IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Dean C. Oblinger, :

Plaintiff, :

v. : Case No. 2:11-cv-623

 : JUDGE EDMUND A. SARGUS, JR.

Commissioner of Social Security, Magistrate Judge Kemp

Defendant. : 

 REPORT AND RECOMMENDATION

 I. Introduction

 Plaintiff, Dean C. Oblinger, filed this action seeking

review of a decision of the Commissioner of Social Security

denying his application for social security disability benefits. 

That application was filed with a protective filing date of

November 5, 2007, and alleged that plaintiff became disabled on

November 1, 2006. 

After initial administrative denials of his claim, plaintiff

was given a hearing before an Administrative Law Judge on

February 18, 2010. In a decision dated May 3, 2010, the ALJ

denied benefits. That determination became the Commissioner’s

final decision on May 24, 2011, when the Appeals Council denied

review.

After plaintiff filed this case, the Commissioner filed the

administrative record on September 26, 2011. Plaintiff filed his

statement of specific errors on October 31, 2011, to which the

Commissioner responded on January 31, 2012. No reply brief has

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

II. Plaintiff’s Testimony at the Administrative Hearing

 Plaintiff’s testimony at the administrative hearing is found

at pages 31 through 50 of the record. Plaintiff, who was 46

Case: 2:11-cv-00623-EAS-TPK Doc #: 19 Filed: 04/18/12 Page: 1 of 18 PAGEID #: <pageID>
-2-

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

graduate with some college, testified as follows.

Plaintiff last worked in 2004. He was a sanitation worker

at a food processing plant. The job required a good deal of

bending and lifting. He left that job to pursue more education

and to address a child care situation. He was unable to complete

his educational program, however, due to back pain. Plaintiff

broke his back in 1984 and underwent a spinal fusion in 1985, and

the pain has now recurred.

Plaintiff testified that his pain begins in his left hip and

radiates down his left leg, although sometimes it radiates down

both legs. His doctors have not recommended surgery. He

experiences severe pain on a daily basis. Sometimes, depending

on his level of activity the previous day, he must lie down all

day. He treats the pain with Vicodin and Tylenol. 

From a physical standpoint, plaintiff can stand about

fifteen minutes at a time before his legs become numb. The same

thing happens if he sits too long - about ten minutes in a

straight chair, or thirty minutes in a recliner. He can

occasionally lift a gallon of milk. He avoids climbing stairs. 

He can walk about 100 yards before needing to sit down.

On a daily basis, plaintiff is able to drive his children to

school, and he can also drive to medical appointments. None of

that involves driving more than ten minutes. He can squat,

although getting back up is a problem, and can bend from the

waist, but not very well. He did not believe he could do even a

sedentary job because he needs to lie down six or seven hours a

day just to reduce his pain level. He is able to read and watch

television. Finally, he testified that he has had cortisone

injections, a TENS unit, physical therapy, traction, acupuncture,

and heat, but none of those have given him any lasting relief.

III. The Medical Records

Case: 2:11-cv-00623-EAS-TPK Doc #: 19 Filed: 04/18/12 Page: 2 of 18 PAGEID #: <pageID>
-3-

The medical records in this case are found beginning on page

192 of the administrative record. The pertinent records can be

summarized as follows. 

The first set of records consist of office notes from

plaintiff’s general physician, Dr. Hollern, going back to 1999. 

Even then, plaintiff was described as “rather stiff” with limited

forward flexion of his back and as experiencing pain with left

lateral bending. He was referred to a back specialist. Other

notes indicate ongoing low back pain with exacerbations from time

to time. Some notes indicate normal reflexes and muscle

strength, but there are other notes indicating difficulty

obtaining patellar reflexes. Radicular symptoms were noted as

early as 2003. A 2004 note shows that plaintiff was going to see

a spine specialist again. By 2006, the diagnosis was chronic low

back pain with intermittent radiculopathy. A note dated June 14,

2007 showed that plaintiff had been working with Dr. Fitz but was

getting no relief from his pain. Dr. Hollern reported in

October, 2007 that plaintiff had been seen by a specialist, Dr.

Rea, but was not a surgical candidate. (Tr. 192-235).

