IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

William Henson, :

 Plaintiff, :

 v. : Case No. 2:12-cv-0624

Commissioner of Social : JUDGE PETER C. ECONOMUS

 Security, Magistrate Judge Kemp

 :

Defendant. 

 

 REPORT AND RECOMMENDATION

 I. Introduction

 Plaintiff, William Henson, filed this action seeking review

of a decision of the Commissioner of Social Security denying his

applications for disability insurance benefits and supplemental

security income. Those applications were filed on September 23,

2008, and alleged that plaintiff became disabled on July 1, 2006.

After initial administrative denials of his applications,

plaintiff was given a hearing before an Administrative Law Judge

on February 15, 2011. In a decision dated March 9, 2011, the ALJ

denied benefits. That became the Commissioner’s final decision

on May 15, 2012, when the Appeals Council denied review. 

After plaintiff filed this case, the Commissioner filed the

administrative record on September 28, 2012. Plaintiff filed his

statement of specific errors on October 28, 2012. The

Commissioner filed a response on January 11, 2013. No reply

brief was filed, and the case is now ready to decide.

II. Plaintiff’s Testimony at the Administrative Hearing

 Plaintiff, who was 51 years old at the time of the

administrative hearing and who has a tenth grade education (he

left school during the eleventh grade), testified as follows. 

His testimony appears at pages 8-18 of the administrative record.

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Plaintiff was asked by his attorney to explain why he

believed he was disabled. In response, he said that it was hard

for him to do anything, and that after he took his medication in

the morning he went back to sleep. He also stated he was having

trouble remembering things. The medication he was referring to

was Tegretol, which he took twice a day. His hands would shake

if he tried to do something like electronics work. He lost his

last job because he fell asleep. 

Plaintiff has a seizure disorder. He had not driven since

being diagnosed with it. He was unsure if he was still having

seizures. He admitted to past use of marijuana but said he had

not been using it lately. He said he rarely left his house, and

might go to the bank once a month. His wife did all of the

shopping and household chores.

III. The Medical Records

The medical records in this case are found beginning on page

226 of the administrative record. The pertinent records (those

which relate to the issues raised in plaintiff’s statement of

errors, all of which concern either his mental limitations or his

tremor and radiculopathy), can be summarized as follows.

There are a large number of treatment records confirming the

existence of plaintiff’s seizure disorder and the fact that he

has been prescribed medication for that problem. Some of them

also show issues with his left arm, usually described as muscle

spasm. He had been complaining of forearm pain since 2004, and a

test showed some loss of disc space at C5-6 with some mild neural

foramina encroachment. An EMG done in 2004 was abnormal, showing

isolated denervation in the left EDC (extensor digitorum

communis) which might have represented a radial nerve injury or

C7-8 radiculopathy. (Tr. 269).

Dr. Tanley saw plaintiff on May 15, 2006 for a consultative

psychological examination. Plaintiff reported a five-year

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history of seizures leading to depression, and side effects of

medication. He said he had not worked since 2000 or 2001. He

reported decreased appetite and increased sleeping. Dr. Tanley

diagnosed a chronic adjustment disorder, rated plaintiff’s GAF at

70, and saw no impairment in his ability to understand and follow

simple instructions or to maintain attention to perform simple,

repetitive tasks. He did think plaintiff had a mild impairment

in his ability to withstand the stress and pressure of daily

work. (Tr. 270-72).

Plaintiff was seen by Netcare in 2008 after an episode of

depression. At that time, he reported regular use of marijuana

until one week before the episode. He was having suicidal

thoughts. His diagnoses included a major depressive disorder and

cannabis abuse and at that time, his GAF was rated at 49. He was

advised to see his primary care physician to obtain medication

for depression. (Tr. 274-80).

Plaintiff’s left arm pain apparently returned in 2009. He

was given medication and told to follow up if the problem did not

resolve. A note from January, 2009 showed that his depression

and stress levels had improved. There were apparently some

environmental factors causing him stress which changed at the

same time. Studies done of his brain at that time were

essentially normal.

In a report dated January 14, 2009, Dr. Hall, to whom

plaintiff was referred by Dr. Gill, described plaintiff’s seizure

disorder and treatment plan, but also commented on his tremor. 

The tremor existed when doing fine motor tasks. Plaintiff

declined both medication and a referral for treatment of the

tremor. (Tr. 331-32). The tremor was later described by Dr.

