IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Frank D. Thompson, Jr., :

Plaintiff, : Civil Action 2:12-cv-00272

v. : Judge Watson

Carolyn W. Colvin, : Magistrate Judge Abel

Commissioner of Social Security,

Defendant. :

REPORT AND RECOMMENDATION

Plaintiff Frank D. Thompson, Jr. brings this action under 42 U.S.C. §§405(g) and

1383(c)(3) for review of a final decision of the Commissioner of Social Security denying

his application for Supplemental Security Income benefits. This matter is before the

Magistrate Judge for a report and recommendation on the administrative record and the

parties’ merits briefs.

Summary of Issues. Plaintiff Thompson maintains that he became disabled on

July 2, 2007, at age 45, due to sleep apnea, high blood pressure, arthritis, anxiety and

migraine headaches. (PageID 166.) 

Plaintiff argues that the decision of the Commissioner denying benefits should be

reversed because:

• The administrative law judge erred by disregarding the disability

opinions of Dr. Setnar, and Dr. Torello, both examining physicians, who

were not contradicted by any examining source;

• The administrative law judge erred in disregarding the disability opinion

of Psychologist Allen Rain, a consultative examiner, who diagnosed a

mood disorder, and found multiple areas of marked impairment;

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• The administrative law judge failed to correctly assess plaintiff’s

credibility and failed to state “good reasons” based in the record, for

finding him not fully credible.

Procedural History. Plaintiff Thompson filed his application for supplemental

security income on March 5, 2008, alleging that he became disabled on July 2, 2007, at

age 45. (PageID 149-51.) The applications were denied initially and upon

reconsideration. Plaintiff sought a de novo hearing before an administrative law judge. 

On June 16, 2010, an administrative law judge held a hearing at which plaintiff,

represented by counsel, appeared and testified. (PageID 95-121.) A vocational expert

also testified. (PageID 121-25.) On September 10, 2010, the administrative law judge

issued a decision finding that Thompson was not disabled within the meaning of the

Act. (PageID 59-68.) On January 25, 2012, the Appeals Council denied plaintiff’s

request for review and adopted the administrative law judge’s decision as the final

decision of the Commissioner of Social Security. (PageID 47-49.)

Age, Education, and Work Experience. Thompson was born on February 28,

1962. (PageID 149, 162.) He has a 10th grade, “limited” education. (PageID 171.) 

Thompson has past relevant work as a pizza delivery driver (August 2006-December

07), janitor (2006, 2008, and 2009) and fence installer (2007-08). (PageID 167, 174-88.) He

also worked from 1989 to 2003 while he was incarcerated at the London Correctional

Institution. (PageID 228.) 

Plaintiff’s Testimony. Plaintiff testified at the administrative hearing that he

completed the 10th grade in school but simply “[d]idn’t go much.” (PageID 95.) He can

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read “some” of the newspaper, “a lot words I can’t read.” (Id.) Thompson testified his

last job ended because he was falling asleep on the job. (PageID 96.) He had difficulty

sleeping at night, in which he dozed off and on, but was unable to sleep continuously to

feel rested in the morning. (PageID 98.) When he sat during the day, he fell asleep after

a short period of time. (Id.) Thompson said he never got a good nights sleep. (Id.) He

awoke every morning with a headache in the back of his head at the base of his skull,

which sometimes lasted 3-4 hours. (PageID 99.) Thompson took over the counter

medications like Tylenol or Advil as he was unable to afford anything stronger. (Id.).

Thompson testified he was 5'11" and weighed approximately 240 pounds. (PageID 98-

99.)

Thompson testified that he last drank on November 17, 2007, which was the

same day he was shot in the foot. (PageID 101-02.) At the time of the hearing, he lived

alone in an apartment but had friends who stayed with him at times, because of his

habit of falling asleep with a lit cigarette. (PageID 102.) His mother and sister lived in

the same building downstairs, and family members checked on him periodically. (Id.)

At the time of the June 2010 hearing, he had not driven for about two years because he

was unable to stay awake while driving. He had tried driving three times in the last six

months, but had to pull over, to let someone else drive due to his inability to stay

awake. (PageID 102-03.) 

