a history of drug use (20 CFR

416.920(c)).

3. The claimant does not have an impairment or combination of

impairments that meets or medically equals one of the listed

impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR

416.920(d), 416.925 and 416.926).

4. After careful consideration of the entire record, the undersigned

finds that the claimant has the residual functional capacity to

perform light work as defined in 20 CFR 416.967(b) involving

limited interaction with others and requiring only simple and

repetitive tasks. 

5. The claimant has no past relevant work (20 CFR 416.965).

6. The claimant was born on January 11, 1956 and was 51 years old,

which is defined as an individual closely approaching advanced

age, on the date the application was filed (20 CFR 416.963).

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7. The claimant has at least a high school education and is able to

communicate in English (20 CFR 416.964).

8. Transferability of jobs skills is not an issue because the claimant

does not have past relevant work (20 CFR 416.968).

9. Considering the claimant’s age, education, work experience, and

residual functional capacity, there are jobs that exist in significant

numbers in the national economy that the claimant can perform (20

CFR 416.969 and 416.969(a)).

10. The claimant has not been under a disability, as defined in the

Social Security Act, since February 2, 2007, the date the application

was filed (20 CFR 416.920(g)). 

(R. 50-59.) 

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. 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 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

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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 decision of the Commissioner

denying benefits should be reversed because:

• The administrative law judge committed reversible error in refusing to

give controlling weight or at least great weight to the opinions of

plaintiff’s treating doctors. Plaintiff maintains that the administrative law

judge erred by not giving controlling weight to the opinion of Dr.

Hartman in her April 28, 2009 physical capacity evaluation of his abilities.

Plaintiff argues that the administrative law judge failed to provide

reasonable support for his rejection of her opinion. Plaintiff contends that

Dr. Hartman’s opinion was entitled to great weight because she was his

treating doctor. He also points to the length and frequency of the

treatment relationship; Dr. Hartman treated plaintiff ten times from

March 4, 2007 through September 22, 2009, which provided her with a

detailed and longitudinal picture of Clemons’ impairments. Dr. Hartman

performed multiple examinations of plaintiff, prescribed him medications,

and referred him to testing and other specialists. Clemons maintains that

Dr. Hartman’s opinion is supported by other findings in the record

including medical signs and laboratory findings. There is substantial

objective evidence in the record supporting Dr. Hartman’s opinion, and

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her opinion is consistent with the record as a whole. Plaintiff also argues

that the administrative law judge failed to have either a medical or

vocational expert at the hearing, and he relied solely on the record. The

residual functional capacity assessment formulated by the administrative

law judge is inconsistent with the record. Nothing in the record supports a

finding that plaintiff can perform light work. 

• The administrative law judge improperly assessed plaintiff’s credibility.

Plaintiff argues that the administrative law judge placed too much

emphasis on the fact that plaintiff had been incarcerated two times

without considering the length of time that had passed since he was last

incarcerated. The administrative law judge also found that plaintiff’s

claim that he no longer used cocaine incredible because there was no

evidence of “the kind of sustained and determined effort that would be

necessary to overcome such a long term problem.” (R. 28.) The

administrative law judge failed to note, however, that the record did not

contain any evidence suggesting that he still used cocaine. 

• The administrative law judge failed to consider Medical Vocational

Guideline 201.12. According to Medical Vocational Guideline 201.12, a

person is disabled if he is between the ages of 50 to 54, can only perform

sedentary work, has a high school education that does not provide for

direct entry into skilled work, and has no unskilled or previous work. At

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The Commissioner’s regulations define “medical opinions” as “statements from

physicians and psychologists or other acceptable medical sources that reflect judgments

about the nature and severity of your impairment(s), including your symptoms,

diagnosis and prognosis, what you can still do despite impairment(s), and your

physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(2). Treating sources often

express more than one medical opinion, including “at least one diagnosis, a prognosis

and an opinion about what the individual can still do.” SSR 96-2p, 1996 WL 374188, at

*2. When an administrative law judge fails to give a good reason for rejecting a treator’s

medical opinion, remand is required unless the failure does not ultimately affect the

decision, i.e., the error is de minimus. Wilson, 378 F.3d at 547. So reversible error is not

committed where the treator’s opinion “is patently deficient that the Commissioner

could not possibly credit it;” the administrative law judge’s findings credit the treator’s

opinion or makes findings consistent with it; or the decision meets the goal of 20 C.F.R.

