IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JOHN BUNDY, 

Plaintiff,

vs. Civil Action 2:11-CV-64

Judge Sargus

Magistrate Judge King 

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

REPORT AND RECOMMENDATION

This is an action instituted under the provisions of 42

U.S.C. §405(g) for review of a final decision of the Commissioner of

Social Security denying plaintiff’s application for a period of

disability and disability insurance benefits. This matter is now

before the Court on plaintiff’s Statement of Specific Errors, Doc. No.

15, and the Commissioner’s Memorandum in Opposition, Doc. No. 18.

Plaintiff John Bundy filed his application for benefits on

July 25, 2003, alleging that he has been disabled since June 19, 2000,

following a work-related back injury. The application was denied

initially and on reconsideration, and plaintiff requested a de novo

hearing before an administrative law judge.

An administrative hearing was held on January 26, 2007 and

two supplemental hearings were held on April 10, 2007 and August 22,

2007. Plaintiff, represented by counsel, testified at all hearings. 

Michael Klein, Ph.D., testified as a vocational expert at the third

hearing.

In a decision dated August 29, 2007, the administrative law

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judge found that plaintiff suffers the severe impairments of

degenerative joint disease of the lumbar spine with facet arthropathy,

a pain disorder associated with psychological factors and a general

medical condition, and major depression. A.R. 30. Plaintiff’s

conditions neither met nor equaled a listed impairment. A.R. 35. 

Relying on the report of the consultative examiner, James J. Powers,

M.D., the administrative law judge found that plaintiff has the

residual functional capacity to perform a reduced range of light work. 

A.R. 36. Referring to the vocational testimony of Dr. Klein, the

administrative law judge found that, despite plaintiff’s severe

impairments, he can nevertheless perform a significant number of jobs

in the national economy, including such jobs as hand packer, inspector

and assembly worker. A.R. 40. Accordingly, the administrative law

judge concluded that plaintiff was not disabled within the meaning of

the Social Security Act.

That decision became the final decision of the Commissioner

of Social Security when the Appeals Council declined review on

December 9, 2009. A.R. 14-16.

In his Statement of Specific Errors, plaintiff contends that

the administrative law judge failed to properly evaluate the reports

of his treating physicians, Paul Kirk, M.D., and William R. Fitz, M.D. 

The Commissioner responds that the administrative law judge properly

evaluated the reports of Dr. Fitz and that the failure to properly

consider the report of Dr. Kirk was mere harmless error. Memorandum

in Opposition. The Court will consider the evidence only as it

relates to these contentions.

Pursuant to 42 U.S.C. §405(g), judicial review of the

Commissioner’s decision is limited to determining whether the findings

of the administrative law judge are supported by substantial evidence

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and employed the proper legal standards. Richardson v. Perales, 402

U.S. 389 (1971); Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595

(6th Cir. 2005). Substantial evidence is such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion. 

Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 475 (6th Cir. 2003); Kirk

v. Secretary of Health & Human Servs., 667 F.2d 524, 535 (6th Cir.

1981). This Court does not try the case de novo, nor does it resolve

conflicts in the evidence or questions of credibility. Bass v.

McMahon, 499 F.3d 506, 509 (6th Cir. 2007). 

In determining the existence of substantial evidence, this

Court must examine the administrative record as a whole. Kirk, 667

F.2d at 536. If the Commissioner's decision is supported by

substantial evidence, it must be affirmed even if this Court would

decide the matter differently, Tyra v. Sec’y of Health & Human Servs.,

896 F.2d 1024, 1028 (6th Cir. 1990)(citing Kinsella v. Schweiker, 708

F.2d 1058, 1059 (6th Cir. 1983)), and even if substantial evidence

also supports the opposite conclusion. Longworth, 402 F.3d at 595.

Dr. Kirk, a specialist in occupational medicine, see A.R.

