IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Richard Lance Williams,

Plaintiff

 v.

Michael J. Astrue, Commissioner of

Social Security,

Defendant

:

:

:

:

:

:

Civil Action 2:11-cv-0822

Judge Watson

Magistrate Judge Abel

REPORT AND RECOMMENDATION

Plaintiff Richard Lance Williams 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 applications for Social Security disability insurance and Supplemental Security

Income benefits. This matter is before the Magistrate Judge for a report and recommendation on the administrative record and the parties’ merits briefs.

Summary of Issues. Plaintiff Williams maintains he has been disabled since

October 2006, when he was 37 years old, by diabetes and diabetic neuropathy. He was

40 years old at the time of the administrative hearing. The administrative law judge

("ALJ") found that Williams retained the ability to perform jobs having medium exertional demands.

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

reversed because the ALJ

• failed to follow the treating physician rule;

• failed to properly evaluate plaintiff’s credibility; and

• relied on flawed vocational expert testimony.

Procedural History. Plaintiff Richard Lance Williams filed his applications for

disability insurance and supplemental security income benefits on November 9, 2006,

alleging that he became disabled on October 2, 2006, at age 37, by diabetes and diabetic

neuropathy. (R. 157-62; 163-65; and 176-77.) The applications were denied initially and

upon reconsideration. Plaintiff sought a de novo hearing before an administrative law

judge. On June 8, 2010, an administrative law judge held a hearing at which plaintiff,

represented by counsel, appeared and testified. (R. 77-118.) A vocational expert and a

medical expert also testified. On August 19, 2010, the ALJ issued a decision finding that

plaintiff Williams was not disabled within the meaning of the Act. (R. 8-19.) On July

20, 2011, the Appeals Council denied plaintiff’s request for review and adopted the

ALJ’s decision as the final decision of the Commissioner of Social Security. (R. 1-4.)

Age, Education, and Work Experience. Richard Lance Williams was born July 8,

1969. (R. 83.) He has a high school education and two years of college. Id. From 1992 to

2004, Williams performed clerical work for a title company, traveling the state to close

loans. He last worked in 2010 until February 2011 as a loan closer, but he earned less

than $300 a month. (R. 94-96.) 

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This was Williams’s third DUI conviction. (R. 85-86.) Williams mostly told

physicians that he was a light or moderate drinker. He told Dr. Robert Bahnson in

March 2008 that his “social history is negative . . . for . . . alcohol consumption.” Doc. 8-

8, PAGEID # 504. Similarly, Dr. Parikh's office notes for March 12, 2009 state that Williams does not use alcohol. (R. 487 and 556.) In July 2008, Williams sought emergency

room treatment after drinking approximately two glasses of wine and then feeling lightheaded. His blood alcohol was .044. A drug screen was positive for marijuana. He said

he was an occasional marijuana user. (R. 387-88.)

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Plaintiff’s Testimony. The administrative law judge fairly summarized

Williams's testimony as follows:

The claimant testified that he cannot work due to his pain and that he has

problems with loss of balance, dizziness or faints if he exerts energy or

moves. He indicated for example walking, standing for periods of time or

“any sort of movement whatsoever.” The episodes last up to about five

minutes and he says that he has lost consciousness three to four times a

year. He also has diabetes, episodes of tachycardia, high cholesterol and

sleep apnea. Further, he indicated that he had rotator cuff injuries on both

shoulders, but has had no surgical intervention. X-rays of the claimant’s

right shoulder were normal (Exhibit 5F, p. 28). He had gone to physical

therapy “off and on” for six years and his left shoulder was worse than his

right \. He has sleep apnea and uses continuous positive airway pressure

(“C-PAP”) therapy. He said he had not noticed much improvement, then

admitted to “maybe a little bit.” He has had no psychiatric treatments, no

psychiatric hospitalizations and no mental health care.

He takes the medications as listed in Exhibit 17E. He reports side effects of

his medications as problems with clarity of thought, dizziness and fatigue.

He estimated that he could walk about five minutes and stand for 20-30

minutes at a time and for a total of four hours in an eight-hour day. He

can sit for 20-30 minutes at a time and for a total of four hours in an eighthour day. He thinks he can lift a gallon of milk, but is not sure because he

does not try to lift.

He lives in a two-story home with his mother. He estimated that he used

the stairs 20-30 times a day. He is able to drive, but his license is currently

suspended for a driving under the influence (“DUI”) charge the weekend

before the hearing.1

 He could drive daily to take his mother to and from

work, as well as errands, and to visit family. He flew to Florida earlier this

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year and stayed for four days.

He stated that he did not smoke, he stopped nine or 10 years ago; however, notes in October 2009 shows the claimant planning to quit and only

smoking three to four cigarettes a week (see Exhibit 14F, p. 12). He admitted to drinking socially and estimated that he drank four to eight beers

a month and may drink more during football season. He also admitted to

smoking marijuana about two or three times a year, the last time being

about three months ago. He has been doing this for about the last six

years. 

