IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

ZINA HALFKENNY, 

 Plaintiff, 

 vs. Civil Action 2:11-CV-1145 

 Judge Marbley 

 Magistrate Judge King 

MICHAEL J. ASTRUE, Commissioner 

of Social Security, 

 Defendant. 

REPORT AND RECOMMENDATION 

 This is an action instituted under the provisions of 42 U.S.C. 

§§ 405(g), 1383(c) for review of a final decision of the Commissioner 

of Social Security denying plaintiff’s applications for disability 

insurance benefits and supplemental security income. This matter is 

now before the Court on plaintiff’s Statement of Errors, Doc. No. 11, 

and the Commissioner’s Memorandum in Opposition, Doc. No. 14. 

 Plaintiff Zina Halfkenny filed her applications for benefits on 

September 28, 2009, alleging that she has been disabled since February 

1, 2003,1 due to a slipped disc, nerve damage in her spine and legs, 

and diabetes. Page ID 219. The applications were denied initially and 

upon reconsideration, and plaintiff requested a de novo hearing 

before an administrative law judge. 

 

1

At the administrative hearing, plaintiff amended her disability onset date to 

April 23, 2009. Page ID 55.

 A video hearing was held on May 18, 2011, at which plaintiff, 

represented by counsel, appeared and testified, as did Lynne Kaufman, 

who testified as a vocational expert. In a decision dated June 14, 

2011, the administrative law judge found that plaintiff was not 

disabled within the meaning of the Social Security Act. Page ID 38-44. 

That decision became the final decision of the Commissioner of Social 

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Security when the Appeals Council declined review on October 19, 2011. 

Page ID 30-32. 

 Plaintiff was 42 years old on her alleged disability onset date. 

She has a high school education and one year of college. Page ID 224. 

She has prior relevant work experience as a research analyst, a 

customer service clerk and a service order clerk. Page ID 220, 228-31. 

 Plaintiff testified at the administrative hearing that she was 

terminated from her last job in July 2009 because she was “[u]nable 

to perform the duties required for that position.” Page ID 59. Sitting 

or standing for long periods of time was difficult. Page ID 59-60. 

Plaintiff estimated that she can sit or stand for no more than fifteen 

minutes. Page ID 60. She can lift, with difficulty, up to five 

pounds. Id. Plaintiff has pain in her upper and lower back, neck, arms, 

hands, and legs. Id. She takes Oxycodone and has a TENS unit. Id. 

 Plaintiff is primarily responsible for household activities, 

although she also relies on her 9 year old son for help. Page ID 61. 

She drives short distances, using a back support in her vehicle. Id.

She can use a computer for short periods of time. Page ID 62. Typing 

is difficult for her because of the pain. Id. A typical day is spent 

lying down and using a heating pad. Id. She rates her pain at an 8-9 

on a 10-point scale, even with medication. Id. 

 The vocational expert was asked to assume a claimant with 

plaintiff’s vocational profile who can lift or carry ten pounds 

occasionally and ten pounds frequently, who can stand or walk, with 

normal breaks, for a total of two hours in an eight-hour workday, and 

who can sit for six hours in an eight-hour workday; who can 

occasionally climb ramps and stairs but can never climb ladders, ropes 

or scaffolds; who can occasionally perform other postural activities, 

and who can use her hands frequently. Page ID 69-70. The vocational 

expert testified that such a claimant could perform plaintiff’s past 

relevant work as a research assistant or analyst. Page ID 70. Asked 

to assume a limitation on the use of hands to only occasional, the 

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vocational expert testified that plaintiff’s past work and all other 

sedentary work would be precluded. Page ID 70. 

 An April 23, 2009 MRI of plaintiff’s lumbar spine revealed mild 

degenerative disc disease at L5-S1 with a posterior left paramidline 

annular tear and a broad-based central disc protrusion but no 

significant central spinal canal stenosis. There was also minimal 

foraminal narrowing. Page ID 296-97. 