Eubank as “a fairly mild thing.” (Tr. 375).

Allan Rain, a psychologist, also performed a consultative

psychological evaluation, which took place on January 20, 2009. 

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Plaintiff did not appear to be a reliable historian and was

confused during the evaluation. He seemed to be “quite depressed

and defeated” as well as confused. His affect was flat and he

had trouble understanding even basic questions. He performed

very poorly on various tests and could not interpret proverbs. 

He did report going to the store by himself as well as other

activities of independent living, but his test scores were

inconsistent with someone’s having that ability. Mr. Rain

concluded that plaintiff had a number of marked impairments in

his mental functioning attributable to his mood disorder and

seizure disorder, which caused a “mental loss” affecting his

ability to comprehend, attend to tasks, and withstand work

pressure. Plaintiff’s GAF was rated at 40 but his functional GAF

was 70. Mr. Rain expressed concern about plaintiff’s ability to

manage benefits. (Tr. 338-43).

Dr. Finnerty, a state agency reviewer, also commented on

plaintiff’s mental limitations. He thought that Mr. Rain’s

assessment was not supported by the other records of mental

health treatment and that plaintiff could do simple work tasks

which did not require extended periods of concentration. (Tr.

347-49). Another state agency reviewer, Dr. Orosz, concurred

with that assessment. (Tr. 366).

 IV. The Vocational Testimony

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

administrative hearing. His testimony begins at page 18 of the

record. 

Mr. Hartung described and characterized plaintiff’s prior

work. Plaintiff worked as a stock clerk, which is classified as

semiskilled and heavy, although plaintiff’s particular stock

clerk job was unskilled. Plaintiff’s job as a housekeeper or

cleaner was light and unskilled.

Mr. Hartung was asked some questions about a hypothetical

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person who had no lifting restrictions but who was precluded from

climbing ladders, ropes or scaffolds, who could not be exposed to

hazardous machinery or unprotected heights, and who could

understand, remember and carry out simple tasks and instructions,

maintain concentration and attention for two-hour segments over

an eight-hour work period, respond appropriately to supervisors

and co-workers in a task-oriented setting, have casual and

infrequent contact with others, and adapt to simple changes and

avoid hazards. With those restrictions, that person could, in

Mr. Hartung’s view, do plaintiff’s past work as a housekeeper or

cleaner. However, someone with those restrictions who would also

be off task for 20 percent of the work day could not be gainfully

employed.

V. The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 31

through 40 of the administrative record. The important findings

in that decision are as follows.

The Administrative Law Judge found, first, that plaintiff

met the insured requirements for disability benefits through

September 30, 2007. Next, plaintiff had not engaged in

substantial gainful activity from his alleged onset date of July

1, 2006 through the date of the decision. As far as plaintiff’s

impairments are concerned, the ALJ found that plaintiff had

severe impairments including epilepsy and depression. The ALJ

also found that these impairments did not, at any time, meet or

equal the requirements of any section of the Listing of

Impairments (20 C.F.R. Part 404, Subpart P, Appendix 1).

Moving to the next step of the sequential evaluation

process, the ALJ found that plaintiff had the residual functional

capacity to perform work at any exertional level but that he

could not climb ladders, ropes or scaffolds or be exposed to 

hazardous machinery or unprotected heights. Further, he could

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understand, remember and carry out simple tasks and instructions,

maintain concentration and attention for two-hour segments over

an eight-hour work period, respond appropriately to supervisors

and co-workers in a task-oriented setting, have casual and

infrequent contact with others, and adapt to simple changes and

avoid hazards. The ALJ determined that, with these

restrictions, plaintiff could still perform his past relevant

work. 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 three

issues. He argues that the ALJ erred by improperly assessing his

nonexertional mental limitations, by failing to assess his

residual functional capacity properly, and by relying on

vocational testimony given in response to an incomplete

hypothetical question. The Court generally reviews the

administrative decision of a Social Security ALJ under this legal

standard:

Standard of Review. Under the provisions of 42 U.S.C.

Section 405(g), "[t]he findings of the Secretary [now the

Commissioner] as to any fact, if supported by substantial

evidence, shall be conclusive. . . ." Substantial evidence is

"'such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion'" Richardson v. Perales, 402

U.S. 389, 401 (1971) (quoting Consolidated Edison Company v.

