IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

William Michael Fiore, :

 Plaintiff, :

 v. : Case No. 2:12-cv-1097

Commissioner of Social : JUDGE GREGORY L. FROST

 Security, Magistrate Judge Kemp

 :

Defendant. 

 

 REPORT AND RECOMMENDATION

 I. Introduction

 Plaintiff, William Michael Fiore, 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 May 13, 2009, and alleged that plaintiff

became disabled on December 31, 2006.

After initial administrative denials of his application,

plaintiff was given a hearing before an Administrative Law Judge

on May 17, 2011. In a decision dated June 28, 2011, the ALJ

denied benefits. That became the Commissioner’s final decision on

October 2, 2012, when the Appeals Council denied review. 

After plaintiff filed this case, the Commissioner filed the

administrative record on March 19, 2013. Plaintiff filed his

statement of specific errors on May 16, 2013. The Commissioner

filed a response on July 15, 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 31 years old at the time of the

administrative hearing and who was one course away from obtaining

a bachelor’s degree in psychology, testified as follows. His

testimony appears at pages 35-60 of the administrative record.

Case: 2:12-cv-01097-GLF-TPK Doc #: 17 Filed: 10/02/13 Page: 1 of 16 PAGEID #: <pageID>
Plaintiff had worked as an active foreman for his family’s

concrete company. His position included preparing estimates,

meeting with customers, and managing jobs. Before that, he had

been a concrete pourer and finisher and a brick and block layer. 

The injury which prevented him from working occurred on the job in

2006. Before that injury, he had suffered a knee sprain in 2004

and a shoulder sprain in 2005. He was also in two motor vehicle

accidents which left him with a concussion (and he had suffered

several others while working). The concussions affected his

thinking, including concentration and memory, and his balance. He

also had back problems. He stopped working due to pain in his

lower back and his knees.

Plaintiff testified that he could stand comfortably for about

half an hour at a time. His lifting was limited to ten pounds,

and he lifted mostly with his right arm. He also was depressed

due to his medical conditions, but he had not undergone any mental

health treatment. He was seeing a pain specialist and had been

taking pain medications for more than five years. He could sit

but needed constantly to change positions due to pain in his back,

leg and arm. He had been told he would probably need both knees

replaced. 

III. The Medical Records

The medical records in this case are found beginning on page

235 of the administrative record. The pertinent records can be

fairly summarized as follows.

Plaintiff was diagnosed with bilateral knee sprain in 2004. 

An MRI done at that time showed only mild effusion in the right

knee. He was cleared to return to work. (Tr. 235). Three years

later, his knees were evaluated and Dr. Solak, the examiner,

diagnosed bilateral chondromalecia patella, right greater than the

left. He prescribed a course of physical therapy. (Tr. 294-95).

Plaintiff’s left shoulder condition was evaluated by a

chiropractor in 2006. He expressed the opinion that plaintiff

suffered a “13 percent whole person impairment” from this injury

-2-

Case: 2:12-cv-01097-GLF-TPK Doc #: 17 Filed: 10/02/13 Page: 2 of 16 PAGEID #: <pageID>
with significant limitation in range of motion noted. (Tr. 239-

41).

Plaintiff was seen at the Genesis-Bethesda emergency room on

May 21, 2007 complaining of pain from a prior back injury. At

that time, he was observed as walking without difficulty and

sitting easily. There was some paraspinal tenderness in the lower

back. He was given medication and told to follow up with his

primary physician. (Tr. 262-64). He returned a week later and

was given additional medication. (Tr. 280-86).

On March 12, 2008, plaintiff obtained an evaluation of his

left shoulder, which he had injured in 2005. He reported some

numbness and tingling in the shoulder as well as significant pain

and dysfunction. The shoulder area showed tenderness but not

atrophy. He had pain with both active and passive movement of the

shoulder. An MRI arthrogram was performed which showed a slight

SLAP (or superior labral) tear but no evidence of a rotator cuff

tear. He was referred to a shoulder specialist. (Tr. 308-10). 

Dr. Bishop, the specialist, performed surgery in December, 2008,

noting the existence of a small SLAP lesion (which she repaired)

as well as a large amount of erythematous bursal material. She

performed an extensive bursectomy. She saw no evidence of rotator

cuff tear. (Tr. 372-73). Plaintiff undertook a course of

physical therapy after the surgery. At four and one-half months

post surgery he was doing well but still had pain. He then

discontinued therapy but did home exercises. One year post

surgery he still had pain as well as headaches caused by moving

his shoulder, but he was described as having “progressed to

recovery....” (Tr. 462). 