Dr. Fitz filled out a questionnaire reviewing his treatment

of plaintiff from 2004 to 2008. Plaintiff’s condition was

described as chronic low back pain and left leg pain. Pertinent

findings included a limited range of lumbar motion and a scar

over the lumbar spine. Dr. Fitz had prescribed Prednisone and

Percocet, but only for flare-ups of plaintiff’s back condition. 

Dr. Fitz noted that epidural steroid injections had not helped. 

He did not think plaintiff could bend, stoop, lift over fifteen

pounds, sit for prolonged periods, or climb ladders. (Tr. 236-

40). Dr. Fitz also submitted treatment notes indicating that

therapy had not been helpful, and also reporting fairly normal

objective test results, including normal strength and sensation

and negative straight leg raising. An EMG was also essentially

Case: 2:11-cv-00623-EAS-TPK Doc #: 19 Filed: 04/18/12 Page: 3 of 18 PAGEID #: <pageID>
-4-

negative, but an MRI study revealed spinal stenosis at L4-5 and

L5-S1. The notes also show complaints of numbness and pain

radiating down both legs. The report from the 2006 MRI also

showed mild diffuse disk bulge at the L4-5 and L5-S1 levels and

some mild bilateral foraminal narrowing at those levels, as well

as degenerative changes beginning at L3. (Tr. 241-54). Later

treatment notes showed increasing left leg pain, complaints of

intermittent numbness and burning in the left leg, some decreased

sensation in the left foot and left leg, and more steroid

injections. (Tr. 288-97). 

The file also contains a functional capacity assessment done

by Dr. Cho, a state agency reviewer, on May 13, 2008. Dr. Cho

basically limited plaintiff to work at the light exertional level

with some restrictions on climbing, balancing, stooping,

kneeling, crouching and crawling. Dr. Cho reported that there

was a treating source statement regarding plaintiff’s physical

capacities in the file and that the treating source’s conclusions

were not significantly different from Dr. Cho’s. He also stated

that “the findings of the ap [attending physician] are given

controlling weight.” (Tr. 255-62).

Dr. Herceg, who appears to be another physician in the same

office as Dr. Fitz, examined plaintiff on November 10, 2008. He

reported that plaintiff had had problems for the past five or six

years, and that his pain was worse with activity. Examination of

the lumbar spine showed a well-healed incision. There was some

kyphosis in the upper aspect of the lumbar spine, flexion and

extension were limited, strength and reflexes were normal, and

straight leg raising was positive on the left. X-rays showed

multilevel spondylosis with disc space narrowing and anterior

osteophyte formation. A CT myelogram done over a year before

demonstrated degenerative changes with narrowing at the L3-4 and

L4-5 levels. Dr. Herceg’s impression was post laminectomy,

Case: 2:11-cv-00623-EAS-TPK Doc #: 19 Filed: 04/18/12 Page: 4 of 18 PAGEID #: <pageID>
-5-

lumbar spine, L2, lumbar spinal stenosis, and lumbar degenerative

disc disease. Surgery was not recommended based on these

findings. (Tr. 344-45).

On December 16, 2009, Dr. Fitz wrote a letter in which he

provided his opinion as to plaintiff’s functional capacity, and

he attached a form used for that purpose. Dr. Fitz recited

plaintiff’s history of injury, diagnoses and treatment as

reflected in his notes, and stated that plaintiff was limited in

his ability to stand and walk for prolonged periods of time due

to leg pain associated with spinal stenosis, and in his ability

to sit for prolonged periods of time due to multilevel

degenerative disc disease. He also could not lift over ten

pounds and was limited in his ability to bend and twist at the

waist. Dr. Fitz stated that plaintiff “is unable to perform the

essential functions of many occupations due to his limitations

with regards to sitting, standing, walking, bending, twisting and

lifting.” The physical capacities evaluation form attached

limited plaintiff to six hours total of sitting, standing and

walking during a work day. (Tr. 356-58). 

The last document in the medical portion of the file is a

letter written by Dr. Rea from the Ohio State University

Comprehensive Spine Center, dated December 14, 2010. That letter

post-dates the ALJ’s decision and was not considered by him, so

the Court will not discuss it further. 

