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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

HOWARD W. RAMSEY, 

 Plaintiff, 

 vs. Civil Action 2:11-CV-1123 

 Judge Sargus 

 Magistrate Judge King 

MICHAEL J. ASTRUE, Commissioner 

of Social Security, 

 Defendant. 

REPORT AND RECOMMENDATION 

I. 

Introduction and Background

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

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

Security denying plaintiff’s applications for disability insurance 

benefits and supplemental security income.1

 This matter is now before the 

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

Memorandum in Opposition, Doc. No. 16, and plaintiff’s Reply Memorandum, 

Doc. No. 17. 

 Plaintiff Howard W. Ramsey filed his applications for benefits 

on October 4, 2007, alleging that he has been disabled since October 1, 

1999, as a result of mental illness, a herniated disc and cellutis. PAGEID

249. The applications were denied initially and upon reconsideration, and 

plaintiff requested a de novo hearing before an administrative law judge. 

 

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The administrative law judge found that plaintiff had not established a severe 

impairment prior to the lapse of his insured status on September 30, 2004. The 

administrative law judge therefore considered the issue of disability only as it 

related to plaintiff’s claim for supplement security income. PAGEID 67.

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 A video hearing was held on July 14, 2010, at which plaintiff, 

represented by counsel, appeared and testified as did Norman C. Hooge, who 

testified as a vocational expert. In a decision dated August 5, 2010, the 

administrative law judge concluded that plaintiff was not disabled within 

the meaning of the Social Security Act. PAGEID 65-77. That decision became 

the final decision of the Commissioner of Social Security when the Appeals 

Council declined review on November 4, 2011. PAGEID 59-61. 

 Plaintiff was 37 years old on the alleged disability onset date. He 

has a high school-equivalent education and past relevant work as a roofer’s 

helper and general laborer. Plaintiff served in the military from November 

1981 to May 1988. 

II. 

Plaintiff’s Testimony 

 Plaintiff testified at the administrative hearing that he lives 

alone. PAGEID 96. His last significant work was in 1999, when he suffered 

a panic attack and was thereafter referred to mental health treatment. 

PAGEID 97. He attributes his failure to engage in significant work since 

that time to the manic phase of his bipolar disorder. PAGEID 98. He would 

typically start on a high, would then miss work and become depressed and 

then eventually quit. Id. 

 His bipolar disorder alternates between manic and depressed phases. 

“[E]very day I wake up, I don’t know which way it’s going to be.” PAGEID

100. Symptoms of his manic phase include an inability to concentrate, 

hyperactivity, racing thoughts, accelerated speech and difficulty 

sleeping. PAGEID 99. He feels “like I’m going a mile a minute.” PAGEID

101. When he is depressed, he isolates himself, is edgy and sleeps a lot. 

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PAGEID 100. Prior to treatment, his depressed phase would last for 2 to 

3 weeks; with treatment, that phase lasts only 3 to 5 days. PAGEID 100. 

 

He was dissatisfied with treatment at the Veteran’s Administration 

(“VA”) facility because treatment there consisted of “double stacking 

anti-depressants,” PAGEID 101, for anxiety and depression even though 

plaintiff insisted that he suffered from bipolar disorder. After two 

years, plaintiff sought out private psychiatric treatment from Larry 

Pfahler, M.D. PAGEID 102. The medication prescribed by Dr. Pfahler helps 

to reduce the length of plaintiff’s “spells or cycles.” Id. 

Plaintiff has continuing problems with concentration and has to be 

reminded of appointments. PAGEID 103. 

 Plaintiff testified that he attempted to return to work in 2007 but 

injured his back. PAGEID 99. Pain medications prescribed for that 

condition caused gastric problems. Id. He further testified that at the 

same time, he began drinking again. Id. He continues to suffer constant 

pain in his lower back, which shoots into the left leg and occasionally 

the right leg. PAGEID 104-05. A discectomy only increased the pain. Id.

He has attempted physical therapy on three different occasions, but the 

condition only worsened. Id. 

 Plaintiff estimated that he can walk no more than a quarter of a mile, 

stand for approximately 10 minutes and sit for 15 to 20 minutes. PAGEID

106. He has used a cane for the prior three years if he must walk any 

distance. PAGEID 106-07. He can lift and carry only light items such as 

a grocery bag. He cannot bend or stoop. Id.

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 Plaintiff also has problems with his neck and shoulder. The pain in 

his neck radiates into his arms. PAGEID 108. He has trouble holding his 

coffee pot in the morning. Id. He sees a chiropractor and receives treatment 

at the VA pain clinic for his back and neck. Id.

 On a typical day, plaintiff spends most of the day at home, although 

he tries to get out of the house once per day, as recommended by his 

psychiatrist. PAGEID 109. If he is over-active, however, he will be in 

pain for the next two days. Id.