§ 1527(d)(2) but does not technically meet all its requirements. Id.

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best, Clemons is capable of sedentary work, and he should have been

found disabled under the Medical Vocational Guidelines. 

Analysis. Treating Doctors’ Opinions. Plaintiff argues that the Administrative

Law Judge erred in rejecting the opinion of Dr. Hartman. A treating doctor's opinion1

on the issue of disability is entitled to greater weight than that of a physician who has

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

the medical evidence of record. 20 C.F.R. § 404.1527(d)(1). 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). The Commissioner’s regulations explain that Social Security

generally gives more weight to a treating doctors’ opinions because treators are usually

“most able to provide a detailed, longitudinal picture” of the claimant’s medical

impairments. 20 C.F.R. § 404.1527(d)(2). When the treating doctor’s opinion “is wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is

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Section 404.157(a)(1) provides:

You can only be found disabled if you are unable to do any substantial

gainful activity by reason of any medically determinable physical or

mental impairment which can be expected to result in death or which has

lasted or can be expected to last for a continuous period of not less than 12

months. See §404.1505. Your impairment must result from anatomical,

physiological, or psychological abnormalities which are demonstrable by

medically acceptable clinical and laboratory diagnostic techniques. See

§404.1508.

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not inconsistent with the other substantial evidence in your case record” the

Commissioner “will give it controlling weight. “ Id.

Even though a claimant's treating physician may be expected to have a greater

insight into his patient's condition than a one-time examining physician or a medical

adviser, Congress specifically amended the Social Security Act in 1967 to provide that to

be disabling an impairment must be "medically determinable." 42 U.S.C. §423(d)(1)(A). 

Consequently, a treating doctor's opinion does not bind the Commissioner when it is

not supported by detailed clinical and diagnostic test evidence. Warner v. Commissioner of Social Security, 375 F.3d 387, 390 (6th Cir. 2004); Varley v. Secretary of Health and

Human Services, 820 F.2d 777, 779-780 (6th Cir. 1987); King v. Heckler, 742 F.2d 968, 973

(6th Cir. 1983); Halsey v. Richardson, 441 F.2d 1230, 1235-1236 (6th Cir. 1971); Lafoon v.

Califano, 558 F.2d 253, 254-256 (5th Cir. 1975). 20 C.F.R. §§404.1513(b), (c), (d),

404.1526(b), and 404.1527(a)(1)2

.

The Commissioner's regulations provide that she 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

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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. Subject to these guidelines, the

Commissioner is the one responsible for determining whether a claimant is disabled. 20

C.F.R. § 404.1527(e)(1).

Social Security Ruling 96-2p provides that "[c]ontrolling weight cannot be given

to a treating source's medical opinion unless the opinion is well-supported by medically

acceptable clinical and laboratory diagnostic techniques." Consequently, the decisionmaker must have “an understanding of the clinical signs and laboratory findings and

what they signify." Id. When the treating source's opinion “is well-supported and not

inconsistent with the other substantial evidence in the case record, it must be given

controlling weight . . . .” The Commissioner’s regulations further provide that the

longer a doctor has treated the claimant, the greater weight the Commissioner will give

his or her medical opinion. When the doctor has treated the claimant long enough “to

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have obtained a longitudinal picture of your impairment, we will give the source’s

[opinion] more weight than we would give it if it were from a non-treating source.” 20

C.F.R. §404.1527(d)(2)(i). 