 IV. The Medical Expert’s Testimony

Dr. Gaitens, a medical expert, was asked to provide

testimony at the administrative hearing. His testimony is found

at pages 51-57 of the record.

Dr. Gaitens testified that he is board-certified in physical

medicine and rehabilitation. He reviewed the records concerning

plaintiff’s back condition and concluded that his impairment was

not of sufficient severity, based on those records, to satisfy

Case: 2:11-cv-00623-EAS-TPK Doc #: 19 Filed: 04/18/12 Page: 5 of 18 PAGEID #: <pageID>
-6-

the Listing of Impairments, particularly Section 1.04A. 

Dr. Gaitens believed that plaintiff could lift 20 pounds

occasionally and ten frequently, but he was limited in his

ability to stand. He could only stand five or six hours out of

an eight-hour shift, and would need to change position every 45

minutes in order to do that. He could sit for an hour to an

hour-and-a-half at a time, with changes of position in between. 

He would also be limited in the areas of crouching, kneeling,

crawling, and climbing, with the latter absolutely precluded. 

Plaintiff’s medication would make working at heights or around

moving machinery inadvisable. This assessment was based on the

records rather than plaintiff’s testimony. Dr. Gaitens saw no

evidence of malingering in the medical records. 

 V. The Vocational Testimony

Mr. Rosenthal, a vocational expert, also testified at the

administrative hearing. His testimony begins at page 58. He

began by asking plaintiff a number of questions about past jobs,

which included not only food sanitation worker but also some jobs

in retail and a security guard position. Mr. Rosenthal

testified that plaintiff’s past relevant work as a stock

supervisor at a Sears store was light and skilled; the job as a

sanitation worker was heavy and semi-skilled (although plaintiff

did that job at the medium level); and as a security guard or

gate guard as light and semi-skilled. The stock clerk job was

light and skilled. Mr. Rosenthal noted that the record also

indicated some other jobs, which were unskilled, medium

exertional level positions. 

Mr. Rosenthal was first asked to assume that plaintiff were

limited as described in Exhibit 3F, which is the functional

capacity assessment from Dr. Cho, the state agency reviewer. If

that were so, he could do still do the gate guard job. Next, he

was asked to assume the limitations appearing in Exhibit 9F,

Case: 2:11-cv-00623-EAS-TPK Doc #: 19 Filed: 04/18/12 Page: 6 of 18 PAGEID #: <pageID>
-7-

which is Dr. Fitz’s report. With those limitations, he could not

work. Finally, if plaintiff had the abilities described by Dr.

Gaitens in his testimony, he could perform the gate guard job as

it is usually performed (though not necessarily how plaintiff

performed it), and a full range of sedentary work. 

VI. The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 15

through 24 of the administrative record. The important findings

in that decision are as follows.

The Administrative Law Judge found, first, that plaintiff

met the insured status requirements of the Social Security Act

through December 31, 2009, but not afterward. Second, the ALJ

found that plaintiff had not engaged in substantial gainful

activity from his alleged onset date of November 1, 2006 through

the date of the decision. As far as plaintiff’s impairments are

concerned, the ALJ found that plaintiff had severe impairments

including degenerative disc disease and status-post lumbar

fusion. 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 a limited range of light work, with the

ability to sit, stand or walk for up to six hours a day so long

as he could change positions at will. He also could occasionally

bend, stoop, crouch, kneel and bend, but could not climb ladders,

ropes, or scaffolds or work around unprotected heights or

hazardous machinery. These restrictions did not preclude

plaintiff from performing his past relevant work as a security

gate guard. As a result, the ALJ found that plaintiff was not

under a disability and was not entitled to benefits.

VII. Plaintiff’s Statement of Specific Errors

Case: 2:11-cv-00623-EAS-TPK Doc #: 19 Filed: 04/18/12 Page: 7 of 18 PAGEID #: <pageID>
-8-

 In his statement of specific errors, plaintiff raises the

following issues. First, he argues that the ALJ erroneously

rejected the opinion of his treating physician, Dr. Fitz, instead

crediting the opinion of Dr. Gaitens, which, he contends, was

made unreliable by Dr. Gaitens’ apparent lack of knowledge of

certain aspects of the medical record. Second, he asserts that

the ALJ denied him due process by refusing to allow his counsel

to ask certain questions about his past relevant work. Third, he

asserts that the hypothetical question posed to the vocational

expert was defective because it did not take plaintiff’s use of

medications with substantial side effects into account. 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

Case: 2:11-cv-00623-EAS-TPK Doc #: 19 Filed: 04/18/12 Page: 8 of 18 PAGEID #: <pageID>
-9-

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).

