IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Steven A. Acton, :

Plaintiff, :

v. : Case No. 2:12-cv-1049

 : JUDGE ALGENON L. MARBLEY

Commissioner of Social Security, Magistrate Judge Kemp

Defendant. :

 REPORT AND RECOMMENDATION

 I. Introduction

 Plaintiff, Steven A. Acton, 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 June 24, 2009, and alleged that plaintiff became

disabled on February 10, 2005.

After initial administrative denials of his application,

plaintiff was given a videoconference hearing before an

Administrative Law Judge on March 24, 2011. In a decision dated

April 14, 2011, the ALJ denied benefits. That became the

Commissioner’s final decision on September 15, 2012, when the

Appeals Council denied review. 

After plaintiff filed this case, the Commissioner filed the

administrative record on January 22, 2013. Plaintiff filed his

statement of specific errors on February 20, 2013. The

Commissioner filed a response on April 24, 2013. Plaintiff filed

a reply brief on May 8, 2013, and the case is now ready to

decide.

II. Plaintiff’s Testimony at the Administrative Hearing

Plaintiff, who was 54 years old at the time of the

administrative hearing and who has an Associates Degree, which he

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obtained in 2008, testified as follows. His testimony appears at

pages 39-75 of the administrative record.

Plaintiff was wearing a knee brace at the hearing. He had

been wearing it since his last surgery two years before, although

it was not prescribed for him by a doctor. He lived in a house

with a basement and was able to go up and down steps to do

laundry. He drove to the hearing, and was able to do so

notwithstanding the fact that he occasionally lost feeling in his

left hand. He had a background as a landscaper but after his

onset date, he went to school and got an Associate’s Degree in

web design.

Plaintiff had recently worked as an art instructor, a job

which ended only a week before the hearing. He worked two to

three hours per week. Before his onset date, he worked in

interior and exterior landscaping. As an exterior landscaper, he

installed shrubs and trees and did very heavy lifting. As an

interior landscaper, he pruned trees growing inside shopping

malls, also a job which required heavy lifting. 

Plaintiff testified that his most significant problem was

stiffness and limited mobility in his neck. If he looked down,

he got a headache instantly. That problem began in 2004. Since

then, he has had chiropractic treatment including traction,

electric stimulation, and massage therapy. The numbness and

tingling in his left hand was the next most significant problem,

although he also had problems gripping with both hands. His

upper back was also troublesome. Finally, he had psychological

effects from his physical condition, including depression due to

not being able to do things he was formerly capable of doing. 

Plaintiff could walk for fifteen minutes without stopping

and could stand for about the same length of time before he got

neck and back pain. Sitting for any extended period was also

uncomfortable. He could lift ten pounds. He experienced some

mental confusion as a result of medications. 

Plaintiff’s wife was employed, so he spent a good bit of

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time home alone. He could take care of his personal needs and

help out with chores such as doing laundry, running the sweeper,

and dusting. He also did dishes, cooked and shopped. He was

able to complete the class time and homework for his degree, and

he also helped his parents out with driving. He had no

difficulty getting along with others. He was able to read

articles about art. With pain, he could bend over to touch his

toes or squat down to the floor. He could pick up small objects

with either hand but could not reach overhead. He did not

believe he could work five days a week, eight hours a day. 

III. The Medical Records

The medical records in this case are found beginning on page

291 of the administrative record. The Court summarizes the

pertinent records as follows.

The first fifty-plus pages of the medical records show that

plaintiff underwent a variety of tests, primarily for wrist pain

and chest pain. No cardiac condition was seen, but he did have

some slight problems with his right wrist. (Tr. 291-346).

Plaintiff had an MRI done on September 25, 2008. In his

cervical spine, he had mild right neural foraminal stenosis at

C5-6 and severe left neural foraminal stenosis at C6-7 due to a

shallow left foraminal disc protrusion. (Tr. 348-49).

Sometime in 2008, plaintiff underwent a work evaluation done

by a physical therapist, Mr. Hintz. At that time, he was able to

lift 40 pounds. (Tr. 837).