The Commissioner has issued a policy statement about how to assess treating

sources’ medical opinions. Social Security Ruling 96-2p. It emphasizes:

1. A case cannot be decided in reliance on a medical opinion

without some reasonable support for the opinion.

2. Controlling weight may be given only in appropriate

circumstances to medical opinions, i.e., opinions on the

issue(s) of the nature and severity of an individual’s

impairment(s), from treating sources.

3. Controlling weight may not be given to a treating source’s

medical opinion unless the opinion is well-supported by

medically acceptable clinical and laboratory diagnostic

techniques.

4. Even if a treating source’s medical opinion is wellsupported, controlling weight may not be given to the

opinion unless it also is “not inconsistent” with the other

substantial evidence in the case record.

5. The judgment whether a treating source’s medical opinion is

well-supported and not inconsistent with the other

substantial evidence in the case record requires an

understanding of the clinical signs and laboratory findings

and what they signify.

6. If a treating source’s medical opinion is well-supported and

not inconsistent with the other substantial evidence in the

case record, it must be given controlling weight; i.e., it must

be adopted.

7. A finding that a treating source’s medical opinion is not

entitled to controlling weight does not mean that the opinion

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is rejected. It may still be entitled to deference and be

adopted by the adjudicator.

Even when the treating source’s opinion is not controlling, it may carry sufficient

weight to be adopted by the Commissioner:

Adjudicators must remember that a finding that a treating source medical

opinion is not well-supported by medically acceptable clinical and laboratory diagnostic techniques or is inconsistent with the other substantial

evidence in the case record means only that the opinion is not entitled to

"controlling weight," not that the opinion should be rejected. Treating

source medical opinions are still entitled to deference and must be weighed using all of the factors provided in 20 CFR 404.1527 and 416.927. In

many cases, a treating source's medical opinion will be entitled to the

greatest weight and should be adopted, even if it does not meet the test for

controlling weight.

SSR 96-2p.

The case law is consistent with the principals set out in Social Security Ruling 96-

2p. A broad conclusory statement of a treating physician that his patient is disabled is

not controlling. Garner v. Heckler, 745 F.2d 383, 391 (6th Cir. 1984). 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. Commissioner of Social Security, 378

F.3d 541, 544 (6th Cir. 2004). Even when the Commissioner determines not to give a

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treartor’s opinion controlling weight, the decision-maker must evaluate the treator’s

opinion using the factors set out in 20 C.F.R. § 404.1527(d)(2). Wilson, 378 F.3d at 544;

Hensley v. Astrue, 573 F.3d 263, 266 (6th Cir. 2009). There remains a rebuttable

presumption that the treating physician's opinion "is entitled to great deference." Rogers

v. Commissioner of Social Security, 486 F.3d 234, 242 (6th Cir. 2007); Hensley, above. The

Commissioner makes the final decision on the ultimate issue of disability. Warner v.

Commissioner of Social Security, 375 F.3d at 390; Walker v. Secretary of Health & Human

Services, 980 F.2d 1066, 1070 (6th Cir. 1992); Duncan v. Secretary of Health and Human

Services, 801 F.2d 847, 855 (6th Cir. 1986); Harris v. Heckler, 756 F.2d at 435; Watkins v.

Schweiker, 667 F.2d 954, 958 n.1 (11th Cir. 1982). 

Treating Doctor: Discussion. The administrative law judge stated:

Careful consideration has also been given to the opinion of Dr. Hartman

expressed on April 28, 2009 (Exhibit 22F, pages 4-7). Among other

limitations, Dr. Hartman opined that the claimant could lift/carry no

more than two pounds at a time and could stand/walk less than 30

minutes and sit less than 30 minutes total during an eight-hour workday.

Obviously, such limitations would prevent the performance of any

competitive employment on a full-time basis. These and most of the other

limitations described by Dr. Hartman appear excessive and unsupported.