The Court begins with plaintiff’s contention that the

opinion of his treating physician, Dr. Fitz, was improperly

rejected, because that is a potentially dispositive issue. It is

well-established 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. 

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). 

A summary by an attending physician made over a period of time

need not be accompanied by a description of the specific tests in

order to be regarded as credible and substantial. Bull v. Comm’r

of Social Security, 629 F.Supp. 2d 768, 780-81 (S.D. Ohio 2008),

citing Cornett v. Califano, No. C-1-78-433 (S.D. Ohio Feb. 7,

1979). 

A physician's statement that plaintiff is disabled is not

determinative of the ultimate issue. The weight given

such a statement depends on whether it is supported by

sufficient medical data and is consistent with other evidence

in the record. 20 C.F.R. §404.1527(d); Harris v. Heckler, 756

F.2d 431 (6th Cir. 1985). 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 nontreating medical sources, and may consider the claimant’s

Case: 2:11-cv-00623-EAS-TPK Doc #: 19 Filed: 04/18/12 Page: 9 of 18 PAGEID #: <pageID>
-10-

activities of daily living. Cutlip v. Secretary of HHS, 25 F.3d

284 (6th Cir. 1994).

If not contradicted by any substantial evidence, a treating

physician's medical opinions and diagnoses are afforded complete

deference. Harris, 756 F.2d at 435. The Commissioner may have

expertise in some matters, but cannot supplant the medical

expert. Hall v. Celebrezze, 314 F.2d 686, 690 (6th Cir. 1963).

The "treating physician" rule does not apply to a one-time

examining medical provider, and the same weight need not be given

to such an opinion even if it favors the claimant. Barker v.

Shalala, 40 F.3d 789 (6th Cir. 1994).

If the Commissioner does not give controlling weight to the

opinion of a treating physician, the Commissioner is required to

explain what weight has been assigned to that opinion, and why. 

Failure to articulate the reason for discounting such an opinion

with a level of specificity that allows the claimant to

understand why his physician’s views have not been accepted, and

to allow the Court to review the ALJ’s bases for making that

decision, is almost always reversible error. Rogers v. Comm’r of

Social Security, 486 F.3d 234, 242 (6th Cir. 2007); Wilson v.

Comm’r of Social Security, 378 F.3d 541, 544 (6th Cir. 2004).

Here, the ALJ explicitly adopted the residual functional

capacity finding made by Dr. Gaitens. In doing so, the ALJ found

him to be well-qualified and found his opinion to be “consistent

with and well-supported by the record as a whole, including the

objective clinical and laboratory findings referenced in this

decision.” The ALJ bolstered this conclusion with the findings

reported by Dr. Cho, although he noted that Dr. Gaitens had

access to additional records which Dr. Cho did not. (Tr. 22).

Turning to Dr. Fitz’s opinion, the ALJ explained that he

gave it “little weight.” He provided the following reasons for

doing so: (1) “the physician’s opinion are (sic) inconsistent

Case: 2:11-cv-00623-EAS-TPK Doc #: 19 Filed: 04/18/12 Page: 10 of 18 PAGEID #: <pageID>
-11-

with his own clinical findings (Exhibits (sic) 2F) and are

unsupported by the diagnostic testing and longitudinal clinical

evidence in the record”; (2) Dr. Fitz “did not reference specific

medical findings within the record and/or explain how those

medical findings supported the opinion expressed as to the

severity of the claimant’s impairments and the limitations they

imposed on the claimant’s functional capacity to work”; and (3)

because “the final responsibility for determining whether a

claimant is ‘disabled’ or ‘unable to work’ is an area reserved to

the Commissioner ....” Id. The third reason is clearly

boilerplate language which has no application here, since Dr.