Dr. Maynard (the Court refers to him as “Dr.” although

noting that he is a chiropractor, not a medical doctor, and that

the Commissioner’s memorandum refers to him as “Mr.), plaintiff’s

treating chiropractor, wrote a letter on December 21, 2008

concerning plaintiff’s condition. The letter noted that

plaintiff had developed occipital neuralgia related to his neck

sprain, facet arthropathy, and cervical degenerative disc

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disease. (Tr. 403-04). The letter was written for purposes of

supporting plaintiff’s workers’ compensation claim. Dr. Maynard

also had plaintiff fill out a questionnaire on February 18, 2009,

and the form showed that plaintiff had improved with treatment

both in reduction of pain and increase in mobility. (Tr. 413-

14). The records also show that he participated in a course of

physical therapy, but did not appear to meet the goals set at the

outset. There are also a large number of treatment notes dealing

with plaintiff’s diabetes and sleep apnea, but none of them are

significant as far as the issues in this case are concerned. 

Plaintiff did describe his neck and back pain as “worsening” in

2009. See, e.g., Tr. 499. A note from Dr. Hussein also shows an

increase in neck pain in 2009, with the pain made worse by

exertion and prolonged sitting in one position. (Tr. 512).

On June 16, 2009, Dr. Maynard wrote another letter

concerning plaintiff’s treatment and symptoms. He stated that

plaintiff was not responding well to the current treatment

regimen and that he had restriction in extension and bilateral

bending. He recommended a neurosurgical evaluation. (Tr. 545). 

It appears that Dr. Lobel did that evaluation in July, 2009, and

recommended against surgery. (Tr. 575-75). A letter written by

Dr. Maynard in May, 2009 indicated that treatment had not cured

plaintiff’s problems but it had “assist[ed] him greatly in

dealing with his activities of daily living, helped him graduate

from his vocational rehabilitation program and allows him to help

him take care of his family.” (Tr. 557). Plaintiff filled out

another questionnaire for Dr. Maynard on June 15, 2009, on which

he stated that he “was doing fine until recently.” (Tr. 651).

Dr. McCloud, a state agency physician, completed a residual

functional capacity report on September 7, 2009. He concluded

that plaintiff could do a relatively full range of medium work,

with only occasional climbing of ladders, ropes and scaffolds and

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some limitations on gross manipulation. Dr. McCloud explained

that he found plaintiff’s report of symptoms only partially

credible due to inconsistencies with the medical evidence of

record showing that plaintiff could lift between 40 and 100

pounds and that many of his conditions were mild and his strength

and sensory examinations were normal. (Tr. 656-63). Another

state agency reviewer, Dr. Hill, subsequently affirmed that

evaluation. (Tr. 816).

Dr. Maynard continued to update plaintiff’s workers’

compensation attorney, indicating in the latter part of 2009 that

he had referred plaintiff to Dr. Masone, a pain specialist. 

Various notes from Dr. Masone show that he treated plaintiff for

conditions he diagnosed as radiculitis of the cervical spine,

cervical foraminal stenosis, occipital neuralgia, cervical

degenerative disc disease, and cervical facet arthropathy. See,

e.g., Tr. 858. He administered injections and prescribed

medication, and also discussed a radiofrequency ablation

procedure. Dr. Masone also completed a physical capacity

evaluation form on February 28, 2011, stating that plaintiff

could stand, sit and walk for a total of eight hours in a work

day, could lift up to ten pounds occasionally, could not use his

hands for repetitive pushing and pulling, and could not climb

ladders. He could also not reach above shoulder level, but he

could occasionally bend, squat, crawl, and climb steps. (Tr.

875-76). Dr. Maynard expressed his opinion of plaintiff’s

physical abilities in a lengthy report dated February 27, 2011,

stating that plaintiff could not return to his previous line of

work and also that he was permanently disabled under Department

of Labor and BWC standards. He completed a form indicating that

plaintiff could sit, stand and walk for a total of eight hours in

a work day (four of them sitting), could occasionally lift up to

25 pounds, could never crawl or climb, could occasionally bend,

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squat and reach, could not work around unprotected heights, and

could not do simple grasping or manipulation with his right hand

or push and pull arm controls. (Tr. 933-43).

 IV. The Vocational Testimony

A vocational expert, Dr. Growick, also testified at the

administrative hearing. His testimony begins at page 76 of the

record. 

Dr. Growick classified plaintiff’s past work as a landscaper

as heavy and semi-unskilled. The nursery worker or indoor

trimmer job was heavy and unskilled. The instructor job is light

and skilled, but the ALJ eliminated that job from further

questions because it did not rise to the level of substantial

gainful activity. 

