IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

 

JOEL BROWN COAKLEY, 

 

 Plaintiff, 

 Civil Action 2:13-cv-84 

 v. Magistrate Judge Elizabeth P. Deavers 

 

COMMISSIONER OF SOCIAL SECURITY, 

 Defendant. 

OPINION AND ORDER 

 Plaintiff, Joel Coakely, brings this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for 

review of a final decision of the Commissioner of Social Security (“Commissioner”) denying his 

applications for social security disability insurance benefits and supplemental security income. 

This matter is before the Court for consideration of Plaintiff’s Statement of Errors (ECF No. 8), 

the Commissioner’s Memorandum in Opposition (ECF No. 9), and the administrative record 

(ECF No. 7). For the reasons that follow, Plaintiff’s Statement of Errors is OVERRULED, and 

the Commissioner’s decision is AFFIRMED. 

I. BACKGROUND 

 This matter involves Plaintiff’s second application for disability benefits. Plaintiff 

initially filed for disability insurance benefits and supplemental security income on June 9, 2005, 

alleging that he became disabled on December 6, 2004, at age 46. (R. at 107.) After Plaintiff’s 

initial application and request for reconsideration were denied, he requested a de novo hearing 

before an administrative law judge. Id. An evidentiary hearing was held by Administrative Law 

Judge Joel G. Fina (“ALJ Fina”), who then denied Plaintiff’s applications on June 11, 2008 (“the 

Case: 2:13-cv-00084-EPD Doc #: 12 Filed: 03/21/14 Page: 1 of 43 PAGEID #: <pageID>
 2

first determination”). (R. at 104–18.) The Appeals Council denied review in April 2009. (R. at 

123–27.) Plaintiff did not appeal the first determination. 

Plaintiff filed new applications for both disability insurance benefits and supplemental 

security income in July 2008, alleging that he became disabled on June 12, 2008, the day after 

ALJ Fina issued the first determination. (R. at 156–64, 165–68.) Plaintiff alleged disability as a 

result of degenerative joint disease, chronic joint pain, anxiety, fibromyalgia, high blood 

pressure, irritable bladder, depression, acid reflux, osteoarthritis, mood swings, arthritis in both 

knees, bunions, heel spurs, and arthritis. (R. at 239.) After Plaintiff’s second application was 

denied initially and upon reconsideration, he requested a de novo hearing before an 

administrative law judge. Administrative Law Judge Rita S. Eppler (“ALJ Eppler”) held a 

hearing on May 19, 2011. Plaintiff, represented by counsel, appeared and testified. (R. at 44–

65.) Lynn M. Kaufman, a vocational expert, also appeared and testified. (R. at 65–73.) On July 

12, 2011, ALJ Eppler issued a partially favorable determination. (R. at 23–31.) She found that 

Plaintiff became disabled on April 1, 2010, but that he was not disabled prior to that date. (Id.) 

On November 30, 2012, the Appeals Council denied Plaintiff’s request for review and adopted 

the ALJ’s decision as the Commissioner’s final decision. (R. at 1–5.) Plaintiff timely 

commenced this action. 

II. HEARING TESTIMONY 

 Plaintiff testified that he lives alone in a trailer. (R. at 45.) Plaintiff stated that he holds a 

driver’s license and drives short distances once a week to get groceries and to doctor 

appointments “once in a while.” (R. at 45.) He added that, sometimes, he drives to get 

groceries only twice a month. (R. at 57.) Plaintiff’s adult son drove him to the hearing. (R. at 

45.) 

Case: 2:13-cv-00084-EPD Doc #: 12 Filed: 03/21/14 Page: 2 of 43 PAGEID #: <pageID>
 3

Plaintiff further testified that he was prescribed a cane by his doctor, Dr. Neff, in 

November 2010 to keep pressure off his knees and to keep him from falling down. (R. at 48–

49.) Plaintiff uses the cane when he leaves his house but is able to hold onto things to prevent 

falling when he is at home. (R. at 64). He also testified that problems with his back, knees, and 

right wrist were his most significant problems. (R. at 49.) He estimated that problems with his 

back began in 2004 or 2005, problems with his knees began two or three years before the 

hearing, and problems with his right wrist began a year or two before the hearing. (R. at 49, 52.) 

He also described suffering from fibromyalgia pain in all of his joints and the muscles around his 

joints. (R. at 60.) The fibromyalgia causes him irritable bladder, difficulty concentrating, “pins 

and needles” in his arms, and sensitivity to noise and light. (R. at 59, 60.) Plaintiff also 

explained that bradycardia makes him tired. (R. at 63.) 

Plaintiff testified that to deal with his problems, he receives pain management therapy 

and counseling. (R. at 49.) He stated that he takes medicines that are prescribed to him in the 

manner prescribed, including Bystolic for blood pressure, Claritan and Loratadine for allergies, 

ibuprofen, and valium. (R. at 50.) He also testified that valium makes his memory worse and 

that other pills cause him to experience increased urination, fatigue, and dry mouth. (R. at 50, 

58.) Plaintiff indicated that his doctors have discussed surgery for his back and knee problems, 

including possibly fusing disks in his spine, and eventually a left knee replacement. (R. at 63–

64.) In the meantime, doctors have discussed possibly giving Plaintiff epidural shots for his 

back. (R. at 63.) Plaintiff currently receives Synvisc and cortisone shots for his left knee. (R. at 

64.) 

Plaintiff estimated that he can sit in a straight chair for approximately thirty minutes 

before he needs to get up and move around. (R. at 50–51.) He testified that he does not believe 

Case: 2:13-cv-00084-EPD Doc #: 12 Filed: 03/21/14 Page: 3 of 43 PAGEID #: <pageID>
 4

that he could sit in a chair for a typical eight-hour day. (R. at 51.) He estimated that he can 

stand for ten to fifteen minutes. (R. at 52.) Plaintiff represented that walking and moving around 

causes increased pain and swelling in his knees and that he could not lift more than a gallon of 

milk. (R. at 52, 61.) 

In terms of daily activities, Plaintiff testified that he takes a shower and eats breakfast in 

the morning. (R. at 56.) He then spends most of his day seated in a recliner with his feet 

elevated to relieve the swelling in his knees and pressure in his back. (R. at 56–57.) He further 

testified that he constantly experiences pain. (R. at 56.) He testified that he cannot push a 

sweeper because of pain in his right wrist and described experiencing pain when manipulating 

zippers, buttons, combing his hair, and brushing his teeth. (R. at 52–53.) Plaintiff’s daughter-inlaw does his sweeping, cleaning, and cooking. (R. at 57.) From time to time, however, Plaintiff 

heats up a “TV dinner” and “once in a great while” puts a small load of laundry in the washer. 

(Id.) He represented that he does not belong to any social clubs and has no hobbies. (R. at 58.) 

Plaintiff also testified regarding his emotional and mental health issues. He stated that he 

has regularly and consistently received mental health counseling at Tri-County Mental Health 

since 2006. (R. at 56.) He has never been hospitialized for any mental health issues. (Id.) He 

stated that he suffers from daily depression and described sadness, mood swings, crying, not 

wanting to do anything, and not wanting to socialize. (R. at 61–62.) He also testified that he 

experiences anxiety attacks approximately once a week and that he finds it difficult to talk in 

front of other people. (R. at 53, 62.) He explained that his anxiety attacks could be triggered by 

being around groups of people, like in a store, or driving in heavy traffic. (R. at 62–63.) 