Fitz made specific determinations about plaintiff’s physical

abilities which, according to the vocational expert, are

inconsistent with the performance of substantial gainful

activity, rather than some general statement as to

unemployability. Thus, the Court’s analysis will focus on the

other two reasons given for discounting Dr. Fitz’s opinion.

The first reason given is, at best, incomplete. It fails to

recognize that there are additional records from Dr. Fitz besides

those grouped under Exhibit 2F. It also does not explain, apart

from asserting in conclusory fashion (and in language which could

be used in any case like this) exactly how it is that Dr. Fitz’

opinion about plaintiff’s physical ability is inconsistent with

Dr. Fitz’ clinical findings, or which of those findings presents

that inconsistency. Further, it fails to state exactly how Dr.

Fitz’ opinion is unsupported by diagnostic testing; there is a

wealth of diagnostic testing, and Dr. Fitz described it in detail

in his reports. Further, the ALJ’s decision does not say how Dr.

Fitz’ opinion is unsupported by the longitudinal clinical

evidence. Dr. Fitz was the source of a good bit of the

longitudinal clinical evidence as well, and he cited it in the

narrative letter accompanying the form he filled out. Thus, the

Case: 2:11-cv-00623-EAS-TPK Doc #: 19 Filed: 04/18/12 Page: 11 of 18 PAGEID #: <pageID>
-12-

first reason simply lacks the type of detail required when an ALJ

decides to give little weight to a treating source’s opinion.

What the ALJ may have meant, although he did not say this

explicitly, is that in his opinion, the medical evidence - in

whatever form it took, whether diagnostic tests, reports of

symptoms, or clinical evidence and findings - is inconsistent

with a finding that plaintiff was as limited as Dr. Fitz thought. 

Although the ALJ described and characterized much of this

evidence in an earlier portion of his decision (Tr. 20), he did

so as part of his determination that plaintiff’s testimony was

not entirely credible. That is a different determination than

the process which must be followed in evaluating a treating

source’s opinion. Compare 20 C.F.R. §404.1527(d) with 20 C.F.R.

§404.1529. Consequently, the Court has little difficulty

concluding that this first proffered rationale is simply too

vague and too much reliant on the ALJ’s own view of how medical

evidence supports, or does not support, the treating source’s

opinion to pass muster under the applicable regulation and case

law. See, e.g., Simpson v. Comm’r of Social Security, 344 Fed.

Appx. 181, *12 (6th Cir. August 27, 2009)(an ALJ may not make his

own medical findings), citing, inter alia, Rohan v. Chater, 98

F.3d 966, 970 (7th Cir. 1996); Harmon v. Astrue, 2011 WL 834138,

*10 (N.D. Ohio Feb. 8, 2011)(ALJ may not substitute his own lay

judgment of the significance of treatment notes for the

functional capacity assessment of the treating physician),

adopted and affirmed 2011 WL 825710 (N.D. Ohio Mar. 4, 2011);

Friend v. Comm’r of Social Security, 375 Fed. Appx. 543, *8 (6th

Cir. April 28, 2010)(“it is not enough to dismiss a treating

physician's opinion as ‘incompatible’ with other evidence of

record; there must be some effort to identify the specific

discrepancies and to explain why it is the treating physician's

conclusion that gets the short end of the stick”); Sharp v.

Case: 2:11-cv-00623-EAS-TPK Doc #: 19 Filed: 04/18/12 Page: 12 of 18 PAGEID #: <pageID>
-13-

Barnhart, 152 Fed. Appx. 503, *6 (6th Cir. 2005)(an ALJ must

“explain why the extensive test results, diagnoses and other

information contained in [a claimant’s] submitted medical records

do not suffice to support his physicians' opinions”).

The second reason advanced by the ALJ for discounting Dr.

Fitz’ opinion fares no better. The ALJ appears to take issue

with the way in which Dr. Fitz articulated his reasons for

believing that plaintiff was severely limited in his ability to

sit, stand and walk; the second reason given for discounting that

opinion seems to focus on the claimed absence of any explanation

of how that opinion relates to the medical records. However, Dr.