On a typical day, he gets up around 7:30 a.m. and eats. Prior to his DUI

charge, he would drive his mother to work, then go back to bed when he

got home. He would sleep until about 4:00 p.m. He would pick his mother

up, eat and then stay awake for three to five hours. He would go to bed

between 9:00 and 11:00 p.m. and sleep 14 to 16 hours a day. He feels that

he sleeps a lot because of the medication and the sleep apnea.

He states that he does not cook, clean or do any household chores because his mother does it all. Then he stated that “I do what I can. I will try

to help. I will put dishes in the dishwasher.” When he is awake he watches television or get on the internet for up to an hour. He may go to the

store with his mother. He stated that he had a large family that he goes to

the family functions such as birthdays and “stuff like that.”

He reports that typically his blood sugar runs high and he does take

insulin. He described constant pain and stabbing feelings all over his

whole body and tingling in my hands. He spends most of the day lying

down and when he sits he elevates his legs. He noted that he has no

sources of income. His mother supports him and he receives Medicaid

benefits, food stamps and welfare benefits. He reported last working in

February 2010. He said he worked a “little here and there” all along. He

worked as a loan closer and a notary public approximately 10 hours a

month; however, no self-employment earnings were posted to his account.

(R. 16-17.) 

Medical Evidence of Record. The administrative law judge’s decision fairly sets

out the relevant medical evidence of record. This report and recommendation will not

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summarize the record except insofar as it is relevant to plaintiff’s assignment of errors.

Essentially, plaintiff argues that the ALJ should have accepted the opinions of Dr. Sheri

Hart, Williams’s treating neurologist at the Ohio State University Hospitals, and found

him disabled. This report will, therefore, summarize Dr. Hart’s treatment notes and

residual functional capacity evaluation, as well as other reports from treators at the

OSU Hospitals.

Physical Impairments. 

On May 11, 2006, Dr. Raheela Khawaja, an endocrinologist, wrote Williams’s

family practitioner Dr. Thomas J. Trump, that plaintiff’s blood sugars “improved

tremendously” on insulin. They had gone from the 400 to 300 range to the 140 to 180

range. He complained of “neuropathy, blurry vision off and on . . . .” (R. 294.) For the

past three years, his muscles and joints have ached. He had burning and hot and cold

sensation in his feet as well as burning in his legs and scrotal area. Williams also complained of easy fatigue and weight loss. Id. He was taking Percocet, 325 mg, two times a

day. He denied alcohol or tobacco abuse. (R. 295.)

Dr. Khawaja believed his pain was related to neuropathy. But neuropathy did

not explain the muscle aches. Dr. Khawaja referred Williams to a neurologist to evaluate his neuropathy. She also advised him to wean himself off Percocet. Id.

Dr. Sheri Hart, a neurologist, first saw Williams on July 14, 2006 at the request of

Dr. Khawaja. Williams reported burning dysesthesias of the feet, stabbing pain throughCase: 2:11-cv-00822-MHW-MRA Doc #: 15 Filed: 04/16/12 Page: 5 of 34 PAGEID #: <pageID>
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out his body, and orthostasis (chronic dizziness). He was first diagnosed with diabetes

about eight years before. He had poor diabetic control during that time. About three

years before, he had the onset of burning dysthesias in his feet. About two years before,

he began experiencing stabbing pain in different parts of his body. Over the past three

months, his symptoms had become more intense. The symptoms started in his legs and

progressed up his abdomen and chest. (R. 266.) 

Williams had weight loss and was depressed. He appeared to be in some amount

of distress and was anxious. His visual fields were full. He had normal muscle strength,

movement and bulk. Dr. Hart found decreased temperature sensation in the feet and

absent reflexes in the bilateral biceps, brachioradialis, patellas, and ankles. His pain,

touch and vibration were intact in all four extremities. His gait was normal, and he

could perform a heel, toe and tandem walk. Dr. Hart diagnosed small fiber neuropathy

associated with diabetes and recommended a further work-up to rule-out other causes

of the neuropathy. She wanted to evaluate his medications to determine their effect on

his pain and somnolence. (R. 267.) 

On October 20, 2006, Dr. Hart wrote Dr. Thomas J. Trump that she had seen

Williams for a followup examination the day before. Williams reported continuing

significant burning dysesthesias and right shoulder pain. Since going off Elavil, he felt

significantly less fatigue. She prescribed Cymbalta in an attempt to better control his

dysesthesias. (R. 265.) 

On November 13, 2006, Dr. Khawaja wrote to Dr. Trump that she saw Williams

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that day for a followup examination. Williams had a seven year history of diabetes.

