IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Carolyn S. Shaffer, :

Plaintiff, :

v. : Case No. 2:11-cv-973

 : JUDGE MICHAEL H. WATSON

Commissioner of Social Security, Magistrate Judge Kemp

Defendant. : 

 REPORT AND RECOMMENDATION

 I. Introduction

 Plaintiff, Carolyn S. Shaffer, filed this action seeking

review of a decision of the Commissioner of Social Security

denying her applications for disability insurance benefits and

supplemental security income. Those applications were filed with 

protective filing dates of February 3, 2009 (disability) and

January 20, 2009 (SSI) and alleged that plaintiff became disabled

on October 28, 2008 due to back pain. 

After initial administrative denials of her claim, plaintiff

was given a video hearing before an Administrative Law Judge on

November 3, 2010. In a decision dated February 2, 2011, the ALJ

denied benefits. That became the Commissioner’s final decision

on September 19, 2011, when the Appeals Council denied review.

After plaintiff filed this case, the Commissioner filed the

administrative record on January 9, 2012. Plaintiff filed her

statement of specific errors on February 2, 2012. The

Commissioner filed a response on April 9, 2012. No reply brief

was filed, and the case is now ready to decide.

II. The Lay Testimony at the Administrative Hearing

 Plaintiff’s testimony at the administrative hearing is found

at pages 64 through 79 of the record. Plaintiff, who was 46

years old at the time of the hearing and is a high school

Case: 2:11-cv-00973-MHW-TPK Doc #: 16 Filed: 05/31/12 Page: 1 of 12 PAGEID #: <pageID>
-2-

graduate, testified as follows.

Plaintiff last worked as an aide for mentally handicapped

people. That job involved some lifting. Prior to that, she

worked on the assembly line for a company that made car parts. 

She had also been a housekeeper in a nursing home and, before

that, worked with handicapped men. 

Plaintiff had experienced back problems for years, but the

pain worsened after she fell at home in 2007. Now, she cannot

lift anything which weighs more than five pounds, and it is hard

for her to bend, kneel, or sit. She cannot turn or twist. She

alternates between sitting and standing every fifteen minutes. 

She takes both Oxycontin and muscle relaxants for the pain. 

Neither injections nor physical therapy has helped the pain. 

In addition to back problems, plaintiff has diabetes and a

heart condition, high blood pressure, and high cholesterol. She

takes medication for all of these conditions as well. She does

try to walk every day and can usually walk up to fifteen minutes

at a time. She can climb a short flight of steps by holding on

to the railing. 

On a daily basis, plaintiff’s children do the household

chores, but plaintiff will sometimes cook meals. She accompanies

other family members on trips to the grocery store. She can

shower without assistance. She has trouble sleeping at night,

but is unable to nap during the day, although she will lie down

and rest at times. She has her feet elevated about half the

time. 

III. The Medical Records

The medical records in this case are found beginning on page

171 of the administrative record. The pertinent records can be

summarized as follows.

Plaintiff underwent some cardiac testing due to reports of

intermittent mild chest pain. On November 11, 2008, her

Case: 2:11-cv-00973-MHW-TPK Doc #: 16 Filed: 05/31/12 Page: 2 of 12 PAGEID #: <pageID>
-3-

cardiologist reported some unusual aneruismal formation of the

proximal portion of the circumflex artery. Treatment included

aspirin and beta-blockers. (Tr. 207).

A radiology report concerning plaintiff’s hip and lumbar

spine, dated December 18, 2008, showed moderate degenerative disc

disease at L4-5. No acute traumatic findings were noted. (Tr.

249). A subsequent MRI confirmed this finding and also revealed

a lateral disc protrusion and narrowing of the spinal canal. 

(Tr. 251). 

