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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

JAMES E. JENKINS, 

 

 Plaintiff, 

 vs. Civil Action 2:13-CV-07 

 Judge Sargus 

 Magistrate Judge King 

COMMISSIONER OF SOCIAL SECURITY, 

 Defendant. 

REPORT AND RECOMMENDATION 

I. Background

 This is an action instituted under the provisions of 42 U.S.C. § 405(g) 

for review of a final decision of the Commissioner of Social Security 

denying plaintiff’s applications for a period of disability, disability 

insurance benefits, and supplemental security income. This matter is now 

before the Court for consideration of plaintiff’s Statement of Errors, Doc. 

No. 12, the Commissioner’s Memorandum in Opposition, Doc. No. 15, and 

Plaintiff’s Reply, Doc. No. 16. 

 Plaintiff’s current applications 1 for benefits claim disability 

since July 26, 2006.2 PAGEID 235, 239. The applications were denied 

initially and upon reconsideration, and plaintiff requested a de novo 

hearing before an administrative law judge. 

 

1 Plaintiff’s previous application for Social Security benefits was denied on July 

25, 2006. PAGEID 65. 2

 Plaintiff later amended his date of onset to September 30, 2009. PAGEID 81. His 

insured status for disability insurance benefits lapsed on September 30, 2006. 

PAGEID 59. 

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 An administrative hearing was held on September 29, 2011, at which 

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

Alberigi, who testified as a vocational expert. PAGEID 78. In a decision 

dated August 18, 2011, the administrative law judge concluded that 

plaintiff was not disabled from September 30, 2009, through the date of 

the administrative decision. PAGEID 70-71. That decision became the 

final decision of the Commissioner of Social Security when the Appeals 

Council declined review on November 29, 2012. PAGEID 48. 

 Plaintiff was 37 years of age on the date of the administrative 

decision. See PAGEID 48, 235. Plaintiff has some college credit, is able 

to communicate in English, and has past relevant work as a forklift operator 

and auto detailer. PAGEID 69, 266, 273. He has not engaged in substantial 

gainful activity since September 30, 2009, his amended date of onset of 

disability. PAGEID 59. 

II. Medical Evidence 

 Roger Kauffman, M.D., treated plaintiff from June 21, 2006 to December 

28, 2007. PAGEID 614-35. In December 2007, plaintiff reported occasional 

numbness in his arms and legs and a concern that he might have rheumatoid 

arthritis. PAGEID 635. Upon examination, plaintiff had a good range of 

motion in all extremities, full strength throughout, and no synovitis in 

his joints. Id. Dr. Kauffman diagnosed osteoarthritis and noted no 

evidence of rheumatoid arthritis by examination or previous lab studies. 

Id. 

 On November 20, 2006, neurosurgeon Joseph Shehadi, M.D., performed 

an L4-L5 transforaminal lumbar interbody fusion at L4-L5. PAGEID 479-83. 

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In March 2007, plaintiff reported numbness in the posterior aspect of his 

left leg. PAGEID 466. Plaintiff attended six sessions of physical 

therapy and, in April 2007, reported an 85 percent improvement. PAGEID

465-66; 567-82. 

William O. Smith, M.D., consultatively examined plaintiff on January 

26, 2010. PAGEID 709-15. Plaintiff reported, inter alia, back and leg 

pain and numbness in his legs. PAGEID 713. Upon examination, plaintiff 

had a somewhat limited range of motion in his neck and back, but exhibited 

full strength in all muscle groups, normal sensation and reflexes, and 

normal grasp, manipulation, and fine coordination. PAGEID 709-12; 714. 

Plaintiff had three positive Waddell signs and his “[p]inch [was] weaker 

in the right hand than the left, but effort was questionable.” PAGEID 715. 

Dr. Smith opined that plaintiff “would probably be classified as a failed 

back syndrome.” Id. He also “believe[d] [that plaintiff] could certainly 

do computer type work at the present time.” Id. 

 Dimitri Teague, M.D., reviewed the record for the state agency on 

February 23, 2010, and opined that plaintiff’s physical impairments were 

not severe. PAGEID 716. According to Dr. Teague, “[s]ignificant 

functional limitation due to lumbar and cervical degenerative disease is 

not supported in the records, and mild degenerative cervical and lumbar 

disc disease is not found to be a ‘severe’ impairment.” Id. Dr. Teague 

adopted the RFC found by an administrative law judge in the latter’s July 

25, 2006 decision. Id. 

