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.

REPORT AND RECOMMENDATION

I. Background and Medical Evidence

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

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

Security denying plaintiff’s application for disability insurance

benefits. This matter is now before the Court on plaintiff’s

Statement of Errors, Doc. No. 13, and on the Commissioner’s Memorandum

in Opposition, Doc. No. 16.

Plaintiff Joyce A. Baker filed her current application for

benefits on May 16, 2007, alleging that she has been disabled since

March 1, 2006. The application was denied initially and upon

reconsideration, and plaintiff requested a de novo hearing before an

administrative law judge. 

An administrative hearing was held on October 7, 2009, at which

plaintiff, represented by counsel, appeared and testified, as did

Darryl R. Cherdron, M.D., who testified as a medical expert, and Lynne

M. Kaufman, M.S., who testified as a vocational expert. PAGEID 56. 

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In a decision dated December 22, 2009, the administrative law judge

found that plaintiff “was not under a disability within the meaning of

the Social Security Act from March 1, 2006 through the date last

insured.” Id. That decision became the final decision of the

Commissioner of Social Security when the Appeals Council declined

review on September 16, 2011. PAGEID 46-49. 

Plaintiff was 51 years of age on the date the administrate law

judge issued his administrative decision. See PAGEID 217. Plaintiff

has a tenth grade education and prior relevant work experience as a

sales clerk. PAGEID 223, 230. Plaintiff was last insured for

disability insurance purposes on June 30, 2006. PAGEID 56. Plaintiff

has not been employed since March 2006, when she quit work as a

cashier. PAGEID 98-101.

A. Plaintiff’s Testimony

Plaintiff testified at the administrative hearing that she has

been unable to work since prior to the lapse of her insured status on

June 30, 2006 due to severe headaches, right wrist carpal tunnel

syndrome, leg difficulties due to swelling and a torn ligament, and

back pain. PAGEID 102-03. In 2006, plaintiff testified, she was

unable to sit for long periods of time and missed two or three weeks

of work at a time because of her impairments. PAGEID 103-04. 

Plaintiff testified that, during the relevant period, she was

able to wash laundry and cook, but she could not pick up heavy pots

and pans because of problems with her hand and right wrist. PAGEID

105. Plaintiff declined to undergo a carpal tunnel release procedure

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on her right wrist because she was not satisfied with the 1990

procedure on her left wrist. PAGEID 106, 113. Her left hand “still

goes to sleep.” PAGEID 113. 

In 2006, plaintiff needed her husband’s help to get out of bed in

the mornings because she was “stiff;” she needed a cup of coffee and

medication to “start moving.” PAGEID 107. 

Plaintiff testified that she missed work because of headaches and

pain in her back and legs. PAGEID 111. At the time she quit work in

March 2006, plaintiff experienced headaches “almost every day;” she

took pain killers and had to lie down in a dark room. PAGEID 112. 

Because of her right carpel tunnel syndrome, she could not write, open

cash drawers, or perform other duties associated with her job as a

sales clerk. PAGEID 112-13. Lupus and a compromised immune system

also caused her to miss work. PAGEID 114. Low energy required her to

lie down throughout the day. PAGEID 115. Plaintiff testified that

her knee would buckle and cause her to fall. Headaches caused her to

blackout for two to three minutes at a time. PAGEID 116-17. It was

pain in her back, shoulder, hips and legs that bothered her the most.

Id. 

B. The Medical Evidence

Plaintiff was evaluated on April 13, 2000, by David Stainbrook,

Jr., D.O., a rheumatologist, for possible collagen vascular disease. 

PAGEID 350. Plaintiff reported morning stiffness, variable energy,

occasional blurred vision, migraine headaches, decreased hearing, and

a prior carpal tunnel release on her left wrist. Id. On May 9, 2000,

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Dr. Stainbrook diagnosed systemic lupus erythematosus characterized by

positive ANA, positive anti-histone antibody, positive C-reactive

protein and arthritis; bilateral sensory neural hearing loss; a

history of positive PPD (progressive pseudorheumatoid, i.e.

tuberculosis); and mild osteoarthritis of the knees. PAGEID 349. He

prescribed Celebrex and corticosteroids. Id. In September 2000, Dr.

Stainbrook prescribed Plaquenil for plaintiff’s inflammatory joint

disease. PAGEID 346. Plaintiff continued to treat with Dr. Stainbrook

through October 2001. PAGEID 341.