Tests were consistent with a diagnosis of type 1 diabetes. He did not bring his blood

glucose numbers but said they were variable. He did not have episodes of hypoglycemia. His burning sensation in the feet was better. His dizziness spells were much

better. (R. 292.)

On examination, Williams looked healthy. His skin was normal except for some

rash on the plantar aspect of the right foot. There were no carotid bruits. He did have

decreased sensation with monofilament testing. Dr. Khawaja asked Williams to send

her his blood glucose numbers within a week so that his insulin dose could be further

adjusted. Id. The doctor prescribed a low dose of ACE inhibitor to prevent neuropathy.

Dr. Khawaja noted that Williams was given samples of his medications as it was becoming a hardship for him to afford treatment. (R. 293.) 

On January 9, 2007, Dr. Hart reported to the Social Security Administration that

Williams suffered from painful neuropathy and decreased reflexes. His gait was normal, and he did not require ambulatory aids. He could perform fine and gross manipulations. These findings had persisted three years despite therapy. The intensity and persistence of the symptoms and pain were consistent with the physical findings. (R. 264.)

On February 4, 2007, Dr. Anton Freihofner reviewed the medical evidence for the

Commissioner and executed a residual functional capacity questionnaire. He found that

Williams could occasionally lift and/or carry up to 50 pounds and frequently lift and/

or carry up to 25 pounds. He could both walk and/or stand and sit for about 6 hours

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during an 8-hour work day. Dr. Freihofner noted that during an October 6 office visit

Williams said he felt significantly less fatigued. His diabetes was “currently being

controlled with medications. Blood sugars had improved tremendously.” He had no

hospitalizations related to diabetes. (R. 300.)

On March 29, 2007, Williams underwent a Quantitative Sudomotor Axon Reflex

Test (“QSART”) that was consistent with small fiber neuropathy. (R. 539.) A tilt table

test revealed findings consistent with grade I, i.e., mild, orthostatic intolerance with

vasovagal reactivity. (R. 540-541.)

On April 23, 2007, Dr. Hart wrote Dr. Trump that she saw Williams for a followup examination three days before for his ongoing near syncope and dysesthesias. She

said the QSART was positive for small-fiber neuropathy. Tilt table testing was positive

for mild orthostatic intolerance. Williams had ongoing dysesthesias. She recommended

that Williams see a pain management specialist. Dr. Hart also advised Williams to

elevate his head at night and decrease his salt intake. He chose to begin beta blocker

treatment for his syncope.(R. 338.)

The April 9, 2007 office notes of Dr. Thomas Trump, Williams’s treating family

practitioner, indicate plaintiff had right shoulder pain of close to nine months duration.

He diagnosed rotator cuff tendinitis, bursitis. (R. 312.)

On June 4, 2007, Dr. Khawaja answered a questionnaire regarding Williams’s

diabetes. He had no frequent and severe hypoglycemic reactions. There was decreased

monofilament sensation in his feet and reduced reflexes in his ankles. Williams reCase: 2:11-cv-00822-MHW-MRA Doc #: 15 Filed: 04/16/12 Page: 8 of 34 PAGEID #: <pageID>
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ported significant pain and burning in his legs, chest and abdomen. He did not require

ambulatory aids. (R. 308.) Williams’s weight had increased from 168.4 pounds in May

2006 to 206 pounds in May 2007. (R. 309.)

On June 18, 2007, Dr. Sudhir Dubey, a psychologist, performed a disability examination and evaluation of Williams. Plaintiff was living alone in a home he owned.

He relied on gifts and state health care assistance for his financial support. He denied

both current and past substance abuse. (R. 365.) He had two DUI convictions two and a

half years before. (R. 366.) His daily activities included watching television, computer

work, staying home, and sleeping a lot. He tried to read but was unable to finish a book.

His abilities to drive, shop, make purchases, and manage money were not affected. (R.

367.) Dr. Dubey concluded that Williams’s ability to relate to coworkers and supervisors

was not impaired. He had the ability to understand, remember and follow instructions.

His ability to maintain attention, concentration, persistence and pact to perform simple

repetitive tasks is mildly impaired. (R. 368.) He could withstand the stress and pressure

associated with day-to-day work activity was not impaired. (R. 369.)

On August 3, 2007, Dr. Hart wrote to Dr. Trump that since his last visit Williams

had been less symptomatic. However, he said that he got light headed mowing the

grass and, although he would like to work out, was afraid strenuous activity would

precipitate his feeling of presyncope. He was counseled about the need to hydrate and

the effect of consuming large amounts of caffeine. Williams was to engage on a slow

course of rehydration and reconditioning. He was scheduled to return in six months. (R.

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471.) 