Plaintiff saw Dr. Holtzmeier on September 13, 2007 for

evaluation of his low back pain. On examination, plaintiff had

loss of range of motion in the lower back with significant

tenderness. Straight leg raising was positive on the right. An

-3-

Case: 2:12-cv-01097-GLF-TPK Doc #: 17 Filed: 10/02/13 Page: 3 of 16 PAGEID #: <pageID>
MRI was recommended. (Tr. 335-36). Dr. Holtzmeier later

recommended a pain management referral. (Tr. 342). He reviewed

the MRI studies and in a letter dated April 17, 2008 described the

results as showing sustained disc bulging at L4-5 and L5-S1. (Tr.

350). 

A workers compensation evaluation was done on June 12, 2009

by Dr. Gade-Pulilo. Plaintiff described the initial injury to his

shoulder, the fact that he had postponed treatment, and then its

locking up one day, prompting him to seek medical care. He stated

that he had been diagnosed with a SLAP lesion and a rotator cuff

tear. He had surgery and physical therapy but was still

experiencing pain and reduced range of motion. He had difficulty

with overhead activities and with pushing and pulling with his

left arm. His passive range of motion was described as “pretty

good” and manual muscle strength testing was normal, although he

had a small amount of atrophy. Dr. Gade-Pulilo thought plaintiff

would benefit from continued physical therapy and from a work

conditioning program (Tr. 386-89).

Dr. Neiger, a state agency reviewer, completed a physical

functional capacity form on September 17, 2009. She thought

plaintiff could perform a range of light work but could never

balance and only occasionally crawl. She also thought he was

limited in reaching in all directions, including overhead. (Tr. 

393-400). In 2010, a workers compensation consultant, Dr.

Flanagan, said that plaintiff could return to work in a light or

medium job. (Tr. 718-22). One of plaintiff’s treating

physicians, Dr. Haggenjos, disagreed, but recommended that

plaintiff be re-evaluated by Dr. Bishop, that his true functional

capacity be determined, and that he undergo vocational

rehabilitation to allow him to return to the work force. (Tr.

713-14). 

Plaintiff saw Floyd Sours, MA, for a psychological assessment

-4-

Case: 2:12-cv-01097-GLF-TPK Doc #: 17 Filed: 10/02/13 Page: 4 of 16 PAGEID #: <pageID>
on October 8, 2009. He reported a history of work-related

injuries culminating in a fall in 2006. He said that after the

surgery he was able to move his shoulder but still had pain. He

described mild depression in the past two weeks and said he got

depressed two or three times a week. His daily activities

consisted of watching television, doing chores, feeding animals,

and sometimes fixing meals. He had a number of friends. Mr.

Sours diagnosed an adjustment disorder with depressed mood and

rated plaintiff’s GAF at 65, indicating that he was “functioning

fairly well at the present time.” His only limitations were a

mild impairment in attention and in dealing with work stress. 

(Tr. 401-04). This report was reviewed by Dr. Zwissler, who found

that plaintiff did not have a severe psychological impairment. 

(Tr. 407-20). A later evaluation done by Dr. Weinstein appears to

disagree, concluding that plaintiff was suffering from a major

depressive disorder and was temporarily totally disabled. (Tr.

709-12).

In 2010 plaintiff was in a vehicle accident. He went

initially to the emergency room but was transferred to Grant

Hospital. There, he was diagnosed with a concussion and neck pain

and sent home. (Tr. 500). 

 IV. The Medical Testimony

Dr. Gatens, a medical expert, testified at the administrative

hearing. His testimony is found at pages 62-69 of the record.

Dr. Gatens stated that the medical records appeared to show

the shoulder to be plaintiff’s most significant problem although

there were also records documenting conditions in the lower back

and knees. The impairments, taken together, did not meet or equal

any Listing. 