Plaintiff described problems with primarily his short-term memory and concentration. (R. at 

Case: 2:13-cv-00084-EPD Doc #: 12 Filed: 03/21/14 Page: 4 of 43 PAGEID #: <pageID>
 5

65.) He testified that he had experienced memory and concentration problems for as long as he 

could remember. (Id.) 

III. MEDICAL RECORDS1

A. Physical Impairments

1. Treating Physician, Robert J. Neff, M.D. 

 On June 30, 2008, Plaintiff’s primary care physician, Dr. Robert J. Neff, identified 

Plaintiff’s diagnoses as fibromyalgia, joint pain in both knees, and cervical osteoarthritis. (R. at 

389.) Dr. Neff noted a palpable click and pop in Plaintiff’s knees that was worse in his left knee. 

(Id.) Dr. Neff further noted that Plaintiff was upset that his disability claim had been denied. 

(Id.) Dr. Neff prescribed Naprosyn and Darvocet. (Id.) On July 30, 2008, Plaintiff reported that 

he could not tolerate the side-effects from the Naprosyn and complained about “all joints aching 

bad,” and “burning pain up [his] back.” (R. at 303.) He also told Dr. Neff that he felt forgetful 

and “really depressed – worse than ever since his [was] disability denied.” (Id.) Plaintiff also 

reported feeling stressed because his counselor was leaving for another position. (Id.) Dr. Neff 

noted that Plaintiff generally appeared to be “his usual self” and that he looked and acted well. 

(Id.) He also noted that Plaintiff was going to church, praying a lot, wearing orthotics in his 

shoes, and that Plaintiff believed he was “doing better.” (Id.) Dr. Neff diagnosed Plaintiff with 

fibromyalgia exacerbation, joint pain, chronic pain syndrome, and depression. (Id.) X-rays of 

both knees taken that day showed mild to moderate degenerative arthritis involving both knees. 

(R. at 284.) The X-rays also revealed narrowing of the joint spaces medially due to degeneration 

 

1

The administrative record contains additional medical evidence from 2011 and 2012. (R. at 

661–748). That evidence was not before the ALJ. Rather, Plaintiff submitted it to the Appeals 

Council. Because the Appeals Council denied Plaintiff’s request for review, that evidence is not 

a part of the record for purposes of substantial evidence review of the ALJ’s decision. Cline v. 

Comm’r of Soc. Sec., 96 F.3d 146, 148 (6th Cir. 1996) (citation omitted). Consequently, the 

Court considers only the evidence that was before the ALJ. 

Case: 2:13-cv-00084-EPD Doc #: 12 Filed: 03/21/14 Page: 5 of 43 PAGEID #: <pageID>
 6

associated with subchondral sclerosis and small spurs about the patella on each side. (Id.) The 

X-ray of Plaintiff’s left knee revealed a “fairly prominent exostosis involving the distal left 

femur.” (Id.) Handwritten notes on Dr. Neff’s final report from that visit indicate that Plaintiff 

was referred to Dr. Kauffman for possible synvisc injections. (Id.) Nurses’ notes dated August 

4, 2008, indicate that Plaintiff declined Dr. Neff’s referral. (R. at 331.) 

 On August 29, 2008, Dr. Neff noted that Plaintiff had seen Dr. Kauffman about his knee 

problems. (R. at 304.) Plaintiff also reported that he was wearing arch supports in his shoes and 

that those “really help when [he was] up and around, but [that] the inside of [his] feet burn when 

he takes [his] shoes off.” (Id.) Plaintiff described pain that radiated from the lateral side of his 

hip to the lateral side of his foot. (Id.) He further reported experiencing anxiety, worsening 

depression, and having no reason to do anything. (Id.) Dr. Neff noted that Plaintiff appeared to 

be his “usual self” and diagnosed Plaintiff with bradycardia, fibromyalgia, and bilateral 

osteoarthritis of the knees. (Id.) 

On September 29, 2008, Plaintiff told Dr. Neff that he was feeling anxious and was 

experiencing increased pain in his neck and back. (R. at 469.) Plaintiff added that his knee was 

“feeling better” following a steroid injection. (R. at 469.) Dr. Neff noted that Plaintiff appeared 

to be his “usual self” but that he was moving slowly and had “no evident knee effusion or 

warmth. . . and mild patellar crepitus” of the left knee. (Id.) On October 28, 2008, Plaintiff told 

Dr. Neff that his back and knees hurt intensely, that he had received two injections in his left 

knee from Dr. Kauffman, and that he was experiencing deep pressure in his left knee. (R. at 

468.) Plaintiff also told Dr. Neff he was regularly attending physical therapy. (Id.) Dr. Neff 

noted no evident swelling but noted patellar crepitus in both knees. (Id.) During that visit, Dr. 

Case: 2:13-cv-00084-EPD Doc #: 12 Filed: 03/21/14 Page: 6 of 43 PAGEID #: <pageID>
 7

Neff noted again that Plaintiff appeared to be his usual self and diagnosed Plaintiff with 

osteoarthritis of the shoulders, knees, and lower spine and chronic pain. (R. at 468.) 

In November 2008, Dr. Neff noted that Plaintiff was moving slowly. (R. at 467.) He 

also noted that Plaintiff was experiencing fatigue, fibromyalgia pain, and arthritis pain 

exacerbated by cold weather. (R. at 467.) Plaintiff told Dr. Neff that he was unable to walk 

outside because his knee pain was intolerable and that he had experienced episodes with his 

bradycardia. (Id.) Plaintiff also told Dr. Neff that he was worried about his family getting 

together for Thanksgiving. (Id.) Dr. Neff recorded finding “generalized muscle tenderness” and 

“mild crepitus of the knees, no effusion.” (Id.) 

On December 23, 2008, Dr. Neff reported that Plaintiff appeared to be his “usual self” 

and was in “no evident distress.” (R. at 466.) During that visit, Plaintiff reported getting an 

injection for his knee and that the cold weather exacerbated his joint pain. (Id.) He also reported 

that he felt discouraged because his social security claim had been denied. (R. at 466.) On 

January 26, 2009, Dr. Neff again noted that Plaintiff appeared to be his usual self. (R. at 465.) 

During that visit, Plaintiff told Dr. Neff that he had received all injections for his knees and again 

reported that the cold weather exacerbated his knee pain. (Id.) 

 On May 27, 2009, Dr. Neff filled out a “Multiple Impairment Questionnaire” in which he 

reported that he began treating treated Plaintiff in 2002. (R. at 496.) He listed Plaintiff’s 

diagnoses as fibromyalgia, hypertension, GERD, bilateral knee osteoarthritis, plantar fasciitis, 

irritable bowel syndrome, mild degenerative disc disease of the entire spine that was the worst at 

T4-5, right rotator cuff injury, sternoclavicular arthritis, generalized anxiety disorder, and 

chronic depression. (Id.) Dr. Neff’s clinical findings included tender points in the major muscle 

points in major muscle groups corresponding to the American Rheumatology Association criteria 

Case: 2:13-cv-00084-EPD Doc #: 12 Filed: 03/21/14 Page: 7 of 43 PAGEID #: <pageID>
 8

for fibromyalgia and mild palpable crepitus below the patella with range of motion in both knees. 