Dr. Samir Parikh began treating Williams on December 19, 2007. (R. 500.) Williams said he was not feeling well and was observed to be diaphoretic and somewhat

somnolent when he arrived. His blood sugar was 79. He quickly became more alert

after being given some IV fluids and orange juice. The doctor discovered that two hours

before Williams had accidentally given himself 10U of insulin rather than 5U as directed. Williams said that since starting using an insulin pump two months before his

insulin had been relatively well-controlled. He had gained 80 pounds over the past year

and now weighed 234 pounds. Williams said he generally felt tired and drank at least a

pot of coffee every day to keep himself going. Finally, Williams said he had recently

injured his left shoulder, but it was now feeling better. (R. 501.) Dr. Parikh diagnosed

Insulin dependent diabetes, peripheral neuropathy and orthostasis, and left shoulder

injury. (R. 502.)

On July 5, 2008, Williams was seen in the emergency room for nausea and vomiting. (R. 453.) He was diagnosed with apparent diabetic ketoacidosis. (R. 455.) He stabilized after he was started on IV Insulin. (R. 463.) Williams was then admitted to the

hospital and remained as an inpatient through July 8. (R. 535.) Four days later, Williams

returned to the emergency room with complaints of lightheadedness after drinking

approximately two glasses of wine. His blood sugars were normal. He appeared to be

very fatigued, and his only other complaint was lightheadedness. (R. 387.) A drug

screen was positive for alcohol and marijuana. Orthostatics were normal. There was no

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evidence of hypoglycemia. He was diagnosed with near syncope and discharged. (R.

388.)

On April 4, 2008, Dr. Christina Salazar treated Williams at OSU Hospitals. He

had been in an auto accident a week before and was suffering from whiplash. (R. 543-

44.)

On July 5, 2008, Williams was hospitalized with elevated blood sugars. He said

that there had been a kink in his insulin pump that precipitated his symptoms. (R. 463.)

On July 22, 2008, Dr. Hart wrote to Williams’s family practitioner that she saw

his patient on July 18. Williams said that he continued to become lightheaded when he

exercised. She increased beta blocker doses and continued him on Cymbalta and Lyrica

for dysesthesias. (R. 474.) 

On July 24, 2008, Dr. Christina M. Salazar saw Williams. (R. 495.) His blood sugars had been well-controlled since his emergency room visit earlier that month. He

denied any symptoms associated with uncontrolled diabetes. He said he "feels quite

well." (R. 496.) Williams did complain about left shoulder pain. He said that physical

therapy last year had been very helpful. He had no radicular pain and no numbness or

tingling in his fingers. On examination, there was a decreased range of motion, tendernecessary, crepitus and pain in the left shoulder. Id. The next day Williams was referred

to physical therapy.

On December 4, 2008, Williams saw Dr. Parikh with complaints that after his

Atenolol dose was doubled six months before he began experiencing fatigue and

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increased malaise. He was sleeping up to 14 hours a day. (R. 491-492.) Dr. Parikh

believed the fatigue was due to the increased dose of beta blocker. Williams had not

experienced lightheadedness since his last visit. (R. 492.) On March 12, 2009, Williams

said he was still sleeping 14 to 16 hours a day. He was chronically fatigued but did not

fall asleep during activity. He reported no episodes of lightheadedness but said he was

not very active for fear of syncope.(R. 486.) Dr. Parikh told Williams to stop taking his

beta blocker and start Midodrine and wear compression stockings. (R. 487-489.) A sleep

study performed on April 26, 2009 revealed moderate obstructive sleep apnea. (R. 420.)

On December 5, 2008, Williams was evaluated for physical therapy for his right

shoulder. He began experiencing pain in the shoulder about two years before. He was

initially injured throwing a football. (R. 489-90.) His personal goals were "to be able to

get back to playing some basketball and doing a lifting program anywhere from 2-3

times a week." The assessment was that Williams demonstrated a "fair-to-good rehabilitation potential." (R. 490.) A physical therapy plan was established. (R. 491.) However, in March 2009 Williams was terminated from physical therapy after attending just

four sessions. (R. 407.)

On March 10, 2009, Williams saw Dr. Parikh for sleep problems, syncope and

diabetes. His chief complaints were fatigue and hypersomnia. (R. 555.) Dr. Parikh said

that Williams’s hypersomnia was chronologically correlated with beta blockers. The

plan was to stop using the beta blockeres and to refer plaintiff for a sleep evaluation. (R.

557.)

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On June 5, 2009, Dr. Khawaja wrote to Dr. Trump that Williams gets tired and

has sustained erection problems. His morning blood glucoses were more than 150. He

was unable to give her blood glucose numbers for the rest of the day. His weight was

236 pounds. His blood glucose that day was 276. On examination, Williams had “decreased monofilament.” Dr. Khawaja increased Williams’s insulin. (R. 475.) 

On July 23, 2009, Dr. Hart wrote that in the interim since she last saw Williams

“he is happy with the control of his symptoms.” He still experienced “exercise intolerance, but not as much with biking.” He had gained weight, and Dr. Hart advised him

to stop eating when he is not hungry. She also advised him “to stay as active as possible with non-gravity related exercises.” Since Williams was happy with his symptom

control, there was no reason for him to return to Hart for treatment unless something

changed. (R. 530.) 