Dr. Gatens’ opinion as to plaintiff’s functional capacity was

as follows. Plaintiff could lift ten pounds both occasionally and

frequently, could stand and walk for five hours if he could change

-5-

Case: 2:12-cv-01097-GLF-TPK Doc #: 17 Filed: 10/02/13 Page: 5 of 16 PAGEID #: <pageID>
positions every 45 minutes, could sit six to eight hours if he

could change positions every 90 minutes, and could not climb

ropes, ladders or scaffolding. Additionally, he could kneel,

crouch or crawl only occasionally, could not do overhead lifting

with his left arm, could not do extended reaching or pushing with

that arm, and could climb stairs (with a railing) only

occasionally. These limitations began on March 12, 2008. 

 V. The Vocational Testimony

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

administrative hearing. Her testimony begins at page 69 of the

record. 

Dr. Robinson described plaintiff’s past positions as poured

concrete wall technician, which was a heavy, skilled job, and as

concreting supervisor, which was a light, skilled job (but heavy

if the foreman also has to do concrete work occasionally). Both

jobs may also be performed at the very heavy exertional level.

Dr. Robinson was asked to assume that plaintiff was limited

in his activities and abilities in the way that Dr. Gatens

described. If that were so, plaintiff could not do his past jobs

but could work only at the sedentary level, and with restrictions

at that level. About 1,600 such jobs existed in the southeast

Ohio region. Examples would include document preparer, check

casher, and callout operator. Half of those jobs would be

eliminated if plaintiff could not extend his left arm. If

plaintiff’s testimony were accepted in full, however, the

limitations he described would prevent him from being

competitively employed.

VI. The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 112

through 123 of the administrative record. The important findings

in that decision are as follows.

The Administrative Law Judge found, first, that plaintiff met

-6-

Case: 2:12-cv-01097-GLF-TPK Doc #: 17 Filed: 10/02/13 Page: 6 of 16 PAGEID #: <pageID>
the insured requirements for disability benefits through December

31, 2010. Next, plaintiff had not engaged in substantial gainful

activity from his alleged onset date of December 31, 2006 through

his last insured date. The ALJ found that plaintiff had severe

impairments including right knee pain with chondromalecia, low

back pain with disc bulge, left shoulder pain with torn rotator

cuff, status-post arthroscopy surgery, and neck pain. 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 could do a limited range of sedentary

work. He adopted the residual functional capacity finding of Dr.

Gatens but added a limitation that plaintiff would need to be able

to alternate between sitting and standing every 45 minutes. The

ALJ determined that, with these restrictions, plaintiff could not

perform his past relevant work but he could do the jobs identified

by Dr. Robinson. Consequently, the ALJ concluded that plaintiff

was not entitled to benefits.

VII. Plaintiff’s Statement of Specific Errors

 In his statement of specific errors, plaintiff raises three

issues. He argues (1) that the ALJ should have found his

depression to be a severe impairment; (2) that the ALJ did not

properly evaluate his testimony concerning chronic pain; and (3)

that the sedentary job base was sufficiently restricted by his

inability to extend his left arm that, even if Dr. Gatens’

assessment of his limitations were accepted, there was not a

significant number of jobs that he could perform. The Court

generally reviews these contentions 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

-7-

Case: 2:12-cv-01097-GLF-TPK Doc #: 17 Filed: 10/02/13 Page: 7 of 16 PAGEID #: <pageID>
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

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).

Plaintiff’s first argument relates to the ALJ’s decision

about his depression. The ALJ found that impairment not to be

“severe” at step two of the five-step evaluation process, meaning

that it produced no more than minimal limitations on plaintiff’s

ability to function from a psychological standpoint. The Court

finds no error in the way in which the ALJ performed this

evaluation.

The Court of Appeals has described in detail how the ALJ is

required to proceed at step two in evaluating mental impairments. 

In Rabbers v. Comm’r of Social Security, 582 F.3d 647, 652-53

(6th Cir. 2009), the court said:

-8-

Case: 2:12-cv-01097-GLF-TPK Doc #: 17 Filed: 10/02/13 Page: 8 of 16 PAGEID #: <pageID>
At step two, an ALJ must evaluate the claimant's

“symptoms, signs, and laboratory findings” to determine

whether the claimant has a “medically determinable

mental impairment(s).” [20 C.F.R.] §404.1520a(b)(1). If

the claimant has a medically determinable mental

impairment, the ALJ “must then rate the degree of

functional limitation resulting from the impairment(s)”

with respect to “four broad functional areas”:

“[a]ctivities of daily living; social functioning;

concentration, persistence, or pace; and episodes of

decompensation.” Id. §§404.1520a(b)(2), (c)(3). These

four functional areas are commonly known as the “B

criteria.” See 20 C.F.R. pt. 404, subpt. P, app. 1,

§12.00 et seq.; Craft v. Astrue, 539 F.3d 668, 674 (7th

Cir.2008). The degree of limitation in the first three

functional areas is rated using the following

five-point scale: none, mild, moderate, marked, and

extreme. 20 C.F.R. § 404.1520a(c)(4). The degree of

limitation in the fourth functional area (episodes of

decompensation) is rated using the following four-point

scale: none, one or two, three, four or more. Id. If

the ALJ rates the first three functional areas as

“none” or “mild” and the fourth area as “none,” the

impairment is generally not considered severe and the

claimant is conclusively not disabled. Id.

§404.1520a(d)(1). Otherwise, the impairment is

considered severe and the ALJ will proceed to step

three. See id. § 404.1520a(d)(2).

Here, the ALJ cited to the evidence - mainly the consultative

examination performed by Mr. Sours - in determining that the B

criteria had not been satisfied. He found that plaintiff had no

limitation in the areas of activities of daily living and social

functioning, mild limitations in the area of concentration,

persistence and pace due to memory problems and depression, and

had not experienced any periods of decompensation of extended

duration. The ALJ concluded that

Because the claimant’s medically determinable mental

impairment caused no more than “mild” limitation in any

of the first three functional areas and “no” episodes

of decompensation which have been of extended duration

in the fourth area, it was non-severe (20 C.F.R.

§404.1520a(d)(1)). 

-9-

Case: 2:12-cv-01097-GLF-TPK Doc #: 17 Filed: 10/02/13 Page: 9 of 16 PAGEID #: <pageID>
Tr. 116.

Plaintiff does not argue directly that the ALJ’s conclusions

as to each of these four areas of functioning are not supported

by substantial evidence. Rather, he asserts that the ALJ

improperly relied on his failure to seek mental health treatment

as the reason for finding his depression not to be severe, and he

argues, based on decisions such as Burton v. Apfel, 208 F. 3d 212

(6th Cir. Jan. 24, 2000)(unreported), that the failure to seek

mental health treatment may not be used as the “determinative”

factor in deciding if a mental impairment is severe.

Burton clearly stands for the proposition that when the

record contains “substantial evidence of a severe mental

impairment” it is error for an ALJ to discount this evidence

solely because the claimant has not sought treatment. Id. at *4. 

There, the claimant’s failure to seek such treatment was “hardly

probative of a of lack of mental impairment in light of the

substantial, medically documented evidence that [the claimant]

suffers from a mental impairment....” Id. But that is not this

case. 

First, there is no substantial or medically documented

evidence of a severe mental impairment in this case. The only

full evaluation of plaintiff’s depression is the one done by Mr.

Sours. Plaintiff himself concedes that Mr. Sours “felt that

[plaintiff] would suffer from a mild impairment in attention to

perform tasks int a work setting ... and that there would also be

a mild impairment withstanding stress and pressures associated

with day to day work activities ....” Plaintiff’s Statement of

Errors, Doc. 13, at 5. The presence of two mild impairments,

both relating to concentration, persistence and pace, with no

other impairments noted, simply reinforces the ALJ’s conclusion

that under the B criteria, plaintiff’s depression was not severe.

Second, the ALJ did not rely primarily upon plaintiff’s

-10-

Case: 2:12-cv-01097-GLF-TPK Doc #: 17 Filed: 10/02/13 Page: 10 of 16 PAGEID #: <pageID>
failure to seek treatment when he decided that plaintiff’s

depression was not severe. He mentioned that factor only once,

and otherwise properly focused not on the lack of treatment, but

on the content of the medical records and the conclusions reached

by both Dr. Sours and the state agency reviewer based on those

records. It simply cannot be said here that the plaintiff’s

failure to seek treatment was “determinative” of the ALJ’s

conclusion. Thus, Burton and the cases it relied on, such as

Blankenship v. Bowen, 874 F.2d 1116 (6th Cir. 1989), are simply

inapplicable to this case.

Plaintiff’s next argument is, as he states it, that “[t]he

ALJ incorrectly assessed the claimants’ (sic) credibility and his

testimony regarding chronic pain.” Statement of Errors, at 7. 