 Plaintiff was evaluated at the Orthopedic and Spine Center on 

May 19, 2009 for complaints of chronic neck, back and extremity pain 

and numbness of the upper and lower extremities bilaterally. Page ID

284-86. The examining certified nurse practitioner noted that 

plaintiff requested strong pain medication. Page ID 285. Physical 

therapy was prescribed. Id. An EMG performed the following day showed 

moderate peripheral neuropathy of both lower extremities, mild median 

neuropathy across the wrist at the carpal tunnel on the left, and 

possible L5 radiculopathy on the left. Page ID 290-93. Plaintiff 

refused the EMG needle exam after the first needle stick, because of 

needle phobia. Page ID 290. In June 2009, plaintiff was prescribed 

Neurontin and advised to start physical therapy. Page ID 279-80. 

 Plaintiff attended physical therapy from June 24, 2009 through 

September 2, 2009. Page ID 299-316. Physical examination showed some 

reduced range of motion, diminished reflexes and positive straight 

leg raising. Id. Upon discharge, plaintiff’s prognosis was 

characterized as good, with noted improvement in her ability to 

perform daily activities. Specifically, plaintiff could sit for up 

to 30 minutes at a time and could stand for at least 45 minutes. It 

was noted that plaintiff wore a brace only with mowing. Page ID 299. 

A workout program was recommended. Page ID 300. 

 An October 5, 2009 x-ray of plaintiff’s left hand showed a 

possible abnormality at the interphalangeal [“IP”]joint of the thumb, 

small osteophytes at the distal interphalangeal [“DIP”]joints of the 

hand, joint compartment narrowing at the proximal interphalangeal 

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[“PIP”]and DIP joints of the second through fifth digits, and a 5 - 

mm exostosis projecting from the radial aspect of the first metacarpal 

and at the radial articulating surface at the radial navicular joint. 

Page ID 359. 

 In December 2009, the record was reviewed by state agency 

physician, William Bolz, M.D., who opined that plaintiff could lift 

20 pounds occasionally and 10 pounds frequently, could stand and/or 

walk for six hours in an eight-hour workday, and could sit for six 

hours in an eight-hour workday. Page ID 374. Plaintiff could engage 

in postural activities occasionally, except that she could never 

climb ladders, ropes, or scaffolds. Page ID 375. Dr. Bolz also found 

that plaintiff’s allegations were partially credible. Page ID 378. 

According to Dr. Bolz, physical therapy notes showed that plaintiff 

had improved range of motion and the MRI showed only mild 

abnormalities. Page ID 374. Dr. Bolz’s assessment was affirmed by 

state agency physician Gerald Klyop, M.D., in June 2010. Page ID 469. 

 A repeat x-ray of the left-hand was taken in January 2010. The 

radiologist concluded, “Soft call; there may be low-grade arthrosis 

at IP joint of thumb.” Page ID 391. 

 April 2010 x-rays of plaintiff’s cervical spine were normal. 

Page ID 447. 

 Plaintiff has received primary care at the Linden Medical Center 

for chronic low back pain, left carpal tunnel syndrome, bilateral 

lower extremity neuropathy and poor circulation. Page ID 323-67. On 

April 2, 2010, a physician with the Linden Medical Center reported 

that, despite plaintiff’s lumbar spine pain, she had a normal gait 

and could use her extremities for functional tasks without 

limitation. Page ID 398. However, Tapaswini Trivedi, M.D., 

physician at Linden Medical Center, opined on April 12, 2010, that 

plaintiff could lift less than five pounds due to bilateral neuropathy 

in her legs and low back tenderness. Page ID 405. According to Dr. 

Trivedi, plaintiff could stand/walk less than 30 minutes in an 

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eight-hour work day because her legs gave out, and could sit for less 

than 30 minutes in an eight-hour work day, for only 15 minutes at a 

time, due to low back pain and leg numbness. Id. She could perform 

no postural activities, could never push or pull, could only 

occasionally reach, handle, and feel but could frequently perform 

gross and fine manipulation. Page ID 405-06. Plaintiff should also 

be restricted from working around heights, moving machinery and 

temperature extremes; she would need a sit/stand option. Page ID 406. 