164, treated plaintiff from October 2000 until June 2001. He reported

to the state agency that, although a cane had not been prescribed for

plaintiff, a cane was nevertheless necessary to enable plaintiff to

walk. A.R. 161. June 2000 x-rays were normal. A.R. 161. A July 2000

MRI showed disc protrusions at L2-3, L1-2, L4-L5, and L5-S1. Id. A

February 2001 EMG was normal. A.R. 159. An April 2001 MRI revealed

mild degenerative disc disease at L1-2 without disc herniation or

neural foraminal narrowing or stenosis. A.R. 168. According to Dr.

Kirk, plaintiff’s range of motion of the lumbar spine was reduced,

A.R. 161, 162, although deep tendon reflexes were normal and

symmetrical. Plaintiff was able to walk on heels and toes and there

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was no atrophy. He could not arise from a squat because of pain. 

A.R. 162. Dr. Kirk diagnosed lumbosacral sprain for which hydrocodone

had been prescribed. A.R. 163. Plaintiff’s response to therapy had

been poor. Id. Dr. Kirk evaluated plaintiff’s residual functional

capacity and indicated that plaintiff is “unable to sit or stand on

prolonged basis.” A.R. 164. He could not anticipate when plaintiff

would be able to return to work. Id. Dr. Kirk’s progress notes

include a notation made in April 2001, “Cannot work,” in connection

with plaintiff’s complaints of pain in the right lumbar area radiating

to the right leg with tingling in the right foot. A.R. 167. 

Dr. Kirk referred plaintiff to Douglas E. Yunker, M.D., a

pain specialist. Dr. Yunker diagnosed back sprain and myofascial pain

and commented that a cane was medically necessary for all ambulation,

secondary to pain. A.R. 192. Although Dr. Yunker did not evaluate

plaintiff’s residual functional capacity, he commented on plaintiff’s

ability to return to work: “doubt will rehab.” A.R. 193.

In October 2001, a state agency physician reviewed the

evidence of record and opined that plaintiff could occasionally lift

and carry 50 pounds, could stand or walk at least 2 hours in a workday

and could sit at least six hours, although he must periodically

alternate sitting and standing to relieve pain. A.R. 197. He should

never balance or stoop. A.R. 198.

Dr. Fitz, a specialist in physical medicine and

rehabilitation, administered facet injections with medial branch

blocks at L3, L4 and L5, after conservative treatments had failed. A

discogram performed in December 2002 failed to generate pain at the

L3-L4, L4-L5 and L5-S1 levels. A.R. 212. Plaintiff continued to

demonstrate limited lumbar extension; straight leg raising was

positive. However, plaintiff had normal strength, sensation and

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reflexes in both legs. A.R. 217. Dr. Fitz referred plaintiff to

chronic pain management.

In August 2003, Rex Dinsmore, D.O., evaluated plaintiff in

connection with plaintiff’s worker’s compensation claim. Plaintiff

complained of numbness in the feet and low back pain. He had

difficulty engaging in physical activities. A.R. 224. On clinical

examination, plaintiff could not toe and heel walk; he walked with a

limp and used a cane all the time. Reflexes were equal bilaterally

and symmetrically; there was no muscle atrophy. Range of motion was

limited on flexion to 25 degrees, on extension to 10 degrees, on left

rotation to 20 degrees and on right rotation to 25 degrees. Sensation

was intact. Straight leg raising was 55 degrees on the left and 50

degrees on the right. Waddell’s signs were negative. A.R. 227. 

According to Dr. Dinsmore, plaintiff had reached maximum medical

improvement and would not be able to return to his job. His

“functional limitations will prevent him from all lifting, bending,

prolonged standing, and walking activities. He cannot do prologed

sitting due to spinal pain.” A.R. 228.

In September 2003, another state agency physician reviewed

the evidence and opined that plaintiff could frequently lift up to 25

pounds and occasionally lift up to 50 pounds. He could stand or walk

at least two hours in a workday and sit for about six hours. There

was no need to alternate between siting and standing to relieve pain. 