On August 12, 2009, Williams saw Dr. Leroy Essig and complained of profound

fatigue and daytime sleepiness and feeling unrefreshed even after sleeping 12 to 14

hours at night. Dr. Essig suspected that obstructive sleep apnea was causing Williams’s

hypersomnia. He recommended that he have a sleep study with use of a CPAP. (R. 484.)

On October 5, 2009, Williams told Dr. Salazar his hypersomnia was unchanged.

He had not experienced hypoglycemia. (R. 551.) He was to restart physical therapy for

this right shoulder pain. His diabetes was said to be uncontrolled. His vasodepressor

syncope was somewhat controlled. (R. 553.)

In a letter dated November 23, 2009, Dr. Hart reported she was treating Williams

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for small fiber neuropathy and subsequent dysautonomia secondary to diabetes. She

said the small fiber neuropathy was documented by QSART. Dr. Hart believed Williams was limited in his daily activities by pain and lightheadedness related to his

neuropathy and said that it was unlikely he would ever recover. (R. 582.) 

Dr. Hart completed a Diabetes Mellitus Impairment Questionnaire dated November 23, 2009 (R. 575-580.) Dr. Hart reported that she was treating Mr. Williams’

yearly at that time and had seen him most recently in July 2009. Her diagnosis was

poorly controlled diabetes. (R. 575.) Clinical findings included extremity pain and

numbness and dizziness/loss of balance. (R. 575-576.) QSART testing supported her

diagnosis of small fiber neuropathy. Mr. Williams’ primary symptoms were pain,

syncope, and lightheadedness. (R. 576.) Dr. Hart gave the opinion that Williams was

able to sit 4 hours total and stand/walk 2 hours total in an 8-hour workday. He could

occasionally lift up to 10 pounds, but was unable to carry any weight. (R. 578.) Dr. Hart

opined that Mr. Williams would be absent from work, on the average, two to three

times a month as a result of his impairments or treatment. He was also limited by

syncope episodes. Dr. Hart stated that the symptoms and limitations described in the

questionnaire were present since 2004. (R. 580.) 

In May 2010, Williams underwent overnight polysomnography, which found

moderate obstructive sleep apnea. The sleep apnea was “abolished with CPRAP of 7 cm

water pressure.” (R. 630.) Williams was to begin using a CPRAP machine. He was also

encouraged to lose weight. Id.

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Administrative Law Judge’s Findings. 

The ALJ found that Williams’s severe impairments were dysesthesias and small

fiber neuropathy secondary to insulin dependent diabetes mellitus; hypertension;

hyperlipidemia; right shoulder pain; and moderate obstructive sleep apnea. (R. 14.) She

found that Williams retained the ability to perform a full range of medium work. (R.

15.) 

In making this determination, the ALJ found that plaintiff’s subjective complaints of disabling symptoms were not supported by the record:

The claimant’s subjective complaints are not supported by nor are they

consistent with the objective medical evidence. Although the medical

evidence documents the existence of an impairment or impairments that

could reasonably be expected to produce a certain degree of pain or other

symptoms, the pivotal question is not whether such symptoms exist, but

whether these symptoms occur with such frequency, duration, and/or

severity as to reduce the claimant’s residual functional capacity to what

has been set forth above in the findings or is of such severity as to preclude any and all work activity on a continuing and regular basis.

The claimant in this case does not have an underlying medically determinable impairment that could reasonably cause the type of pain and

symptomatology alleged. However, a careful review of the record does

not disclose sufficient objective medical evidence to substantiate the

severity of the symptoms and degree of functional limitations alleged by

the claimant. The objective evidence fails to document the presence of any

impairment or combination of impairments that could reasonably be

expected to result in pain or other symptoms of such a severity or frequency as to preclude the range of work described above. 

[T]he claimant’s medically determinable impairments could reasonably be

expected to cause the alleged symptoms; however, the claimant’s statements concerning the intensity, persistence and limiting effects of these

symptoms are not credible to the extent they are inconsistent with the

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above residual functional capacity assessment.

In addition to the general lack of objective evidence to support his subject

complaints, there are other considerations that weigh against the claimant’s overall credibility.

The claimant’s daily activities, as described earlier in this decision, are not

consistent with the level of persistence of symptoms alleged, and they are

not credibly restricted to the extent that the claimant would be precluded

from the range of work assessed herein.

Further, despite alleging significant shoulder pain, the record reflects that

the claimant was discontinued from physical therapy due to lack of

follow-up (Exhibit 10F, p. 6).