III. 

The Medical Evidence of Record.

Mental Impairment

 Plaintiff underwent mental health treatment at Southeast, Inc. from 

July 2000 to May 2001. PAGEID 362-77. Psychiatrist R. Ware, M.D., noted 

on August 17, 2000, that plaintiff was pleasant and cooperative, exhibited 

normal speech, had a spontaneous affect and exhibited no psychosis. Dr. 

Ware diagnosed panic attacks with agoraphobia. PAGEID 373. On August 24, 

2000, plaintiff reported that he noticed improvement with a new medication 

but that he was still experiencing “a lot of anxiety & panic attacks.” 

PAGEID 372. He requested a note characterizing him as disabled “in order 

to receive some financial assistance.” Id. According to Dr. Ware, 

plaintiff’s inability to work was temporary. Id. In March 2001, plaintiff 

reported that his panic attacks had decreased from three or four attacks 

per day to two to three per week. PAGEID 369-70. In May 2001, he reported 

no panic attacks with Celexa and no adverse side effects from medication. 

His affect was bright and appropriate and his mood was euthymic. PAGEID

365-66. Services were terminated in July 2001 for failure to participate 

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in psychotherapy. Final diagnosis was panic attacks with agoraphobia; 

plaintiff was assigned a Global Assessment of Functioning (“GAF”) score 

of 65. PAGEID 363-64. 

 In June 2007, plaintiff underwent a mental health consultation at the 

VA facility. PAGEID 554-57. A staff psychiatrist diagnosed an adjustment 

disorder, mixed and rule out depression, not otherwise specified. Plaintiff 

was assigned a GAF score of 60. PAGEID 556. In July 2007, plaintiff 

complained of “a lot of anxiety” and stress. He was also drinking often. 

PAGEID 584. Two weeks later, plaintiff reported that psychotropic 

medications were “working well for him” and he denied alcohol use. PAGEID

577. He was assigned a GAF score was 78. PAGEID 578. The record shows that 

plaintiff continued to receive mental health treatment at the VA facility 

through June 2008. PAGEID 563-67, 739-42, 768-70, 799-803, 810-12. 

 In December 2007 and April 2008, state agency psychologists reviewed 

the record and concluded that plaintiff’s mental impairments were not 

severe. PAGEID 608, 712. 

 Plaintiff began mental health treatment at the Lower Heights 

Christian Health Center (“LHCHC”) in August 2009. PAGEID 987-89. William 

Turek, D.O., diagnosed a depressive disorder. PAGEID 988-89. The following 

month, plaintiff reported that the prescribed psychotropic medications had 

a “good effect.” Plaintiff noted that this was the most stable emotionally 

he had ever been. PAGEID 981. In October 2009, although his manic episodes 

had continued, plaintiff reported that he was pleased with his emotional 

state. PAGEID 975. In November 2009, plaintiff reported to Larry Pfahler, 

M.D., that he had experienced a few days of depression. PAGEID 971. Dr. 

Pfahler recommended that he get out of his apartment. Id. 

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 In March 2010, Dr. Pfahler completed a mental residual functional 

capacity assessment in which he indicated that plaintiff was moderately 

impaired in his ability to accept instructions from or respond 

appropriately to criticism from supervisors; to work in coordination with 

or in proximity to others without distracting them or exhibiting behavioral 

extremes; to respond appropriately to coworkers or peers; to relate to the 

general public and maintain socially appropriate behavior; and to carry 

through with instructions and complete tasks. PAGEID 1046-48. Plaintiff 

was moderately to markedly limited in his ability to respond appropriately 

to changes in the work setting, PAGEID 1048, and was markedly impaired in 

his ability to perform and complete work tasks in a normal work day or week 

at a consistent pace; to work in cooperation with or in proximity to others 

without being distracted by them; to process subjective information 

accurately and to use appropriate judgment; to maintain attention and 

concentration for more than brief periods of time; to perform at production 

levels expected by most employers; to behave predictably, reliably, and 

in an emotional stable manner; to remember locations and workday procedures 

and instructions; to be aware of normal hazards and take necessary 

precautions; and to tolerate customary work procedures. PAGEID 1046-48. 

Dr. Pfahler concluded that plaintiff had “failed lots of jobs!! for whatever 

reason,” PAGEID 1048, but believed that plaintiff was capable of managing 

his own funds. Id. 

 

Physical Impairment 

 Following a September 2007 injury to his back, plaintiff was diagnosed 

with an acute lumbosacral strain. PAGEID 396. An MRI of the lumbar spine 

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showed chronic disc degeneration at L5-S1 associated with discogenic 

inflammation and an extruded disc behind the L5 vertebral body from the 

L4-L5 disc space. PAGEID 529-30. Leon Hughes, M.D., directed that 

plaintiff not perform work requiring heavy lifting, repetitive bending, 

and prolonged standing for one month. PAGEID 560-61. On October 15, 2007, 

Dr. Hughes refused plaintiff’s request for more Percocet, but indicated 

that plaintiff remained unable to work until December 12, 2007, by which 

time “he will have been seen in the pain management clinic and condition 

stabilized.” PAGEID 745. Plaintiff began using a TENS unit in November 2007. 

