IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Samuel Graber, :

 Plaintiff, :

 v. : Case No. 2:12-cv-0009

Michael J. Astrue, : JUDGE MICHAEL H. WATSON

Commissioner of Social Magistrate Judge Kemp

Security, :

 Defendant. : 

 REPORT AND RECOMMENDATION

 I. Introduction

 Plaintiff, Samuel Graber, filed this action seeking review

of a decision of the Commissioner of Social Security denying his

application for disability insurance benefits. That application

was filed on January 28, 2004, and alleged that plaintiff became

disabled on February 27, 2003, due to back problems. 

After initial administrative denials of his application,

plaintiff was given a hearing before an Administrative Law Judge

on December 19, 2006. In a decision dated June 11, 2007, the ALJ

denied benefits. That became the Commissioner’s final decision

on September 7, 2007, when the Appeals Council denied review. 

Plaintiff then filed a civil action in the Court of Common Pleas

of Franklin County, Ohio, which was removed to this Court and

dismissed for lack of jurisdiction. Plaintiff petitioned the

Appeals Council for additional time to seek judicial review and

that request was granted on December 5, 2011. This case was

timely filed based on that decision.

After plaintiff filed this case, the Commissioner filed the

administrative record on March 12, 2012. Plaintiff filed his

statement of specific errors on May 14, 2012. The Commissioner

filed a response on August 13, 2013. No reply brief has been

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filed, and the case is now ready to decide.

II. Plaintiff’s Testimony at the Administrative Hearing

 Plaintiff, who was 50 years old at the time of the

administrative hearing and who has a high school education plus

two years of technical school, testified as follows. His

testimony appears at pages 357-69 of the administrative record.

 Plaintiff last worked in 2003 as a maintenance technician. 

Prior to that, he had a similar job with a different employer. 

He also worked as a sheet metal worker and did welding. 

At the hearing, plaintiff identified his primary problem as

needing to take breaks to take medication for his back pain. He

testified to chronic pain in his lower back which got worse due

to an automobile accident. Surgery had been recommended. He

also was having problems with his right shoulder, which was

injured in the same accident, and which caused him difficulty in

lifting his arm and pushing and pulling. Additionally, he

described issues with his leg and hip due to a prior fracture of

the femur, and neck problems resulting from a swimming accident.

In response to questions from his attorney, plaintiff

testified that his past work involved heavy lifting. However, he

did not believe he could do even a sedentary job because sitting

is painful. He testified to pain radiating down his right leg

accompanied by burning and numbness. Medication provides only

partial relief. He was unable to stand for more than two hours

and also had numbness in his right arm. Usually he is required

to lie down at least once a day for 45 minutes.

III. The Medical Records

The medical records in this case are found beginning on page

141 of the administrative record. The pertinent records can be

summarized as follows. 

Plaintiff underwent an MRI of his lumbosacral spine on

January 21, 2000. The test showed a broad-based disk protrusion

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at L4-5 with severe central canal stenosis and left nerve root

involvement. A right L5-S1 facet hypertrophy was also observed. 

(Tr. 144). A study done more than a year later showed some

additional compromise of the disk spacing at L1-2 and an

increased level of stenosis at L5-S1. (Tr. 145). Treatment

notes from 2003 indicate that plaintiff had been treated with

steroid injections with significant relief, and that he also had

a radiofrequency lesioning of the left lumbar medial branch

nerves with a moderate reduction in pain. (Tr. 151-52). He had

been receiving injections since 2000.

Another MRI was done on March 16, 2004, on both plaintiff’s

lumbar spine and his right shoulder. The shoulder study showed

degenerative joint disease and a partial tear of the

supraspinatus tendon, and the spinal study confirmed degenerative

disease most pronounced at the L4-5 level. (Tr. 190). Emergency

room notes for 2003 show that he was seen there a number of times

for exacerbation of his back pain, including from a motor vehicle

accident, and that he was being treated with methadone. On March

18, 2004, his treating physician, Dr. Girijashanker, reported

that plaintiff was not able to work due to multiple medical

problems including degenerative joint disease of the right

shoulder and spine, COPD, major depression, and hyperlipidemia. 