A state agency reviewing physician, Dr. McCloud, prepared a

physical residual functional capacity assessment on March 13,

2009. The form indicated primary diagnoses of degenerative disc

disease of the lumbar spine and obesity, and in the narrative

portion of the form, her Body Mass Index (BMI) was reported as

36. Plaintiff was limited to light work with no ability to climb

ladders, ropes or scaffolds, and only the occasional ability to

climb stairs, stoop, kneel, crouch and crawl. Her self-reported

limitations were found to be only partially credible. (Tr. 282-

89). After plaintiff submitted new evidence of obstructive sleep

apnea, another state reviewer, Dr. Hinzman, confirmed Dr.

McCloud’s assessment, also noting plaintiff’s obesity (she was up

to 195 pounds at one point), but also noting she had lost almost

twenty pounds. (Tr. 377).

There are a number of notes in the record from plaintiff’s

family physician, Dr. Ullrich. They show, among other things,

that plaintiff reported back pain, indicated that some

medications either did not work or made her sick to the stomach,

that she had problems sitting, and that she was walking for

exercise, sometimes as much a four miles per day. She also

reported pain and stiffness in her hips. Some of the notes show

her weight as above 180 pounds (plaintiff is five feet tall).

Dr. Fleming saw plaintiff on February 25, 2009, about her

Case: 2:11-cv-00973-MHW-TPK Doc #: 16 Filed: 05/31/12 Page: 3 of 12 PAGEID #: <pageID>
-4-

back pain. She reported an increase of symptoms over the last

year, with back pain on the right side and hip and leg pain on

the left. Her symptoms were worse when sitting or trying to rise

from a sitting position. She was on medication but had not

undergone physical therapy or had injections. Dr. Fleming

believed the cause of her complaints was the disc protrusion seen

at L4-5. He related her hypertension, diabetes and elevated

cholesterol to her body mass. During the examination, she was

able to sit comfortably without position changes, could bend

easily to remove her socks and shoes, and walked with a normal

gait. Straight leg raising was negative and motor and sensory

exams were normal. Dr. Fleming discussed the impact of

plaintiff’s body mass on her back and other medical conditions,

and he recommended aggressive conservative treatment such as

physical therapy. He thought surgery might be needed eventually.

(Tr. 319-21).

Plaintiff saw Dr. Pearlman (who was recommended by Dr.

Fleming) on June 30, 2009, with the same complaints. She did

tell Dr. Pearlman that Percocet had been helpful. She exhibited

some mild tenderness in the low back and right thigh areas but

the examination was otherwise fairly normal. The diagnoses

included lumbar disc degeneration, lumbago, and sacroiliac

bursitis. He recommended injections and physical therapy. (Tr. 

-404). A right SI bursal injection was done on July 9, 2009 but

plaintiff was only minimally responsive to that procedure. 

Additional injections were given on July 30, 2009 which were

effective only for several hours. Dr. Pearlman later did an EMG

study, which was normal, and he noted that a change in medication

to Neurontin had lessened plaintiff’s pain. She did report

occasional numbness in her feet. Her symptoms did not change

much over the succeeding months but she had some increase in pain

as of May 14, 2010. She had more injections and in July, 2010

Case: 2:11-cv-00973-MHW-TPK Doc #: 16 Filed: 05/31/12 Page: 4 of 12 PAGEID #: <pageID>
-5-

reported good improvement, although in the past week the pain had

increased again on bending, standing, twisting and turning. 

Another series of injections was ordered. (Tr. 378-404).

The remainder of the medical records consist of more notes

from plaintiff’s regular physician. They generally reflect

continued complaints of back, hip and leg pain, with medications

being somewhat helpful but also with some inconsistent results. 

 IV. The Vocational Testimony

Ms. Kaufman, a vocational expert, also testified at the

administrative hearing. Her testimony begins at page 79. She

characterized plaintiff’s past work as a case aide as light and

semi-skilled. The assembly line job was medium and unskilled, as

was the housekeeper job. Finally, the nurse’s aide job is

considered to be a medium semi-skilled job, although plaintiff

performed it at the very heavy exertional level.