Specifically, the treatment records of Dr. Hartman, including diagnostic

test results and clinical findings, fail to support such incapacitating

functional limitations. Furthermore, such incapacitating functional

limitations are not supported by the remainder of the medical record. It

would appear that Dr. Hartman may have accepted the claimant’s

subjective complaints and alleged functional limitations in reaching her

conclusion rather than weighing these against the objective medical

evidence. Accordingly, the opinion of Dr. Hartman must be rejected as

inaccurate and unpersuasive. 

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(R. 56.) The administrative law judge further stated that despite plaintiff’s complaints of

musculoskeletal problems, his treatment had been conservative and nonaggressive. No

surgical intervention has been performed or recommended. Although he took several

medications, the primary source of his side effects were related to the interferon

treatment that was discontinued because it was ineffective. (R. 58.) 

The administrative law judge properly considered Dr. Hartman’s opinion, and

there is substantial evidence in the record supporting her decision to reject it. The

administrative law judge concluded that Dr. Hartman’s opinion was based on plaintiff’s

subjective complaints and not supported by diagnostic test results and clinical findings: 

With respect to degenerative disc disease of the cervical and lumbosacral

spine, a hospital emergency room report of March 14, 2007 revealed a

history of back pain for years with some pain to the neck and some

radiation to the left leg. Examination demonstrated no neurological deficit

at that time and the claimant was diagnosed and treated conservatively

for chronic neck and back pain. (Exhibit 1F). The claimant was referred by

Jennifer Hartman, M.D., a treating physician, for x-rays of the cervical

spine because of continued complaints of neck pain. X-rays were taken

February 20, 2008 and demonstrated evidence of degenerative disc disease

with mild to moderate disk space narrowing and minor facet arthropathy

(Exhibit 19F, page 2). Evaluation of the claimant by a treating podiatrist on

April 23, 2008 revealed complaints of pain from the back into the legs

indicative of radiculopathy (Exhibit 18F, page 12 and 13). Because of right

leg weakness, the claimant was referred by Dr. Hartman for an MRI of the

lumbar spine conducted on March 3, 2009. This demonstrated multilevel

degenerative changes of the lumbar spine with disc bulges and

osteophytes resulting in narrowing the neural foramina and disk space

narrowing most severe at L5-S1 (Exhibit 22F, pages 9 and 10). The

claimant was sent by Dr. Hartman for x-rays of the cervical spine in July

27, 2009 because of continued pain with findings of mild spondylosis at

C5-6 (Exhibit 23F, pages 31 and 32). Dr. Hartman also referred the

claimant on the same day for x-rays of the lumbar spine because of

continued pain. These revealed findings consistent with degenerative

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changes at L5-S1 not significantly changed since April 2007 (Exhibit 23F,

page 30). Outpatient treatment records from Dr. Hartman dating through

August 13, 2009 in conjunction with musculoskeletal examination

consistently described the musculoskeletal examination as normal but stiff

(Exhibit 23F).

(R. 55.) The record contains no x-ray, MRI, EMG, or clinical evidence of nerve root

impairment. Clinically, there may be some limitation of motion, but there is no

consistent, clinically significant evidence of neurological deficits or muscle weakness.

No examining physician has identified specific, clinically significant neurological

deficits that, in the physician's opinion, would be consistent with nerve root

impingement or a bony abnormality that could cause severe, disabling pain. While the

x-rays and MRIs are consistent with impairments to Clemons' neck and back that would

cause pain, they do not contain findings that would require an administrative law judge

to find that the pain is disabling. 

Subjective Symptoms: Credibility Determination. Pain is an elusive phenomena. 

Ultimately, no one can say with certainty whether another person's subjectively

disabling pain precludes all substantial gainful employment. The Social Security Act

requires that the claimant establish that he is disabled. Under the Act, a "disability" is

defined as "inability to engage in any substantial gainful activity by reason of any

medically determinable or mental impairment which can be expected . . . to last for a

continuous period of not less than 12 months. . . ." 42 U.S.C. §423(d)(1)(A) (emphasis

added).