Dr. Growick was asked questions about someone who could work

at the light exertional level, who could not climb ladders, ropes

or scaffolds, who could occasionally climb ramps and stairs, who

could occasionally stoop, kneel, crouch and crawl, who could do

frequent handling and frequent fingering bilaterally, who could

frequently push and pull with his arms and frequently push and

pull foot pedals with his right leg, who could reach overhead

occasionally with his left arm, and who should avoid hazards such

as unprotected heights and working around dangerous moving

machinery. He responded that such a person could not do

plaintiff’s past work, but that such a person could do light jobs

such as bench assembler or machine tender. If the same person

could lift up to 40 pounds occasionally and 20 pounds frequently,

could stand and walk six hours in a workday, could sit for two

hours, could occasionally climb ropes, ladders or scaffolds,

could occasionally balance and handle, and could finger

frequently, those jobs would still be available. Dr. Growick

also testified that plaintiff had not acquired any transferable

job skills. Finally, in response to questions from plaintiff’s

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attorney about Exhibit 34F, which is the 2011 report from Dr.

Maynard, Dr. Growick said that someone so limited would be

unemployable. 

V. The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 14

through 32 of the administrative record. The important findings

in that decision are as follows.

The Administrative Law Judge found, first, that plaintiff

met the insured status requirements of the Social Security Act up

to December 31, 2010. Next, he found that plaintiff had not

engaged in substantial gainful activity after his alleged onset

date through his last insured date. As far as plaintiff’s

impairments are concerned, the ALJ found that plaintiff had

severe impairments including obesity, diabetes mellitus, carpal

tunnel syndrome, headaches, degenerative disc disease of the

cervical and thoracic spine, osteoarthritis of the left knee, and

sleep apnea. The ALJ also found that plaintiff’s 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 light work except that could never climb

ladders, ropes and scaffolds, could occasionally climb ramps and

stairs, could occasionally stoop, kneel crouch, and crawl, could

occasionally reach overhead with his left arm, could frequently

handle and finger bilaterally, could frequently push and pull

with both arms and operate foot pedals with his right leg, and

had to avoid exposure to hazards such as unprotected heights and

dangerous moving machinery. The ALJ found that, with these

restrictions, plaintiff could perform those jobs identified by

the vocational expert such as bench assembler and machine tender,

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and that such jobs existed in significant numbers in both the

national and state economies. Consequently, 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 the

following issues: (1) that the ALJ did not properly evaluate

either the opinions of the treating sources, Drs. Masone and

Maynard, or the state agency reviewers, Drs. McCloud and Hill;

and (2) that the ALJ did not perform a proper credibility

assessment. The Court reviews the ALJ’s decision using 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

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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).

The Court begins with the way in which the ALJ dealt with

the chiropractic opinion evidence. As plaintiff notes, the ALJ’s

discussion of that evidence (and, in particular, the 2011

opinion) was quite brief, consisting of the statement that the

findings were given “no weight” given their inconsistency with

prior observations and the chiropractor’s earlier opinion that

plaintiff should return to work as soon as possible, coupled with

the observation that Dr. Maynard was “not an acceptable medical

source, and opinions regarding the ultimate issue of disability

are reserved to the Commissioner.” (Tr. 22).

The law in this Circuit is clear that a chiropractor is not

an acceptable medical source and that the regulation (20 C.F.R.

§404.1527(d)) requiring special deference to the opinions of

treating sources) does not apply to chiropractors. Walters v.

Comm’r of Social Security, 127 F.3d 525, 530 (6th Cir. 1997). As

this Court has said, “chiropractors cannot establish the

existence of medically determinable impairments, cannot give

medical opinions, and cannot be considered treating sources whose

medical opinions are entitled to controlling weight.” Wafford v.

Astrue, 2010 WL 5421300, *4 (S.D. Ohio Dec. 27, 2010). On the

other hand, SSR 06-3p counsels that “opinions from non-medical

sources who have seen the claimant in their professional capacity

should be evaluated by using the applicable factors, including

how long the source has known the individual, how consistent the

opinion is with other evidence, and how well the source explains

the opinion,” Cruse v. Comm’r of Social Security, 502 F.3d 532,

541 (6th Cir. 2007), and such opinions may be used to determined

“key issues such as impairment severity and functional effects,

along with the other evidence in the file.” SSR 06-3p. 