 Dr. Smith consultatively examined plaintiff a second time on June 29, 

2010. PAGEID 719-25. Plaintiff reported, inter alia, back and leg pain 

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and numbness in his arms. PAGEID 719. Plaintiff showed “non-organic 

Waddell signs” and his grip strength was 125 to 130 pounds in the right 

hand and 95 to 110 in the left hand. PAGEID 720. Dr. Smith also noted 

“some bizarre findings on median nerve percussion of the left wrist, which 

brings on tingling in the left ulnar groove.” PAGEID 721. Dr. Smith 

opined that plaintiff has “non-anatomic sensory loss in both upper 

extremities, but no weakness or reflex change.” Id. He diagnosed 

“possible carpal tunnel problem” and opined that plaintiff “can do 

sedentary to light work at the present time.” Id. 

 State agency physician Teresita Cruz, M.D., evaluated plaintiff's 

physical residual functional capacity on July 12, 2010. PAGEID 662-69. 

According to Dr. Cruz, plaintiff could occasionally lift and/or carry 50 

pounds, frequently lift and/or carry 25 pounds, stand and/or walk for a 

total of about six hours in an eight-hour workday, and sit for a total of 

about six hours in an eight-hour workday. PAGEID 663. Dr. Cruz futher 

opined that plaintiff can occasionally kneel; climb ladders, ropes, and 

scaffolds; and reach overhead, bilaterally. PAGEID 664-65. 

 Plaintiff began treating with Jamie Robyn, M.D., in the primary care 

clinic at the Department of Veterans Affairs (“VA”) on September 9, 2010. 

PAGEID 939-44. Plaintiff reported a history of bipolar disorder, chronic 

back pain, hydrocephalus, and hearing loss. PAGEID 940. Plaintiff also 

reported decreased pain since his November 2006 surgery, but claimed 

continued numbness and paraesthesias in both arms and legs. He reported 

that he needs a cane to walk. Id. Dr. Robyn assessed chronic back pain 

and ordered x-rays and a physical therapy assessment. PAGEID 939-44. 

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 A September 2010 x-ray of plaintiff's cervical spine revealed no acute 

bony abnormalities or joint changes. PAGEID 766. X-rays of the 

lumbosacral spine showed osteopenia of the visualized bones without any 

acute compression fracture. PAGEID 767. Plaintiff started physical 

therapy in October 2010 and was provided a TENS unit for pain. PAGEID 

924-28. 

 Dr. Robyn also referred plaintiff to the Rheumatology Clinic at the 

VA due to a “6 month history of polyarthralgias with sed rate 35 ANA 

pending.” PAGEID 806. Plaintiff was evaluated by rheumatologist Ali 

Ajam, M.D., on October 5, 2010. PAGEID 807-09. Plaintiff had an “RF of 

22, mildly positive. He has a lot of joint pains, says mostly in the neck, 

as well as hands/wrists and knees.” PAGEID 807. Upon examination, Dr. 

Ajam found that plaintiff had “no activie synovitis in hands/wrists, able 

to flex/extend wrists, good hand grip/curl, several tender pips, able to 

make a fist, no elbow contractures, good from of shoulders and knees, + 

forefeet squeeze tenderness.” PAGEID 808. Dr. Ajam diagnosed “probable 

rheumatoid arthritis” and “significant degenerative arthritis.” PAGEID 

809. He prescribed Plaquenil. On December 28, 2010, plaintiff reported 

that the Plaquenil was doing “really, really well,” but that he was “having 

a hard time holding on to anything for a prolonged period of time.” PAGEID 

897. In March 2011, plaintiff reported that Plaquenil “helped quite a bit” 

and that his swelling and stiffness were reduced. PAGEID 853-54. 

 Plaintiff treated with occupational therapist James P. Ronyak at the 

VA in January 2011. PAGEID 893. Plaintiff’s grip strength was 85 pounds 

in the right hand and 90 pounds in the left hand. Id. Mr. Ronyak 

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recommended a home paraffin unit, arthritis gloves, and a standard reacher 

to assist with plaintiff’s symptoms. Id. 