(Id.) Diagnostic evidence included x-rays showing mild to moderate osteoarthritis of both knees 

and lab blood testing. (R. at 496–97.) Plaintiff’s primary symptoms included generalized 

muscle and joint pain with soreness and stiffness exacerbated with activity, easy fatigability, and 

impaired memory and recall. (R. at 497.) Dr. Neff noted that Plaintiff’s pain was continuous 

and exacerbated by increased activity. (R. at 498.) Dr. Neff estimated that Plaintiff’s pain 

ranged from a 4-10 on a 10-point scale, and that his fatigue ranged from a 4-6 on a 10-point 

scale. (Id.) Dr. Neff stated that: “[m]ost of the patients I follow and treat for fibromyalgia are 

able to function and work full-time. [Plaintiff’s] pain is disabling.” (R. at 497.) 

 In the questionnaire, Dr. Neff additionally opined that Plaintiff was able to sit 8 for hours, 

but would need to get up, move around, and take frequent ten-minute breaks every half hour or 

take half-hour breaks four or five times a day. (R. at 498–99, 502.) He found that Plaintiff 

would be able to stand/walk 2 hours in an 8-hour workday. (R. at 498.) Dr. Neff opined that 

Plaintiff could occasionally lift and carry up to 20 pounds, but could never lift anything heavier. 

(R. at 499.) Dr. Neff also found that Plaintiff had significant limitations doing repetitive 

reaching, handling, fingering, and lifting due to stiffness and pain in his fingers. (Id.) He opined 

that Plaintiff had moderate limitations using his upper extremities for grasping, turning, and 

twisting objects, performing fine manipulations, and reaching. (R. at 499, 501.) Plaintiff’s 

medications caused dyspepsia, sedation, lethargy, tremor, diarrhea, headaches, irritability, 

shakiness, nausea, bloating, swelling, a bitter taste in the mouth, constipation, increased appetite, 

weight gain, bradycardia, and exacerbated memory issues and hypertension. (R. at 500–01.) Dr. 

Neff noted that Plaintiff did not tolerate physical therapy well because it increased his pain, but 

that corticosteroid injections were helpful for Plaintiff’s knee pain. (R. at 501.) Dr. Neff opined 

Case: 2:13-cv-00084-EPD Doc #: 12 Filed: 03/21/14 Page: 8 of 43 PAGEID #: <pageID>
 9

that Plaintiff’s symptoms would be aggravated if he was placed in a competitive work 

environment or forced to keep his neck in a constant position such as looking at a computer 

screen. (R. at 502.) Dr. Neff agreed that Plaintiff’s pain, fatigue, or other symptoms frequently 

interfered with his attention and concentration and that his chronic anxiety and depressed mood 

contributed to the severity of his symptoms. (R. at 502.) Dr. Neff estimated that Plaintiff would 

be absent from work, on average, more than three times a month and that he would need to avoid 

the following at work: wetness, noise, fumes, gases, extreme temperatures, humidity, dust, 

heights, kneeling, bending, and stooping. (R. at 503.) Plaintiff’s ability to push or pull would 

also be limited. (Id.) Dr. Neff noted that in his “best medical opinion,” the earliest date that 

these symptoms and limitations applied was 1993, except that Plaintiff’s anxiety symptoms were 

present much earlier, as Plaintiff reported having anxiety symptoms all of his life. (R. at 503.) 

On July 20, 2009, Dr. Neff wrote that Plaintiff appeared “slow” and “stiff getting up from 

[a] chair.” (R. at 552.) Plaintiff told Dr. Neff that he developed knee pain after standing for 

more than an hour. (R. at 552.) Plaintiff also reported that Dr. Kauffman was giving him 

Hyalgan injections in both knees and that these injections helped more than the cortisone 

injections. (R. at 552.) On August 19, 2009, Dr. Neff recorded that Plaintiff’s knees had slightly 

elevated warmth, swelling, and redness and further noted mild patellar crepitus. (R. at 551.) 

Plaintiff reported that his knees were “50% better now.” (R. at 551.) Dr. Neff noted that 

Plaintiff appeared cheerful. (Id.) Plaintiff told Dr. Neff that his depression was a little better 

lately and that he enjoyed playing with his grandson. (Id.) Dr. Neff also wrote that Plaintiff’s 

remote history of neck pain had resolved with treatment. (Id.) 

 On January 27, 2010, Dr. Neff recorded that Plaintiff appeared pleasant and told Dr. Neff 

that he was “hanging in there.” (R. at 609.) Plaintiff also told Dr. Neff that three or four times a 

Case: 2:13-cv-00084-EPD Doc #: 12 Filed: 03/21/14 Page: 9 of 43 PAGEID #: <pageID>
 10

week, his pain intensity was up to an eight on a ten-point scale after increased activity or sitting 

too long. (Id.) He also indicated that Dr. Kauffman had been giving him Synvisic injections and 

that those “help[ed] some.” (Id.) Plaintiff reported that Dr. Kauffman was also going to be 

giving him ortho gel. (Id.) Plaintiff reported to Dr. Neff that his walking was limited by his 

knee and back pain, that he got a lot of headaches, and that he was experiencing low-grade neck 

pain. (Id.) 

 On April 26, 2010, Dr. Neff treated Plaintiff and completed another Multiple Impairment 

Questionnaire. (R. at 595–602, 607.) Dr. Neff recorded that Plaintiff continued to deal with 

chronic pain in his back, knees, ankles, and other joints. (R. at 607.) He also noted that Plaintiff 

appeared to be his usual self and that he moved slowly as if stiff. (Id.) In the questionnaire, he 

listed his diagnoses as: bilateral knee and cervical spine osteoarthritis, multi-level degenerative 

disc disease of the spine, fibromyalgia, irritable bowel syndrome, plantar fasciitis, 

osteochondroma of the left knee, generalized anxiety, social anxiety disorder, and chronic 

depression. (R. at 595.) Dr. Neff also suspected that Plaintiff had a personality disorder. (Id.) 

Dr. Neff noted that Plaintiff experienced pain in both knees but with more pain on the left side, 

stiffness, and crepitus with movement. (Id.) Dr. Neff recorded significant tenderness to 

palpation in Plaintiff’s planter arches and anterior calcaneus in both feet and tenderness to 

palpitation in his lower cervical spine, which had a mildly restricted range of motion. (R. at 

595–96.) Dr. Neff also observed tender points in Plaintiff’s major muscle groups that 

corresponded to the American Rheumatology Association’s criteria for fibromyalgia. (R. at 

595.) X-ray evidence revealed mild to moderate osteoarthritis in Plaintiff’s knees and 

osteochondroma in his left knee, degenerative disk disease in his entire spine, and cervical 

stenosis. (R. at 595–96.) Dr. Neff listed Plaintiff’s primary symptoms as generalized muscle 

Case: 2:13-cv-00084-EPD Doc #: 12 Filed: 03/21/14 Page: 10 of 43 PAGEID #: <pageID>
 11

aching; soreness and joint pain exacerbated by cold, increased activity, and inadequate sleep; 

easy fatigability; and chronic anxiety exacerbated by social events and depression. (R. at 596.) 

Dr. Neff estimated that Plaintiff’s pain ranged from a 6-8 on a 10-point scale at that his fatigue 

ranged from a 6-7 on a 10-point scale. (Id. at 597.) Dr. Neff again stated that “most of the 

patients I see and treat from fibromyalgia, osteoarthritis, degenerative disk disease, and 

anxiety/depression respond to treatment well enough to fulfill their responsibilities and work full 

or part-time. [Plaintiff’s] pain is disabling.” (R. at 596.) 