Plaintiff has been prescribed a brace and a TENS unit, but not a cane 

or walker. Id. Dr. Trivedi rated plaintiff’s pain as severe. Id.

 Plaintiff continued to treat at Linden Medical Center through 

at least July 2011. Page ID 415-47, 451-58, 471-80. Plaintiff was 

prescribed physical therapy in May 2010. Page ID 441. June 2010 office 

notes referred to a left wrist splint; plaintiff had not yet started 

physical therapy. Page ID 440. A right wrist splint was prescribed 

for right carpal tunnel syndrome in July 2010. Page ID 431. Office 

notes throughout 2010 noted hand swelling. Page ID 425, 427, 429. 

During an examination in October 2010, William Washington, M.D., 

reported that plaintiff experienced neck pain and bilateral carpal 

tunnel syndrome and pain associated with numbness in both lower legs. 

Page ID 420. 

 In February 2011, Dr. Washington opined that plaintiff could 

lift less than five pounds, could stand/walk for 30 minutes in an 

eight-hour work day for up to 10 minutes at a time, and could sit for 

a total of eight hours during the work day, for 15 minutes at a time. 

Page ID 448. Plaintiff would also need a sit/stand option. Page ID

449. According to Dr. Washington, plaintiff could not complete any 

postural activities, could never push or pull, could only 

occasionally reach, handle and perform gross manipulation but could 

frequently feel and perform fine manipulation. Id. Plaintiff should 

also be restricted from working around heights, moving machinery and 

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temperature extremes. Dr. Washington again rated plaintiff’s pain as 

severe. Id. 

 In his decision, the administrative law judge found that 

plaintiff’s severe impairments consist of mild degenerative disc 

disease, mild carpal tunnel syndrome and moderate neuropathy. Page 

ID 40. However, these conditions, whether considered singly or in 

combination, neither meet nor equal a listed impairment. Relying on 

the assessments of the state agency physicians, the administrative 

law judge went on to find that plaintiff has the residual functional 

capacity to lift and carry 10 pounds occasionally, sit for a total 

of 6 hours in an 8-hour workday, with normal breaks, stand and walk 

for a total of 2 hours in an 8-hour workday, with normal breaks, and 

push and pull within those limitations. She can occasionally climb 

ramps and stairs, but can never climb ladders, ropes, or scaffolds; 

she can occasionally balance, stoop, kneel, crouch and crawl, and 

can frequently use her hands. Page ID 41. Relying on the testimony 

of the vocational expert, the administrative law judge found that this 

residual functional capacity permitted the performance of 

plaintiff’s past relevant work as a research analyst. Page ID 43. 

Accordingly, the administrative law judge concluded that plaintiff 

was not disabled within the meaning of the Social Security Act. Id.

 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 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 more than a 

scintilla of evidence but less than a preponderance; it 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, 

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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. 

 In her Statement of Errors, plaintiff contends that the 

administrative law judge erred in weighing the opinions of 

plaintiff’s treating physicians. Plaintiff also argues that the 

administrative law judge failed to apply the appropriate standards 

in evaluating plaintiff’s pain. Finally, plaintiff contends that 

the administrative law judge’s finding regarding the limitations 

imposed by plaintiff’s hand impairment was not supported by 

substantial evidence, leading the administrative law judge to 

erroneously find that plaintiff is able to perform a reduced range 

of sedentary work and her past work as a research analyst. 

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); 416.927(d)(2). If the administrative law judge 

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

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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); 416.927(d)(2), (4). 

In the case presently before the Court, the administrative law 

judge assigned “little weight” to the opinions of Drs. Travedi and 

Washington: 

In April 2010 and February 2011, Drs. Trivedi and 

Washington assessed the claimant’s physical capacity. 

As a result of their assessments, Drs. Trivedi and 

Washington concluded that she is significantly 

limited to perform work activities over the course 

of an eight-hour day. Despite the treating relationships 

Drs. Trivedi and Washington share with the claimant, 

their opinions are not consistent with the record as 

a whole. 