PAGEID 803. 

 Mounir Sanhaji, M.D., a pain management specialist, treated plaintiff 

from October 2007 until January 2009. PAGEID 674-76, 751-60, 782, 794-95, 

796-99, 804-08, 856, 859-61, 869-74, 882-85, 907-10, 960-62. In 

September, October and November 2007, Dr. Sanhaji wrote cursory statements 

of disability for plaintiff. PAGEID 620 (plaintiff “is not able to work. 

He had a herniated lumbar disc and will not be able to work for one month;” 

plaintiff was “being cared for at the VAOPC and has a herniated disc. He 

is unable to work until 12/12/07;” plaintiff was “unemployable until 

1/20/08.”) Id. On January 16, 2008, Dr. Sanhaji indicated that plaintiff 

could return to work on February 16, 2008. PAGEID 556. 

 State agency physicians reviewed the file in December 2007 and June 

2008, and concluded that plaintiff could perform a reduced range of light 

work. PAGEID 610-17, 829-36. 

 On April 2, 2008, Rebecca Brightman, M.D., performed a left L4-L5 

hemilaminotomy and discectomy for a diagnosis of left L4-L5 herniated 

nucleus pulposus. PAGEID 689-90. On April 5, 2008, plaintiff presented 

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to the emergency room complaining of postoperative pain in the low back 

radiating down his left leg. His neurological examination was normal and 

there was no evidence of cord compression. Prednisone was prescribed. 

PAGEID 694-703. The following month, Dr. Brightman noted continued back 

pain and muscle spasms. She recommended physical therapy. PAGEID 713. 

 Although plaintiff was initially evaluated for physical therapy, in 

August 2008, Dr. Sanhaji noted that no physical therapy had begun. PAGEID

874. 

 Plaintiff underwent a second physical therapy evaluation on March 30, 

2009. PAGEID 949-51. Plaintiff presented with low back and radicular lower 

extremity pain, left greater than right, with range of motion and strength 

deficits and some diminished sensation in the left lower extremity. The 

physical therapist noted that plaintiff had good rehabilitation potential. 

PAGEID 950. On April 29, 2009, however, the physical therapist noted 

plaintiff’s failure to appear for therapy or to comply with his home 

exercise program. Plaintiff also reported that he hurt all over. PAGEID

944. Plaintiff was approved for another month of therapy to 

complete his remaining visits. PAGEID 938. In May 2009, plaintiff’s 

physical therapist again noted a failure to appear for therapy 

appointments. PAGEID 872. Plaintiff also acknowledged that he had not been 

consistent in his home exercise program. PAGEID 871. Plaintiff’s 

attendance over the ensuing two months was inconsistent. PAGEID 912-29. 

 Plaintiff underwent chiropractic treatment by Scott Gosselin, D.C., 

from February 10, 2010 to March 5, 2010. PAGEID 1028-43. Plaintiff 

reported improvement in his neck. PAGEID 1037. 

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 On March 25, 2010, plaintiff presented to Dr. Turek at LHCHC for 

follow-up and medication refills. Dr. Turek warned plaintiff that the 

practice could terminate its treatment of him if he engaged in drug seeking 

behavior. PAGEID 1038-39. 

 In April 2010, plaintiff underwent a sleep study performed by 

neurologist, James P. Fulop, M.D., who diagnosed hypersomnia, a 

non-specific finding. PAGEID 1057-60. Dr. Fulop also reported that 

plaintiff was disabled by bipolar disorder and anxiety and was very 

limited by chronic pain. PAGEID 1119. 

 An April 2010 MRI of the lumbar spine showed postoperative changes 

at L4-L5 with no complications. There was no evidence of recurrent disc, 

marked mass-effect or canal stenosis. There was evidence of advanced 

degenerative disc disease at L5-S1 but no large focal disc protrusion. 

PAGEID 1050-51. 

 Thomas Moon, M.D., saw plaintiff at the VA pain clinic in May 2010. 

Plaintiff had an antalgic gait and used a quad cane. PAGEID 1091. He 

exhibited pain with range of motion and on palpation of his lumbar spine 

but had full muscle strength in both lower extremities. PAGEID 1092. The 

following month, plaintiff reported that he was happy with his pain relief. 

PAGEID 1123. 

IV. 