He was able to take care of his apartment, microwave meals, clean, dust, sweep

and mop, and the like. (PageID 103-04.) He tried to go to bed between 10:00-11:00 p.m.,

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and usually got up around 12:30-1:00 a.m. (PageID 104.) He was up for a few hours

drinking coffee, then dozed off again while sitting at his kitchen table. (PageID 104-05.) 

He noted he falls asleep about 8-10 times a day, for about 1 1⁄2 hours at a time. (PageID

105.) He never had a night after which he felt rested in the morning. (Id.) 

Thompson testified that he had tried a CPAP machine, but it didn’t help; after

that, he had surgery, which helped for a year or so. (PageID 105-06.) He has not seen

anyone else about the possibility of other surgery and he believes his sleep apnea is

getting worse. (PageID 106.) While in prison, before surgery, his apnea was so severe

that he slept in the prison hospital nightly for observation. (PageID 106-07.)

He reported that he generally did not go anywhere but shopping with his 67 year

old mother. (PageID 107-08.) He no longer went fishing because he became short of

breath walking from his car to the fishing spot. (PageID 108.) At the time of the

hearing, he was drawing unemployment compensation. (PageID 112-13.) Until August

2008, he went out and gathered and sold discarded cans for six to eight hours at a time

on the weekends. (PageID 114-15.)

Thompson testified that he had earned up to $400 a month gathering and selling

discarded cans. On weekends, he would work 6-8 hours a day scrapping. He stopped

his scrapping work in August 2008 due to worsening symptoms. (PageID 97-98 and 114-

15. ) At the time of the June 2010 hearing, Thompson had been receiving unemployment

compensation benefits of $112 a week for about one year. (PageID 112-13.)

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Thompson served 15 years, 9 months, and 7 days in prison for involuntary

manslaughter and armed robbery. Then he was on parole for two years, ending August

15, 2005. (PageID 112.)

Medical Evidence of Record. The administrative law judge’s decision fairly sets

out the relevant medical evidence of record. This Report and Recommendation will

only briefly summarize that evidence. 

Physical Impairments.

Milton I. Setnar, D.O. Thompson reported to examining physician, Dr. Setnar, in

May 2008 that he resigned from his last job because he was unable to stay awake while

driving. (PageID 250.) Thompson told Dr. Setnar that he was diagnosed with sleep

apnea in 1999. (Id.) He reported that he fell asleep after sitting more than 5-10 minutes;

sleepiness caused trouble with concentration; he never felt rested after sleep, and was

always tired; he had surgery to repair a deviated septum in November 2000, which

improved his symptoms for six month. He also was on a CPAP machine which was

unsuccessful. He noted he was unable to drive, to tolerate heights, or to maintain

concentration. (Id.)

Thompson estimated that he could lift/carry 50 pounds for 20 feet, sit for more

than 45 minutes, stand for more than 30 minutes and walk one-and-a half blocks. 

(PageID 204.) He also reported that he could climb more than 20 steps, perform his own

self care, and engage in house cleaning, cooking and simple grocery shopping. (Id.) 

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On examination, his lungs were not clear to auscultation and percussion, and

exhibited rhonchi bilaterally. His abdomen was obese. (PageID 251.) Thompson was

observed walking more than 50 feet and climbing more than 20 steps without difficulty

or dyspnea. Thompson’s neurological findings were normal. Dr. Setnar reported

Thompson was 69 1⁄2 inches tall and weighed 280 lbs.; obesity did not contribute to any

mechanical limitation or dyspnea. Dr. Setnar found no clinical signs of lung disease.

(Id.)

Dr. Setnar diagnosed Thompson with a sleep related breathing disorder,

previously diagnosed as “sleep apnea syndrome”, and concluded Thompson was

unable to do work-related physical activities for eight hours per day, five days per week

due to daytime somnolence; however, he noted that Thompson did not have significant

physical limitations. (PageID 252.) Dr. Setnar concluded that Thompson’s general

condition was poor and the prognosis was uncertain, and he recommended a

pulmonary function study. (Id.)