 In this questionnaire, Dr. Neff opined that Plaintiff was able to sit for 8 hours, but would 

need frequent breaks every half hour or hour to stand, stretch, or move around and would need 

one to two hours before resuming sitting. (R. at 597.) Plaintiff would be able to stand/walk for 2 

hours in an 8-hour workday. (R. at 498.) Dr. Neff opined that Plaintiff could frequently lift up 

to five pounds, occasionally lift and carry up to 20 pounds, but could never lift or carry anything 

heavier. (R. at 499.) Dr. Neff reported that Plaintiff had moderate limitations using his upper 

extremities for grasping, turning, and twisting objects and minimal limitations performing fine 

manipulations and reaching. (R. at 598–99.) Plaintiff’s medications caused dyspepsia, 

heartburn, sedation, lethargy, tremor, diarrhea, headaches, irritability, shakiness, nausea, 

bloating, swelling, and upset stomach. (Id.) Dr. Neff noted that Plaintiff did not tolerate 

physical therapy well because it increased his pain, and that corticosteroid and ortho-visc knee 

injections were helpful but temporary. (R. at 599.) Dr. Neff opined Plaintiff’s symptoms would 

be aggravated if Plaintiff was placed in a competitive work environment or forced to keep his 

neck in a constant position such as looking at a computer screen. (R. at 599–600.) Dr. Neff 

agreed that Plaintiff’s fatigue or other symptoms periodically interfered with his attention and 

concentration and that his depressed mood and social anxiety disorder contributed to the severity 

Case: 2:13-cv-00084-EPD Doc #: 12 Filed: 03/21/14 Page: 11 of 43 PAGEID #: <pageID>
 12

of his symptoms. (R. at 600.) Dr. Neff opined that Plaintiff’s anxiety, depression, fibromyalgia, 

and hypertension made him capable of tolerating only low-stress work. (Id.) Dr. Neff estimated 

that Plaintiff would be absent from work, on average, about two to three times a month and that 

his psychological limitations would affect his work ability. (Id.) He would also need to avoid 

heights and kneeling and had limited tolerance for pushing, pulling, bending, and stooping. (R. 

at 601.) Dr. Neff noted that in his “best medical opinion,” the earliest date that these symptoms 

and limitations applied was 1993, except that Plaintiff’s anxiety symptoms were present much 

earlier. (R. at 601.) Dr. Neff further noted that Plaintiff had been to counseling for several 

years with Dr. Resch, a psychiatrist at Tri-County Mental Health (“Tri-County”). (Id.) 

 On May 28, 2010, Dr. Neff noted that Plaintiff appeared to be his usual. (R. at 606.) Dr. 

Neff further noted that Plaintiff was still in a lot of pain in his joints and that his lumbosacral 

spine and was experiencing memory and recall issues. (Id.) Plaintiff reported that his children 

were doing the household chores and that he limited his activities to 10 to 15 minutes because his 

pain flared. (Id.) Examination showed decreased lumbar spine motion and knee swelling. (Id.) 

In July 2010, Plaintiff similarly reported that his joints and were hurting more lately, he had 

reduced his activities over the last year to avoid provoking pain, and his children were doing his 

housecleaning and yard work. (R. at 605.) Dr. Neff noted that Plaintiff told him that he used to 

watch television, do word search puzzles, read the bible, and occasionally walked to his son’s 

home to watch his grandson. (Id.) 

 On September 28, 2010, Plaintiff again told Dr. Neff that his pain was greater worse in 

cold weather and that the muscles in his back hurt more unless he took valium. (R. at 604.) 

Plaintiff was also receiving repeat Synvisic injections in his knee. (Id.) Dr. Neff found no 

evidence of swelling. (Id.) Plaintiff related that his Father’s recent death “really shook him up.” 

Case: 2:13-cv-00084-EPD Doc #: 12 Filed: 03/21/14 Page: 12 of 43 PAGEID #: <pageID>
 13

(Id.) On November 16, 2010, Plaintiff told Dr. Neff that his back, neck, and hips really hurt that 

week. (R. at 628.) 

 Dr. Neff completed a narrative statement regarding Plaintiff’s impairments on February 

21, 2011. After reiterating his previous findings, Dr. Neff concluded, “[m]y previously 

completed Multiple Impairment Questionnaires dated May 27, 2009 and April 26, 2010 remain a 

valid and accurate representation of my opinion.” (R. at 635–36.) 

2. Treating Physician, Matthew J. Kauffman, D.O., and Treating Physician 

Assistant, Scott Cryder, PA-C 

 Orthopedic surgeon Dr. Kauffman first saw Plaintiff about his left knee on August 26, 

2008. (R. at 453–54.) At that time, Plaintiff reported a sixteen-year history of progressively 

worsening knee pain and intermittent pain in his back since the 1970s that had worsened in 

recent months. (Id.) He also complained of pain when going up or down stairs or when sitting 

with his knee bent for long periods of time. (Id.) Plaintiff noted some swelling in his knee and 

occasional popping and cracking, but denied specific locking, catching, or giving out. (R. at 

453.) Upon examination, Dr. Kauffman noted minimal tenderness of the lumbar spine, minimal 

tenderness to palpation of the paraspinal muscles, boggy effusion of the left knee, limited range 

of motion in the left knee, pain with palpation over the medial and lateral compartments of the 

left knee, and crepitus. (R. at 454.) Dr. Kauffman further noted that X-rays showed some 

moderate degenerative osteoarthritis with an osteophyte. (Id.) Dr. Kauffman diagnosed 

osteoarthritis of the left knee with exostosis and possible osteochondroma. (Id.) 

 On September 3, 2008, an MRI of Plaintiff’s left knee showed a somewhat truncated 

appearance to all portions of the medial meniscus that the radiologists noted might be 

degenerative in nature; no displaced meniscal materal; no other internal derangements within the 

tiblofemoral or patellofemoral joints; and distal lateral femoral metaphysical osteochondroma 

Case: 2:13-cv-00084-EPD Doc #: 12 Filed: 03/21/14 Page: 13 of 43 PAGEID #: <pageID>
 14

with a thin cartilage cap. (R. at 381–82.) Based on these MRI results, which confirmed 

degenerative osteoarthritis in the left knee, Dr. Kauffman injected Plaintiff’s left knee with 

cortisone on September 9, 2008, and referred Plaintiff to physical therapy. (R. at 455.) 

 On October 21, 2008, Dr. Kaufmann reported that Plaintiff told him he was feeling a bit 

better, but that he experienced pain when standing for long periods. (R. at 456.) Plaintiff told 

Dr. Kaufmann that he was doing his home exercises and that he was about 50% better. (Id.) Dr. 

Kauffman’s examination revealed stable knee motion with mild effusion about Plaintiff’s knee 

and tenderness along the medal joint line. (Id.) Dr. Kauffman administered another cortizone 

injection and recommended Plaintiff receive a course of Visco injections. (Id.) 