 On June 14, 2011, Dr. Robyn opined that plaintiff was limited to 

lifting less than ten pounds occasionally, standing and walking no more 

than one hour without interruption and no more than one hour in an eight-hour 

workday; because rheumatoid arthritis causes “pain if in one position too 

long,” Dr. Robyn limited plaintiff to sitting for no more than one hour 

in an eight-hour workday and to 20 minutes without interruption. PAGEID 

987. According to Dr. Robyn, the pain from plaintiff’s rheumatoid 

arthritis causes a balance impairment; plaintiff must use his balance dog 

to assist him. PAGEID 988. Dr. Robyn opined that plaintiff can 

occasionally stoop and kneel, can never climb, balance, crouch, or crawl, 

and is impaired in his ability to handle and feel because of numbness in 

his hands. Id. Dr. Robyn further opined that plaintiff cannot work around 

moving machinery, temperature extremes, humidity, and vibration. Id. 

III. September 29, 2011 Administrative Hearing 

Plaintiff testified that he suffers from rheumatoid arthritis, which 

causes swelling in his hands, balance issues, and numbness in his legs. 

PAGEID 85, 99. Medication has reduced the swelling in his hands “a little 

bit,” but his “fingers turn inwards,” his “legs are turning out,” and he 

“can barely hold a cup of coffee in [his] hands sometimes.” PAGEID 85-86, 

117. The numbness in his legs affects his balance; he has “a tendency to 

fall on [his] face.” PAGEID 99. His service dog helps with his balance. 

PAGEID 98-99. He also uses prescribed arthritis gloves, a TENS unit and 

a cane on a daily basis. PAGEID 88, 102-03. 

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Plaintiff complained of severe pain in his back, legs, and arms; he 

lost feeling in his legs the year prior to the hearing. PAGEID 86-88. He 

changes positions every 10 to 15 minutes because of pain in his shoulders 

and back. PAGEID 103-04, 106. Pain awakens him. PAGEID 108. Physical 

therapy helps with the pain, as does prescribed stretches and exercises 

with an elastic band. PAGEID 106-07. 

Plaintiff also testified that he suffers from post-traumatic stress 

disorder (“PTSD”), degenerative disc disease, and bipolar disorder. 

PAGEID 89. When asked the cause of the PTSD, plaintiff stated that he 

“[h]ad a lot of guns put in [his] face,” he was “robbed when [he was] 

younger,” and that “[a] lot of people die[d] in front of [him].” PAGEID 

89. Plaintiff testified that he served in the Army for 8 years and was 

honorably discharged in 2003. PAGEID 95. He saw combat in Iraq during 

“Operation Joy.” PAGEID 115. He explained that his PTSD does not qualify 

for VA disability benefits because his service dates do not fall within 

a certain date bracket. PAGEID 115. Because of his PTDS, he is “stressed 

out” when “just dealing with anybody, going to Wal-Mart or a gas station.” 

PAGEID 90. Plaintiff cannot “go to the grocery store where there’s 10, 

15 people in it at a time” because he feels like he “should protect 

everybody.” PAGEID 109-10. He experiences flashbacks or nightmares 

almost nightly. PAGEID 110, 115. 

Describing his bipolar disorder, plaintiff testified that he is 

mostly manic and that he becomes so anxious that he vibrates, his legs start 

moving, and he bounces. PAGEID 110. Zoloft helps calm him down “a bit.” 

PAGEID 108-09. 

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Plaintiff lives with his wife and service dog. PAGEID 97-101. His 

wife washes plaintiff, helps him dress and helps plaintiff shave because 

he cannot hold a razor without cutting himself. Id. He is able to play 

video games with his daughter when she visits twice a month. PAGEID 100. 

Plaintiff also testified to constant problems with memory and 

concentration. PAGEID 102. He was unclear in his description of his 

college classes. See, e.g., PAGEID 90-92, 96-97. In 2010, he conducted 

telephone surveys, but his anxiety and memory issues caused him to “mess 

up reading [the script].” PAGEID 92-93. 

The vocational expert summarized plaintiff’s past relevant work as 

a short order cook, supervisor of auto detailing, and forklift driver. 