Barbra Murrell, M.D., was plaintiff's primary care physician from

October 2002 through May 2007, PAGEID 383-427, and treated plaintiff

for chronic and severe headaches, numbness in her hands and wrist,

sinus and coughing issues, and urinary problems. Id. A February 2004

EMG was consistent with carpel tunnel syndrome on the right; no

definite abnormalities were detected on the left. PAGEID 415. An xray of the cervical spine showed mild degenerative disc disease at

C4-5. PAGEID 416. A June 2004 x-ray of the lumbar spine showed mild

anterior spurring at all levels. PAGEID 414. 

On March 17, 2004, and on referral by Dr. Murrell, plaintiff’s

right wrist was evaluated by Dwight Engdahl, M.D., an orthopedic

surgeon. Dr. Engdahl diagnosed right carpel tunnel syndrome and

fitted plaintiff with a carpal tunnel splint. PAGEID 370.

Plaintiff presented to the emergency room at Marietta Memorial

Hospital on April 5, 2006, complaining of headache and neck pain. 

PAGEID 362-66. She reported chronic headaches and some vomiting. Id.

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Upon physical examination, plaintiff’s neck was supple and there was

full strength in her extremities. Id. The emergency room physician

assessed a muscle contraction headache, which improved with

medication. Id.

An April 2006 CT scan of the abdomen and pelvis, following

complaints of left flank pain with hematuria, revealed no abnormal

calcification within the right or left kidneys; there was no evidence

of hydronephrosis or hydroureter. PAGEID 360-61.

As noted supra, plaintiff’s insured status lapsed on June 30,

2006.

On November 17, 2006, plaintiff presented to Lowell Body, M.D.,

an orthopedic surgeon, complaining of right knee pain which she

attributed to a motor vehicle accident three years earlier. PAGEID

371. She complained of a grinding sensation and a feeling that the

knee is unstable or unsteady; she had fallen a couple times, and

experienced intermittent swelling of her entire leg. Id. On

examination, Dr. Body noted no swelling, a full range of motion, good

ligamentous stability to varus, and valgus stress. Id. Dr. Body also

noted a negative Lachman’s test, equivocal McMurray’s test, medial

joint line tenderness, and some crepitus on patellar compression. Id. 

X-rays of the knee showed very mild degenerative changes with some

bone spur formation at the margins, but no significant osteoarthritis. 

Id. 

A November 2006 MRI of the right knee revealed a cleavage tear of

the anterior horn lateral meniscus; focal chondral defect of the

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lateral femoral condyle; grade II patellar chondromalacia; and medial

collateral ligament sprain. PAGEID 493-94. Dr. Body recommended the

initial use of Tylenol and suggested surgery if she had more

significant problems. PAGEID 372. 

Plaintiff began treating with William Shade, M.D., on August 3,

2006. PAGEID 428-29. On physical examination, Dr. Shade noted that

plaintiff was able to walk under her own power, was in no acute

distress, and did not appear acutely ill. Id. Plaintiff’s neck was

supple with a full range of motion; she had no pitting edema in her

extremities. Id. In a September 7, 2006 follow-up, plaintiff

reported no further wheezing episodes or chest pain, unusual shortness

of breath, nausea, vomiting, diarrhea, or fever. PAGEID 430. In

November 2006, plaintiff complained of daily headaches for the prior

“couple weeks.” PAGEID 431.

Plaintiff was seen by Dwight Engdahl, M.D., in February 2007 for

intermittent pain in the right buttock and posterior thigh over the

prior several months. PAGEID 379-80. On clinical examination, Dr.

Engdahl found “minimal greater trochanteric tenderness, mild

tenderness in the base of the LS spine and sciatic notch. Mild

straight leg raise today. No pain with flexion, rotation of her hip. 

Negative Stinchfield sign. Normal neurological and vascular exam.” 

Id. Dr. Engdahl diagnosed degenerative joint disease of the lumbar

spine with right sciatica. Id. An MRI showed a large cyst in the

distal sacrum in the central canal, possibly a sacral meningocele

arachnoid cyst, and some degenerative disc changes in L1-2 and 4-5. 

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Id. Dr. Engdahl noted that he was unsure whether the cyst had any

bearing on her symptoms, so he referred plaintiff to a neurosurgeon.

Id. 