In support of his position, plaintiff asserts that the ALJ

“penalized” him for attempting to work in spite of his

impairments and for attending college in an effort to retrain

himself for less strenuous work. He also argues that the fact

that he sought only sporadic treatment for some of his conditions

should not have factored into the ALJ’s credibility analysis, and

that the ALJ erroneously failed to consider his long work

history.

Evaluation of a claimant's subjective reports of disabling

pain is subject to a two-part analysis. First, the Commissioner

should determine if there is objective medical evidence which

confirms the presence of disabling pain. If not (and there

frequently is not, given that pain is difficult to measure or

quantify, and is experienced differently even by persons with the

same underlying condition), the Commissioner should determine if

the claimant suffers from an objectively-established medical

condition of sufficient severity to permit a reasonable inference

to be drawn that the disabling pain actually exists. See Duncan

v. Secretary of H.H.S., 801 F.2d 847, 853 (6th Cir. 1986). This 

procedure is reflected in 20 C.F.R. §404.1529(a), and clarified

-11-

Case: 2:12-cv-01097-GLF-TPK Doc #: 17 Filed: 10/02/13 Page: 11 of 16 PAGEID #: <pageID>
in Social Security Ruling SSR 96-7p.

It is important to note that these inquiries are to be 

made separately, and that if there is objective evidence of a

sufficiently severe underlying condition, a claimant can prove

the existence of disabling pain due to that condition through

other evidence even if the medical evidence is not helpful in

establishing the extent of the claimant's pain. Felisky v.

Bowen, 35 F.3d 1027 (6th Cir. 1994). Thus, the Commissioner is

not permitted to reject allegations of disabling symptoms,

including pain, solely because objective medical evidence is

lacking, but 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). The

Commissioner should also give appropriate weight to the opinion

of a long-term treating physician as to whether the claimant is

accurately reporting or exaggerating the extent to which

disabling symptoms exist. Felisky, 35 F.3d at 1040. If the

Commissioner summarily rejects the claimant's testimony

concerning pain without considering these matters, reversal or

remand may be warranted.

 Since tolerance of pain is a highly individual matter,

determination of disability based on pain also depends to some

extent on the credibility of the claimant. Houston v. Secretary

of H.H.S., 736 F.2d 365 (6th Cir. 1984). If the Commissioner

rejects the claimant's testimony as to the extent of the

claimant’s pain, there need not be an express credibility

finding. Willis v. Secretary of H.H.S., No. 84-3477, slip

op. at 9 (6th Cir. Apr. 30, 1985) (unpublished opinion),

citing Ramirez v. Secretary HEW, 550 F.2d 1286 (1st. Cir.

1977). However, the reasons for the rejection must be

apparent from the record. Id. This requirement insures that

-12-

Case: 2:12-cv-01097-GLF-TPK Doc #: 17 Filed: 10/02/13 Page: 12 of 16 PAGEID #: <pageID>
a sufficient record for review of the Commissioner’s credibility

determination is made. Beavers v. Secretary of HEW, 557 F.2d

383, 386-87 (6th Cir. 1978), citing Combs v. Weinberger, 501 F.2d

1361 (4th Cir. 1974). In order to reject claimant's credibility,

the Commissioner cannot rely solely on personal observation of

the claimant but must base the credibility determination on "some

other evidence." Weaver v. Secretary of H.H.S., 722 F.2d 310,

312 (6th Cir. 1983) (emphasis in original); see also, Persons v.

Secretary of H.H.S., 526 F.Supp. 1202 (S.D. Ohio 1981). In light

of the Commissioner's opportunity to observe the claimant's

demeanor, the Commissioner's credibility finding is entitled to

deference and should not be discarded lightly. Kirk v. Secretary

of H.H.S., 667 F.2d 524, 538 (6th Cir. 1981); Beavers v.

Secretary of HEW, 577 F.2d at 386-87. The evaluation of a

claimant’s credibility is largely committed to the discretion of

the Commissioner, and the findings made in that regard are

entitled to “great weight and deference.” Walters v.

Commissioner of Social Security, 127 F.3d 525, 531 (6th Cir.

1997). However, the Commissioner's credibility finding is not

entitled to substantial deference if the medical and lay evidence

supporting allegations of pain is uncontradicted and

overwhelming. King v. Heckler, 742 F.2d 968 (6th Cir. 1984).