W. Jerry McCloud, M.D./William Bolz, M.D. On July 17, 2008, Dr. McCloud, a

state agency physician, conducted a physical residual functional capacity assessment

based on plaintiff's record. (PageID 290-97.) Dr. McCloud found that Thompson

retained the ability to occasionally lift 50 pounds, frequently lift 25 pounds, stand or

walk about six hours in an eight-hour workday, sit for about six hours in an eight-hour

work day, and push or pull was unlimited. (PageID 291.) He found Thompson would

be limited to occasionally climb ramps and stairs but could never climb ladders, ropes,

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or scaffolds due to daytime somnolence from sleep apnea. (Page ID 292.) Dr. McCloud

further preclueded Thompson from working around hazards due to daytime

somnolence from sleep apnea. (PageID 294.) Dr. McCloud concluded that Thompson’s

symptoms were attributable to a medically determinable impairment. (PageID 295.) Dr.

McCloud found Thompson’s statements were credible. (Id.) Dr. McCloud noted that

his findings were not significantly different from the examining sources’ conclusions. 

(PageID 296.) Another state agency physician, Dr. Bolz affirmed Dr. McCloud’s

assessment in November 2008. (PageID 299.)

Lynne Torello, M.D. On November 19, 2008, after examining Thompson, Dr.

Torello completed a Basic Medical report. (PageID 300-04.) Dr. Torello listed

Thompson’s conditions as obstructive sleep apnea, shortness of breath and

hypertension. (PageID 300.) When discussing his functional abilities, Dr. Torello noted

Thompson was able to walk 1 1⁄2 blocks, stand 10 minutes, and sit 10-15 minutes; lifting

was limited; he was able to accomplish household tasks with help, and to shop slowly;

he had constant shortness of breath, but only slight chest pain. Breathe sounds were

clear but distant. She concluded that Thompson would be unemployable for thirty days

to nine months. (PageID 301.) Dr. Torello noted that he needed his blood pressure

controlled before employment. 

On November 24, 2008, Thompson underwent a pulmonary function study

(“PFS”) on referral from Dr. Torello, which documented postbronchodilator FVC

(forced vital capacity) of 3.27 (62%), FEVI (forced expiratory volume in 1 second), 2.30

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(65%) and DLCO (single breath carbon monoxide diffusing capacity) of 23.6 (61%.)1

(PageID 305.) The interpretation was mild restrictive lung disease, moderate obstructive

lung disease, which improved to mild following bronchodilators, and moderate

decrease in diffusion capacity, which correlated with the measures of alveolar volume. 

(PageID 306.) 

Grant Medical Center. Thompson presented to the emergency room in April

2009, complaining that he had fluid in his lower extremities. (PageID 307-13.) He

reported that he ran out of his diuretic medication and that he did not have a family

doctor. (PageID 307.) On examination, his lower extremities exhibited pitting edema

from his knees to his ankles. (Id.) His neurological examination was intact. (Id.) He

was diagnosed with peripheral edema. (PageID 308.) Thompson’s x-ray of the chest

showed no acute process. (PageID 313.) 

Mt. Carmel West. Thompson was hospitalized for three days in November 2009

with diagnosis of ventral hernia, hypertension and obstructive sleep apnea. (PageID

319-26.) Thompson complained that he had a sharp pain in the right lower side of his

abdomen and reported a 100 lbs. weight gain since February 2009, and five pounds

weight gain in the last five days. He also noted that a month earlier, he developed

increased shortness of breath while sleeping flat. Thompson was admitted for

1

Listing 3.02A, for chronic pulmonary insufficiency, requires an FEV1 equal to or less

than 1.55 for an individual 71 inches tall, the relevant FEV1 value for purposes of the listing is

the value after use of bronchodilators. See 20 C.F.R. Part 404, Subpart P, Appendix 1, §3.00(E)

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abdominal pain, possibly due to the ventral hernia. His chest x-ray showed

cardiomegaly (an enlarged heart) with clear lungs. (PageID 321.) His CT of the

abdomen showed some nonspecific edema throughout the abdomen that extended to

the pelvis. (Id.) After stabilized with medication, Thompson was advised to follow up

with the medical clinic in one to two weeks. (PageID 320.)

Psychological Impairments.

