IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JOYCE A. BAKER,

Plaintiff,

vs. Civil Action 2:11-CV-1030

Judge Smith

Magistrate Judge King 

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

OPINION AND ORDER

This action seeks review of the administrative decision denying 

plaintiff’s application for disability insurance benefits. On January 

25, 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. 17. 

This matter is now before the Court on plaintiff’s objections to that 

recommendation. Plaintiff’s Objections to the Report and 

Recommendation of Magistrate Judge King (“Plaintiff’s Objections”), 

Doc. No. 18. 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 systemic lupus erythematosus, right carpal 

tunnel syndrome, a history of left carpal tunnel syndrome and repair, 

chronic obstructive pulmonary disease (COPD), obesity, tobacco abuse, 

degenerative disc disease, hypertension, and headaches. PAGEID 58. 

The administrative law judge also found that plaintiff’s impairments 

neither meet nor equal a listed impairment and leave plaintiff with 

Case: 2:11-cv-01030-GCS-NMK Doc #: 19 Filed: 02/20/13 Page: 1 of 7 PAGEID #: <pageID>
2

the residual functional capacity (“RFC”) for medium work, as defined 

in 20 C.F.R. § 404.1567(c). PAGEID 61-62. Specifically, the 

administrative law judge found that plaintiff was able to “lift/carry 

up to fifty pounds occasionally and twenty-five pounds frequently, 

stand and/or walk for six hours in an eight-hour day and sit for six 

hours in an eight-hour day.” PAGEID 62. In addition, plaintiff 

“needed to avoid fumes, odors, dusts, gases, and poor ventilation.” 

Id. Relying on the testimony of the vocational expert, the 

administrative law judge found that, through the date that she was 

last insured, plaintiff was able to perform her past relevant work as 

a sales clerk. PAGEID 66. Accordingly, the administrative law judge 

concluded that plaintiff was not disabled within the meaning of the 

Social Security Act at any time from March 1, 2006, i.e., her alleged 

onset date, through June 30, 2006, i.e., the date that she was last 

insured. PAGEID 66-67. 

In her Statement of Errors, plaintiff challenged the decision of 

the Commissioner in three respects: (1) the administrative law judge 

erred in evaluating the opinion of the medical expert who testified at 

the administrative hearing, (2) the administrative law judge erred in 

assigning no weight to the opinion of William Shade, M.D., plaintiff’s 

current treating physician, and (3) the administrative law judge erred 

in omitting an upper extremity limitation from plaintiff’s RFC 

assessment. Statement of Errors, Doc. No. 13, pp. 9-13. The 

Magistrate Judge rejected all those challenges. Report and 

Recommendation. Plaintiff’s objections again raise the same 

challenges. Plaintiff’s Objections, pp. 2-3. 

Case: 2:11-cv-01030-GCS-NMK Doc #: 19 Filed: 02/20/13 Page: 2 of 7 PAGEID #: <pageID>
3

Plaintiff first challenges the administrative law judge’s 

decision to reject the opinion of the medical expert, Darryl R. 

Cherdron, M.D. Dr. Cherdron testified at the October 2009 

administrative hearing about, inter alia, plaintiff’s August 2009 

resection of plaintiff’s meningiomas, which he described as “very slow 

growing tumors” that could take years to develop to the point of being 

incapacitating. PAGEID 122. According to Dr. Cherdron, “it is not 

beyond belief” that plaintiff’s headaches prior to the lapse of her 

insured status in June 2006 “could have been related to the meningioma 

at that time and that would have restricted her concentration and if 

she was blacking out at the time that would have restricted her 

ability go [sic] work around machinery and tend to do things like 

that.” PAGEID 122-23. Dr. Cherdron also noted, however, that the 

record contained no objective corroboration for plaintiff’s testimony 

that she blacked out prior to June 2006 or that the meningioma existed 

at that time. PAGEID 123. However, because meningioma “are slow 

growing tumors,” he could not “exclude the possibility that she did 

have it at the time and it contributed to her headaches.” PAGEID 124.

Plaintiff argues that her meningioma existed prior to the date 

that she was last insured and “may have contributed to her headaches 

during that period.” Plaintiff’s Objections, p. 2. In rejecting this 

argument, the Magistrate Judge noted that the “record demonstrates 

that plaintiff suffered from headaches prior to her date last insured, 

but does not indicate the severity of plaintiff’s headaches or suggest 

that they limited her functionality in any way. See PAGEID 395 

(January 2005), 404 (April 2005), 357 (April 2006).” Report and 

Case: 2:11-cv-01030-GCS-NMK Doc #: 19 Filed: 02/20/13 Page: 3 of 7 PAGEID #: <pageID>
4

Recommendation, p. 18. See also PAGEID 362-63 (April 2006 treatment 

for a “muscle contraction headache” that improved with medication). 

The Magistrate Judge concluded that, even if the meningioma existed 

prior to plaintiff’s date last insured and caused her headaches, “the 

mere existence of meningioma and the fact that plaintiff experienced 

headaches during that period do not, by themselves, require a 

conclusion that plaintiff experienced resulting work limitations.” 