A.R. 231. Although the physician noted that plaintiff “[h]as a psych

issue” and his symptoms “are partly credible,” A.R. 234, the

“[o]bjective evidence does not support severe restrictions in the

absence of radiculopathy.” Id.

In October 2003, Jerry E. Flexman, Ph.D., performed a

consultative psychological evaluation at the request of the state

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agency. According to Dr. Flexman, plaintiff suffers from major

depression and pain disorder associated with both psychological

factors and general medical condition. A.R. 238. His Global

Assessment of Functioning was 50, which is indicative of serious

dysfunction. Id.

Later that same month, Dr. Fitz administered a medial branch

neurotomy in connection with plaintiff’s diagnosed L4-L5 and L5-S1

facet arthropathy. A.R. 240. Dr. Fitz later noted that, although

plaintiff reported that his back pain had improved, radicular leg pain

had worsened a few days after the procedure. On clinical examination,

plaintiff’s reflexes were symmetrical, although sensation was

diminished in a non-dermatomal fashion throughout the right leg. 

Strength testing was 5/5 with give-way. A.R. 259. Prednisone had not

helped. A.R. 260. Dr. Fitz prescribed Neurontin. Id. A repeat MRI

of the lumbar spine revealed mild bilateral facet arthropathy at L3-4

and L4-5 with a small right facet joint effusion and small 6 mm

synovial cyst along the superior aspect of the right facet joint at

the L3-4 level. A.R. 261.

In January 2004, Dr. Fitz administered a right L4

transforaminal epidural steroid injection, A.R. 263, which did not

improve plaintiff’s condition. A.R. 272. In fact, his back pain had

increased. Dr. Fitz prescribed a lumbosacral arthrosis for pain

control. A.R. 271. Another MRI ruled out cauda equina compression

and significant neural impingement. A.R. 274.

In January 2004, Donald J. Tosi, Ph.D., reviewed the

evidence of record and consultatively evaluated plaintiff’s

psychological condition in connection with his Workers’ Compensation

claim. According to Dr. Tosi, plaintiff does not suffer a pain

disorder associated with both psychological factors and a general

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medical condition because “[t]he injured worker’s pain is

physiologically rather than psychologically based.” A.R. 269. Dr.

Tosi did diagnose major depressive disorder, single episode, moderate

severity, attributable to plaintiff’s work related injury. Id.

In February 2004, Dr. Fitz reported to the state agency that

plaintiff has no neurological deficits, but only subjective changes. 

His gait is antalgic. According to Dr. Fitz, plaintiff’s “pain in

greater and more debilitating than objective.” A.R. 276.

In April 2004, another state agency physician reviewed the

medical evidence and reaffirmed a residual functional capacity for

medium work. A.R. 279.

That same month, Dr. Fitz opined that plaintiff “will

[n]ever be able to return to gainful employment.” A.R. 328.

In June 2007, after the first two administrative hearings,

the administrative law judge asked Jonathan Nusbaum, M.D., a general

surgeon, to review the records and respond to interrogatories. 

According to Dr. Nusbaum, the medical evidence documents facet

arthropathy of the lumbo-sacral spine and depression. Neither

condition meets or equals a listed impairment because the back

condition involves no radiculopathy or weakness and because plaintiff

had received no counseling for a mental impairment. A.R. 372. Dr.

Nusbaum opined that plaintiff has the ability to sustain the demands

of competitive work on a sustained basis. A.R. 373. Specifically,

Dr. Nusbaum opined that plaintiff could occasionally lift up to 10

pounds and frequently lift up to 5 pounds. A.R. 371. He could sit for

6 hours throughout a workday, for 20 minutes at a time, and could

stand and walk for up to 3 hours, for 15 minutes at a time, although

he would need a sit/stand option. A.R. 375. Dr. Nusbaum specifically

stated that plaintiff does not need a cane to walk and that a cane is

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not medically necessary. Id.