Allan Rain, M.A. Psychologist Allan Rain performed a consultative psychological examination at the request of the state Bureau of Disability Determination on

April 29, 2008. (PageID 258-64.) Mr. Rain found that Thompson exhibited a “glum

expression,” and was not always a reliable historian and chronologist because he

seemed confused. (PageID 258.) Thompson claimed that he was experiencing a severe

migraine that was distracting him. (Id.) He had migraines, which immobilized him and

caused nausea, dizziness, phonophobia, photophobia, and diaphoresis. (PageID 259.) 

He was not on prescription medication due to his finances. (Id.) Thompson also

reported that he had been a slow student, who found learning hard, although he was in

regular classes. (Id.) Thompson reported that he was diagnosed with obstructive sleep

apnea after a sleep study at OSU in 1998, followed by surgery in 2001. Mr. Rain noted

that Thompson had no history of psychiatric hospitalizations, but had received

counseling while he was in prison. (PageID 260.) 

Mr. Rain noted that since his involvement with alcohol, Thompson repeatedly

exhibited memory problems in all three spheres; he was confused and “even baffled” at

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times during the exam. (Id.) Thompson reported that he tired emotionally and

physically, and appeared anergic. (Id.) Thompson also reported that he felt mentally

slowed down, and processed information quite slowly. He stated he was depressed and

defeated. He appeared dysphoric and was irritable. (Id.)

On mental status examination, he presented with a hang-dog expression, and

seldom looked Mr. Rains in the eye. (PageID 261.) Mr. Rains found that Thompson

processed information very slowly, which was associated with both cognitive deficits

and psychomotor retardation. He often did not understand the simplest inquiries and

instructions, even after they were repeated or reduced to basic English. (Id.) He

recalled three of five unrelated items, but added several items not pointed out to him;

he was unable to name any state surrounding Ohio; he counted backwards from 20 to 1

in 18 seconds, and recited the alphabet in 20 seconds, but could not perform serial 3's.

(PageID 262.)

Thompson told Mr. Rain that he had an independent lifestyle consisting of

managing his own personal and financial affairs, going to the store by himself,

navigating the city and interacting with people, including store clerks and the general

public. (Id.)

On the WAIS-III subtests, he scored 5 on the similarities subtest, which suggested

not only the presence of deficient abstract reasoning, but also of intelligence, possibly

due to alcoholic OBS (organic brain syndrome); he scored a 4 on the arithmetic subtest,

suggesting difficulty with computation, concentration, and recall; he scored 5 on digits

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span subtest, where he transposed numbers, which could be an organic indicator, and

again demonstrated serious problems with recall and concentration. He scored 3 on the

comprehension sub tests, which suggested he was not demonstrating the level of

insight and judgment normally associated with the ability to plan to manage and direct

his own life and future. (PageID 262.)

Thompson reported that his primary daily activity was watching TV; he was

unable to perform household chores more than about 20 minutes without tiring

emotionally and physically, after which he rested 30 minutes because of increased pain

and decreased interest. (Id.)

Mr. Rain diagnosed Thompson with a mood disorder, due to a reported history

of alcoholism and assigned him a Global Assessment of Functioning (GAF) score of 40,

but noted that from a functional perspective Thompson’s GAF score was 60. (PageID

263.) 

Mr. Rain opined that Thompson was markedly impaired in his abilities to: relate

to others including co-workers and supervisors, perform simple instructions, maintain

attention, concentration, persistence, and pace to attend simple repetitive tasks, and

withstand the stress and pressure associated with daily work. (PageID 263.) Mr. Rains

felt that Thompson’s ability to manage funds in his best interest was problematic. (Id.)

On June 18, 2008, Mr. Rain replied to the Bureau’s inquiry (PageID 285) to clarify

his findings. (PageID 282-83.) Mr. Rain reiterated his finding that Thompson was not

always a reliable historian because he was confused. (PageID 282.) According to Mr.

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Rain, Thompson’s confusion was largely associated with an organic mood disorder due

to his reported history of alcoholism. (Id.) He also noted that Thompson’s migraines

could have been a contributing factor. (Id.) Mr. Rain noted that Thompson had

memory problems in all three spheres, and confusion, and that he presented with

evidence of decompensation. (Id.) He noted that Thompson’s problems with

non-adaptive behavior was supported by his report that he had been fired from “every

job I’ve had.” (PageID 283.)