Ms. Kaufman was asked some questions about a hypothetical

person who was 46 years old and had plaintiff’s education and

work experience. Additionally, that person could do only a

limited range of light work and could only occasionally crouch,

kneel, crawl, stoop, balance or climb stairs, and could never

claim a ladder. Ms. Kaufman testified that such a person could do

plaintiff’s past job as an aide in a sheltered workshop and could

also do a number of other light jobs, such as cashier, office

helper, or light assembler. If the person were limited to a full

range of sedentary work, he or she could perform jobs such as

order clerk or sedentary assembler, and there would be about

1,600 such unskilled sedentary jobs in plaintiff’s region of the

state. Those jobs do require at least 30 minutes of continuous

sitting, so that if someone needed to change positions every 15

minutes, the unskilled sedentary jobs to which Ms. Kaufman

referred would not be available. Further, if the hypothetical

person were limited in the way plaintiff testified, he or she

Case: 2:11-cv-00973-MHW-TPK Doc #: 16 Filed: 05/31/12 Page: 5 of 12 PAGEID #: <pageID>
-6-

could not work. 

 V. The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 10

through 21 of the administrative record. The important findings

in that decision are as follows.

The Administrative Law Judge found, first, that plaintiff

met the insured requirements of the Social Security Act through

December 31, 2010. Next, he found that plaintiff had not engaged

in substantial gainful activity from her alleged onset date of

October 28, 2008 through the date of the decision. As far as

plaintiff’s impairments are concerned, the ALJ found that

plaintiff had severe impairments including severe chest pain

related to a possible cardiac disease, degenerative disc disease,

diabetes and sleep apnea. The ALJ also found that these

impairments did not meet or equal the requirements of any section

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

Appendix 1).

Moving to the next step of the sequential evaluation

process, the ALJ found that plaintiff had the residual functional

capacity to perform light work, with the ability to lift 20

pounds occasionally and ten pounds frequently, to sit, stand or

walk for up to six hours each in a day, to crouch, kneel, crawl,

stoop, climb stairs, or balance occasionally, and never to climb

ladders. The ALJ accepted the vocational expert’s testimony that

someone with such limitations could perform one of plaintiff’s

past jobs as well as other light and sedentary jobs that existed

in significant numbers in the regional economy. As a result, the

ALJ concluded that plaintiff had not demonstrated an entitlement

to benefits.

VI. Plaintiff’s Statement of Specific Errors

 In her statement of specific errors, plaintiff raises the

following issues. First, she argues that the ALJ erred in

Case: 2:11-cv-00973-MHW-TPK Doc #: 16 Filed: 05/31/12 Page: 6 of 12 PAGEID #: <pageID>
-7-

failing to consider the fact that, for some period of time after

she alleged disability, she had an additional severe impairment,

namely obesity. Second, she argues that the ALJ did not give

proper consideration to the opinion of her treating physician,

Dr. Pearlman. The Court generally reviews the administrative

decision under this legal standard:

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

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

Commissioner] as to any fact, if supported by substantial

evidence, shall be conclusive. . . ." Substantial evidence is

"'such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion'" Richardson v. Perales, 402

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

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

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

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

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

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

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

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

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

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

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

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

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

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

would reach contrary conclusions of fact, the Commissioner's

decision must be affirmed so long as that determination is

supported by substantial evidence. Kinsella v. Schweiker, 708

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

Plaintiff argues first that the ALJ erred in not finding

that her obesity, which existed for a significant period of time

Case: 2:11-cv-00973-MHW-TPK Doc #: 16 Filed: 05/31/12 Page: 7 of 12 PAGEID #: <pageID>
-8-

after she alleged disability, was not a severe impairment. In

support of that argument, she notes that under Social Security

Ruling (SSR) 02-1p, the Commissioner has determined that a person

with a BMI of 30 or above is considered to be obese, and that the

Commissioner “will consider the individual to have obesity as

long as his or her weight or BMI shows essentially a consistent

pattern of obesity.” That regulation also provides that “obesity

is a ‘severe’ impairment when, alone or in combination with

another medically determinable physical or mental impairment(s),

it significantly limits an individual's physical or mental

ability to do basic work activities.” She concludes this

argument by asserting that “the failure to consider obesity in

the combination of impairments was an error that affected the

weighing of Dr. Pearlman’s opinion.” Statement of Errors, Doc.