NLRB, 305 U.S. 197, 229 (1938)). It is "'more than a mere

scintilla.'" Id. LeMaster v. Weinberger, 533 F.2d 337, 339 (6th

Cir. 1976). The Commissioner's findings of fact must be based

upon the record as a whole. Harris v. Heckler, 756 F.2d 431, 435

(6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366 (6th

Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir.

1984). In determining whether the Commissioner's decision is

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supported by substantial evidence, the Court must "'take into

account whatever in the record fairly detracts from its weight.'" 

Beavers v. Secretary of Health, Education and Welfare, 577 F.2d

383, 387 (6th Cir. 1978) (quoting Universal Camera Corp. v. NLRB,

340 U.S. 474, 488 (1951)); Wages v. Secretary of Health and Human

Services, 755 F.2d 495, 497 (6th Cir. 1985). Even if this Court

would reach contrary conclusions of fact, the Commissioner's

decision must be affirmed so long as that determination is

supported by substantial evidence. Kinsella v. Schweiker, 708

F.2d 1058, 1059 (6th Cir. 1983).

In his first assignment of error, plaintiff argues that the

ALJ did not properly weigh the opinions of the various mental

health experts. He asserts that the most weight should have been

given to Mr. Rain’s evaluation, and that the ALJ incorrectly

determined that it was not supported by other evidence in the

record when, in fact, the Netcare evaluation also indicated the

presence of severe psychological symptoms. He also contends that

the ALJ should have preferred Mr. Rain’s evaluation to Dr.

Finnerty’s because Mr. Rain had the chance to examine plaintiff. 

In response, the Commissioner argues that the ALJ gave good

reasons for choosing to assign great weight to Dr. Finnerty’s and

Dr. Tanley’s views of the severity of plaintiff’s psychological

impairment.

Social security regulations generally advise an ALJ to give

more weight to the opinion of an examining, as opposed to a nonexamining, source. See 20 C.F.R. §404.1527(d)(1). However, an

ALJ need not articulate reasons for rejecting the opinion of a

non-treating source, even if that provider has examined the

claimant, in the same manner as if the source were one of the

claimant’s treating physicians. Smith v. Comm’r of Social

Security, 482 F.3d873, 876 (6th Cir. 2007). Further, the ALJ may

choose to give more weight to a non-examining reviewer than one

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who has examined the claimant if the circumstances so warrant. 

See SSR 96-6p (“In appropriate circumstances, opinions from State

agency medical and psychological consultants and other program

physicians and psychologists may be entitled to greater weight

than the opinions of treating or examining sources”). Overall,

“the weight given a medical opinion depends upon the extent to

which it is ‘supported by medically acceptable clinical and

laboratory diagnostic techniques and is not inconsistent with the

other substantial evidence in [the] case record’”). Cox v.

Comm’r of Social Security, 295 Fed.Appx. 27, 35 (6th Cir. Sept.

30, 2008). 

Here, the ALJ explained why he chose not to credit Mr.

Rain’s evaluation in full in this way. He noted that both Dr.

Tanley and Dr. Finnerty believed plaintiff could carry out simple

instructions and perform simple work tasks and that these

findings were supported by the record as a whole and also by the

findings made by Dr. Tanley when he examined plaintiff. He also

noted that Mr. Rain’s functional assessment of plaintiff’s GAF

(70) was consistent with the record. The balance of Mr. Rain’s

assessment was not, however, nor was it, in the ALJ’s view,

consistent even with Mr. Rain’s own opinion of plaintiff’s

functional abilities. (Tr. 39).

The Court concludes that a reasonable person could, on this

record, come to the same conclusion as did the ALJ. Mr. Rain was

the only person to suggest that plaintiff was suffering from

organic brain syndrome. He noted that the scores plaintiff

produced on various tests were markedly different from what would

be expected from a person with plaintiff’s education and

background. He also noted the wide variation between his own

assessment of plaintiff’s abilities and the daily activities

plaintiff reported. There are no treatment records which show

plaintiff ever reported the same type of gross mental dysfunction

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to anyone else as he demonstrated in the interview with Mr. Rain,

nor was he undergoing any course of treatment or counseling for a

severe mental disorder. The various doctors’ notes show that he

had symptoms of depression and anxiety but that, with the

exception of the single time he sought out Netcare’s services,

those conditions were managed well with medication or responded

to positive changes in plaintiff’s situation, to the point where

he discontinued taking medication for depression and was still

doing well. The record also does not reflect any significant

occurrences between the time plaintiff saw Dr. Tanley and when he

was evaluated by Mr. Rain which would explain such a dramatic

deterioration in his condition. Given this record, the ALJ

simply exercised his considerable discretion to choose among

competing views of plaintiff’s mental limitations, something he

was both permitted and required to do. See, e.g., Tyrpak v.