In July 2007, James J. Powers, M.D., examined plaintiff at

the request of the state agency and diagnosed musculoskeletal back

pain. A.R. 382. He reported complaints of tenderness to palpation in

the lumbar paraspinals and over the spine. Dr. Powers noted no

atrophy; reflexes were present and symmetric. Id. Sensory testing to

light touch and pin was intact. There was some limitation of motion

of the dorsolumbar spine. A.R. 385. In an assessment of plaintiff’s

residual functional capacity, Dr. Powers opined that, because of back

pain and deconditioning, plaintiff could perform a reduced range of

light exertion. A.R. 387-88. He also commented that plaintiff does

not require a cane to ambulate. Id.

As noted supra, the administrative law judge found that

plaintiff’s severe impairments consist of degenerative joint disease

of the lumbar spine with facet arthropathy, a pain disorder associated

with psychological factors and a general medical condition, and major

depression. In finding that plaintiff has the residual functional

capacity for a reduced range of light work, the administrative law

judge commented that plaintiff’s subjective complaints of pain are not

supported by the objective medical evidence. The administrative law

judge also adopted the assessment of Dr. Powers, the consultative

examiner whose assessment was, according to the administrative law

judge, “consistent with and . . . well supported by the evidence of

the record as a whole,” and is “similar to the limitations found by

Dr. Nusbaum. . . .” A.R. 38.

The administrative law judge expressly rejected Dr. Yunker’s

opinion of disability because that opinion was “imprecise,

inconsistent with the record as a whole, and provided a conclusion of

disability that is reserved to the Commissioner.” A.R. 38-39. The

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administrative law judge rejected Dr. Dinsmore’s opinion that

plaintiff cannot lift, bend or perform prolonged sitting, standing or

walking because it was not supported by the record or by plaintiff’s

own testimony regarding his daily activities and physical limitations. 

A.R. 39. The administrative law judge rejected Dr. Fritz’s

limitations as inconsistent with the objective evidence and

plaintiff’s own testimony: “With those alleged limitations, the

claimant would have to be a bed patient, which he is not.” Id. As

conceded by the Commissioner, the administrative law judge made no

mention of Dr. Kirk’s reports and opinions.

Plaintiff alleges disability primarily because of pain. 

Subjective complaints of pain may support a claim for disability. 

Duncan v. Secretary of Health & Human Servs., 801 F.2d 847, 852 (6th

Cir. 1986). However, subjective allegations of disabling symptoms,

including pain, cannot alone support a finding disability. 20 C.F.R.

§404.1529. To support a claim for disability there must be objective

medical evidence in the record of an underlying medical condition. 

Duncan, 801 F.2d at 853. There must also be either objective evidence

that confirms the severity of the alleged disabling pain or the

objectively established medical condition must be of such severity

that it can reasonably be expected to produce disabling pain. Id.

The record documents an underlying back and mental

impairment and all of plaintiff’s treating physicians have credited

plaintiff’s complaints of pain. Opinions of treating physicians must

be accorded controlling weight if they are “well-supported by

medically acceptable clinical and laboratory diagnostic techniques”

and not “inconsistent with the other substantial evidence in [the]

case record.” 20 C.F.R. §404.1527(d)(2). If the administrative law

judge finds that either of these criteria have not been met, he is

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then required to apply the following factors in determining the weight

to be given a treating physician’s opinion: “The length of the

treatment relationship and the frequency of examination, the nature

and extent of the treatment relationship, supportability of the

opinion, consistency of the opinion with the record as a whole, and

the specialization of the treating source. ...” Wilson v. Comm’r of

Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). In this regard, the

administrative law judge is required to look at the record as a whole

to determine whether substantial evidence is inconsistent with the

treating physician’s assessment. See 20 C.F.R. §404.1527(d)(2),(4). 