(Tr. 213). 

Plaintiff was examined by Dr. Nutter on April 6, 2004. 

Plaintiff reported worsening of his back pain since the February,

2003 accident. His pain was constant with radiation down either

leg. He also reported neck and right shoulder pain. At that

time, he was taking Percocet for his pain. Dr. Nutter appeared

to have only the 2000 MRI available for review. Straight leg

raising was negative although plaintiff reported pain in his back

from range of motion testing. Dr. Nutter’s impression was

chronic back and neck pain without evidence of radiculopathy and

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probable arthritis. He concluded that plaintiff had at least

mild to moderate limitations in bending, walking, sitting,

lifting, carrying heavy objects, climbing, crawling, and

squatting. (Tr. 214-18). A state agency reviewer, Dr. Derrow,

reviewed the file and came to the conclusion that plaintiff could

perform a limited range of light work. He based that opinion, in

part, on x-rays showing only mild degenerative joint disease of

the cervical spine. His explanation for why he disagreed with

the treating source’s conclusion was simply that a statement

about a claimant being unable to work is a decision reserved for

the Commissioner. (Tr. 224-28).

Dr. Sarver saw plaintiff on May 7, 2004, for purposes of a

psychological evaluation. At that time, plaintiff reported that

he had not used alcohol or drugs for six years. He stated he was

depressed due to his physical limitations. Dr. Sarver thought

that plaintiff had only mild or minimal limitations on workrelated activities, and he rated plaintiff’s GAF at 55 based on a

diagnosis of adjustment disorder with depression and anxiety. 

(Tr. 229-33). A subsequent state agency reviewer found only two

moderate limitations, in the areas of dealing with detailed

instructions and completing a workday or workweek without

interruption from psychologically-based symptoms. (Tr. 247-48).

Dr. Girijashanker completed a residual functional capacity

report on July 26, 2005. He noted that he had been treating

plaintiff since 1999. He thought plaintiff could stand, walk or

sit for only two hours each during a work day and could not use

his right hand for pushing and pulling, simple grasping, and fine

manipulation. He could occasionally lift up to 20 pounds and

could not squat, crawl, climb stairs, or reach above shoulder

level. (Tr. 299-300). Over a year later, plaintiff saw Dr.

Rocco, seeking a second opinion about surgery. At that time, he

was still reporting back pain which had progressed in severity. 

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He had a herniated disk at L4-5 and radiculopathy in both lower

extremities, but straight leg raising was “surprisingly negative”

and muscle testing was normal, with good peripheral pulses. (Tr.

327-28). Dr. Rocco referred him to Dr. Rea, who reported that

plaintiff was not a particularly good candidate for surgery. His

report also indicates that plaintiff had continued to work

despite his pain. (Tr. 336-38). A subsequent report by Dr. Woo,

however, stated that plaintiff’s pain prevented him from doing

either work around his house or regular work, and that plaintiff

had been without medication for six months. His examination

showed some tenderness and hypertonicity in the lumbar spinal

area, but most other testing was normal. (Tr. 353-54).

 IV. The Vocational Testimony

A vocational expert, Mr. Brown, also testified at the

administrative hearing. His testimony begins at page 369 of the

record. He characterized plaintiff’s past work as a maintenance

engineer as medium and semiskilled and as a sheet metal worker as

medium and skilled, although plaintiff performed both of them at

the very heavy level. The arc welder job was heavy and skilled,

and again performed by plaintiff at the very heavy level.

Mr. Brown was asked to assume that plaintiff was limited to

lifting twenty pounds with no repetitive twisting or bending. He

also would be limited to occasional use of stairs and ramps, no

work on ladders, ropes or scaffolds, and no climbing or crawling. 