 Plaintiff received Synvisc injections in his left knee on December 23, 2008, December 

30, 2008, and January 7, 2009. (R. at 458–60.) Physician’s Assistant Scott Cryder’s notes 

reflect that Plaintiff experienced minimal improvement after the first injection, but showed 

decent improvement after the second injection. (R. at 459–60.) By January 22, 2009, Plaintiff 

stated that the Synvisc injections had given him 60% relief. (R. at 461.) Plaintiff also told Dr. 

Kauffman that he got stiff with prolonged standing. (Id.) Dr. Kauffman opined that Plaintiff 

was “showing progressive improvement” and recommended that he continue his home exercise 

program and take ibuprofen and Darvoset as needed. (Id.) 

Three months later, Dr. Kauffman noted that Plaintiff had increased pain with increased 

activity but was otherwise doing about the same. (R. at 540.) During that April 23, 2009 visit, 

Dr. Kauffman’s physical examination revealed no changes except increased pain over Plaintiff’s 

joint line. (Id.) Because of the increased pain, Dr. Kauffman gave Plaintiff a cortisone injection 

and switched him from Darvocet to Vicodin. (Id.) Dr. Kauffman gave Plaintiff another 

cortisone injection on May 14, 2009, because the injection in April had provided some relief. (R. 

Case: 2:13-cv-00084-EPD Doc #: 12 Filed: 03/21/14 Page: 14 of 43 PAGEID #: <pageID>
 15

at 539.) During that May visit, Plaintiff reported continued soreness in his left knee. (Id.) He 

also told Dr. Kauffman that he was doing his home exercises and that even though Celebrex 

provided him relief, he had switched to Mobic because Celebrex was not covered by his 

insurance. (Id.) Dr. Kauffman determined that Plaintiff might benefit from Hyalgan injections. 

(Id.) 

 Dr. Kauffman completed a Lower Extremities Impairment Questionnaire on June 16, 

2009. Dr. Kauffman diagnosed Plaintiff with osteoarthritis and osteochondroma in his left knee. 

(R. at 522.) Dr. Kauffman noted that Plaintiff’s prognosis was fair. (Id.) His clinical findings 

included limited range of motion in Plaintiff’s left knee, tenderness of the medial joint line in the 

left knee, and an abnormal gait. (R. at 522–23.) Dr. Kauffman wrote that Plaintiff’s primary 

symptoms were left knee soreness, stiffness, mild joint line tenderness, and increased pain with 

stair climbing or prolonged bending of the knee. (R. at 524.) Walking, standing, climbing, 

kneeling, squatting or crawling also increased Plaintiff’s pain. (Id.) Dr. Kauffman stated that 

that Plaintiff could effectively initiate and sustain ambulation and complete tasks but that pain 

could interfere with his ambulation. (R. at 524–25.) Dr. Kauffman also wrote that Plaintiff was 

able to carry out activities of daily living without assistance, including traveling, preparing 

meals, and bathing. (R. at 525.) 

Dr. Kauffman further opined that Plaintiff could stand or walk 2 hours total in an 8-hour 

workday and sit 5 hours total in an 8-hour workday, but needed to get up and move around for 

fifteen minutes every half hour. (R. at 525, 527–28.) He estimated that Plaintiff could 

occasionally lift up to ten pounds, but could never lift more. (R. at 526.) He opined that 

Plaintiff’s experience of pain, fatigue, or other symptoms would periodically be severe enough to 

interfere with his attention and concentration. (Id.) Dr. Kauffman also opined that Plaintiff was 

Case: 2:13-cv-00084-EPD Doc #: 12 Filed: 03/21/14 Page: 15 of 43 PAGEID #: <pageID>
 16

capable of low-stress work and could “likely perform at least half day work duties that are seated 

with breaks every half hour to get up and walk around.” (R. at 527.) Dr. Kauffman also 

estimated that Plaintiff would be absent from work, on average, two to three times a month as a 

result of his impairments or treatment. (R. at 528.) In Dr. Kauffman’s best medical opinion, 

these symptoms and limitations had been present since August 2008. (Id.) 

 One month later, Dr. Kauffman prepared a narrative report in which he noted that 

Plaintiff had received cortisone and visco injections, oral medications, and gels that provided 

some temporary relief. (R. at 530.) Dr. Kauffman further opined that Plaintiff was “disabled to 

some extent because of his inability to do seated duties for long period[s] of time and because of 

his inability to stand for long periods.” (Id.) He did, however, acknowledge that Plaintiff “only 

had a limited set of non-operative treatment and had not undergone any extensive physical 

therapy or any surgical procedure such as a knee arthroscopy.” (Id.) Dr. Kauffman added that 

“[w]ithout being able to see the extent of the osteoarthritis and severity of the osteoarthritis as I 

would normally see with a knee arthroscopy I am a little guarded to say that Joel is fully disabled 

at this time.” (Id.) Dr. Kauffman also stated that Plaintiff was going to receive a second course 

of visco injections in the knee and that if these injections failed to provide Plaintiff relief, he 

would recommend that Plaintiff undergo arthroscopic surgery so that he could better evaluate 

Plaintiff’s condition. (R. at 530–31.) 

 On July 23, 2009, Dr. Kauffman’s progress notes indicated that Plaintiff was doing 40% 

better after Hyalgan injections. (R. at 536.) On September 24, 2009, Plaintiff told Dr. Kauffman 

and Physician Assistant Scott Cryder that he had experienced some improvement in his pain. (R. 

at 558.) Upon examination, both found a full range of motion in Plaintiff’s lumbar spine, 

minimal tenderness in his paralumbar spine, limited motion in his left knee with effusion, pain 

Case: 2:13-cv-00084-EPD Doc #: 12 Filed: 03/21/14 Page: 16 of 43 PAGEID #: <pageID>
 17

with palpation of his left knee, and crepitus with range of motion in his left knee. (R. at 558.) 

Dr. Kauffman wrote that because Plaintiff was proceeding well with pain control using ibuprofen 

and Voltaren gel, those medications would be continued and he would be allowed to continue his 

activities as tolerated. (R. at 559.) 

 Dr. Kauffman provided an updated Lower Extremities Impairment Questionnaire on 

April 28, 2010. Dr. Kauffman diagnosed Plaintiff with degenerative arthritis in both knees and 

osteochondral exostosis in the left femur. (R. at 581–82.) Dr. Kauffman also noted that 

Plaintiff’s pain had improved since receiving Synvisc injections, such that it was moderate and 

intermittent at that time. (R. at 583.) It could, however, interfere with Plaintiff’s ability to 

effectively sustain ambulation for more than short periods and distances and impact his ability to 

complete activities, depending upon the activity type. (R. at 583–84.) Dr. Kauffman opined that 

Plaintiff could carry out activities of daily living, but was limited to sitting for four hours and 

standing or walking for one hour in an eight-hour day. (R. at 581–88.) Dr. Kauffman further 

opined that every 45 minutes to an hour, Plaintiff would need to get up and move around for 15 

minutes. (R. at 584, 587.) Plaintiff could occasionally lift up to 20 pounds, but could never lift 

more than that. (R. at 585.) Dr. Kauffman opined that Plaintiff’s pain, fatigue, or other 

symptoms would frequently interfere with his ability to concentrate. (R. at 586.) He opined that 

because Plaintiff’s increasing pain was becoming more constant, Plaintiff was incapable of even 

low-stress work. (Id.) Dr. Kauffman stated that in his best medical opinion, these symptoms and 

limitations began August 26, 2008. (R. at 587.) 