Under the provisions of 42 U.S.C. §423(d)(5)(A):

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An individual's statement as to pain or other symptoms shall

not alone be conclusive evidence of disability as defined in

this section; there must be medical signs and findings,

established by medically acceptable clinical or laboratory

diagnostic techniques, which show the existence of a medical

impairment that results from anatomical, physiological, or

psychological abnormalities which could reasonably be

expected to produce the pain or other symptoms alleged and

which, when considered with all evidence required to be

furnished under this paragraph (including statements of the

individual or his physician as to the intensity and

persistence of such pain or other symptoms which may

reasonably be accepted as consistent with the medical signs

and findings), would lead to a conclusion that the individual

is under a disability. Objective medical evidence of pain or

other symptoms established by medically acceptable clinical

or other laboratory techniques (for example, deteriorating

nerve or muscle tissue) must be considered in reaching a

conclusion as to whether the individual is under a disability.

In Duncan v. Secretary of Health and Human Services, 801 F.2d 847, 853 (6th Cir. 1986) the

Sixth Circuit established the following test for evaluating complaints of disabling pain. 

First, the Court must determine "whether there is objective medical evidence of an

underlying medical condition." If so, the Court must then

examine: (1) whether objective medical evidence confirms

the severity of the alleged pain arising from the condition; or

(2) whether the objectively established medical condition is

of such a severity that it can reasonably be expected to

produce the alleged disabling pain.

Duncan, 801 F.2d at 853. Any "credibility determinations with respect to subjective

complaints of pain rest with the ALJ." Siterlet v. Secretary of Health and Human Services,

823 F.2d 918, 920 (6th Cir. 1987).

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The Commissioner has adopted a Social Security Ruling to guide decisionmakers

in their consideration of subjective complaints of pain. SSR 88-13, CCH Unemployment

Insurance Reporter ¶14,118A (July 20, 1988). It provides that objective evidence about

the alleged pain-inducing impairment(s) should be developed for the record:

Medical history and objective medical evidence such as

evidence of muscle atrophy, reduced joint motion, muscle

spasm, sensory and motor disruption, are usually reliable

indicators from which to draw reasonable conclusions about

the intensity and persistence of pain and the effect such pain

may have on the individual's work capacity. Whenever

available, this type of objective medical evidence must be

obtained and must be considered in reaching a conclusion as

to whether the individual is under a disability.

Id., at p. 2134. Should the factfinder conclude that the objective evidence alone does not

support the claimant's subjective complaints of disabling pain, he must gather the

following information:

[D]etailed descriptions of daily activities by directing

specific inquiries about the pain and its effects to the

claimant, his/her physicians from whom medical evidence

is being requested, and other third parties who would be

likely to have such knowledge.

In developing evidence of pain or other symptoms, it is

essential to investigate all avenues presented that relate to

subjective complaints, including the claimant's prior work

record and information and observations by treating and

examining physicians and third parties, regarding such

matters as:

1. The nature, location, onset, duration,

frequency, radiation, and intensity of

any pain;

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2. Precipitating and aggravating factors (e.g., movement,

activity, environmental conditions);

3. Type, dosage, effectiveness, and adverse side-effects of any

pain medication;

4. Treatment, other than medication, for

relief of pain;

5. Functional restrictions; and

6. The claimant's daily activities.

Id., at p. 2135. Finally, the decisionmaker must determine whether the claimant's pain

and other limitations permit him to work:

The RFC assessment must describe the relationship between

the medically determinable impairment and the conclusions

of RFC which have been derived from the evidence, and

must include a discussion of why reported daily activity

restrictions are or are not reasonably consistent with the

medical evidence.