12, at 10.

The Court agrees that the ALJ should not have summarily

rejected the notion that plaintiff’s obesity was a severe

impairment at some times relevant to her applications simply

because that condition had resolved shortly before the

administrative decision issued. The Commissioner’s memorandum

provides a detailed explanation of how the ALJ might have

reconciled that decision with the dictates of SSR 02-1p, but that

rationale is not contained within the administrative decision,

and the Court is hesitant to attribute a reasoning process to the

ALJ without evidence that he actually followed that process.

On the other hand, the Court is persuaded that any error

committed by the ALJ is, in the context of this case, harmless. 

There is no evidence in the record that plaintiff’s obesity

impacted her ability to perform basic work activities in any way

that differed from the impact of her back pain and the

limitations she reported from that condition. Certainly, her

obesity may have combined with her back condition to produce her

Case: 2:11-cv-00973-MHW-TPK Doc #: 16 Filed: 05/31/12 Page: 8 of 12 PAGEID #: <pageID>
-9-

symptoms (although the fact that her back pain did not improve

with weight loss seems to suggest otherwise), but the ALJ and the

evaluating physicians clearly were aware of her obesity - it is

mentioned specifically in the reviewing physicians’ reports, on

which the ALJ relied - and took into account any limitations

caused by that condition in determining her physical residual

functional capacity. See, e.g., Essary v. Comm’r of Social

Security, 114 Fed. Appx. 662, *5 (6th Cir. October 28, 2004),

citing Forte v. Barnhart, 377 F.3d 892, 896 (8th Cir.

2004)(finding no error in the ALJ’s consideration of obesity

where, as here, no treating source suggested that obesity

“imposed any additional work-related limitations, and [the

claimant] did not testify that ... obesity imposed additional

restrictions”). Thus, there is no reasonable possibility of a

different outcome if the ALJ were instructed to treat plaintiff’s

obesity as a severe impairment. See Rutherford v. Comm’r of

Social Security, 67 Fed. Appx. 333, *1 (6th Cir. June 11,

2003)(an “error is harmless [if] the outcome of the case would

not be different”). Plaintiff’s first claim of error therefore

provides no basis for reversal or remand.

Plaintiff’s other argument is that the ALJ did not give good

reasons for discounting the opinion of Dr. Pearlman, whose

opinion was given “some weight,” but not controlling weight. See

Rogers v. Comm’r of Social Security, 486 F.3d 234, 242 (6th Cir.

2007). She asserts that the ALJ’s refusal to credit his opinion

in full because he is not a vocational expert runs contrary to

Rogers and 20 C.F.R. §404.1527(d), and that the ALJ’s reliance on

statements in Dr. Pearlman’s reports supporting a finding that

plaintiff could work at some level was error because, according

to plaintiff, one of those statements must have been made in

error, and the other is not part of the administrative record. 

Plaintiff also faults the ALJ for relying on statements in the

Case: 2:11-cv-00973-MHW-TPK Doc #: 16 Filed: 05/31/12 Page: 9 of 12 PAGEID #: <pageID>
-10-

medical records to the effect that she was, at times, able to

walk four or five miles per day, noting that at other times she

was not able to do so, and arguing that these statements provide

no support for a finding that she could work at the light

exertional level.

It has long been the law in social security disability cases

that a treating physician's opinion is entitled to weight

substantially greater than that of a nonexamining medical

advisor or a physician who saw plaintiff only once. 20 C.F.R.