 In May 2010, Plaintiff reported he was still in a lot of pain in his joints and lower spine 

and that his children were now doing his vacuuming, cooking, laundry, and cleaning the bathtub. 

(R. at 606.) In July 2010, Plaintiff reported that his pain was worse lately and that he had “really 

Case: 2:13-cv-00084-EPD Doc #: 12 Filed: 03/21/14 Page: 17 of 43 PAGEID #: <pageID>
 18

reduced activities” to avoid provoking pain. (R. at 605.) In September 2010, Plaintiff reported 

that his pain was a lot worse with the cooler weather, and that he could hardly sleep at night due 

to joint pain. The muscles in his back hurt if he did not take Valium. (R. at 604.) 

 Plaintiff received Synvisc injections to his left knee in October 2010. (R. at 620–22.) At 

the time of the first injection, Physician Assistant Scott Cryder wrote that Plaintiff noticed a good 

amount of relief after he received Synvisc injections in March 2010, but that the effect of those 

injections had started to wear off over the last three to four weeks. (R. at 620.) Plaintiff related 

having little to no other difficulties. (Id.) A week after the first injection, Plaintiff told Scott 

Cryder that he was “doing okay with some minimal improvements to his left knee.” (R. at 621.) 

A week after the second injection, Plaintiff told Scott Cryder that he was “doing quite well with 

some minimal improvements to his left knee.” (R. at 622.) 

On November 18, 2010, Plaintiff told Dr. Kauffman that he was doing a “little better” 

after receiving his third Synvisc injection. (R. at 623.) Dr. Kauffman noted that Dr. Neff had 

recommended that Plaintiff use a cane and that Plaintiff found using the cane beneficial. (Id.) 

Dr. Kauffman opined that Plaintiff was progressing well. (R. at 624.) Dr. Kauffman 

recommended that Plaintiff increase his activities as tolerated and ordered an updated X-ray of 

Plaintiff’s left knee. (R. at 624.) That X-ray revealed tricompartmental degenerative changes, 

most pronounced in the medial joint compartment, and stable osteochondroma arising from the 

lateral distal femur. (R. at 625.) 

 In October 2011, Dr. Kauffman prepared a narrative statement. (R. at 663–64.) Dr. 

Kauffman related that he had treated Plaintiff since August 2008, and an MRI taken around that 

time confirmed that he had osteoarthritis in the left knee. (R. at 663.) Dr. Kauffman also noted 

that since that initial evaluation until the end of 2009, Plaintiff had progressive arthritis in his 

Case: 2:13-cv-00084-EPD Doc #: 12 Filed: 03/21/14 Page: 18 of 43 PAGEID #: <pageID>
 19

knees that had been managed non-surgically through various types of injections, antiinflammatories, and activity modifications. (Id.) He opined that “there was a definite degree of 

disability on [Plaintiff’s] part.” (Id.) He further wrote that: “X-rays taken in November of 2010 

had confirmed significant narrowing of [Plaintiff’s] medial joint line consistent with more 

progressive severe arthritis in his knee.” (Id.) Dr. Kauffman concluded that Plaintiff was 

partially disabled in his left knee because of the osteoarthritis and pain and would have a very 

difficult time maintaining a full-time job because the arthritis would make it difficult maintain 

seated or perform standing jobs for long periods of time. (Id.) 

3. Reviewing Physician, Gerald Klyop, M.D. 

 In December 2008, state-agency physician Dr. Klyop reviewed the record and assessed 

Plaintiff’s physical functioning capacity. (R. at 414–21.) Dr. Klyop opined that Plaintiff could 

lift and carry twenty pounds occasionally and ten pounds frequently, stand and/or walk up to 6 

hours in a workday, sit for about six hours in a workday, and that his ability to push and pull was 

unlimited. (R. at 415.) According to Dr. Klyop, Plaintiff had no other limitations. (R. at 416–

18.) Dr. Klyop stated that Plaintiff’s symptoms were partially credible. (R. at 419.) 

4. Reviewing Physician, Myung Cho, M.D. 

 Plaintiff’s record was reviewed again in March 2009, by state-agency physician, Dr. Cho. 

(R. at 471–78.) Dr. Cho adopted the ALJ’s June 11, 2008 RFC finding under Acquiescence 

Ruling 98-4. (R. at 472.) Dr. Cho also found that Plaintiff was limited to never crawling or 

climbing ladders, ropes, or scaffolds; occasionally balancing, stooping, kneeling, crouching, and 

climbing ramps and stairs; and that he was to avoid concentrated exposure to hazards such as 

machinery and heights. (R. at 473.) 

Case: 2:13-cv-00084-EPD Doc #: 12 Filed: 03/21/14 Page: 19 of 43 PAGEID #: <pageID>
 20

B. Mental Impairments 

1. Tri-County Mental Health and Counseling Services, Inc. 

 Plaintiff received mental health services at Tri-County Mental Health (“Tri-County”) for 

anxiety and depression beginning in 2006. At issue are records of treatment rendered after the 

first determination by ALJ Fina on June 11, 2008. 

a. Treating Psychiatrist, William Resch, D.O., and Treating Therapist, 

Moira E. Odea, LPCC 

 Shortly after the first determination, Plaintiff’s treating psychiatrist, Dr. Resch, prepared 

a narrative statement. (R. at 345.) In that July 28, 2008 narrative, Dr. Resch stated that he was 

disappointed that Plaintiff’s initial application had been denied because, in his medical opinion, 

Plaintiff was disabled from a combination of mental and physical disorders. (Id.) He identified 

Plaintiff’s diagnoses as major depressive disorder and anxiety not otherwise specified. (Id.) 

According to Dr. Resch, Plaintiff: 

struggles every hour of the day to maintain his basic needs. If he does have a 

good hour or so of activity he ends up paying for it three to four fold recovering 

from generalized myalgias, arthralgias, and fatigue. I do not feel he is capable of 

working in any capacity or would be able to maintain gainful employment. 

 

(Id.) Dr. Resch also reported that Plaintiff was very compliant with treatment and evidenced no 

malingering or secondary gain. (R. at 345.) Dr. Resch expressed his opinion that Plaintiff’s 

appeal of the first determination by ALJ Fina should be “looked at closely” and that the denial of 

benefits to Plaintiff overturned. (Id.) 

 Also on July 28, 2008, Plaintiff’s counselor, Moira O’Dea, LPCC, prepared a narrative 

statement. (R. at 346–47.) Ms. O’Dea indicated that she had read ALJ Fina’s June 11, 2008 

determination and asked that Plaintiff’s case be carefully reviewed. (Id.) Ms. O’Dea explained 

that Plaintiff experienced marked difficulties in maintaining social functioning and that any 

Case: 2:13-cv-00084-EPD Doc #: 12 Filed: 03/21/14 Page: 20 of 43 PAGEID #: <pageID>
 21

previous treatment notes describing him as doing “well,” simply referred to his ability to perform 

light activities around his home. (R. at 346.) Ms. O’Dea also reported that Plaintiff’s attempts to 

walk regularly despite his severe pain were his way of trying to prevent himself from becoming 

totally crippled. (Id.) Ms. O’Dea noted that Plaintiff attended church less and less because the 

prolonged sitting caused him pain and that pain caused him to be unable to focus. (Id.) She also 

noted that his attendance at family gatherings did not constitute evidence of social functioning 

given that his attendance at such functions was difficult and done only out of concern for others. 