In instances in which the adjudicator has observed the

individual, the adjudicator is not free to accept or reject that

individual's subjective complaints solely on the basis of such

personal observations. Rather, in all cases in which pain is

alleged, the determination or decision rationale is to contain

a thorough discussion and analysis of the objective medical

evidence and the non-medical evidence, including the

individual's subjective complaints and the adjudicator's

personal observations. The rationale is then to provide a

resolution of any inconsistencies in the evidence as a whole

and set forth a logical explanation of the individual's capacity to work.

Id. SSR 88-13 replaced SSR 82-58, CCH Unemployment Insurance Reporter ¶14,358 at

pp. 2499-48 through 2499-53 (October 1982), but SSR 88-13 does not represent a change

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in policy. It merely restates the Commissioner's long-standing policy on evaluating

pain set out in 20 C.F.R. §404.1529 (August 20, 1980) and codified in 42 U.S.C.

§420(d)(5)(A).

When 42 U.S.C. §423(d)(5)(A) was passed in 1984, Congress directed the

Commissioner to appoint a commission to study pain and develop new criteria for

evaluating pain. Then Congress intended to adopt a permanent statutory standard. 

The interim standard established by §423(d)(5)(A) was to apply only to "determinations

made prior to January 1, 1987." 98 Stat. at 1799. The decision at issue here was made

subsequent to January 1, 1987. Although the Commissioner completed the pain study,

Congress has not enacted a permanent statutory standard.

Nonetheless, the Congressional purpose in enacting §423(d)(5)(A) was to codify

20 C.F.R. §404.1529 and SSR 82-58. Senate Finance Committee Report 98-466, 98th

Cong., 2d Sess., May 18, 1984 5.476; Duncan v. Secretary of Health and Human Services, 801

F.2d at 852. And the Sixth Circuit in Duncan, 801 F.2d at 852-853 relied on both the

Commissioner's pre-existing policy and the codification of that policy in announcing the

two-pronged test. The regulation itself, which was amended July 18, 1997, provides, in

relevant part:

(a) General. In determining whether you are disabled, we

consider all your symptoms, including pain, and the extent

to which your symptoms can reasonably be accepted as

consistent with the objective medical evidence and other

evidence. By objective medical evidence, we mean medical

signs and laboratory findings as defined in §404.1528(b) and

(c). By other evidence, we mean the kinds of evidence

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described in §§404.1512(b)(2) through (6) and 404.1513(b)(1),

(4), and (5) and (e). These include statements or reports

from you, your treating or examining physician or

psychologist, and others about your medical history,

diagnosis, prescribed treatment, daily activities, efforts to

work and any other evidence showing how your

impairment(s) and any related symptoms affect your ability

to work. We will consider all of your statements about your

symptoms, such as pain, and any description you, your

physician, your psychologist, or other persons may provide

about how the symptoms affect your activities of daily living

and your ability to work. However, statements about your

pain or other symptoms will not alone establish that you are

disabled; there must be medical signs and laboratory

findings which show that you have a medical impairment(s)

which could reasonably be expected to produce the pain or

other symptoms alleged and which, when considered with

all of the other evidence (including statements about the

intensity and persistence of your pain or other symptoms

which may reasonably be accepted as consistent with the

medical signs and laboratory findings), would lead to a

conclusion that you are disabled. In evaluating the intensity

and persistence of your symptoms, including pain, we will

consider all of the available evidence, including your

medical history, the medical signs and laboratory findings

and statements about how your symptoms affect you. 

(Section 404.1527 explains how we consider opinions of your

treating source and other medical opinions on the existence

and severity of your symptoms, such as pain.) We will then

determine the extent to which your alleged functional

limitations and restrictions due to pain or other symptoms

can reasonably be accepted as consistent with the medical

signs and laboratory findings and other evidence to decide

how your symptoms affect your ability to work.

20 C.F.R. §404.1529(a). In McCormick v. Secretary of Health and Human Services, 861 F.2d

998, 1003 (6th Cir. 1988), the Sixth Circuit held "that because the standards announced

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by the Court in Duncan were authorized by §404.1529 as well as by the Reform Act, they

continue to apply to cases decided after the sunset of the Reform Act."