The record also contains inconsistent and exaggerated statements that

further detract from the claimant’s overall credibility. For example, the

claimant was not entirely honest in regards to his alcohol and marijuana

use. The record reflects that the claimant advised the consultative evaluator that he did not use or abuse any substances (Exhibit 6F, p.1). There

are other records which show he reported occasional use and also denied

use (see e.g. Exhibits 9F, p. 2 and 14F, p. 15).

Although the inconsistent/exaggerated information provided by the

claimant may not be the result of a conscious intention to mislead,

nevertheless, such statements suggest that the information provided by

the claimant generally may not be entirely reliable. 

(R. 17-18.) The ALJ rejected the opinion of Dr. Hart that Williams was disabled: 

As for the opinion evidence, the opinion of Dr. Hart as found at Exhibit

15F, has been considered and is given little weight. The opinion is not

entirely supported by the objective evidence of record or even Dr. Hart’s

own treatment notes. In July 2009, Dr. Hart released the claimant after he

indicated he was happy with the control of his symptoms, which is inconsistent with a finding of such restriction as found in that exhibit.

(R. 18.)

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

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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

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 the ALJ

• failed to follow the treating physician rule;

• failed to properly evaluate plaintiff’s credibility; and

• relied on flawed vocational expert testimony.

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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.

18

Analysis. 

Treating Doctor: Legal Standard. A treating doctor's opinion2 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 well-supported by

medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record” the Commissioner “will

give it controlling weight. “ Id.

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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.

19

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)3

.

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

opinion "is well-supported by medically acceptable clinical and laboratory diagnostic

techniques and is not inconsistent with the other substantial evidence in your case

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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

decision-maker 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

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

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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 well-supported, 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 wellsupported 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 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

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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 C.F.R. § 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

treator’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. ComCase: 2:11-cv-00822-MHW-MRA Doc #: 15 Filed: 04/16/12 Page: 22 of 34 PAGEID #: <pageID>
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missioner 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 ALJ found that Dr. Hart’s opinion that Williams

could only work 6 hours a day, could occasionally lift, but not carry, up to 10 pounds,

and would be absent from work 2-3 times a month was not entirely credible. She concluded that Dr. Hart’s opinion was “not entirely supported by the objective evidence of

record or even Dr. Hart’s own treatment notes.” As an example, the ALJ noted that in

July 2009 Dr. Hart released Williams because he was happy with the control of his

symptoms. (R. 18.)

As the ALJ observed, Williams did frequently complain to his treators about

excessive sleeping and pain in his shoulders and feet. However, there is no objective

medical evidence supporting his statements about the intensity and persistence of his

symptoms. His gait is normal, and he is able to perform fine and gross manipulation.

(R. 264, 293.) Williams frequently reported an improvement in some or all of his symptoms. (R. 292, 300, 471, 486, 492, 496, 530.) QSART testing was consistent with small

fiber neuropathy, and tilt table testing demonstrated mild orthostatic intolerance. (R.

539-41.) In February 2007, a physician reviewed the medical record and determined

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Williams could occasionally lift and carry up to 50 pounds and stand/walk as well as sit

for 6 hours each during an 8 hour work day. (R. 300.) 

Given the relatively modest objective medical findings and the fact that no treating physician indicates in his or her office notes and letters to referring doctors that

Williams is disabled and unable to perform any substantial gainful activity, the Magistrate Judge concludes that the ALJ did not err in refusing to fully credit Dr. Hart’s opinion on the ultimate issue of disability. 

Plaintiff’s credibility. Plaintiff argues that the ALJ failed to properly evaluate

Williams’s credibility. Specifically, plaintiff argues that the ALJ conceded that his

medically determinable impairments could be expected to cause his symptoms but

found Williams’s statements about the intensity, persistence and limiting effects of

those symptoms was not entirely credible. However, plaintiff further argues, the ALJ’s

finding that unspecified “objective” evidence did not support Williams’s testimony

about the impact of his symptoms and her finding that his daily activities were inconsistent with his testimony about the limitations caused by his symptoms are not

supported by substantial evidence and are contrary to law.

Pain is an elusive phenomena. Ultimately, no one can say with absolute certainty

whether another person's subjectively disabling pain and other symptoms preclude 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

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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), subjective symptoms alone

cannot prove disability. There must be objective medical evidence of an impairment

that could reasonably be expected to produce disabling pain or other symptoms :

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.

The Commissioner’s regulations provide a framework for evaluating a claimant’s

symptoms consistent with the commands of the statute:

(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 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 psychCase: 2:11-cv-00822-MHW-MRA Doc #: 15 Filed: 04/16/12 Page: 25 of 34 PAGEID #: <pageID>
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ologist, 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). A claimant’s symptoms will not be found to affect his ability to

work unless there is a medically determinable impairment that could reasonably be

expected to produce them. 20 C.F.R. § 404.1529(b). If so, the Commissioner then evaluates the intensity and persistence of the claimant’s pain and other symptoms and

determines the extent to which they limit his ability to work. 20 C.F.R. § 404.1529(c). In

making the determination, the Commissioner considers

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all of the available evidence, including your history, the signs and laboratory findings, and statements from you, your treating or nontreating

source, or other persons about how your symptoms affect you. We also

consider the medical opinions of your treating source and other medical

opinions . . . .