Astrue, 858 F.Supp. 2d 872, 887 (N.D. Ohio 2012)(ALJ evaluates

the opinions of consultative examiners by “weighing the

supportability and consistency of the opinions ...”); see also

Hackle v. Colvin, 2013 WL 1412189, *9-10 (S.D. Ohio Apr. 8,

2013)(upholding a finding that an ALJ who, like the ALJ here,

also relied on the opinion of Dr. Finnerty over that of a

consultative examiner, explaining that “it was the ALJ’s duty and

province to resolve conflicts in the evidence”). Thus, the Court

finds no merit in plaintiff’s first assignment of error.

 Plaintiff’s second assignment of error addresses the ALJ’s

failure to include any limitations caused by his left arm pain

and tremor either in his residual functional capacity finding or

in the hypothetical question posed to the vocational expert. The

ALJ not only did not find this impairment severe, but did not

find that it imposed any limits on plaintiff’s ability to work at

all exertional levels subject to the non-exertional limitations

caused by his seizure disorder and depression. The Commissioner

responds that the record contains no evidence from which the ALJ

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could have found any specific limitations resulting from this

condition, and that a diagnosis, without more, is not evidence of

a severe impairment.

Here, the Commissioner is correct that none of the medical

records which mention arm pain or tremor - and these are few in

number - ascribe any limitation of function to that condition. 

Plaintiff himself testified and told doctors that the tremor only

affected his ability to do fine manipulation. Without an opinion

that a particular impairment “caused any functional limitation on

[a claimant’s] ability to work,” an ALJ is entitled to treat the

impairment as non-severe and need not include any limitations

resulting from it into the residual functional capacity finding. 

Clark v. Astrue, 2012 WL 3309690, *10 (N.D. Ohio June 5, 2012),

adopted and affirmed 2012 WL 3309685 (N.D. Ohio Aug. 13, 2012). 

Further, as the Commissioner notes, it is the plaintiff’ burden

to show that he cannot perform his past work, and the plaintiff

clearly did not produce any evidence that someone who has

difficulty with fine manipulation, such as working with

electronic circuits, cannot perform the usual job duties of a

housekeeper or cleaner. The second assignment of error therefore

provides no basis for either reversal or remand.

Plaintiff’s third assignment of error is completely

derivative of his first two. If the ALJ correctly assessed his

residual functional capacity, the hypothetical question posed to

the vocational expert was proper, and the ALJ was entitled to

rely on the response in finding that plaintiff could still

perform his past work. Because the Court has upheld the ALJ’s

residual functional capacity finding, the third assignment of

error also provides no basis for reversing the ALJ’s decision or

remanding the case for additional proceedings.

VII. Recommended Decision

Based on the above discussion, it is recommended that the

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

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entered in favor of the defendant Commissioner of Social

Security.

VIII. Procedure on Objections

If any party objects to this Report and Recommendation,

that party may, within fourteen (14) days of the date of this

Report, file and serve on all parties written objections to those

specific proposed findings or recommendations to which objection

is made, together with supporting authority for the objection(s). 

A judge of this Court shall make a de novo determination of those

portions of the report or specified proposed findings or

recommendations to which objection is made. Upon proper

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

in whole or in part, the findings or recommendations made herein,

may receive further evidence or may recommit this matter to the

magistrate judge with instructions. 28 U.S.C. §636(b)(1).

 The parties are specifically advised that failure to

object to the Report and Recommendation will result in a

waiver of the right to have the district judge review the

Report and Recommendation de novo, and also operates as a

waiver of the right to appeal the decision of the District

Court adopting the Report and Recommendation. See Thomas v.

Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d

947 (6th Cir. 1981).

/s/ Terence P. Kemp 

 United States Magistrate Judge

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