Ultimately, if the ALJ applies the “factors of supportability and

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consistency” to chiropractic opinion evidence, no error in

application of this policy occurs. Kerlin v. Astrue, 2010 WL

3937423, *8 (S.D. Ohio March 25, 2010), adopted and affirmed 

2010 WL 3895175 (S.D. Ohio Sept. 29, 2010).

The ALJ did, briefly, address the issues of supportability

and consistency when he concluded that Dr. Maynard’s 2011

evaluation was not consistent with all of his prior treatment

notes and his statements that plaintiff should be able to return

to work soon. That is, in fact, what those notes indicate, and

there is little, if any, explanation given for why Dr. Maynard

appears to have reached a different conclusion in his later

report. Plaintiff criticizes the ALJ for failing to provide a

more detailed statement of his rationale (presumably one which

cited to specific treatment notes and to the language or findings

in those notes with which the later opinion was inconsistent),

arguing that the Commissioner’s memorandum on this issue is

simply a post hoc rationalization of the ALJ’s decision which

this Court may not accept.

In the Court’s view, this argument is misplaced for two

reasons. First, the Commissioner has not actually provided the

Court with a post hoc rationalization; it is simply an expansion

of the rather terse reasoning process which is actually contained

in the administrative decision, rather than an entirely new

argument. Second, an ALJ is not, in this context, required to

cite chapter and verse concerning inconsistencies in the record

in order for the decision to pass muster. This is not like the

situation involving a treating source’s opinion, where a detailed

explanation is required by the applicable regulation and the

failure to provide it deprives a claimant of an important right. 

See, e.g., Wilson v. Comm’r of Social Security, 378 F.3d 541, 544

(6th Cir. 2004). “Thus, while claimants are generally entitled

to receive an explanation when an ALJ discounts or even adopts a

treating source's opinion, this entitlement does not extend to an

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ALJ's adoption or rejection of the opinions of nontreating

sources.” Johnson v. Astrue, 2010 WL 5559542, *6 (N.D. Ohio 

Dec. 3, 2010), adopted and affirmed 2010 WL 5478604 (N.D. Ohio

Dec. 30, 2010). Since, by definition, even though Dr. Maynard

did treat plaintiff, due to his status as a chiropractor he does

not qualify as a treating source, and the ALJ was not obliged to

provide a detailed explanation for discounting his views. The

explanation provided does touch on the appropriate factors, and,

as the Commissioner’s memorandum demonstrates, it is

substantially supported by the record. That is enough to

insulate the ALJ’s decision on this issue from reversal by this

Court.

The same rationale does not apply, however, with respect to

Dr. Masone. He is a treating source, and 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

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was) and whether the ALJ considered only appropriate factors in

making that decision. Wilson v. Comm’r of Social Security, 378

F.3d 541, 544 (6th Cir. 2004). Finally, the ALJ cannot simply

reject completely and without explanation a treating source

opinion which is not given controlling weight; rather, “the ALJ

must still determine how much weight is appropriate by

considering a number of factors, including the length of the

treatment relationship and the frequency of examination, the

nature and extent of the treatment relationship, supportability

of the opinion, consistency of the opinion with the record as a

whole, and any specialization of the treating physician.” 

Blakley v. Comm’r of Social Security, 581 F.3d 399, 406 (6th Cir.

2009). 

The starting point of this analysis is always the rationale

provided by the ALJ, since the Court must rely on the ALJ’s

statement of reasons why a treating source opinion was rejected

and may not attribute reasons to the ALJ which are not stated in

the administrative decision. See, e.g., Williams v. Astrue, 2009

WL 2148625, *8 (S.D. Ohio July 14, 2009) (“It is highly doubtful

that the Commissioner's post-hoc rationalizations can be the sole

basis to affirm an ALJ's decision when the ALJ has failed to

weigh a treating medical source opinion as required by the

Regulations”). 

Here, the ALJ explained his reasoning as follows:

As for the opinion evidence, the undersigned gives the

opinion of Dr. Masone, the claimant’s pain management

specialist, some weight with regard to the claimant’s

standing and walking abilities, grasping and fine

manipulation abilities, ability to use his feet for

repetitive movements, and postural limitations as

consistent with the evidence of record and the

claimant’s reported abilities and activities. (Ex.

