IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

James K. Owens,

Plaintiff

 v.

Commissioner of Social Security,

Defendant

:

:

:

:

:

Civil Action 2:11-cv-267

Judge Graham

Magistrate Judge Abel

OPINION AND ORDER

On March 29, 2011, Plaintiff James K. Owens filed this action pursuant to 42

U.S.C. §423 for review of a final decision of the Commissioner of Social Security

denying his application for supplemental security benefits. On December 6, 2011,

the Magistrate Judge issued a Report and Recommendation that the decision of the

Commissioner of Social Security be affirmed. This matter is now before the Court

pursuant to Plaintiff’s objections (Doc. 14).

Plaintiff raises two objections to the Report and Recommendation. The first

is that the Magistrate Judge improperly found that it was not error for the

administrative law judge (“ALJ”) to refuse to give controlling weight to the medical

opinions of Plaintiff’s treating physician, Dr. Beyer. The second is that the

Magistrate Judge improperly found that substantial evidence existed to support the

ALJ’s credibility determination.

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Dr. Beyer’s opinions. Dr. Beyer had treated Plaintiff from at least 2002 up

until his application for benefits. The extant record demonstrates that Plaintiff

visited Dr. Beyer at least seventy times between 2002 and 2008. However, Dr.

Beyer’s treatment records consisted largely of a terse register of Plaintiff’s pain

medication prescriptions, interspersed with occasional notes that Plaintiff’s

“paraspinal muscles all firm”. See R. 457-73. Dr. Beyer filled out four form

physical capacity evaulations prior to Plaintiff’s hearing. (R. 416-18, 444-45, 454-

56, 478-80.) In these he made specific assertions as to, e.g., Plaintiff’s inability to

sit for more than two hours in a work day or to work for more than two days per

week. He did not address how his medical records or findings supported these

limitations, and left questions requesting such explanations blank.

Plaintiff argues specifically that the Magistrate Judge ignored Plaintiff’s

long-time treating relationship with Dr. Beyer, that he failed to note “the

considerable amount of objective evidence that supports a finding not only that Mr.

Owens suffers from severe impairments, but also that these impairments are

extremely limiting”, and that he incorrectly found that Dr. Beyer’s records did not

support his stated opinions. The first of these arguments is not well taken; the

Magistrate Judge specifically mentioned the duration of the treating relationship

here and cited relevant caselaw holding that there is a rebuttable presumption that

a treating physician’s opinion is entitled to great deference. (Doc. 13 at 15-16.)

As to the other two, the Magistrate Judge correctly noted that a “finding...

that Mr. Owens suffers from severe impairments” is not in question; the ALJ

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specifically found that Plaintiff suffered from severe impairments. The only

question is the extent of the limitations resulting from those impairments:

As the Commissioner points out, however, evidence supporting a

diagnosis of severe impairment is not the same thing as evidence

supporting physical and vocational limitations said to be caused by

that impairment. The ALJ determined that Plaintiff’s spinal stenosis

was a severe impairment. The limits put forth in Dr. Beyer’s repeated

form functional capacity assessments, however, were not supported by

Dr. Beyer’s own records – which consisted largely of a transcript of

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

hospitalizations or other examinations that Plaintiff’s severe

impairment did, in fact, render him unable to walk reliably or sit for

more than 45 minutes at a time. The ALJ cited to numerous hospital

records postdating Plaintiff’s 2004 surgeries which referred only to

mild or moderate cervical degeneration, and which described normal

range of motion and ability to ambulate. Despite his treating

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

evidence to support their severity, and it was not error for the ALJ to

refuse to give them controlling weight.

(Doc. 13 at 16-17.) The objective evidence Plaintiff cites in his Objections again

supports the uncontroverted conclusion that he suffers from severe impairments. 

However, the medical evidence in Dr. Beyer’s treatment records supporting his

extensive physical capacity reports is essentially limited to occasional mentions of

Plaintiff’s “firm” or “hard” paraspinal muscles. As the ALJ correctly pointed out,

this is not enough to provide support for Dr. Beyer’s specific findings:

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

of functional limitation and employability is accorded no weight

because Dr. Beyer did not reference specific medical findings within

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

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

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

and spasms but provides no diagnostic or clinical support evidencing

marked or extreme neurological deficits or loss of muscle strength,

range of motion, sensation, or reflexes.