In April 2007, a state agency physician, W. Jerry McCloud, M.D.,

reviewed the record and opined that plaintiff had the residual

functional capacity to lift and/or carry up to fifty pounds

occasionally and twenty-five pounds frequently, stand/walk for six

hours in an eight hour day, and sit for six hours in an eight hour

day. PAGEID 453-54. Dr. McCloud also found no postural limitations,

but concluded that plaintiff would be limited to only occasional

overhead reaching on the left. PAGEID 455-56. Plaintiff should also

avoid concentrated exposure to fumes, odors, dusts, gases, poor

ventilation, etc. PAGEID 457. 

In June 2007, plaintiff reported to Dr. Shade that she had

discontinued the use of an Albuterol inhaler because it caused severe

headaches. PAGEID 438. 

On July 5, 2007, plaintiff was treated by Fred Branditz, M.D., a

pulmonologist, upon referral from Dr. Shade for complaints of

increased dyspnea. PAGEID 464. Dr. Branditz diagnosed chronic

asthmatic bronchitis and COPD secondary to cigarette smoking. PAGEID

464-68. Dr. Branditz started plaintiff on inhalers and encouraged her

to stop smoking. Id. Follow-up treatment notes indicated

improvement. PAGEID 510-13.

A January 2008 MRI of the lumbar spine showed a focal disc

herniation on the right at L5-S1, causing significant impingement upon

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the S1 nerve root, which the radiologist determined was the likely

cause of plaintiff’s right sided symptomatology. PAGEID 474-75.

Plaintiff was evaluated by Albert Camma, M.D., a neurosurgeon, on

February 6, 2008. PAGEID 478-80. On March 25, 2008, Dr. Camma

performed a microsurgical discectomy on the right side at L5-S1 to

address plaintiff’s low back and right lower extremity pain. PAGEID

480-83, 505-08. Dr. Camma reported that plaintiff did well after the

procedure and reported only some low back pain at times, particularly

toward the end of the day. PAGEID 476.

In December 2008, Dr. Shade rendered an assessment of plaintiff’s

functional capacity but expressly declined to render an opinion

regarding plaintiff’s impairments and their impact on her ability to

engage in work-related activities prior to August 2006, when his

treatment of plaintiff began. PAGEID 484(“Please be aware, we did not

see this individual until August 3, 2006 so I’m not able to comment on

issues before that time.”) According to Dr. Shade, plaintiff is able

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

hours in an eight hour day. PAGEID 485. Plaintiff could lift up to

ten pounds, but had limitations in her hands with pushing and pulling

and fine manipulation. Id. He opined that plaintiff was able to

finger occasionally, but was able to handle, reach, and feel

constantly. PAGEID 487. Dr. Shade determined that plaintiff had

almost no limitations in her mental ability to do work-related

activities, but that she could not sustain full-time work activity. 

PAGEID 486, 489-92.

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In April 2009, plaintiff reported to Dr. Shade that she had a

history of migraine headaches and experienced two to three episodes

per month. PAGEID 517. In July 2009, plaintiff complained of

increasingly severe headaches. PAGEID 515. An MRI and CT scan of the

brain revealed meningiomas. PAGEID 529-31. 

Dr. Camma diagnosed a parasagittal tumor with bony invasion. 

PAGEID 502-04. On August 18, 2009, Dr. Camma performed a left frontal

craniectomy with tumor resection and reconstructive cranioplasty. Id.

Plaintiff did “quite well” after the surgery. PAGEID 537-38.

Darryl Cherdron, M.D., testified as a medical expert at the

administrative hearing. According to Dr. Cherdron, prior to June 30,

2006, the record documented systemic lupus erythematosus, bilateral

carpel tunnel syndrome, degenerative disc disease with herniated

lumbar disc, and hypertension. PAGEID 120-21. However, plaintiff’s

impairments neither met nor equaled a listed impairment prior to June

30, 2006, although “[t]here is a meeting of a listing after that time

period.” PAGEID 121. Prior to June 2006, plaintiff could not perform

fine manipulation with her left hand, could have stood/walked for six

hours in an eight-hour day and could have sat for six hours in an

eight-hour day. Dr. Cherdron initially testified that “[i]t would

have been difficult for her to complete a full eight hour day.” 

PAGEID 121. See also PAGEID 131-32. He subsequently elaborated on

this statement:

I did not indicate she could not work. . . . [S]he would

not have been able to work a full eight hours without taking

breaks and changing positions. And it would have been

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difficult to I’d say work over seven hours out of the eight

hour day with the limitations she had at that time with the

degenerative disc disease.

PAGEID 132. 

Dr. Cherdron also discussed the August 2009 resection of

plaintiff’s meningiomas. According to Dr. Cherdron, meningiomas “are

known as very slow growing tumors,” that could take years to develop

to the point of being incapacitating. PAGEID 122. According to Dr.