PAGEID 71-77. When asked to assume a claimant with plaintiff’s vocational 

profile and the residual functional capacity (“RFC”) eventually found by 

the administrative law judge, the vocational expert testified that such 

a claimant could perform plaintiff’s past relevant work as an auto detailer 

and forklift operator. PAGEID 123-26. Such a claimant could also perform 

other unskilled work, including such jobs as cleaner or surveillance system 

monitor. PAGEID 126-27. 

IV. Administrative Decision

 The administrative law judge found that plaintiff had no severe 

physical impairments but that his mental impairments, i.e., post-traumatic 

stress disorder and bipolar disorder, are severe. PAGEID 59. However, 

the administrative law judge also found that those impairments neither meet 

nor equal a listed impairment. The administrative law judge also found 

“no . . . evidence” that plaintiff’s RFC had changed since the July 2006 

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administrative decision denying plaintiff’s prior application for 

benefits. PAGEID 65. Accordingly, the administrative law judge relied 

on Soc. Sec. Acquiescence Ruling 98-4(6) and adopted the RFC finding from 

that prior decision. The administrative law judge specifically found that 

plaintiff has the RFC “to perform a full range of work at all exertional 

levels but with the following nonexertional limitations: the claimant is 

restricted to low-stress jobs that are not fast-paced and do not involve 

over-the-shoulder supervision.” PAGEID 63-65. Relying on the testimony 

of the vocational expert, the administrative law judge found that this RFC 

would permit the performance of plaintiff’s past relevant work as a forklift 

operator and auto detailer, as well as a significant number of other jobs 

in the national economy. PAGEID 69-70. Accordingly, the administrative 

law judge concluded that plaintiff was not disabled within the meaning of 

the Social Security Act from September 30, 2009, through the date of the 

administrative decision. PAGEID 70-71. 

V. Discussion

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

Commissioner’s decision is limited to determining whether the findings of 

the administrative law judge are supported by substantial evidence and 

employed the proper legal standards. Richardson v. Perales, 402 U.S. 389 

(1971); Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005). 

Substantial evidence is more than a scintilla of evidence but less than 

a preponderance; it is such relevant evidence as a reasonable mind might 

accept as adequate to support a conclusion. See Buxton v. Haler, 246 F.3d 

762, 772 (6th Cir. 2001); Kirk v. Sec’y of Health & Human Servs., 667 F.2d 

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524, 535 (6th Cir. 1981). This Court does not try the case de novo, nor 

does it resolve conflicts in the evidence or questions of credibility. See 

Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 

1989); Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). 

 In determining the existence of substantial evidence, this Court 

must examine the administrative record as a whole. Kirk, 667 F.2d at 536. 

If the Commissioner's decision is supported by substantial evidence, it 

must be affirmed even if this Court would decide the matter differently, 

see Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983), and even 

if substantial evidence also supports the opposite conclusion. Longworth, 

402 F.3d at 595. 

 In his Statement of Errors, plaintiff contends that the 

administrative law judge erred in, inter alia, his assessment of 

plaintiff’s RFC, in his assessment of plaintiff’s credibility, in his 

evaluation of the opinions of Dr. Teague and Dr. Cruz, and in his reliance 

on the testimony of the vocational expert. Statement of Errors, pp. 10-19. 

Plaintiff also argues that the administrative law judge violated the 

treating physician rule in his evaluation of Dr. Robyn’s opinion and that 

the administrative law judge improperly “played doctor by using his own 

criteria to judge the objective findings of the doctors.” Id. 

 As noted supra, the administrative law judge found that plaintiff does 

not suffer a severe physical impairment. PAGEID 95. The administrative 

law judge noted Dr. Smith’s June 2010 opinion that plaintiff was capable 

of sedentary to light work, Dr. Cruz’s July 2010 opinion that plaintiff 

was limited to medium work, see PAGEID 60-61,and the limitations found by 

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Dr. Robyn in June 2011, see PAGEID 62. However, the administrative law 

judge credited Dr. Teague’s February 2010 conclusion “that the record did 

not support any significant functional limitation attributable to mild 

degenerative disease in the claimant’s cervical and lumbar spine” and that 

plaintiff’s “physical impairments were programmatically non-severe.” 