(Id.) Ms. O’Dea opined that Plaintiff’s “mental health has significantly decreased since 2004 

and most especially in the last eight months.” (R. at 347.) She noted that Plaintiff exhibited 

marked difficulties maintaining concentration, persistence, or pace as he could only complete 

tasks over many days and had often been prevented from completing tasks by anxiety. (Id.) She 

also noted that Plaintiff had increasingly isolated himself and lost interests in outside activities. 

(Id.) 

 In Dr. Resch’s August 28, 2008 mental status assessment, he indicates that Plaintiff had a 

depressed mood, a frustrated affect, decreased focus and concentration, and loss of short-term 

memory. (R. at 350–51.) Plaintiff told Dr. Resch that he was depressed, nervous, and frustrated 

about the social security appeal process, and that he believed that his appeal paperwork had been 

lost. (Id.) Plaintiff reported crying spells, irritability, anhedonia, intense worry, anger, and a 

longing for female companionship. (Id.) Plaintiff also spoke about filing for bankruptcy. (Id.) 

Dr. Resch refilled Plaintiff’s prescriptions for buspirone, diazepam, and remeron. (Id.) 

 On October 16, 2008, Dr. Resch’s noted that Plaintiff had an anxious and depressed 

mood but an appropriate affect. (R. at 425–26.) Plaintiff told Dr. Resch that he was “pretty good 

but still fighting [his] anxiety” and that his “anxiety trumps his depression.” (Id.) Plaintiff also 

Case: 2:13-cv-00084-EPD Doc #: 12 Filed: 03/21/14 Page: 21 of 43 PAGEID #: <pageID>
 22

reported enjoying his physical therapy and talking with a new mental health therapist who had an 

accent that conjured up pleasant memories. (Id.) Dr. Resch noted that Plaintiff still felt his life 

was worthless but thought that having some money coming in would go a long way. (Id.) 

Plaintiff also reported that his bankruptcy was complete and that he was rebuilding his credit. 

(Id.) Dr. Resch refilled Plaintiff’s previous prescriptions. (Id.) 

 On December 11, 2008, Plaintiff’s mood was “up and down,” but his affect was 

appropriate. (R. at 423–24.) Plaintiff reported that his mother-in-law had died the previous day 

and that he was planning to attend the funeral. (Id.) His daughter had also dropped out of 

school. (Id.) Despite that, Plaintiff remained friendly and engaged. (Id.) Plaintiff spoke about 

being prescribed new medications by Dr. Neff for blood pressure and heart arrhythmias and 

stated that during a mental health evaluation by Dr. Mark Miller, he cried several times and 

struggled with memory recall. (Id.) He also mentioned that a trip to the store with a female 

friend pursuant to her request for his company went well. (Id.) 

 On May 14, 2009, Dr. Resch completed a Psychiatric Impairment Questionnaire. (R. at 

505–12.) Dr. Resch reported that he saw Plaintiff once every 8 weeks since January 2007. (Id.) 

Dr. Resch noted he diagnosed Plaintiff with a chronic and moderate major depressive disorder 

and a generalized anxiety disorder. (R. at 505.) He found Plaintiff’s prognosis “fair,” noting that 

from a psychiatric standpoint, Plaintiff has only partially responded to a combination of 

medications and long-term psychiatric therapy. (Id.) Dr. Resch assigned Plaintiff a Global 

Case: 2:13-cv-00084-EPD Doc #: 12 Filed: 03/21/14 Page: 22 of 43 PAGEID #: <pageID>
 23

Assessment of Functioning (GAF) score of 50-60.2 Dr. Resch noted that Plaintiff’s primary 

symptoms were pain, anxiety, and depression. (R. at 507.) 

 Dr. Resch opined that Plaintiff was markedly limited in his ability to understand, 

remember, and carry out detailed instructions; to complete a normal workweek without 

interruptions from psychologically based symptoms and perform at a consistent pace without an 

unreasonable number and length of rest periods; to accept instructions and respond appropriately 

to criticism from supervisors; to get along with co-workers or peers without distracting them or 

exhibiting behavioral extremes; and to travel to unfamiliar places or use public transportation. 

(R. at 508–10.) Dr. Resch noted that Plaintiff experienced episodes of deterioration or 

decompensation in work or work-like settings that caused him to withdraw from that situation 

and/or experience an exacerbation of signs and symptoms evidenced by his extremely low 

tolerance for driving, public settings, crowds, and unfamiliar situations. (R. at 510.) He also 

emphasized that Plaintiff was not a malingerer. (R. at 511.) Dr. Resch opined that Plaintiff was 

incapable of handling even low-stress work. (Id.) Dr. Resch estimated that Plaintiff would be 

absent from work, on average, more than three times a month. (R. at 512.) Dr. Resch also 

indicated that in his best medical opinion, these symptoms and limitations applied since January 

10, 2007. (R. at 512.) 

 

2

The GAF scale is used to report a clinician’s judgment of an individual’s overall level of 

functioning. Clinicians select a specific GAF score within the ten-point range by evaluating 

whether the individual is functioning at the higher or lower end of the range. See American 

Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 33–34 (American 

Psychiatric Association, 4th ed. text rev. 2000) (DSM-IV-TR). A GAF score of 51-60 is 

indicative of moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic 

attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, 

conflicts with peers or co-workers).” DSM-IV-TR at 34. 

Case: 2:13-cv-00084-EPD Doc #: 12 Filed: 03/21/14 Page: 23 of 43 PAGEID #: <pageID>
 24

 When seen by Dr. Resch on June 17, 2009, Plaintiff reported that after a few weeks of 

increased Remeron, he had experienced slightly improved mood and sleep. (R. at 569–70.) Dr. 

Resch noted that Plaintiff moved slowly and appeared to be in physical pain and that his affect 

was dyshphoric. (Id.) 

 b. Treating Psychaitrist, Arthur Thalassinos, M.D. 

 Plaintiff began treatment with Dr. Thalassinos at Tri-County on September 29, 2009. (R. 

at 578–79.) During his first visit, Plaintiff reported poor sleep but stated that his mood was 

“pretty good, the medications help.” (R. at 578.) On November 24, 2009, Dr. Thalassinos noted 

that Plaintiff had financial stress. (R. at 576–77). He also noted that Plaintiff was “not too bad,” 

was getting by despite his pain, and was visiting his five-month old grandson often. (Id.) On 

January 19, 2010, Plaintiff reported that his anxiety worsened around that time of year, but the 

holidays had gone well despite having no money because he got to see “the kids.” (R. at 574–

75.) He also reported fragmented sleep due to his knee pain. (Id.) Dr. Thalassinos noted that 

Plaintiff’s mood was good. (Id.) On March 15, 2010, Plaintiff reported that he was starting to 

feel better. (R. at 618–19.) His mood was depressed, but not severely, because of his social 

security disability issues. (Id.) 

On May 10, 2010, Plaintiff reported being sad following the death of his father. (R. at 

614–15.) He also reported visiting his grandson and helping his son fix his house. (Id.) Plaintiff 

was still bereaved on July 6, 2010. (R. at 612–13.) Dr. Thalassinos accordingly noted that 

Plaintiff was more dysphoric. (Id.) Plaintiff again reported fragmented sleep attributable to his 

pain. (Id.) He also complained that his “life sucks right now” because of “financial problems.” 

(Id.) 