Cherdron, plaintiff’s headaches in 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 noted that the record

offered no objective corroboration for plaintiff’s testimony that she

blacked out prior to June 2006. PAGEID 123. He also indicated that

there was “no evidence in the medical record” that the meningioma

existed prior to June 2006, although he could not “exclude the

possibility that she did have it at the time and it contributed to her

headaches.” PAGEID 124.

C. Vocational Testimony

The vocational expert testified that the state agency physician’s

RFC assessment would not preclude the performance of plaintiff’s past

relevant work as a sales clerk, PAGEID 134, but that the December 2008 

assessment of Dr. Shade and the assessment of Dr. Cherdron were

inconsistent with full-time work. PAGEID 135.

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II. Administrative Decision 

The administrative law judge found that plaintiff’s severe

impairments consisted 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 found that, through the date that her

insured status lapsed, plaintiff retained the residual functional

capacity to perform medium work as defined in 20 C.F.R. § 404.1567©. 

PAGEID 62. Specifically, the administrative law judge found that

plaintiff could “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.” Id. 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 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, her alleged

onset date, through June 30, 2006, the date she was last insured. 

PAGEID 66-67. 

III. Discussion

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

Commissioner’s decision is limited to determining whether the findings

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of the 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. 

See Buxton v. Haler, 246 F.3d 762, 772 (6th Cir. 2001); Kirk v. Sec’y

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. See Brainard v. Sec’y of

Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989); Garner v.

Heckler, 745 F.2d 383, 387 (6th Cir. 1984).

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, see 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 her Statement of Errors, plaintiff contends that the

administrative law judge erred by failing to give Dr. Shade’s opinion

controlling weight, by rejecting the opinion of Dr. Cherdron, and by

failing to incorporate plaintiff’s upper extremity limitations in his

residual functional capacity (“RFC”) assessment.

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A. Evaluation of Dr. Shade’s Opinion

Plaintiff maintains that the administrative law judge erred in

failed to give controlling weight to the opinion of her treating

physician, Dr. Shade. Statement of Errors, p. 13. The opinion of a

treating provider must be given controlling weight if that opinion is

“well-supported by medically acceptable clinical and laboratory

diagnostic techniques” and is “not inconsistent with the other

substantial evidence in [the] case record.” 20 C.F.R. §

404.1527(c)(2). Even if the opinion of a treating provider is not

entitled to controlling weight, an administrative law judge is

nevertheless required to determine how much weight the opinion is

entitled to by considering such factors as the length, nature and

extent of the treatment relationship, the frequency of examination,

the medical specialty of the treating physician, the extent to which

the opinion is supported by the evidence, and the consistency of the

opinion with the record as a whole. 20 C.F.R. § 404.1527(c)(2)-(6);

Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009);

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

Moreover, an administrative law judge must provide “good reasons” for

discounting the opinion of a treating provider, i.e., reasons that are

“‘sufficiently specific to make clear to any subsequent reviewers the

weight the adjudicator gave to the treating source’s medical opinion

and the reasons for that weight.’” Rogers v. Comm’r of Soc. Sec., 486

F.3d 234, 242 (6th Cir. 2007) (quoting Soc. Sec. Rul. 96-2p, 1996 WL

374188, at *5). This special treatment afforded to the opinions of

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treating providers recognizes that

“these sources are likely to be the medical professionals

most able to 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 or from

reports of individual examinations, such as consultative

examinations or brief hospitalizations.”

Wilson, 378 F.3d at 544 (quoting 20 C.F.R. § 404.1527(d)(2)).

In December 2008, 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. PAGEID 485. Plaintiff could lift up to ten

pounds, but was limited in her ability to push and pull and to engage

in fine manipulation. Id. Specifically, Dr. Shade opined that

plaintiff could finger occasionally, but was able to handle, reach,

and feel constantly. PAGEID 487. According to Dr. Shade, plaintiff

could not sustain full-time work activity. PAGEID 486, 489-92. The

administrative law judge recognized Dr. Shade as a treating physician,

but did not afford his December 2008 opinion any weight in determining

plaintiff’s residual functional capacity assessment prior to the lapse

of her insured status in June 2006. PAGEID 63. 

The administrative law judge’s analysis of Dr. Shade’s opinion

does not violate the treating physician rule. The administrative law

judge provided specific reasons for assigning no weight to Dr. Shade’s

opinion:

First, it is noted that Dr. Shade started treating the

claimant in August 2006 which is after her date last

insured. He even admitted that he was unable to comment on

issues prior to August 2006. Further, it appears that Dr.