Irma Johnston, Psy.D./Marianne Collins, Ph.D. After her review of the record on

June 10, 2008, state agency psychologist, Dr. Johnston, reported that a medically

determinable impairment of mood disorder, was present, but was not severe. (PageID

269.) Dr. Johnston opined that Thompson was mildly limited his activities of daily

living, moderately limited in maintaining social functioning and in maintaining

concentration, persistence or pace, and no episodes of decompensation. (PageID 276.) 

Dr. Johnston further determined that the evidence did not establish the presence of the

“C” criteria. (PageID 277.)

After reviewing Mr. Rain’s reply to the Bureau’s inquiry on July 9, 2008, Dr.

Johnston discounted Mr. Rain’s assessment and found that Thompson was moderately

limited to understand and remember detailed instructions, to maintain attention and

concentration for extended periods, to work in coordination with or proximity to others

without being distracted by them, to complete a normal workday and workweek

without interruption from psychologically based symptoms, and perform at a

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consistent pace without unreasonable number and length of rest periods, to interact

appropriately with the general public, to accept instructions and respond appropriately

to criticism from supervisors, and to respond appropriately to changes in the work

setting. (PageID 286-87.) In a narrative assessment of Thompson’s ability to engage in

work-related activities from a mental standpoint, Dr. Johnston noted that there were

inconsistencies in the file concerning Thompson’s cognitive abilities, including his

ability to drive and perform activities of daily living. (PageID 288.) She also found that

Thompson was only partially credible. (Id.)

She gave Mr. Rain’s conclusions regarding Thompson’s functional limitations

limited weight. (PageID 289.) Dr. Johnston opined that Thompson retained the capacity

to understand, recall, and perform simple repetitive tasks in a relatively static work-like

setting where there were no strict production quotas. (Id.) Dr. Johnston concluded that

Thompson could relate to others on an infrequent and superficial basis, and would

work best in a job that was away from the general public. (Id.) In October 2008, Dr.

Collins, another state agency psychologist, affirmed Dr. Johnston’s assessment. (PageID

298.)

Administrative Law Judge’s Findings. The administrative law judge found that:

1. The claimant has not engaged in substantial gainful activity since March 5,

2008, the application date (20 CFR 416.971 et seq.).

2. The claimant has the following severe impairments: sleep apnea with an

occasional mood disorder and headaches (20 CFR 416.920(c)).

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3. The claimant does not have an impairment or combination of impairments

that meets or medically equals one of the listed impairments in 20 CFR

Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).

4. After careful consideration of the entire record, [the administrative law

judge] find[s] that the claimant has the residual functional capacity to

perform light work as defined in 20 CFR 416.967(b) except the claimant is

precluded from climbing ladders/ropes/scaffolds, operating a motor 

vehicle and working at heights. Moreover, the claimant must avoid

exposure to hazardous moving machinery. Mentally, the claimant is

limited to simple, repetitive tasks; a static work environment; and

superficial, infrequent contact with coworkers. The claimant must avoid

public contact and strict production quotas.

5. The claimant is capable of performing past relevant work as a janitor.

This work does not require the performance of work-related activities 

precluded by the claimant's residual functional capacity (20 CFR 416.965).

6. The claimant has not been under a disability, as defined in the Social

Security Act, since March 5, 2008, the date the application was filed (20

CFR 416.920(f)).

(PageID 61-68, citation to record omitted.)

Standard of Review. Under the provisions of 42 U.S.C. §405(g), “[t]he findings

of 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

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(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 (1950)); Wages v. Secretary of Health and

Human Services, 755 F.2d 495, 497 (6th Cir. 1985).

Plaintiff’s Arguments. Thompson argues that the decision of the Commissioner

denying benefits should be reversed because:

• The administrative law judge erred by disregarding the disability opinions of Dr.

Setnar and Dr. Torello, both examining physicians, who were not contradicted by

any examining source. (Doc. No. 12.) Thompson argues that the administrative

law judge gave “little weight” to Dr. Setnar’s opinion which was corroborated by

Dr. Torello. Dr. Torello’s disability opinion was objectively supported by a PFS

in which there were obstructive, restrictive, and diffusion capacity abnormalities. 