Fitz provided a very detailed letter in which he explained

exactly which conditions affected plaintiff’s ability to sit,

stand or walk for prolonged periods of time. These conditions

were all diagnosed by objective testing (they were, as Dr. Fitz’

letter noted, spinal stenosis and degenerative disc disease, the

latter of which the ALJ also found to be a severe impairment, and

the former of which is supported by multiple tests and medical

opinions). Perhaps the ALJ meant that Dr. Fitz did not directly

explain how the diagnoses and test results demonstrated

conclusively that plaintiff would have trouble sitting, standing

or walking for an eight-hour work day, but as Dr. Gaitens

acknowledged, some limitations caused by pain are subjective in

nature and will never have a direct correlation with objective

measurements. (Tr. 57). In fact, that is one of the reasons why

a long-time treating source’s opinion on such matters is usually

accorded more weight than a doctor who simply reviews the medical

records (and who acknowledges, as Dr. Gaitens candidly did, that

he could not take any subjective evidence into account in making

his evaluation of the claimant, see Tr. 54). The Commissioner’s

own regulations reflect this principle, stating that “[treating]

sources are likely to be the medical professionals most able to

Case: 2:11-cv-00623-EAS-TPK Doc #: 19 Filed: 04/18/12 Page: 13 of 18 PAGEID #: <pageID>
-14-

provide a detailed, longitudinal picture of [the claimant's]

medical impairment(s) and may bring a unique perspective to the

medical evidence that cannot be obtained from the objective

medical findings alone ....” 20 C.F.R. §404.1527(d). The ALJ’s

second rationale for rejecting Dr. Fitz’ opinion, to the extent

that it is directed not simply to the way in which Dr. Fitz

explained it - and the Court has found nothing deficient about

that explanation - but to the foundation for that opinion, is

inconsistent with this regulation, and seems to require a

treating source to draw an exact correlation between objective

testing and the actual pain or limitations experienced by a

patient before an ALJ may give the source’s opinion any

significant weight. This, too, is error. 

The Court also agrees with plaintiff that the ALJ did not,

as the controlling case law requires, demonstrate compliance with

§404.1527(d) after finding that Dr. Fitz’ opinion was not to be

given controlling weight. The Court of Appeals has explained

that 

If the ALJ declines to give a treating source's opinion

controlling weight, he must then balance the following

factors to determine what weight to give it: “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 specialization of the treating source.” Wilson v.

Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir.2004)

(citing 20 C.F.R. § 404.1527(d)(2)).

Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011). The ALJ’s

opinion in this case cites to none of these factors, failing to

discuss the fact that Dr. Fitz was a long-time treating source,

that he examined plaintiff frequently, that his findings and

opinions appeared to be consistent over time, that there was

additional support in the evaluation done by Dr. Herceg, and that

Dr. Fitz appears to be well-qualified to diagnose and treat

Case: 2:11-cv-00623-EAS-TPK Doc #: 19 Filed: 04/18/12 Page: 14 of 18 PAGEID #: <pageID>
-15-

conditions such as spinal stenosis or degenerative disc disease. 

Although the Commissioner may be correct that an ALJ does not

have to recite in every case that he has considered these various

factors, there must be at least some evidence in the record to

support the claim that he did so. This record is totally devoid

of such evidence, and the Court simply cannot find from the

record that the ALJ followed the proper procedure and considered

the appropriate factors which decisions like Cole and which

§404.1527(d) require an ALJ to consider. Thus, the decision, as

it currently stands, cannot be affirmed.

This conclusion largely moots the second portion of

plaintiff’s first claim of error, which is directed to the

foundation of Dr. Gaitens’ opinion. However, it is worth noting

that Dr. Gaitens did appear to be unaware of certain important

parts of the medical record, including, as plaintiff points out

in his memorandum, evidence of occasional inability to detect

reflexes (particularly a patellar reflex), evidence of positive

straight leg raising, and evidence of decreased range of motion. 

Such matters are unquestionably part of the medical record in

this case, and should the ALJ deem it necessary to re-evaluate

Dr. Gaitens’ testimony after giving the appropriate weight to Dr.

Fitz’ opinion, there should be some discussion about why these

omissions either do or do not detract from the weight to be given

to Dr. Gaitens’ testimony.