§404.1527(d); see also Lashley v. Secretary of H.H.S., 708 F.2d

1048, 1054 (6th Cir. 1983); Estes v. Harris, 512 F.Supp. 1106,

1113 (S.D. Ohio 1981). However, in evaluating a treating

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

which that physician’s own objective findings support or

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

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

1990). The Commissioner may also evaluate other objective

medical evidence, including the results of tests or examinations

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

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

HHS, 25 F.3d 284 (6th Cir. 1994). No matter how the issue of the

weight to be given to a treating physician’s opinion is finally

resolved, the ALJ is required to provide a reasoned explanation

so that both the claimant and a reviewing Court can determine why

the opinion was rejected (if it was) and whether the ALJ

considered only appropriate factors in making that decision. 

Wilson v. Comm’r of Social Security, 378 F.3d 541, 544 (6th Cir.

2004).

The Commissioner concedes that Dr. Pearlman did not, as the

ALJ stated, say that plaintiff could do sedentary work. However,

the Commissioner correctly points out that Dr. Pearlman also

never stated that plaintiff was disabled or that she was limited

Case: 2:11-cv-00973-MHW-TPK Doc #: 16 Filed: 05/31/12 Page: 10 of 12 PAGEID #: <pageID>
-11-

to activities inconsistent with the ability to do either light or

sedentary work. Thus, there really was no opinion of disability

for the ALJ to consider and, if necessary and appropriate,

discount in order to find that plaintiff could perform

substantial gainful activity. The Commissioner is also correct

that the ALJ limited plaintiff to doing light work which required

either sitting for up to six hours with normal breaks, or

standing for that period of time; there was no finding that she

could walk long distances or for an extended period of time. 

Further, the ALJ did not simply rely on isolated statements in

the record about plaintiff’s ability to walk as the basis for his

findings. Rather, he used those statements to show that

plaintiff’s testimony of very substantial limitations was

inconsistent with those entries, so that he discounted her

testimony to some degree, and he gave significant weight to the

opinions of Drs. McCloud and Hinzman, both of whom believed that

plaintiff could do a range of light work. Even if Dr. Pearlman’s

notes could be read as expressing some level of limitations above

and beyond those identified by Drs. McCloud and Hinzman (and the

ALJ suggested that he read Dr. Pearlman’s notes that way, see Tr.

19), and even if plaintiff were limited solely to sedentary work,

the vocational expert identified some unskilled sedentary jobs

that plaintiff could do. The Court therefore finds that the ALJ

did not expressly disregard any opinion about disability

expressed by a treating source - there were simply no such

opinions in this record - and that he articulated good reasons

for giving significant weight to the opinions of Drs. McCloud and

Hinzman. Consequently, there is also no merit in plaintiff’s

second assignment of error. 

 VII. Recommended Decision

Based on the above discussion, it is recommended that the

plaintiff’s statement of errors be overruled and that judgment be

Case: 2:11-cv-00973-MHW-TPK Doc #: 16 Filed: 05/31/12 Page: 11 of 12 PAGEID #: <pageID>
-12-

entered in favor of the defendant Commissioner of Social

Security.

VIII. Procedure on Objections

If any party objects to this Report and Recommendation,

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

Report, file and serve on all parties written objections to

those specific proposed findings or recommendations to which

objection is made, together with supporting authority for the

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

determination of those portions of the report or specified

proposed findings or recommendations to which objection is

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

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

or recommendations made herein, may receive further evidence

or may recommit this matter to the magistrate judge with

instructions. 28 U.S.C. §636(b)(1).

 The parties are specifically advised that failure to

object to the Report and Recommendation will result in a

waiver of the right to have the district judge review the

Report and Recommendation de novo, and also operates as a

waiver of the right to appeal the decision of the District

Court adopting the Report and Recommendation. See Thomas v.

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

947 (6th Cir. 1981).

/s/ Terence P. Kemp 

United States Magistrate Judge

Case: 2:11-cv-00973-MHW-TPK Doc #: 16 Filed: 05/31/12 Page: 12 of 12 PAGEID #: <pageID>