Id. (citing Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988) (“The 

mere diagnosis of arthritis, of course, says nothing about the 

severity of the condition.”)). This Court agrees with that 

determination; regardless of the etiology of plaintiff’s headaches, 

there is simply no evidence in the record to support a limitation of 

function based on headaches.1

 Accordingly, the administrative law 

judge did not err in evaluating Dr. Cherdron’s testimony.

Plaintiff next argues that the administrative law judge erred in 

assigning no weight to the opinion of Dr. Shade, plaintiff’s treating 

physician since August 3, 2006. Plaintiff’s Objections, p. 3. In 

December 2008, i.e., more than two (2) years after the lapse of 

plaintiff’s insured status, Dr. Shade opined that plaintiff could 

stand/walk for two hours in an eight hour day and sit for eight hours 

in an eight hour day; plaintiff could lift up to ten pounds, but was 

limited in her ability to push and pull and to engage in fine 

manipulation; plaintiff could finger occasionally, but was able to 

handle, reach, and feel constantly. PAGEID 485, 487. According to 

 

1 Plaintiff testified that she experienced blackouts from headaches. See 

PAGEID 116-17. She has not, however, challenged the administrative law 

judge’s finding that her testimony was not credible.

Case: 2:11-cv-01030-GCS-NMK Doc #: 19 Filed: 02/20/13 Page: 4 of 7 PAGEID #: <pageID>
5

Dr. Shade, plaintiff could not sustain full-time work activity.

PAGEID 486, 489-92. 

Plaintiff argues that, although she did not begin treating with 

Dr. Shade until after her date last insured and although Dr. Shade 

specifically stated that he was not able to comment on plaintiff’s 

issues before that date, “it is reasonable to infer that the 

limitations given by Dr. Shade in his report accurately describe” 

plaintiff’s limitations. Plaintiff’s Objections, p. 3. In rejecting 

plaintiff’s argument, the Magistrate Judge found that the 

administrative law judge “provided specific reasons for assigning no 

weight to Dr. Shade’s opinion” and was “sufficiently specific as to 

the . . . reasons for assigning that weight.” Report and 

Recommendation, pp. 14-15. The Magistrate Judge further found that 

“the administrative law judge’s reasons for assigning no weight to Dr. 

Shade’s opinion are supported by substantial evidence.” Id. at p. 15. 

This Court agrees with that determination. Notably, Dr. Shade’s 

August 3, 2006 treatment notes do not support his December 2008 

opinion of disability. See PAGEID 428-29 (noting that plaintiff was 

able to walk under her own power, was under no acute distress, did not 

appear acutely ill, had a supple neck with a full range of motion, and 

no pitting edema in her extremities). There is nothing in the August 

3, 2006 treatment notes that suggests a limitation in plaintiff’s

ability to walk, stand, sit, push, pull, or perform fine manipulation 

at that time. Accordingly, the administrative law judge did not err 

in evaluating Dr. Shade’s opinion. 

Case: 2:11-cv-01030-GCS-NMK Doc #: 19 Filed: 02/20/13 Page: 5 of 7 PAGEID #: <pageID>
6

Finally, plaintiff argues that the administrative law judge erred 

in omitting an upper extremity limitation from plaintiff’s RFC 

assessment. Plaintiff’s Objections, pp. 2-3. Specifically, plaintiff 

argues that she “has a history of bilateral carpel tunnel syndrome,” 

she “testified as to the ongoing symptoms relating” to carpel tunnel 

syndrome, and Dr. Cherdron testified that plaintiff “had limitations 

in the use of her left hand and probably could not have done fine 

manipulation with it.” Id. In rejecting this argument, the 

Magistrate Judge acknowledged that plaintiff has a history of carpel 

tunnel syndrome. Report and Recommendation, p. 20. Nevertheless, the 

Magistrate Judge found that the administrative law judge’s RFC 

determination enjoys substantial support in the record. Id. As noted 

by the Magistrate Judge, see id., a February 2004 EMG did not detect 

“any definite abnormalities” in plaintiff’s left wrist; PAGEID 415;

right carpal tunnel syndrome was diagnosed in 2004, but Dr. Cherdron 

did not suggest that plaintiff was limited in the use of her right 

hand; PAGEID 121-28; and plaintiff continued to work with this 

condition until March 2006, PAGEID 98-101, with no evidence that the 

condition worsened or required treatment after that date. Thus, there 

is substantial support in the record for the administrative law 

judge’s determination in this regard.

Plaintiff’s objections raise the same arguments presented in her 

Statement of Errors and considered by the Magistrate Judge. The Court 

has carefully considered those objections, as well as the entire 

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

Case: 2:11-cv-01030-GCS-NMK Doc #: 19 Filed: 02/20/13 Page: 6 of 7 PAGEID #: <pageID>
7

articulated in the Report and Recommendation, the Court concludes that 

those objections are without merit. 

Plaintiff’s Objections, Doc. No. 18, are OVERRULED. The Report 

and Recommendation, Doc. No. 17, 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/George C. Smith______ 

 George C. Smith, Judge

 United States District Court

Case: 2:11-cv-01030-GCS-NMK Doc #: 19 Filed: 02/20/13 Page: 7 of 7 PAGEID #: <pageID>