Plaintiff’s next argument is that his counsel was improperly

precluded from eliciting testimony about his work history. He

characterizes this as a due process violation. The focus of this

argument is questions about plaintiff’s prior work as a gate

guard. A review of the record shows, however, that all of the

information material to evaluating that job was eventually

brought out through questioning, and plaintiff does not really

argue otherwise - his point goes more to the timing of these

Case: 2:11-cv-00623-EAS-TPK Doc #: 19 Filed: 04/18/12 Page: 15 of 18 PAGEID #: <pageID>
-16-

questions than the issue of whether they were eventually

answered. Plaintiff cites no case authority in support of this

argument, and although claimants for social security benefits do

have some procedural due process rights, see, e.g., Day v.

Shalala, 23 F.3d 1052 (6th Cir. 1994), the Court can find no

violation of procedural due process here. The second claimed

error lacks merit.

Finally, plaintiff argues that the hypothetical question

posed to Mr. Rosenthal was not supported by substantial evidence. 

The specific issue he raises relates to his use of narcotic pain

medication. Plaintiff appears to be correct that the ALJ

misunderstood or misinterpreted the record about his prescription

pain medication, and that he did take at least one narcotic

medication, Vicodin, on a regular basis. However, Dr. Gaitens

was aware of the use of that medication and did not impose

restrictions on plaintiff’s work abilities beyond the need to

avoid unprotected heights or moving machinery. Thus, if the ALJ

had been entitled to rely on Dr. Gaitens’ assessment of

plaintiff’s abilities, there would have been no error concerning

the effect of plaintiff’s medication. Of course, this issue is

largely mooted by the Court’s determination that the current

administrative decision did not properly determine that Dr.

Gaitens’ view of plaintiff’s functional capacity was the correct

one.

The remaining issue is what disposition of the case is

appropriate. If the Secretary's decision is not supported by

substantial evidence, the Court must decide whether to remand the

matter for rehearing or to reverse and order benefits granted. 

The Court has authority to affirm, modify, or reverse the

Secretary's decision "with or without remanding the cause for

rehearing." 42 U.S.C. §405(g). The primary factor to be

considered is whether the proof of disability is strong, and

opposing evidence is lacking in substance, so that remand would

Case: 2:11-cv-00623-EAS-TPK Doc #: 19 Filed: 04/18/12 Page: 16 of 18 PAGEID #: <pageID>
-17-

merely involve the presentation of cumulative evidence. See

Bailey v. Comm’r of Social Security, 173 F.3d 428, *5 (6th Cir.

Feb. 2, 1999)(unreported), citing Sayers v. Gardner, 380 F.2d 940

(6th Cir. 1967); Guy v. Schweiker, 532 F.Supp. 493, 499 (S.D.

Ohio 1982); Estes v. Harris, 512 F.Supp. 1106, 1116 (S.D. Ohio

1981). However, “when the Secretary misapplies the regulations

or when there is not substantial evidence to support one of the

ALJ's factual findings and his decision therefore must be

reversed, the appropriate remedy is not to award benefits. The

case can be remanded under sentence four of 42 U.S.C. § 405(g)

for further consideration.” Faucher v. Sec’y of HHS, 17 F.3d

171, 175-76 (6th Cir. 1994).

Here, although Dr. Fitz’ opinion would support a finding of

disability, the error committed by the ALJ was not properly

weighing that opinion or articulating an adequate basis for

giving it little or no weight. That is a misapplication of the

regulation relating to the opinions of treating sources. A

remand would not necessarily result in the mere presentation of

cumulative evidence or an automatic award of benefits. 

Therefore, in this case, remand is the proper remedy. 

 VIII. Recommended Decision

Based on the above discussion, it is recommended that the

plaintiff’s statement of errors be sustained to the extent that

the case be remanded to the Commissioner for further proceedings,

pursuant to 42 U.S.C. §405(g), sentence four.

IX. 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

Case: 2:11-cv-00623-EAS-TPK Doc #: 19 Filed: 04/18/12 Page: 17 of 18 PAGEID #: <pageID>
-18-

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-00623-EAS-TPK Doc #: 19 Filed: 04/18/12 Page: 18 of 18 PAGEID #: <pageID>