Shade based his opinion on the claimant’s subjective

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complaints, which have not been found to be fully credible. 

For instance, he stated that the claimant “reported” that

long-term sitting and standing hurt her back. Dr. Shade’s

treatment notes also do not support his findings as he

generally found her to not appear in distress, to have no

edema, and to have no focal motor loss. 

PAGEID 63. Although the administrative law judge’s analysis is

succinct, it is sufficiently specific as to the weight given to Dr.

Shade’s medical opinion and the reasons for assigning that weight. 

Under the circumstances, a formulaic recitation of factors is not

required. See Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 551

(6th Cir. 2010) (“If the ALJ’s opinion permits the claimant and a

reviewing court a clear understanding of the reasons for the weight

given a treating physician’s opinion, strict compliance with the rule

may sometimes be excused.”). 

Further, the administrative law judge’s reasons for assigning no

weight to Dr. Shade’s opinion are supported by substantial evidence. 

Significantly, Dr. Shade offered no opinion whatsoever on plaintiff’s

condition prior to June 30, 2006. See PAGEID 484. Moreover, Dr.

Shade’s August 3, 2006 treatment notes do not support a conclusion

that plaintiff could not sustain full-time work. 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). 

It is well-settled that the Commissioner's decision, when

supported by substantial evidence, must be affirmed even if the

plaintiff’s position is also supported by substantial evidence. See

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Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 876 (6th Cir. 2007). 

Because the administrative law judge correctly applied the standards

of the treating physician rule to his determination of Dr. Shade’s

opinion, and because substantial evidence supports his findings, the

Court finds no error with the Commissioner's decision in this regard.

B. Evaluation of Dr. Cherdron’s Opinion

Plaintiff also contends that the administrative law judge

“improperly rejected the opinion of Dr. Cherdron that, before her date

last insured, Plaintiff was unable to sustain full time work activity,

and that her chronic headaches may have been caused by the as yet

undiagnosed meningiomas.” Plaintiff’s Statement of Errors, p. 10. 

According to plaintiff, Dr. Cherdon’s testimony is “entitled to

controlling weight,” and “[w]hether Plaintiff’s meningiomas were

causing her headaches prior to her date last insured must be

inferred.” Id. at 11. 

The opinions of only treating sources are entitled to controlling

weight. A treating source is a “medical source who provides you, or

has provided you, with medical treatment or evaluation and who has, or

has had, an ongoing treatment relationship with you.” 20 C.F.R. §

416.902. Dr. Cherdon testified at the administrative hearing as a

medical expert, see PAGEID 118, and there is no suggestion that he

ever treated plaintiff. Dr. Cherdon is therefore not a “treating

source,” and his opinion is not entitled to “controlling weight.” See

20 C.F.R. § 404.1527©; Boucher v. Apfel, 238 F.3d 419, 2000 WL

1769520, at *9 (6th Cir. Nov. 15, 2000) (finding that a doctor did not

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qualify as a treating source and did not have an ongoing treatment

relationship with the claimant even though the doctor had examined

claimant three times over a two-year period).

Plaintiff also contends that the administrative law judge erred

in evaluating Dr. Cherdron’s testimony, and that “[w]hether

plaintiff’s meningiomas were causing her headaches prior to her date

last insured must be inferred, given the lack of strong objective

evidence dating to that period.” Statement of Errors, p. 11. Dr.

Cherdron testified that plaintiff’s headaches in 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. However, Dr. Cherdron commented

that plaintiff’s testimony regarding black outs was not documented in

the objective evidence. PAGEID 123. He also commented that there was

“no evidence in the medical record” that plaintiff had meningiomas

prior to June 2006, but that he could not “exclude the possibility

that she did have it at the time and it contributed to her headaches.” 

PAGEID 124.

The administrative law judge observed plaintiff’s history of

migraine headaches and included that condition among plaintiff’s

severe impairments. PAGEID 58-59. However, in evaluating the

limiting effects of plaintiff’s headaches, the administrative law

judge discounted Dr. Cherdron’s testimony as “inconsistent with the

record as a whole;” the administrative law judge determined that there

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was a dearth of evidence during the relevant time period to support a

limitation of function based on headaches. PAGEID 62-63. 

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). Plaintiff was treated in April 2006 for a “muscle

contraction headache,” but the headache improved with medication.