. . . [P]hysical examinations of the claimant failed 

to yield remarkable findings. Thus, the claimant’s 

physical examination[s] do not provide evidentiary 

support for the opinions of Drs. Trivedi and Washington 

that the claimant’s physical functional capacity is 

limited to such a degree. Further, objective evidence 

in the form of an MRI of the claimant’s lumbar spine, 

an EMG, and muscle strength testing have not yielded 

[sic] to support such extreme limitations. Accordingly, 

those results do not support Drs. Trivedi’s and 

Washington’s opinions that the claimant’s alleged 

physical impairments severely limit her work activity. 

As a result of the inconsistency of Drs. Trivedi’s 

and Washington’s opinions with the record as a whole, 

the undersigned finds their opinions to be unpersuasive, 

and to merit little weight. 

Page ID 42-43 (citations to record omitted). This Court concludes 

that the administrative law judge evaluated the assessments of 

plaintiff’s treating physician in accordance with the appropriate 

standards and that his evaluation is supported by substantial 

evidence. Plaintiff’s first contention is therefore without merit. 

 Plaintiff next challenges the administrative law judge’s 

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assessment of plaintiff’s credibility. Subjective complaints of 

disabling pain must be supported by objective medical evidence in 

order to serve as a basis for a finding of disability. Arnett v. 

Comm’r of Soc. Sec., 76 Fed.Appx. 713, 716 (6th Cir. 2003); Casey v. 

Secretary of Health and Human Services, 987 F.2d 1230 (6th Cir. 1993). 

See also 42 U.S.C. §423(d)(5)(A). In evaluating subjective complaints 

of disabling pain, a court looks to the record to determine whether 

there is objective medical evidence of an underlying medical 

condition. If so, then the court must determine (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 severity that it can 

reasonably be expected to produce the alleged disabling pain. 

Stanley v. Secretary of Health and Human Services, 39 F.3d 115, 117 

(6th Cir. 1994), citing Duncan v. Secretary of Health and Human 

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

 In evaluating complaints of pain, an administrative law judge 

may properly consider the claimant’s credibility. Walters v. Comm’r 

of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997). “[A]n ALJ’s findings 

based on the credibility of the applicant are to be accorded great 

weight and deference, particularly since an ALJ is charged with the 

duty of observing a witness’s demeanor and credibility.” Id. citing 

Villarreal v. Sec’y of Health and Human Servs., 818 F.2d 461, 463 (6th

Cir. 1987). In all events, however, the credibility assessment must 

enjoy substantial support in the evidence. Id. citing Beavers v. Sec’y 

of Health, Educ. and Welfare, 577 F.2d 383, 386-87 (6th Cir. 1978). 

When a claimant’s testimony conflicts with medical records and other 

evidence, an administrative law judge may properly discount the 

claimant’s testimony. Id. “Consistency between a claimant’s symptom 

complaints and the other evidence in the record tends to support the 

credibility of the claimant, while inconsistency, although not 

necessarily defeating, should have the opposite effect.” Rogers v. 

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Comm’r of Soc. Sec., 486 F.3d 234, 248 (6th Cir. 2007). 

 An adverse credibility finding will be set aside only for a 

“compelling reason.” Smith v. Halter, 307 F.3d 377, 379 (6th Cir. 

2001). 

 The administrative law judge evaluated plaintiff’s credibility 

and subjective complaints as follows: 

. . . [T]he undersigned finds that the claimant’s 

medically determinable impairments could reasonably 

be expected to cause symptoms; however, the 

allegations concerning the intensity, persistence 

and limiting effects of these symptoms are not credible 

to the extent they are inconsistent with th[e] residual 

functional capacity assessment [found by the administrative 

law judge]. 

 In terms of the claimant’s alleged physical 

impairments, the undersigned finds that the record 

contains evidence that undermines her allegations of 

disability. A MRI conducted on the claimant’s lumbar 

spine in April 2009 revealed only mild degenerative disc 

disease at the L5-S1 level, with a posterior left 

para-midline annular tear and broad-based central 

disc protrusion at the same level, minimal foraminal 

narrowing, and no significant central spinal canal 

stenosis. Otherwise, the claimant’s physician found 

the MRI unremarkable. 