Additionally, he was asked to assume that plaintiff could do only

occasional overhead lifting with his right arm, needed to change

positions momentarily every 30 to 45 minutes, and could stand or

sit between position changes. With those restrictions, plaintiff

could not perform any of his past work. He could, however, do

unskilled light or sedentary jobs such as assembly machine

tender, addresser or lens inserter. If plaintiff could not sit,

stand or walk for a total of eight hours in a workday, he was not

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employable, and the same was true if he could not use his right

hand for even simple grasping.

V. The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 13

through 25 of the administrative record. The important findings

in that decision are as follows.

The Administrative Law Judge found, first, that plaintiff

met the insured requirements for disability benefits through

December 31, 2006. Next, plaintiff had not engaged in

substantial gainful activity from his alleged onset date of

February 27, 2003, through the date of the decision. As far as

plaintiff’s impairments are concerned, the ALJ found that

plaintiff had severe impairments including degenerative joint

disease of the right shoulder, degenerative disk disease of the

cervical and lumbosacral spine, and degenerative joint disease of

the lumbosacral spine. The ALJ also found that these impairments

did not, at any time, 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, essentially as

described to the vocational expert. Adopting the vocational

expert’s testimony, the ALJ found that plaintiff could not do any

of his past work but could perform unskilled light jobs such as

assembly machine tender and microfilm mounter. Because the

testimony showed that those jobs exist in significant numbers in

the regional and national economies, the ALJ concluded that

plaintiff was not entitled to benefits.

VI. Plaintiff’s Statement of Specific Errors

 In his statement of specific errors, plaintiff raises four

issues. He argues (1) that the ALJ erroneously found that he

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could do a reduced range of light and sedentary work; (2) that

the ALJ’s decision was not based on substantial evidence; (3)

that the ALJ erroneously rejected the opinion of his treating

physician as to his residual functional capacity; and (4) that

the ALJ should have applied Rule 201.14 of the Medical-Vocational

Guidelines, which would have directed a finding of “disabled.” 

The Court generally reviews the administrative decision of a

Social Security ALJ 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

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).

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Although plaintiff has listed four separate issues in his

statement of errors (Doc. 14, at 1), he argues them together. 

The gist of his argument is that the opinion of Dr. Girijashanker

was improperly rejected; had it been accepted, it is clear from

either the vocational expert’s testimony or the MedicalVocational Guidelines that plaintiff would have been found to be

disabled. Thus, the Court’s focus will be on whether the ALJ

relied on reasons that are both adequate and supported by the

record to discount Dr. Girijashanker’s opinion that plaintiff

could not sit, stand or walk for enough hours in a work day to

make him employable.

It has long been the law in social security disability cases

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. 20 C.F.R.

§404.1527(d); see also 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). However, 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 non-treating medical sources, and may consider the

claimant’s activities of daily living. Cutlip v. Secretary of

HHS, 25 F.3d 284 (6th Cir. 1994). No matter how the issue of the

weight to be given to a treating physician’s opinion is finally

resolved, the ALJ is required to provide a reasoned explanation

so that both the claimant and a reviewing Court can determine why

the opinion was rejected (if it was) and whether the ALJ

considered only appropriate factors in making that decision. 

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

2004).

The ALJ did not give controlling weight to Dr.

Girijashanker’s opinion because, following the dictates of Social

Security Rule 96-2p, he concluded that Dr. Girijashanker’s

“medical opinion is not supported by the objective medical

evidence or clinical findings of record, but rather appears to be

based solely on an uncritical acceptance of the claimant’s

subjective complaints. As such, it must be rejected.” (Tr. 19-

20). The ALJ’s decision is devoid of any discussion of what

inconsistencies he found between Dr. Girijashanker’s views and

the objective medical evidence, and it does not explain how much

weight was actually given to those views.

The Commissioner defends the ALJ’s decision to reject Dr.