PAGEID 362-63. Although plaintiff testified that she was experiencing

black outs, see PAGEID 116-17, the administrative law judge found that

plaintiff’s testimony was not credible. PAGEID 64-66. Notably,

plaintiff does not suggest that the administrative law judge erred in

this credibility determination. 

It is possible – as Dr. Cherdron speculated – that plaintiff’s

meningiomas existed prior to the date on which she was last insured

and that the meningiomas caused plaintiff’s headaches during that

period. Nevertheless, the mere existence of meningiomas and the fact

that plaintiff experienced headaches during that period do not, by

themselves, require a conclusion that plaintiff experienced resulting

work limitations. See 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.”) (citing Foster v. Brown, 853 F.2d

483, 489 (6th Cir. 1988)).

In short, the Court concludes that the administrative law judge

did not err in his evaluation of Dr. Cherdron’s opinion.

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C. The Administrative Law Judge’s RFC Assessment

Plaintiff argues that the administrative law judge failed to

properly incorporate a limitation on plaintiff’s use of her upper

extremities in his RFC assessment. Statement of Errors, p. 12. An

RFC determination is an indication of an individual's work-related

abilities despite their limitations. See 20 C.F.R. § 404.1545(a). 

The RFC is an administrative finding of fact reserved to the

Commissioner. 20 C.F.R. §§ 404.1527(d)(2), (3); Edwards v. Comm'r of

Soc. Sec., 97 F. App'x 567, 569 (6th Cir. 2004). It represents the

most, not the least, a claimant can do despite her impairments. 20

C.F.R. §§ 404.1545(a); Griffeth v. Comm’r of Soc. Sec., 217 F. App'x

425, 429 (6th Cir. 2007). In assessing a claimant's RFC, an

administrative law judge must consider all relevant record evidence,

including medical source opinions on the severity of a claimant's

impairments. See 20 C.F.R. §§ 404.1527(d), 404.1545(a). Furthermore,

courts have stressed the importance of medical opinions to support a

claimant's RFC, and cautioned administrative law judges against

relying on their own expertise in drawing RFC conclusions from raw

medical data. See Isaacs v. Astrue, No. 1:08-CV-828, 2009 WL 3672060,

at *10 (S.D. Ohio Nov. 4, 2009) (quoting Deskin v. Comm'r Soc. Sec.,

605 F.Supp.2d 908, 912 (N.D. Ohio 2008)).

In the case presently before the Court, the administrative law

judge found that, through the date plaintiff was last insured, she had

the RFC to perform medium work. PAGEID 62. The administrative law

judge specifically found that plaintiff was able to lift/carry up to

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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. Id. In addition, plaintiff should avoid fumes,

odors, dusts, gases, and poor ventilation. Id. In making this RFC

assessment, the administrative law judge expressly adopted the opinion

of W. Jerry McCloud, M.D., a state agency physician, and declined to

accept the opinions of Dr. Shade and Dr. Cherdron. PAGEID 62-63.

Dr. Shade opined that plaintiff could not push or pull or engage

in fine manipulation. Page ID# 485. As discussed supra, however, Dr.

Shade expressly limited his opinion to the period after plaintiff’s

insured status lapsed. See PAGEID 484. 

Dr. Cherdron opined that, prior to June 2006, plaintiff “would

have had limitations in the use of the left hand and she probably

could not have done fine manipulation with that.” PAGEID 121-128. 

Plaintiff has a history of carpel tunnel syndrome, see PAGEID 370, but

an EMG in February 2004 did not detect “any definite abnormalities” in

her left wrist. PAGEID 415. Right carpal tunnel syndrome was

diagnosed in 2004, PAGEID 370, but Dr. Cherdron did not suggest that

plaintiff was limited in the use of her right hand. PAGEID 121-128. 

In any event, plaintiff continued to work – even with this condition –

through March 2006, see PAGEID 98-101, and there is no evidence in the

record that plaintiff’s carpal tunnel syndrome became worse or that

she sought treatment for the condition after March 2006. In short,

the administrative law judge’s decision enjoys substantial support in

the record. 

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Having carefully considered the entire record in this action, the

Court concludes that the decision of the Commissioner is supported by

substantial evidence. It is therefore RECOMMENDED that the decision

of the Commissioner be AFFIRMED and that this action be DISMISSED.

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 question, as well as the basis

for objection thereto. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

Response to objections must be filed within fourteen (14) days after

being served with a copy thereof. Fed. 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).

January 25, 2013 s/ Norah McCann King 

 Norah McCann King

 United States Magistrate Judge

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