31F). However, the undersigned finds the claimant’s

lifting capacity greater than indicated based on

vocational evaluation data (Ex. 29F). 

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(Tr. 22). Plaintiff contends that this explanation falls far

short of what §404.1527(d) and Wilson require. He argues that

the ALJ failed even to acknowledge that Dr. Masone was a treating

source and that he did not explicitly consider the question of

whether his opinion was entitled to be given controlling weight. 

(Reply memorandum, Doc. 12, at 3). He also asserts that it was

error to discount Dr. Masone’s lifting restrictions based on the

evaluation by the BWC, because the opinion expressed there came

not from another physician but from a physical therapist, and

such opinions cannot be used to rebut the views of a treating

source. (Statement of Errors, Doc. 8, at 9). 

It is true that the Commissioner’s memorandum, in discussing

Dr. Masone’s opinion, does not directly characterize him as a

treating source. On the other hand, the Commissioner

acknowledges that plaintiff’s cited authority, Hensley v. Astrue,

573 F.3d 263 (6th Cir. 2009), deals with the treating source

regulation, but the Commissioner argues that Hensley is

inapplicable. This Court agrees; Hensley involved an ALJ’s

choosing to credit the opinion of a non-treating source over that

of a treating source for no reason other than the fact that the

two physicians disagreed. That rationale was rejected by the

Court of Appeals because the ALJ did not cite any reason

described in §404.1527(d)(2) for giving less than controlling

weight to the treating source opinion.

If one reads the ALJ’s decision as a whole, that is not what

occurred here. The ALJ, in the discussion leading up to his

consideration of the opinion evidence, considered the conditions

treated by Dr. Masone, including headaches and disease of the

cervical spine. He noted that prior to Dr. Masone’s treatment,

such as when seeing Dr. Lobel, plaintiff reported relatively

moderate amounts of pain in his neck and upper back. Also,

plaintiff received only conservative care in the form of physical

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therapy and chiropractic case. (Tr. 20). Dr. Maynard noted at

various times that his treatments helped plaintiff with

activities of daily living. Plaintiff reported pain at a level

of three out of ten when he saw Dr. Masone in January, 2011. MRI

studies showed only mild to moderate stenosis in the cervical

spine and there were only “minimal clinical signs of impairment,

with only scattered references to decreased range of motion and

tenderness in the cervical, occipital, and trapezius areas.” Id.

Also, the ALJ correctly noted that plaintiff “showed no atrophy

or weakness in either upper extremity, with only a few notes of

decreased sensation in his left upper extremity.” Id. In

addition, the ALJ noted that plaintiff had sought pain management

only recently, did not take a large number of medications, and

was able to attend college for two years, taught a pottery class,

worked out, and performed various household chores. Id. at 20-

21. Finally, the evaluation done by the BWC represented not so

much an opinion about plaintiff’s capabilities (although there is

some of that) but an observation about what he actually did,

including lifting. These are all valid reasons for choosing not

to give controlling weight to a treating source’s opinion, and

they are all articulated within the ALJ’s decision. Thus, while

the ALJ did not expressly state that he was not affording

controlling weight to Dr. Masone’s opinion, it is apparent from

his decision to credit some portions of it and not others that he

did just that. The Court concludes that the decision, as a

whole, sufficiently explained both to the plaintiff and to a

reviewing court the basis for the ALJ’s decision not to give Dr.

Masone’s views controlling weight, and that the intent and

purpose of §404.1527(d) was satisfied here. Since the factors

cited are all legitimate and supported by the record, so is the

ALJ’s decision to give significant, but less than controlling,

weight to Dr. Masone’s conclusions about plaintiff’s ability to

work - and, in particular, to conclude that plaintiff could lift

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heavier weights than Dr. Masone believed he could (twenty pounds

versus ten pounds), which is the primary difference between Dr.

Masone’s assessment of plaintiffs residual functional capacity

and the ALJ’s assessment.