Id.

In this evaluation of a claimant’s symptoms, the Commissioner considers both

objective medical evidence and “any other information you may submit about your

symptoms.” 20 C.F.R. § 404.1529(c)(2). The regulation further provides:

Because symptoms, such as pain, are subjective and difficult to quantify,

any symptom-related functional limitations and restrictions which you,

your treating or nontreating source, or other persons report, which can

reasonably be accepted as consistent with the objective medical evidence

and other evidence, will be taken into account as explained in paragraph

(c)(4) of this section in reaching a conclusion as to whether you are disabled. We will consider all of the evidence presented, including information about your prior work record, your statements about your symptoms,

evidence submitted by your treating or nontreating source, and observations by our employees and other persons. Section 404.1527 explains in

detail how we consider and weigh treating source and other medical

opinions about the nature and severity of your impairment(s) and any

related symptoms, such as pain. Factors relevant to your symptoms, such

as pain, which we will consider include:

(i) Your daily activities;

(ii) The location, duration, frequency, and intensity of your pain or

other symptoms;

(iii) Precipitating and aggravating factors;

(iv) The type, dosage, effectiveness, and side effects of any medication

you take or have taken to alleviate your pain or other symptoms;

(v) Treatment, other than medication, you receive or have received for

relief of your pain or other symptoms;

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(vi) Any measures you use or have used to relieve your pain or other

symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes

every hour, sleeping on a board, etc.); and

(vii) Other factors concerning your functional limitations and

restrictions due to pain or other symptoms.

 20 C.F.R. § 404.1529(c)(3). When determining the extent to which a claimant’s

symptoms limit his ability to work, the Commissioner considers whether the claimant’s

statements about the symptoms is supported by or inconsistent with other evidence of

record:

In determining the extent to which your symptoms, such as pain, affect

your capacity to perform basic work activities, we consider all of the

available evidence described in paragraphs (c)(1) through (c)(3) of this

section. We will consider your statements about the intensity, persistence,

and limiting effects of your symptoms, and we will evaluate your statements in relation to the objective medical evidence and other evidence, in

reaching a conclusion as to whether you are disabled. We will consider

whether there are any inconsistencies in the evidence and the extent to

which there are any conflicts between your statements and the rest of the

evidence, including your history, the signs and laboratory findings, and

statements by your treating or nontreating source or other persons about

how your symptoms affect you. Your symptoms, including pain, will be

determined to diminish your capacity for basic work activities to the

extent that your alleged functional limitations and restrictions due to

symptoms, such as pain, can reasonably be accepted as consistent with the

objective medical evidence and other evidence.

 20 C.F.R. § 404.1529(c)(4).

SSR 96-7p explains the two-step process established by the Commissioner’s regulations

for evaluating a claimant’s symptoms and their effects: 

First, the adjudicator must consider whether there is an underlying medically

determinable physical or mental impairment(s)--i.e., an impairment(s) that can

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be shown by medically acceptable clinical and laboratory diagnostic techniques--that could reasonably be expected to produce the individual’s pain or

other symptoms. The finding that an individual’s impairment(s) could reasonably be expected to produce the individual’s pain or other symptoms does

not involve a determination as to the intensity, persistence, or functionally

limiting effects of the individual’s symptoms. . . . 

 Second, once an underlying physical or mental impairment(s) that could

reasonably be expected to produce the individual’s pain or other symptoms has

been shown, the adjudicator must evaluate the intensity, persistence, and

limiting effects of the individual’s symptoms to determine the extent to which

the symptoms limit the individual’s ability to do basic work activities. For this

purpose, whenever the individual’s statements about the intensity, persistence,

or functionally limiting effects of pain or other symptoms are not substantiated

by objective medical evidence, the adjudicator must make a finding on the

credibility of the individual’s statements based on a consideration of the entire

case record. 

When additional information is needed to assess the credibility of the

individual’s statements about symptoms and their effects, the adjudicator must

make every reasonable effort to obtain available information that could shed

light on the credibility of the individual’s statements. In recognition of the fact

that an individual’s symptoms can sometimes suggest a greater level of severity

of impairment than can be shown by the objective medical evidence alone, 20

C.F.R. § 404.1529(c) and 416.929(c) describe the kinds of evidence, including the

factors below, that the adjudicator must consider in addition to the objective

medical evidence when assessing the credibility of an individual’s statements:

1. The individual’s daily activities;

2. The location, duration, frequency, and intensity of the

individual’s pain or other symptoms;

3. Factors that precipitate and aggravate the symptoms;

4. The type, dosage, effectiveness, and side effects of any

medication the individual takes or has taken to alleviate

pain or other symptoms;

5. Treatment, other than medication, the individual receives

 or has received for relief of pain or other symptoms;

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6. Any measures other than treatment the individual uses

or has used to relieve pain or other symptoms (e.g. lying

flat on his or her back, standing for 15 to 20 minutes every

hour, or sleeping on a board); and

7. Any other factors concerning the individual’s functional

limitations and restrictions due to pain or other symptoms.