Administrative Decision 

 In his decision, the administrative law judge found that plaintiff’s 

severe impairments consist of arthritis in the entire spine causing pain 

in his cervical, lumbar, and thoracic spine; degenerative disc disease of 

the cervical and lumbar spine; sleep apnea and insomnia; hypertension; 

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obesity; hernias; bipolar disorder; and gastroesophageal reflux disease. 

PAGEID 67. The administrative law judge went on to find that plaintiff’s 

impairments neither met nor equaled any listed impairment. PAGEID 68. 

 The administrative law judge found that plaintiff has the physical 

residual functional capacity to perform light exertion. Specifically, the 

administrative law judge found that plaintiff can lift and/or carry 20 

pounds occasionally and 10 pounds frequently; can stand and/or walk for 

6 hours in an 8 hour workday; and can sit for 6 hours in an 8 hour workday. 

The administrative law judge also found that plaintiff could never climb 

ladders, ropes or scaffolding but could occasionally climb ramps and 

stairs. He could occasionally stoop and kneel. PAGEID 69-75. The 

administrative law judge found that, from a mental standpoint, plaintiff 

could understand and carry out simple 1- to 3-step tasks, could not work 

at a forced or assembly line pace and could have only occasional contact 

with co-workers, supervisors and the general public. PAGEID 69. 

 Although this residual functional capacity would not permit the 

performance of plaintiff’s past relevant work, the administrative law judge 

relied on the testimony of the vocational expert to find that plaintiff 

is capable of performing other work that exists in significant numbers in 

the national economy. PAGEID 75-77. Accordingly, the administrative law 

judge concluded that plaintiff was not disabled within the meaning of the 

Social Security Act. PAGEID 77. 

V.

DISCUSSION

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

decision is limited to determining whether the findings of the 

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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, 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 his Statement of Errors, plaintiff contends that the 

administrative law judge erred in his credibility findings. In a related 

argument, plaintiff contends that, had the administrative law judge 

properly credited plaintiff’s subjective complaints, he would have 

concluded that plaintiff is disabled. Plaintiff also argues that the 

administrative law judge improperly evaluated the opinions of Drs. Sanhaji, 

Pfahler and Fulop and should have secured the testimony of a medical expert. 

Because the Court concludes that the administrative law judge failed to 

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properly assess plaintiff’s credibility, the Court recommends that the 

action be remanded to the Commissioner. 

A claimant's subjective complaints must be supported by objective 

medical evidence in order to serve as a basis for a finding of disability. 

Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1234 (6th Cir. 1993). 

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

a court must look to the record to determine whether there is objective 

medical evidence of an underlying medical condition. Stanley v. Sec’ of 

Health & Human Servs., 39 F.3d 115, 117 (6th Cir. 1994). If so, the court 

must then determine (1) whether objective medical evidence confirms the 

severity of the complaint 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 complaint. Id. (quoting 

Duncan v. Sec’y of Health & Human Servs., 801 F.2d 847, 853 (6th Cir. 1986). 

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

Cir. 2007). 

The administrative law judge’s credibility determination is accorded 

great weight and deference because of the administrative law judge’s unique 

opportunity to observe a witness' demeanor while testifying. Buxton v. 

Halter, 246 F.3d 762, 773 (6th Cir. 2001) (citing Gaffney v. Bowen, 825 

F.2d 98, 973 (6th Cir. 1987)). However, credibility determinations must 

be clearly explained. See Auer v. Sec’y of Health & Human Servs., 830 F.2d 

594, 595 (6th Cir. 1987). If the administrative law judge's credibility 

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determinations are explained and enjoy substantial support in the record, 

a court is without authority to revisit those determinations. See Felisky 

v. Bowen, 35 F.3d 1027, 1036 (6th Cir. 1994); Beavers v. Sec’y of Health, 

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

 In the case presently before the Court, the administrative law judge 

found that plaintiff’s subjective complaints are not credible to the extent 

that they were inconsistent with the residual functional capacity as found 

by the administrative law judge. PAGEID 71. From both a mental and 

physical standpoint, the administrative law judge specifically found “no 

objective medical evidence to show that the severity would prevent 

[plaintiff] from doing a job that would follow the . . . residual functional 

capacity” found by the administrative law judge. PAGEID 71-73. However, 

the administrative law judge merely summarized the medical evidence -- 

which includes surgical procedures, pain medication, psychotropic 

medication and mental health counseling -- and offered no explanation why 

that evidence failed to support plaintiff’s subjective complaints. Under 

these circumstances, the Court is unable to evaluate the administrative 

law judge’s credibility assessment or to conclude that that assessment is 

supported by substantial evidence. 

 It is therefore RECOMMENDED that the decision of the Commissioner be 

reversed and that the action be remanded to the Commissioner of Social 

Security for further proceedings. 

 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 

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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). 

Date: January 29, 2013 s/Norah McCann King 

Norah McCann King 

 United States Magistrate Judge 

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