 Plaintiff also makes two other arguments about the medical

evidence: that the ALJ must have “made up” his finding about

plaintiff’s ability to push and pull, and that the ALJ did not

discuss Dr. McCloud’s opinion, as confirmed by Dr. Hill. This

latter contention raises, at most, harmless error, since the

ALJ’s residual functional capacity finding was more favorable to

the plaintiff than Dr. McCloud’s. The Court does not accept

plaintiff’s invitation to construe the rule concerning discussion

of a state agency physician’s opinion as conferring an important

procedural right on a claimant. That concept has been limited to

regulations like §404.1527(d), see Rabbers v. Comm’r of Social

Security, 582 F.3d 64 (6th cir. 2009), and there is no basis for

extending it to this situation. As to the former, the BWC

evaluation indicates a good ability to push and pull bilaterally. 

There was a basis for the ALJ’s finding on this point, and it

does not appear to be particularly material to the jobs which the

vocational expert identified. These are not good reasons for a

remand.

Plaintiff also attacks the ALJ’s credibility finding. 

Specifically, he argues that “[t]he ALJ’s credibility

determination was unsupported by the evidence of record because

the evidence relied upon was irrelevant to the conclusions

drawn.” Statement of Errors, at 16. He faults the ALJ for using

evidence of plaintiff’s classwork and teaching as support for the

proposition that plaintiff could work; for relying on negative

brain scans when the source of plaintiff’s headaches was not a

brain problem; and for citing plaintiff’s history of conservative

treatment as evidence that his pain was not debilitating.

It is certainly the law that an ALJ may not reject

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allegations of disabling symptoms, including pain, solely because

objective medical evidence is lacking. Rather, the ALJ must

consider other evidence, including the claimant's daily

activities, the duration, frequency, and intensity of the

symptoms, precipitating and aggravating factors, medication

(including side effects), treatment or therapy, and any other

pertinent factors. 20 C.F.R. §404.1529(c)(3). Although the ALJ

is given wide latitude to make determinations about a claimant’s

credibility, the ALJ is still required to provide an explanation

of the reasons why a claimant is not considered to be entirely

credible, and the Court may overturn the ALJ’s credibility

determination if the reasons given do not have substantial

support in the record. See, e.g. Felisky v. Bowen, 35 F.3d 1027

(6th Cir. 1994).

The ALJ did, as plaintiff argues, cite to various aspects of

the record in support of his finding that plaintiff did not

testify credibly about completely disabling symptoms. However,

in addition to those commented on in plaintiff’s Statement of

Errors, the ALJ noted that plaintiff did not aggressively seek

treatment of his headaches until some years after they were

diagnosed; that he received effective treatment for them at

times, such as an occipital nerve block; that he often described

his pain as three or four out of ten and commented at times that

he was getting along well; that with chiropractic assistance he

was able to complete his vocational rehabilitation and perform

various activities of daily living; and that there was some

inconsistency between his description of those activities and his

claim of disabling pain or headaches. See Tr. 19-21. 

This is one of those cases where any one of those factors,

standing alone, might not support a finding that the plaintiff

was less than fully credible. However, it is up to the ALJ to

consider all of the evidence of record, taken together, in

deciding how much weight to assign to a claimant’s testimony. 

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Further, “it must be kept in mind that the determination of

credibility related to subjective complaints of pain rest with

the ALJ and that ‘the ALJ's opportunity to observe the demeanor

of the claimant ... is invaluable and should not be discarded

lightly.’ Kirk v. Secretary of Health and Human Services, 667

F.2d 524, 538 (6th Cir.1981) quoting Beavers v. Secretary of

Health and Human Services, 577 F.2d 383, 387 (6th Cir.1978).” 

Gaffney v. Bowen, 825 F.2d 98, 101 (6th Cir. 1987). Here, as in

Brazier v. Secretary of Health and Human Services, 61 F.3d 903,

*9 (6th Cir. July 13, 1995), “the ALJ did more than simply reject

claimant's complaints of totally disabling pain in a conclusory

fashion on the basis of credibility; rather, the ALJ discounted

claimant's subjective complaints of pain based upon

inconsistencies between her testimony and the evidence of

record.” When that occurs, the “great deference” given to the

ALJ in this area prevents this Court from second-guessing that

decision. See, e.g., Cunningham v. Astrue, 360 Fed. Appx. 606,

613 (6th Cir. January 5, 2010).

 VII. Recommended Decision

Based on the above discussion, it is recommended that the

plaintiff’s statement of errors be overruled and that the Court

enter judgment 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 made. Upon proper

objections, a judge of this Court may accept, reject, or modify,

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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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