The administrative law judge properly assessed plaintiff’s allegations of

disabling pain:

In spite of his complaints involving significant musculoskeletal difficulty,

the claimant’s treatment has been conservative in nature and

nonaggressive. No surgical intervention has been performed and there is

no indication in the record of the need for surgical intervention. Although

the claimant has required treatment with multiple medications, he

primarily had difficulty due to some side effects from interferon treatment

that was discontinued apparently as ineffective.

The claimant during the hearing had no difficulty sitting or moving

around. His testimony was cogent and focused. His claim of having

stopped using cocaine is not credible. There is no evidence of the kind of

sustained and determined effort that would be necessary to overcome

such a long term problem. Incredibility in this regard affects the overall

credibility of claimant. 

The claimant’s failure to engage in substantial gainful activity can be

attributed to reasons other than medical impairments. That is, the

claimant has a very limited history of work activity for most years prior to

his alleged onset date of disability. He shows little evidence of being

motivated to work. The claimant has lived with his mother for the past

several years.

The evidence demonstrates that the claimant has been incarcerated on two

occasions, for grand theft and for attempted robbery. Such history of

criminal involvement adversely affects his credibility for truthfulness and

honesty.

In summary, considering the criteria enumerated in the Regulations,

Rulings and case law evaluating the claimant’s subjective complaints, the

claimant’s testimony was not persuasive to establish an inability to

perform the range of work assessed herein. The location, duration,

frequency, and intensity of the claimant’s alleged symptoms, as well as

precipitating and aggravating factors, are adequately addressed and

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accommodated in the above residual functional capacity. The lack of

support for the claimant’s subjective complaints and functional limitations

is not due to any unexplained mental impairment but to the claimant’s

exaggeration of complaints. 

(R. 58.) The administrative law judge properly considered all of plaintiff’s complaint

and the medical evidence related to his conditions. He concluded that the clinical

findings did not support plaintiff’s allegations. The administrative law judge properly

relied on his conservative treatment, his behavior and demeanor at the hearing, and his

limited work history. It was not error for the administrative law judge to take into

consideration plaintiff’s criminal history when assessing his credibility. Consequently,

the record contains substantial evidence supporting the administrative law judge’s

assessment of plaintiff’s credibility. 

Medical Vocational Guideline 201.12. Plaintiff argues that because he is limited to

sedentary work he is disabled according to Medical Vocational Guideline 201.12. The

determination of a claimant’s residual functional capacity is a legal decision reserved

for the administrative law judge. 20 C.F.R. § 416.927(e)(2) (“Although we consider

opinions from medical sources on issues such as . . . your residual functional capacity. . .

, the final responsibility for deciding these issues is reserved to the Commissioner.”); 20

C.F.R. § 416.946(c)(“If your case is at the administrative law judge hearing level under §

416.1429 . . . the administrative law judge . . . is responsible for assessing your residual

functional capacity.”). Here, the administrative law judge determined that plaintiff was

capable of performing light work, and that determination is supported by substantial

evidence in the record. The administrative law judge properly used the grid as a

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framework to conclude that plaintiff was not disabled. 20 C.F.R. Part 404, Subpart P,

Appendix 2, §202.13. 

From a review of the record as a whole, I conclude that there is substantial

evidence supporting the administrative law judge's decision denying benefits. 

Accordingly, it is RECOMMENDED that the decision of the Commissioner of Social

Security be AFFIRMED. It is FURTHER RECOMMENDED that plaintiff’s motion for

summary judgment be DENIED and that defendant’s motion for summary judgment

be GRANTED.

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 part thereof

in question, as well as the basis for objection thereto. 28 U.S.C. §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 judgment 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.2d 15, 16 (2d Cir. 1989). 

s/Mark R. Abel 

United States Magistrate Judge 

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