This opinion and the PFS were specifically pointed out to the administrative law

judge during the hearing, but were omitted from the decision. Thompson also

argues that the administrative law judge instead relied on the opinion of State

Agency reviewers who not only had not seen all of the evidence, but discounted

without rationale the disability opinion of Dr. Setnar. According to Thompson,

“The most glaring omission in the decision was the failure to even mention Dr.

Torello and the PFS she obtained.” Doc. No. 12 at PageID 339.

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• The administrative law judge erred in disregarding the disability opinion of

Psychologist Allen Rain, a consultative examiner, who diagnosed a mood

disorder, and found multiple areas of marked impairment. Thompson argues

that the administrative law judge‘s basis for assigning “little weight” to Mr.

Rains opinion was flawed. Thompson also argues that the administrative law

judge omitted in his decision, any discussion as to Mr. Rain’s addendum with the

same neglect it accorded Dr. Torello and the PFS. Thompson concluded that no

examining source disagreed with Mr. Rain, nor was any rationale was provided

by the reviewers for discounting that opinion.

• The administrative law judge failed to correctly assess plaintiff’s credibility and

failed to state “good reasons” based in the record, for finding him not fully

credible. Thompson argues that in finding him not fully credible, regarding his

OSA and headaches, the administrative law judge emphasized the lack of

objective evidence while neglecting consideration of the PFS. Thompson

continued that such a reliance solely on objective evidence was rejected in the

credibility determination in Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th

Cir. 2007).

Analysis. 

In formulating Thompson’s physical residual functional capacity, the

administrative law judge adopted the assessment of the state agency physicians, Dr.

McCloud and Dr. Bolz. (PageID 64.) 

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Plaintiff argues the administrative law judge cannot rely on the opinions of

reviewing physicians to justify his residual functional capacity assessment because they

were “non-examining physicians, of unstated specialty, who non-examined the

claimant prior to the PFS.” (Doc. 12 at PageID 342.) However, the opinions of nonexamining state agency medical consultants have some value and can, under some

circumstances, be given significant weight. This occurs because the Commissioner

views nonexamining sources “as highly qualified physicians and psychologists who are

experts in the evaluation of the medical issues in disability claims under the [Social

Security] Act.” Social Security Ruling 96-6p. Consequently, opinions of one-time

record-reviewing physicians are weighed under the same factors as treating physicians

including supportability, consistency, and specialization. See 20 C.F.R. §416.927(e). Dr.

McCloud specifically restricted Thompson to occasionally climb ramps and stairs but 

could never climb ladders, ropes, or scaffolds due to daytime somnolence from sleep

apnea. (Page ID 292.) Dr. McCloud further precluded Thompson from working around

hazards due to daytime somnolence from sleep apnea. (PageID 294.)

The administrative law judge’s reasons for assigning “little” weight Dr. Setnar’s

opinions and assigning “some” weight to the contrary opinions of Drs. McCloud and

Bolz are supported by substantial evidence. The administrative law judge properly

noted that Dr. Setnar’s opinion was internally inconsistent. (PageID 64.) The

administrative law judge concluded that plaintiff was more restricted than Dr. McCloud

noted in his opinion and therefore concluded that plaintiff could perform a limited

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range of light work. (PageID 63.) In addition, the record consisted of only conservative

treatment. Plaintiff contends the lack of treatment is due to financial reasons, but as the

administrative law judge pointed out during the hearing and in the decision, there are

numerous health clinics in his county where he could obtain free or reduced-cost

medications. (PageID 66, 100.) The administrative law judge also noted, “Interestingly,

the claimant can still afford cigarettes.” (PageID 66.) The administrative law judge also

gave plaintiff a guide to free services in the city during the hearing. (PageID 100.)

For these reasons, the record contained substantial evidence supporting the

administrative law judge’s weighing of Dr. Setnar’s, Dr. McCloud’s, and Dr. Bolz’s

opinions. 