PAGEID 60-61. However, Dr. Teague did not have the benefit of the 

substantial evidence generated after the date of his assessment, especially 

Dr. Ajam’s October 2010 diagnosis of “probable rheumatoid arthritis,” see 

PAGEID 809, nor did he have the benefit of plaintiff’s substantial VA 

medical records. See PAGEID 752-986. Although the administrative law 

judge purported to consider “recent treatment records,” PAGEID 61, he 

mischaracterized Dr. Ajam’s October 2010 diagnosis of “probable rheumatoid 

arthritis,” see PAGEID 809, as merely “rheumatoid symptoms.” Indeed, the 

administrative law judge came perilously close to rendering his own medical 

opinion.3 PAGEID 61 (“The claimant was also evaluated for rheumatoid 

 

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 Q [ALJ] What’s wrong with your hands? 

A [CLMT] I have rheumatoid arthritis. 

Q I don’t think you do but maybe – 

A Well, there’s a blood test that says I do, sir. 

ALJ: Well, it’s -- ANA was negative. The SED rate – was 

 there a SED rate in any of these things, Counsel? 

ATTY: The blood test that I have that was positive is at 27F, 

 page 179. 

. . . 

ALJ: Well, I see it but I don’t see any evidence clinically 

 of rheumatoid arthritis. Now it might be. Is there 

 any synovitis that you saw, Counsel, in any of these 

 records? 

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arthritis: a rheumatoid factor of 22 was mildly positive, and was 

accompanied by a sedimentation rate of 35. However, no active synovitis 

was noted on exam, and the claimant’s range of motion and strength was intact 

in all extremities. Plaquenil was prescribed to manage rheumatoid 

symptoms, and the claimant said that it ‘helped quite a bit.’”). The 

administrative law judge was not, however, qualified to interpret raw 

medical data in functional terms. See e.g., Isaacs v. Comm’r of Soc. Sec., 

No. 1:08-cv-828, 2009 WL 3672060, at *11 (S.D. Ohio Nov. 4, 2009) (quoting 

Deskin v. Comm’r of Soc. Sec., 605 F. Supp. 2d 908, 912 (N.D. Ohio 2008)). 

In short, Dr. Teague’s opinion does not provide substantial support for 

the administrative law judge’s determination that there was no evidence 

that plaintiff’s RFC had changed since the July 2006 administrative 

determination of plaintiff’s prior application for benefits. The 

administrative law judge’s RFC determination, which was supported by only 

Dr. Teague’s opinion, is therefore not supported by substantial evidence. 

 

. . . 

ALJ: Did you see any -- I don’t see any swelling of the 

 joints, the PIP or DIP joints or anything else like 

 that I could interpret as a -- or somebody interpreted 

 it as evidence of rheumatoid arthritis. 

ATTY: Well, there’s examinations where he’s showing pain 

 throughout his body, that there’s numbness and 

 tingling, coordination problems, decreased 

 sensation, problems with lifting and holding objects. 

 That could certainly be evidence. And that he was 

 prescribed arthritis gloves for his hands and a 

 reacher device for his hands, for his upper 

 extremities. 

. . . 

ALJ: So well, you had a 22 and then it’s between -- zero 

 to 20 is normal and 22 is – well, okay. . . . 

PAGEID 93-95. 

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It is therefore RECOMMENDED that the decision of the Commissioner be 

REVERSED pursuant to Sentence 4 of 42 U.S.C. § 405(g) and that this action 

be REMANDED to the Commissioner of Social Security for further proceedings 

consistent with the foregoing. 

If any party seeks review by the District Judge of this Report and 

Recommendation, that party may, within fourteen (14) days, file and serve 

on all parties objections to the Report and Recommendation, specifically 

designating this Report and Recommendation, and the part thereof in 

question, as well as the basis for objection thereto. 28 U.S.C. § 

636(b)(1); Fed. R. Civ. P. 72(b). Response to objections must be filed 

within fourteen (14) days after being served with a copy thereof. Fed. 

R. Civ. P. 72(b). 

 The parties are specifically advised that failure to object to the 

Report and Recommendation will result in a waiver of the right to de novo

review by the District Judge and of the right to appeal the decision of 

the District Court adopting the Report and Recommendation. See Thomas v. 

Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of Teachers, Local 231 

etc., 829 F.2d 1370 (6th Cir. 1987); United States v. Walters, 638 F.2d 

947 (6th Cir. 1981).

November 12, 2013 s/Norah McCann King_______ 

 Norah McCann King 

 United States Magistrate Judge 

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