The Commissioner argues that the ALJ properly followed these

legal precepts in deciding that plaintiff’s testimony about

disabling pain or limitations was not entirely credible. For the

following reasons, the Court agrees.

The ALJ identified SSR 96-7p as governing his inquiry into

plaintiff’s credibility. That is the correct standard. The ALJ

considered the sporadic nature of treatment for the first two

years during which plaintiff alleged disability; SSR 96-7p

permits the ALJ to do so, noting that “the individual's

statements may be less credible if the level or frequency of

treatment is inconsistent with the level of complaints ....” He

-13-

Case: 2:12-cv-01097-GLF-TPK Doc #: 17 Filed: 10/02/13 Page: 13 of 16 PAGEID #: <pageID>
also considered evidence that, even while he was complaining of

disabling symptoms, plaintiff was able to attend college, travel,

and work periodically. SSR 96-7p permits consideration of the

entire record, including information about a claimant’s “daily

activities, behavior, and efforts to work.” The ALJ took the

relevant medical records into account, noting that much of the

treatment plaintiff received was, to some degree, successful in

reducing or controlling his symptoms, that much of the treatment

was conservative in nature, and that no doctor recommended or

imposed limitations totally inconsistent with working at some

exertional level. Given that these are all legitimate factors,

and that weighing such factors is ordinarily the job of the ALJ

and not the reviewing court, the Court does not find any basis

for reversing the ALJ’s decision on the issue of credibility.

Plaintiff’s final argument is that the job base identified

by Dr. Robinson was so reduced by his various limitations that it

was unreasonable for the ALJ to find that he could perform

substantial gainful activity. Plaintiff cites no case law on

that issue, and seems to include in his argument the assertion

that had the ALJ considered either his mental limitations or the

limitations to which plaintiff testified, the job base would have

been eroded even further. Because the Court has found

plaintiff’s contention on these issues to be without merit, the

only question which must be addressed here is whether the

vocational testimony supported the ALJ’s finding that a

substantial number of jobs existed which plaintiff could still

perform despite his documented impairments.

It is not entirely clear how the ALJ dealt with the issue of

plaintiff’s being unable to extend his left arm. His finding as

to residual functional capacity was that plaintiff could not

engage in “extended reaching” with that arm. Dr. Gatens seemed

to say that plaintiff could reach his arm full out in front of

him. See Tr. 74 (“In front of him it would be okay”). The

-14-

Case: 2:12-cv-01097-GLF-TPK Doc #: 17 Filed: 10/02/13 Page: 14 of 16 PAGEID #: <pageID>
reduction made by Dr. Robinson in the sedentary job base was for

someone for whom “there is no extending out like that ....” (Tr.

75). Therefore, the ALJ did not have to accept the testimony

about a 50% reduction in the jobs which Dr. Robinson identified,

and from his decision, which incorporates the first set of

numbers she testified to (1,600 jobs in the local economy, and

300 in each of the three specific positions she identified) it

does not appear that he did.

The Commissioner cites to a number of cases, beginning with

Hall v. Bowen, 837 F.2d 272 (6th Cir. 1988) which hold that such

numbers can be considered evidence of a substantial number of

jobs available to a claimant. Hall itself involved only 1,350

jobs in a local economy. This Court has found that 1,200 jobs in

the local economy can be a significant number. See, e.g., Swett

v. Comm’r of Social Security, 2008 WL 552481, *13 (S.D. Ohio Feb.

26, 2008). Given the testimony of Dr. Robinson not only about

the number and type of such jobs available locally, but

nationally, the Court agrees with the Commissioner that the ALJ

reasonably found that a substantial number of jobs existed which

plaintiff could perform. Consequently, none of plaintiff’s three

claims of error require either reversal or remand.

 VIII. Recommended Decision

Based on the above discussion, it is recommended that the

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

entered in favor of the defendant Commissioner.

IX. 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

-15-

Case: 2:12-cv-01097-GLF-TPK Doc #: 17 Filed: 10/02/13 Page: 15 of 16 PAGEID #: <pageID>
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

-16-

Case: 2:12-cv-01097-GLF-TPK Doc #: 17 Filed: 10/02/13 Page: 16 of 16 PAGEID #: <pageID>