 A June 2009 electromyelogram demonstrated only 

moderate peripheral neuropathy in the claimant’s lower 

extremities, medial neuropathy across her wrist with mild 

carpal tunnel syndrome on the left side only. Further, 

examinations of the claimant in May and June 2009 yielded 

unremarkable findings, as she exhibited full strength 

in all muscles, normal light touch except in her lateral 

anterior left shin and foot, and 2+ reflexes throughout 

upper and lower limbs bilaterally. Moreover, July and 

August 2009 physical and occupational therapy records 

reveal muscle testing results of the claimant’s lower 

extremities that are generally unremarkable. 

 Because of the many unremarkable examination findings, 

and lack of evidentiary support for her allegations 

of disability, the limitation to sedentary work is 

appropriate in accommodating the claimant’s physical 

impairments. 

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Page ID 41, 42 (citations to record omitted). Again, the Court finds 

that the administrative applied the appropriate standard and his 

evaluation of plaintiff’s credibility and subjective complaints are 

supported by substantial evidence. The Court therefore concludes 

that plaintiff’s challenge to the decision of the Commissioner in this 

regard is without merit. 

 Finally, plaintiff alleges that the administrative law judge’s 

findings regarding plaintiff’s hand impairment lack substantial 

support in the record. The administrative law judge found that 

plaintiff can use her hands on a “frequent” basis. Page ID 41. In 

assessing plaintiff’s residual functional capacity, the 

administrative law judge assigned “significant weight” to the opinion 

of the state agency physician, Dr. Bolz, although he also “discounted 

some of Dr. Bolz’s findings regarding the claimant’s exertional 

ability. . . .” Page ID 42.1

 Dr. Bolz, as noted supra, found that 

plaintiff could push and pull but he did not otherwise address a hand 

impairment in his December 2009 assessment. Page ID 373-80. Yet, 

evidence relating to plaintiff’s hand was in the record reviewed by 

Dr. Bolz. See, e.g., Page ID 290-93 (May 2009 EMG); Page ID 359 

(October 2009 x-ray of left hand). Moreover, Dr. Klyop, another 

state agency physician, affirmed Dr. Bolz’s assessment in June 2010 

and expressly represented that he “reviewed all the evidence in the 

file. . . .” Page ID 469. Of course, the file at that point included 

additional evidence relating to plaintiff’s hand impairment. See, 

e.g., Page ID 391 (January 2010 x-ray of the left hand). The fact 

that the administrative law judge found plaintiff to be more limited 

in this regard than indicated by the state agency physicians is not 

a basis for rejecting his decision. Moreover, Dr. Trivedi, one of 

plaintiff’s own treating physicians, indicated that plaintiff could 

“frequently” engage in fine and gross manipulation. Page ID 406. 

 

1 Although Dr. Bolz opined that plaintiff could lift and carry up to 20 pounds 

occasionally and 10 pounds frequently, Page ID 373-74, the administrative law judge 

found that plaintiff could lift and carry only 10 pounds occasionally. Page ID

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Dr. Washington, another of plaintiff’s treating physicians, 

indicated that plaintiff could “frequently” engage in fine 

manipulation. Page ID 449. Although Dr. Washington also indicated 

that plaintiff could engage in gross manipulation only 

“occasionally,” id., he provided no medical findings in support of 

that assessment. Id. Under these circumstances, the Court 

concludes that the administrative law judge did not err in finding 

that plaintiff has the residual functional capacity to use her hands 

on a frequent basis. 

 In short, the Court concludes that the decision of the 

administrative law judge applied all appropriate standards and enjoys 

substantial support in the record. 

 It is therefore RECOMMENDED that the decision of the 

Commissioner of Social Security be affirmed and that this action be 

dismissed. 

 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. 

 

41. 

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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). 

Date: January 31, 2013 s/Norah McCann King 

Norah McCann King 

 United States Magistrate Judge

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