Plaintiff also contends that, “Where the decision totally failed to mention the PFS

or Dr. Torello’s disability opinion, these reviewers opinions were not substantial

evidence based on the record as a whole.” See Doc. 12 at PageID 342. Although the

administrative law judge does not mention Dr. Torello by name, a review of the

decision, clearly shows that the administrative law judge followed 20 CFR 416.927 and

properly did not accept Dr. Torello’s opinion. See PageID 63-65.

Dr. Torello’s opinion contains no rationale for the conclusions reached. For

example, Dr. Torello simply stated that Thompson needed his blood pressure

controlled before employment. (PageID 397.) An opinion without supporting reasons is

entitled to very little credibility. Dr. Torello also reported that he would be

unemployable for thirty days to nine months. See 20 C.F.R. § 416.909. 

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I will next address Thompson’s arguments concerning his mental residual

functional capacity. First, Thompson argues that the administrative law judge was

incorrect in rejecting Mr. Rain’s opinion as Mr. Rain was the only mental health source

to have examined Thompson. Thompson is correct that the administrative law judge

concurred with Dr. Johnston in rejecting Mr. Rain’s interpretation of the record

evidence. In order to determine whether the administrative law judge acted properly in

disagreeing with a medical source, I must first determine the medical source’s

classification. Of the three types of medical sources-nonexamining sources, nontreating

(but examining) sources, and treating sources-Mr. Rain was the second. See 20 C.F.R. §

416.902; Smith v. Comm'r of Soc. Sec., 482 F.3d 873, 875 (6th Cir. 2007) ( “A ‘nontreating

source’ (but examining source) has examined the claimant ‘but does not have, or did not

have, an ongoing treatment relationship with’ [him].”). In contrast, Dr. Johnston was a

“nonexamining source.” See Smith, 482 F.3d at 875 (“A ‘nonexamining source’ is ‘a

physician, psychologist, or other acceptable medical source who has not examined [the

claimant] but provides a medical or other opinion in [the claimant's] case.’ ”).

The Social Security Administration gives the most weight to opinions from a

claimant's treating source; accordingly, an administrative law judge is procedurally

required to “give good reasons in [its] notice of determination or decision for the weight

[it gives the claimant's] treating source’s opinion.” (Id.) However, this requirement

only applies to treating sources. (Id. at 876.) With regard to nontreating, but examining,

sources, the agency will simply “[g]enerally [ ] give more weight to the opinion of a

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source who has examined [the claimant] than to the opinion of a source who has not

examined” him. 20 C.F.R. § 416.927(e)(1); see also Smith, 482 F.3d at 875. Because Mr.

Rain should not have been afforded controlling weight, in order to determine how

much weight to give Mr. Rain’s opinion, the Regulations require administrative law

judges to weigh their opinions with the factors - supportability, consistency,

specialization, and so on-described in 20 C.F.R. §416.927(e).

The record shows that the administrative law judge considered relevant factors

in its determination to credit Dr. Johnston’'s assessment over Mr. Rain’s. The

administrative law judge agreed with Dr. Johnston in rejecting Mr. Rain's finding that

Thompson would have marked limitation in his abilities to: relate to others including

co-workers and supervisors, perform simple instructions, maintain attention,

concentration, persistence, and pace to attend simple repetitive tasks, and withstand the

stress and pressure associated with daily work. (PageID 263.) The administrative law

judge found that Mr. Rain’s conclusion was not fully supported by his own materials or

the record as a whole.

The administrative law judge also gave little weight to Mr. Rain’s opinion

because it was inconsistent with plaintiff’s self-reported activities, influenced by

plaintiff’s alleged migraine during the examination, was not consistent with plaintiff’s

mental health treatment, and was not supported by plaintiff’s testimony at the

administrative hearing. (PageID 64.) The administrative law judge’s conclusion that

Mr. Rain’s “markedly limited” functional capacity conclusion is not fully supported by

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the notes of his single meeting with Thompson is supported by substantial evidence. 

Further, the administrative law judge cited the absence in the record of other evidence

that Thompson lacked the mental ability to perform any work activity. The

administrative law judge noted that Thompson had not received any mental health

treatment nor complained of psychological symptoms while pursuing any other form of

medical care. The administrative law judge also observed that the record does not

contain evidence of abnormal clinical and laboratory findings sufficient to document

any further degree of loss of function. (PageID 63.) The administrative law judge’s

decision to place more weight on the conclusions of Dr. Johnston than those of Mr. Rain

is supported by substantial evidence.

