IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

PHILLIP POOLE, 

Plaintiff, 

 vs. Civil Action 2:12-CV-101 

Judge Frost 

Magistrate Judge King 

MICHAEL J. ASTRUE, Commissioner 

of Social Security, 

Defendant. 

OPINION AND ORDER 

This action seeks review of the administrative decision denying 

plaintiff’s application for supplemental security income. On February 5, 

2013, the United States Magistrate Judge recommended that the decision of 

the Commissioner of Social Security be affirmed and that the action be 

dismissed. Report and Recommendation, Doc. No. 14. This matter is now 

before the Court on plaintiff’s objections to that recommendation. 

Objection to Magistrate[] Judge’s Report and Recommendation (“Plaintiff’s 

Objections”), Doc. No. 15. The Court will consider the matter de novo. 

See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b). 

The administrative law judge found that plaintiff’s severe 

impairments consist of degenerative disc disease of the lumbar spine with 

moderate grade I spondylolisthesis at the L4-L5 vertebrae and mild disc 

bulges at the L2-L3 and L3-L4 vertebrae without stenosis. PAGEID 61. The 

administrative law judge also found that plaintiff’s impairments neither 

meet nor equal a listed impairment and leave plaintiff with the residual 

functional capacity for sedentary work. PAGEID 62. Specifically, the 

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administrative law judge found that plaintiff could lift and/or carry 10 

pounds occasionally and less than 10 pounds frequently, stand and/or walk 

for 2 hours in an 8 hour workday, and sit for 6 hours in an 8 hour workday. 

Id. In addition, plaintiff must have a sit/stand option exercised at his 

discretion that allows him to stretch his back and there should be no 

climbing of stairs, ropes, scaffolding, or ladders, kneeling, crouching, 

crawling, forced pace or quota requirements, or assembly line work; 

plaintiff can occasionally stoop. Id. Relying on the testimony of the 

vocational expert, the administrative law judge found that plaintiff was 

able to perform a significant number of jobs in the national economy. 

PAGEID 65. Accordingly, the administrative law judge concluded that 

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

PAGEID 66. 

In reaching this conclusion, the administrative law judge assigned 

no weight to the opinion of plaintiff’s treating orthopedic surgeon, F. 

Paul DeGenova, D.O., who opined that plaintiff “is total[ly] disabled 

unable [sic] to work a day in his life.” PAGEID 346. Specifically, the 

administrative law judge characterized this opinion as inconsistent with 

the objective medical evidence. In his objections, plaintiff argues that 

the administrative law judge erred in assigning no weight to Dr. DeGenova’s 

opinion of disability. Plaintiff’s Objections, p. 1. 

In rejecting this argument, the Magistrate Judge found that the 

administrative law judge 

specifically noted that the “objective medical evidence” 

included findings at the August 2005 consultative examination 

by Dr. Woskobnick, who recommended a limitation to sedentary 

activity, PAGEID 316-18, and findings at the December 2007 

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consultative examination by Dr. Weaver, who recommended a 

sit/stand option, PAGEID 322-30. PAGEID 63. Indeed, the 

residual functional capacity found by the administrative law 

judge incorporated these recommendations. See PAGEID 62. 

This Court concludes that the administrative law judge gave good 

reasons for the weight accorded the opinions of these treating 

physicians. See 20 C.F.R. § 416.927(d)(2). 

Report and Recommendation, p. 10. Plaintiff now argues that it was error 

for the administrative law judge to rely on the opinions of Robert 

Woskobnick, D.O., and Mark Weaver, M.D., because they – unlike Dr. DeGenova 

- did not have before them plaintiff’s July 1, 2008 MRI.1 Plaintiff’s 

Objections, pp. 1-2. The July 2008 MRI does not, however, contain any new 

findings that were not already available to and taken into account by Dr. 

Woskobnick and Dr. Weaver. Compare PAGEID 347-48 (July 2008 MRI revealing 

degenerative disc disease and spondylolisthesis at L4-5) with PAGEID 354 

(October 2004 x-rays documenting unstable spondylolytic spondylolisthesis 

of L4-5, moderately advanced discogenic spondylosis at L4-5 and L5-S1, 

marked posterior apophyseal joint arthrosis at L3-S1, intravertebral canal 

encroachment at L5-S1, and mild discogenic spondylosis at L2-3), and PAGEID

316-18 (Dr. Woskobnick’s August 1, 2005 opinion acknowledging x-rays that 

show spondylolisthesis of L4-5 and degenerative changes and diagnosing 

plaintiff with the same), and PAGEID 322-25 (Dr. Weaver’s December 17, 2007 

opinion acknowledging that he considered plaintiff’s October 2004 x-rays). 

The administrative law judge therefore did not err in relying on the 

opinions of Dr. Woskobnick and Dr. Weaver. 

 

1 That MRI documented multi-level degenerative disc disease, most prominent at L4-5 

and L5-S1, moderate grade I spondylolisthesis at L4-5 with mild facet joint 

diffusion and minimal disc bulge at L2-3 and L3-4 causing mild neural foraminal 

stenosis. There was no herniated discs or significant canal stenosis. PAGEID 

347-48.

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The Court has carefully considered plaintiff’s objections, as well 

as the entire record in this action. For the foregoing reasons and for 

the reasons articulated in the Report and Recommendation, the Court 

concludes that those objections are without merit. 

Plaintiff’s Objections, Doc. No. 15, are OVERRULED. The Report and 

Recommendation, Doc. No. 14, is ADOPTED AND AFFIRMED. The decision of the 

Commissioner of Social Security is AFFIRMED. This action is hereby 

DISMISSED. 

The Clerk shall enter FINAL JUDGMENT pursuant to Sentence 4 of 42 

U.S.C. § 405(g). 

 /s/ Gregory L. Frost 

 Gregory L. Frost 

 United States District Judge 

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