Girijashanker’s opinion by arguing that there is no objective

medical evidence in the record which would support such extreme

limitations on plaintiff’s ability to work, especially given the

fact that Dr. Girijashanker stated that these limitations had

existed since 1998, but plaintiff continued to perform very heavy

labor through 2003. (Tr. 300). Although that precise rationale

was not articulated by the ALJ, the Commissioner correctly notes

that Dr. Girijashanker cited to only two objective studies, both

MRIs, in support of his conclusions, and provided only three

clinical findings or objective signs - depression, lumbar spasm,

and painful movement of the right shoulder. (Tr. 299). It can

be assumed that depression did not have an impact on plaintiff’s

physical abilities, so only the latter two signs provide any

support for Dr. Girijashanker’s assessment. The two MRIs showed

a partial rotator cuff tear and a partial tendon tear in the

shoulder area, and degenerative disk disease in the lumbar spine. 

As to the former, however, one physician who interpreted the

results, Dr. Hollingsworth, reported that plaintiff had almost

normal rotator cuff strength and “no pain with cervical loading

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and rotation.” (Tr. 286). In any event, the shoulder problem

would not have affected plaintiff’s ability to sit, stand and

walk for up to eight hours in a work day, and the surgery for the

tear was apparently successful. Consequently, all that is left

to support Dr. Girijashanker’s opinion is the MRI showing

degenerative disk disease. The question then becomes whether his

opinion is, as the ALJ concluded, completely inconsistent with

that test, leading to the inference that he simply accepted

plaintiff’s statements about his limitations without confirming

them through any objective means.

The only MRI which appears to have been done between the

date plaintiff stopped working and the date of Dr.

Girijashanker’s opinion is the one from March 16, 2004. It did

show mild hypertrophic changes and osteophytic spurring

throughout the lumbar region, but no disk herniation or

significant central or lateral neural canal stenosis. (Tr. 190). 

It is accurate to say that there are no other test results

showing severe limitations or symptoms, including the tests done

by Dr. Nutter during his evaluation, which generally elicited

pain on manipulation of the spine, but little in the way of other

positive results. Even an MRI done in 2006 did not show anything

particularly different (Tr. 325). Thus, the record does confirm

the ALJ’s conclusion that there is a total absence of objective

evidence to support a finding of complete inability to work, in

some postural position, for eight hours a day.

It is of some concern to the Court that the ALJ’s decision

in this case complied only marginally, if at all, with the Court

of Appeals’ view of what is required by 20 C.F.R. §404.1527(d),

in that, like the administrative decision found to be deficient

in Wilson v. Comm’s of Social Security, 378 F.3d 541, 546 (6th

Cir. 2004), it “did not identify the evidence supporting such a

finding [that the treating source’s opinion was either not well

supported or inconsistent with other evidence of record], and did

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not explain its application of the factors listed in 20 C.F.R.

§404.1527(d)(2) to determine the weight given to [the treating

source’s] opinion.” However, plaintiff’s statement of errors

does not raise this “articulation” issue. Further, as Wilson

also holds, a failure sufficiently to articulate the reasons

behind the rejection of a treating source’s opinion can be

harmless error where remand would be an “idle and useless

formality,” id. at 547, quoting NLRB v. Wyman-Gordon, 394 U.S.

759, 766 n. 6 (1969). Here, given the complete lack of support

for Dr. Girijashanker’s opinion, the contrary interpretations of

the scant objective evidence given by Dr. Nutter and the state

agency reviewers, and the fact that Dr. Girijashanker appeared to

determine that plaintiff was unable to perform even sedentary

work during years when plaintiff was, in fact, doing very heavy

labor, any remand for further explanation of the ALJ’s decision

would be very unlikely to alter the result in this case. For all

these reasons, the Court concludes that plaintiff’s statement of

errors lacks merit and that the Commissioner’s decision must be

affirmed.

 VII. Recommended Decision

Based on the above discussion, it is recommended that the

plaintiff’s statement of errors be overruled and that judgment be

entered in favor of the defendant Commissioner of Social

Security.

VIII. 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

proposed findings or recommendations to which objection is

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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

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