Credibility.

Thompson’s next claim of error finds fault with the administrative law judge’s

credibility determination. Specifically, Thompson claims that regarding his OSA and

headaches, the administrative law judge emphasized the lack of objective evidence

while neglecting consideration of the PFS. Thompson alleges that the administrative

law judge incorrectly noted that his allegations of disability due to his obstructive sleep

apnea and headaches were not consistent with objective medical evidence. Thompson

argues the administrative law judge cannot rely soley on objective evidence. (Doc. No.

12 at PageID 344-46.) 

An administrative law judge “is not required to accept a claimant’s subjective

complaints and may consider the credibility of a claimant when making a

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determination of disability.” Jones v. Comm’r of Soc. Sec., 336 F.3d at 469, 476 (6th Cir.

2003), citing Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997). An

administrative law judge’s credibility determinations about a claimant are to be given

great weight. However, they must also be supported by substantial evidence. Cruse v.

Comm’r of Soc. Sec., 502 F.3d 532, 542 (6th Cir. 2007). “Discounting credibility to a certain

degree is appropriate where an administrative law judge finds contradictions among

medical reports, claimant’s testimony, and other evidence.” Walters, 127 F.3d at 531,

citing Bradley v. Sec’y of Health & Human Servs., 862 F.2d 1224, 1227 (6th Cir. 1988).

In the instant case, the record is replete with objective medical evidence

indicating that Thompson had medically determinable impairments. The

administrative law judge acknowledged these impairments, and found that, “[t]he

objective evidence fails to document the presence of any impairment or combination of

impairments that could reasonably be expected to result in pain or other symptoms...” 

(PageID 65.) The administrative law judge determined, however, that after considering

the intensity, persistence, and limiting effect of Thompson’s impairments, he was

capable of light exertional work. (PageID 63-67.) In making this credibility

determination, the administrative law judge properly relied on the record evidence,

including objective medical findings and Thompson’s own statements about his daily

activities. See 20 C.F.R. § 416.929(c)(2) (objective medical findings are useful in assessing

the intensity and persistence of a claimant’s symptoms) and 20 C.F.R. § 416.929(c)(3)(i)

(daily activities may be useful to assess nature and severity of claimant’s symptoms).

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The administrative law judge found that Thompson’s statements regarding his

varied activities contradict his allegations concerning the intensity, duration, and

limiting effects of his symptoms. (PageID 62, 66.) The administrative law judge noted

that Thompson could go out and “scrap” (finding metal cans) for six to eight hours at a

time on the weekends through August 2008, despite his testimony that he falls asleep

eight to 10 times a day for up to 90 minutes. (Id.) Thompson reported he is able to take

care of personal grooming and is able to perform household, cleaning and chores. 

(PageID 62, citing to PageID 203, 262-63.) It was not improper for the administrative law

judge to consider plaintiff’s ability to engage in activities of daily living in assessing the

credibility of his claims to be unable to work. Warner v. Comm’r of Soc. Sec., 375 F.3d 387,

392 (6th Cir. 2004), citing Walters, 127 F.3d at 532. 

Based upon the foregoing, the undersigned finds that the administrative law

judge’s assessment of Thompson’s credibility was based on consideration of the entire

record and is supported by substantial evidence. Accordingly, applying the applicable

deferential standard of review, the undersigned concludes that the administrative law

judge’s credibility determination was not erroneous.

Accordingly, it is RECOMMENDED that the decision of the Commissioner of

Social Security be AFFIRMED. It is FURTHER RECOMMENDED that plaintiff’s

motion for summary judgment be DENIED and that defendant’s motion for summary

judgment be GRANTED.

If any party objects to this Report and Recommendation, that party may, within

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fourteen (14) days, file and serve on all parties a motion for reconsideration by the

Court, 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)(B); Rule 72(b),

Fed. R. Civ. P.

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 waiver of the right to appeal the judgment of the District Court. Thomas v.

Arn, 474 U.S. 140, 150-52 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). See

also, Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989).

 s/Mark R. Abel 

United States Magistrate Judge

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