Even where the administrative law judge declines to accord controlling

weight to the opinion of a treating physician, the administrative law

judge “must still determine how much weight is appropriate. . . .”

Blakley v. Commissioner of Social Security, 581 F.3d 399, 406 (6th Cir.

2009). Moreover, an administrative law judge must provide “good

reasons” for discounting the opinions of a treating physician, i.e.,

reasons that are “sufficiently specific to make clear to any

subsequent reviewers the weight the adjudicator gave to the treating

source’s medical opinion and the reasons for that weight.” Rogers, at

242, citing Soc. Sec. Rul. 96-2p, 1996 WL 374188, at *5.

The United States Court of Appeals for the Sixth Circuit

recognized in Wilson that reversal may not be required if a failure to

give good reasons for rejecting the opinion of a treating source has

been only de minimis, or harmless error. Wilson, 378 F.3d at 547. 

The Court cautioned, however, that the inquiry cannot mean merely that

the plaintiff “‘had little chance of success on the merits anyway.’”

Id., at 546 (quoting Mazaleski v. Trubell, 562 F.2d 701, 719 n.31

(D.C. Cir. 1977). Rather, the Sixth Circuit recognized three

categories of cases in which the failure to strictly follow the

requirements of the regulation may not warrant reversal: (1) “If a

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treating source’s opinion is so patently deficient that the

Commissioner could not possibly credit it”; (2) “If the Commissioner

adopts the opinion of the treating source and its findings consistent

with the opinion”; or (3) “Where the Commissioner has met the goal of

§404.1527(d)(2) -- the provision of the procedural safeguard of

reasons -- even though she has not complied with the [express] terms

of the regulation.” Id., at 547.

This Court finds that the administrative law judge failed to

properly and thoroughly evaluate the opinions of plaintiff’s treating

physicians. Dr. Kirk is a specialist in occupational medicine, Dr.

Yunker is a pain specialist and Dr. Fitz is a specialist in physical

medicine and rehabilitation. It is not clear that any of the

physicians upon whose opinion the administrative law judge relied are

comparably qualified. Moreover, although the administrative law judge

clearly rejected the opinions of disability expressed by plaintiff’s

treating physicians, he did not expressly indicate how much weight, if

any, he accorded their opinions. Furthermore, although the

administrative law judge appeared to base his rejection of the

opinions of disability primarily on the lack of objective evidence, he

failed to expressly consider the impact, on plaintiff’s subjective

complaints, of plaintiff’s documented severe mental impairment,

identified by the administrative law judge as a pain disorder

associated with psychological factors and a general medical condition.

Finally, even the Commissioner concedes that the administrative law

judge failed to expressly consider and evaluate the opinion of Dr.

Kirk, one of plaintiff’s treating physicians. The Court does not

regard this oversight as harmless in light of the overwhelming

consistency of the opinions of all of plaintiff’s treating physicians,

and the contrary opinions articulated by the non-treating, and in some

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instances, non-examining physicians upon whom the administrative law

judge relied. 

Under these circumstances, the Court concludes that the

decision of the Commissioner is not supported by substantial evidence.

It is therefore RECOMMENDED that the decision of the

Commissioner be reversed and that the matter be remanded to the

Commissioner for consideration of the opinions of plaintiff’s treating

physicians.

If any party seeks review by the District Judge of this

Report and Recommendation, that party may, within fourteen (14) days,

file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and

Recommendation, and the part thereof in question, as well as the basis

for objection thereto. 28 U.S.C. §636(b)(1); F.R. Civ. P. 72(b). 

Response to objections must be filed within fourteen (14) days after

being served with a copy thereof. F.R. Civ. P. 72(b). 

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 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); Smith v. Detroit Federation

of Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United

States v. Walters, 638 F.2d 947 (6th Cir. 1981).

 s/Norah McCann King 

 Norah McCann King

 United States Magistrate Judge

January 3, 2012

Date

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