Case law interpreting the statute and regulations. At the outset, it is important to

keep in mind that symptoms are the claimant’s “description of [his/her] physical or

mental impairment.” 20 C.F.R. § 404.1528(a). Inevitably, evaluating symptoms involves

making credibility determinations about the reliability of the claimant’s self-report of

his symptoms. Smith ex rel E.S.D. v. Barnhart, 157 Fed.Appx. 57, 62 (10th Cir. December.

5, 2005) (not published)(“Credibility determinations concern statements about symptoms.”) 

“Where the symptoms and not the underlying condition form the basis of the

disability claim, a two-part analysis is used in evaluating complaints of disabling pain.” 

Rogers v. Commissioner of Social Sec., 486 F.3d 234, 247 (2007); SSR 96-7p, 1996 WL 374186

(July 2, 1996). That test was first set out in Duncan v. Secretary of Health and Human

Services, 801 F.2d 847, 853 (6th Cir. 1986). 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

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4

Based on his testimony that he worked approximately 10 hours a week, this

work was not substantial gainful employment. As the ALJ pointed out, there are no

independent records regarding the employment, since no self-employment earnings

were posted to his Social Security account and he submitted no 1099s or pay stubs to the

Commissioner.

5

However, he could not drive at the time of the hearing before the ALJ because

the week before he had his third DUI conviction. 

31

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); Rogers, 486 F.3d at 247 (citing Walters v. Comm'r of Soc.

Sec., 127 F.3d 525, 531 (6th Cir.1997); Crum v. Sullivan, 921 F.2d 642, 644 (6th Cir.1990);

Kirk v. Sec'y of Health & Human Servs., 667 F.2d 524, 538 (6th Cir.1981)). The ALJ is

required to explain her credibility determination in her decision, which “‘must be

sufficiently specific to make clear to the individual and to any subsequent reviewers the

weight the adjudicator gave to the individual’s statements and the reasons for that

weight.’” See id. (quoting SSR 96-7p). Furthermore, the ALJ’s decision must be supported by substantial evidence. Rogers, 486 F.3d at 249. 

Discussion of ALJ’s credibility determination. Although Williams told his treators and testified that he slept 14-16 hours a day, he also worked part-time as a loan

closer4, drove his mother to and from work5, he was able to fly to Florida to visit his ill

father, he ran errands, visited friends, spent time on the internet, and watched television. He lived with his mother who performed most household chores, but Williams

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conceded he did perform some household chores. Although he complained of pain,

including pain in his right shoulder, he stopped physical therapy for the shoulder in

2009 after only four sessions. The ALJ also discounted plaintiff’s veracity because he

had provided inconsistent and exaggerated statements about his alcohol and marijuana

use.

Ultimately, the adjudicator has to make a judgment about a witnesses’s credibility. Sometimes that is difficult. Here Williams suffers from uncontrolled diabetes

and sleep apnea. Objective medical evidence establishes that he has insulin dependent

diabetes mellitus, hypertension, hyperlipidemia, right shoulder pain, and moderate

obstructive sleep apnea. The sleep apnea can be remedied by a CPRAP machine. The

hypertension and hyperlipidemia do not prevent Williams from working. The right

should pain is not so severe that Williams would continue physical therapy. The

diabetes has caused small fiber neuropathy in the lower extremities. There is no evidence that it has impaired plaintiff’s gait, or prevented him from performing the necessary activities of daily living. These impairments certainly cause plaintiff difficulty, but

the record does not demonstrate that Williams is unable to perform work having

medium exertional demands. Nor does it sustain plaintiff’s assertion that the ALJ erred

in her assessment of his credibility and her determination that his symptoms do not

prevent him from performing sustained substantial gainful activity.

Vocational expert’s testimony. Plaintiff argues that the vocational expert’s

testimony was flawed because it was based on the ALJ’s residual functional capacity

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finding that Williams could perform a full range of medium work. “[T]he ALJ need

only include the alleged limitations that the ALJ accepts as credible and that are

supported by the evidence. Casey v. Sec’y of Health & Human Servs., 987 F. 2d 1230, 1235

(6th Cir. 1993).” Timothy Knight v. Commissioner of Social Security, No. 03-1564 (6th Cir.

January 12, 2005). Since there is substantial evidence supporting the ALJ’s residual

functional capacity findings, it was not error for her to rely on the vocational expert’s

testimony based on those findings. 

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.

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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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