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(R. 16.) Accordingly, the ALJ did not err in concluding that there was an

inadequate basis to give Dr. Beyer’s residual functional capacity opinions

controlling weight, and in instead determining that Plaintiff was still capable of

performing a range of light and sedentary work.

Credibility determination. The ALJ found Plaintiff’s credibility limited both

because the objective medical record did not support his claims as to the severity of

his pain and other symptoms, and because the activities of daily living to which he

testified were inconsistent with an “individual alleging the type of severe, disabling

pain and symptomatology the claimant alleges.” (R. 15.) The Magistrate Judge

found that substantial evidence existed to support the ALJ’s credibility

determination. On objection, Plaintiff states:

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

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

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

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

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

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

Mr. Owens’ testimony and Exhibits 2E, 6E, 7E, 12E, and 21F to

support his statement. However, review of these exhibits reveals no

support for the ALJ’s contentions. [...] Furthermore, there is no

evidence to support the other activities the ALJ claimed Mr. Owens

was capable of doing. This clearly shows that the ALJ did not fully

and properly consider the record.

(Doc. 14 at 3-4.)

The cited exhibits do, however, support the ALJ’s contentions. Exhibit 2E is

a disability report, in which Plaintiff stated that he could fold laundry and perform

sedentary work in the kitchen. (R. 179.) Exhibit 6E is Plaintiff’s own functional

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report, in which he stated that he helped take care of three small children, went to

the store, and did laundry. (R. 194.) Exhibit 7E is a third party functional report

completed by Plaintiff’s brother-in-law, who stated that Plaintiff could prepare

simple microwaved meals and do laundry. (R. 203.) Exhibit 12E is another

functional report, in which Plaintiff stated that he could prepare simple

microwaved meals and fold laundry. (R. 227-28.) Exhibit 21F is a July 7, 2009

behavioral health evaluation, in which Plaintiff reported that he helped take care of

three young children, and that he could undertake daily chores and errands unless

he was having difficulty concentrating. (R. 549.)

Plaintiff has specifically alleged that his medication causes drowsiness

severe enough to render him unable to work. The ALJ found that these claims were

not supported by evidence in Plaintiff’s treating records of complaints about

excessive drowsiness or attempts to remedy this problem. The testifying medical

expert, Dr. Gatens, stated at the hearing that some of Plaintiff’s medications,

including Percocet and nortriptyline, “could all cause some tiredness... and trouble

concentrating.” (R. 79.) When asked whether Plaintiff’s testimony that he required

lengthy daily naps was reasonable considering his medications, Dr. Gatens testified

that “it depends on how he’s taking them. I mean, he could adjust that by cutting

down Percocet during the day.” (Id.) Plaintiff argues here that Dr. Gatens thus

agreed that the drowsiness Plaintiff claimed was reasonable for his prescribed

medication, and that the ALJ would have faulted him for failing to take the proper

dose. However, as the Magistrate Judge found, “Plaintiff’s extensive treatment

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records are again devoid of complaints as to drowsiness so substantial as to require

extensive naps during the day, and such allegations are thus essentially based on

his own testimony, which the ALJ otherwise found exaggerated.” (Doc. 13 at 20.) 

Where the ALJ had a reasonable basis to determine that Plaintiff’s credibility was

otherwise impugned, Dr. Gatens’ testimony that Plaintiff’s medication could cause

the drowsiness he reported did not require the ALJ to accept Plaintiff’s claims as to

the severity and disabling effects of that drowsiness.

As the Magistrate Judge correctly found, the ALJ did not substantively

misrepresent Plaintiff’s testimony, whether or not he cast it in an unfavorable light. 

Substantial evidence existed to support the ALJ’s findings and inferences

reasonably drawn from the record. Accordingly, the ALJ did not err in his

credibility determination.

For the foregoing reasons, and upon de novo review in accordance with the

provisions of 28 U.S.C. §636(b)(1)(B), the Report and Recommendation of the

Magistrate Judge is ADOPTED. The decision of the Commissioner of Social

Security is AFFIRMED. The Clerk of Court is DIRECTED to enter judgment for

the Defendant. It is hereby ORDERED that this matter be DISMISSED.

Date: March 14, 2012 s/James L. Graham 

 James L. Graham

 United States District Judge

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