Case: 2:13-cv-00084-EPD Doc #: 12 Filed: 03/21/14 Page: 24 of 43 PAGEID #: <pageID>
 25

 On August 31, 2010, Dr. Thalassino’s mental status examination stated that Plaintiff was 

“stable” and “less depressed.” (R. at 610–11.) Plaintiff reported that he was “hanging in there” 

and though he saw his grandchildren, he was not doing much. (Id.) He also reported memory 

problems and losing his train of thought easily, but that to him, it was not that bad. (Id.) On 

October 26, 2010, Plaintiff stated that he was doing “okay;” he noted he had disturbed sleep due 

to pain. (R. at 617.) Dr. Thalassino noted that Plaintiff appeared less depressed. (Id.) Plaintiff 

reported spending time with his grandson. (Id.) 

On December 21, 2010, Plaintiff reported an increase in both depression and anxiety with 

anxiety attacks characterized by a pounding heart, sweating, and an inability to think. (R. at 

632–33.) Dr. Thalassino noted that Plaintiff appeared more anxious and depressed. (Id.) On 

January 25, 2011, Plaintiff reported that he was more depressed and asked to a see a therapist on 

a more frequent basis. (R. at 630–31.) 

 2. Examining Physician, Marc Miller, Ph.D. 

 On November 6, 2008, Dr. Miller examined Plaintiff on behalf of the state agency. (R. at 

392–95.) Plaintiff told Dr. Miller that he had worked for 30 years and that during his tenure, he 

had only missed eight days of work. (R. at 392.) He also suggested to Dr. Miller that he has 

difficulty with chronic anxiety and depression that had worsened in the two years prior to the 

evaluation. (R. at 392.) Plaintiff reported to that he ate three meals a day, maintained a driver’s 

license but stayed at home aside from going to the library once or twice a week, prepared meals, 

did laundry, cleaned, went grocery shopping, and managed finances. (R. at 394.) Plaintiff also 

reported that he had a good relationship with his father and his children and had positive 

interaction with his four siblings. (R. at 392–94.) 

Case: 2:13-cv-00084-EPD Doc #: 12 Filed: 03/21/14 Page: 25 of 43 PAGEID #: <pageID>
 26

 Dr. Miller noted that Plaintiff was credible, cooperative, mannerly, alert, and oriented. 

(R. at 393–94.) He further noted that Plaintiff was talkative, had intelligible and understandable 

speech, engaged in goal-directed conversation, and maintained good eye contact during the 

interview. (R. at 393.) Plaintiff also appeared depressed and exhibited crying behavior with 

tearfulness. (Id.) Plaintiff reported that he felt overwhelmed; his facial expressions indicated 

tension, and he exhibited signs of nocturnal teeth grinding. (Id.) Plaintiff reported passive 

suicidal thoughts, anhedonia and poor energy, racing thoughts, disturbed sleep, panic attacks, 

agoraphobia, agitation, irritability, and thoughts focused on the past. (Id.) Plaintiff exhibited 

poor memory, poor concentration, and mistrust toward others. (R. at 394.) He also had a history 

of traumatic events, difficulties with stress, poor self-esteem, avoiding others, and poor 

motivation. 

 Dr. Miller opined that Plaintiff’s cognitive ability to understand, remember, and carry out 

one-and two-step job instructions was not impaired and that Plaintiff “appear[ed] to be of good 

intelligence.” (R. at 394.) Dr. Miller found Plaintiff to be moderately limited in his ability to: 

interact with co-workers, supervisors, and the public; to maintain attention and concentration; 

and in his persistence in task completion. (R. at 394–95.) Dr. Miller opined that Plaintiff was 

moderately to markedly limited in his ability to deal with stress and work pressures. (R. at 394.) 

Dr. Miller based his assessment on Plaintiff’s mental status and not his medical conditions. (Id.) 

Dr. Miller diagnosed Plaintiff with a chronic pain disorder; a moderate to severe dysthymic 

disorder; panic disorder with agoraphobia; and a moderate to severe generalized anxiety 

disorder. (R. at 395.) He assigned Plaintiff a GAF score of 55. (Id.) 

Case: 2:13-cv-00084-EPD Doc #: 12 Filed: 03/21/14 Page: 26 of 43 PAGEID #: <pageID>
 27

3. Reviewing Physicians, Irma Johnston, Psy.D./Kevin Edwards, Ph.D. 

 On November 12, 2008, state-agency psychologist Irma Johnson reviewed Plaintiff’s 

medical records and assessed his mental condition. (R. at 396–413.) Dr. Johnston found that 

Plaintiff had mild restrictions in activities of daily living and moderate difficulties maintaining 

social functioning, maintaining concentration, persistence or pace, but he alsoexperienced no 

episodes of decompensation. (R. at 406.) Dr. Johnston also found that the evidence did not 

establish the presence of the “Part C” criteria. (R. at 407.) In a narrative assessment of 

Plaintiff’s ability to engage in work-related activities from a mental standpoint, Dr. Johnston 

concluded that Plaintiff possessed some limitations but retained significant functional capacity. 

(R. at 412.) Dr. Johnson opined that Plaintiff was able to understand and follow simple 

instructions but that his anxiety and depression moderately impaired his concentration, attention, 

social interactions, adaptability, and his ability tolerate stress. (Id.) He opined that Plaintiff 

would consequently work best in a static environment with simple, repetitive tasks and limited 

interpersonal relating. (R. at 412.) 

 On March 10, 2009, Kevin Edwards, Ph.D., reviewed Plaintiff’s record upon 

reconsideration and noted that the treatment records did not support Plaintiff’s allegations of a 

worsening of his mental impairments. (R. at 470.) According to Dr. Edwards, the medical 

evidence showed that Plaintiff’s treatment was helpful at the same time that he was dealing with 

a death in the family and his daughter dropping out of school. (Id.) Dr. Edwards affirmed Dr. 

Johnston’s assessment. (Id.) 

IV. THE ADMINISTRATIVE DECISION 

 On July 12, 2011, ALJ Eppler issued a partially favorable decision. ALJ Eppler found 

that the medial assessments done after ALJ Fina’s first determination on June 11, 2008, 

Case: 2:13-cv-00084-EPD Doc #: 12 Filed: 03/21/14 Page: 27 of 43 PAGEID #: <pageID>
 28

established that Plaintiff had the following additional severe impairment: osteoarthritis of the left 

knee, hypertension, pain disorder, and affective and anxiety related disorders.1 (R. at 25.) ALJ 

Eppler concluded that the record did not establish that these impairments caused Plaintiff’s 

mental condition to deteriorate. (R. at 27.) She further concluded that these additional 

impairments did cause Plaintiff’s physical condition to deteriorate on April 1, 2010. (R. at 28.) 

ALJ Eppler accordingly adopted ALJ Fina’s RFC determination for the period of June 12, 2008, 

until March 31, 2010. (Id.) Specifically, ALJ Eppler found that during this period, Plaintiff 

retained the residual functional capacity to: 

perform light work, as defined in C.F.R. §§ 404.1567(b) and 416.967(b), subject 

to the following: (1) no crawling or climbing of ladders, ropes or scaffolds; (2) no 

more than occasional balancing, stooping, crouching, kneeling or climbing of 

ramps or stairs; and (3) no concentrated exposure to unprotected heights; (4) From 

a mental standpoint, he was limited to simple, routine and repetitive tasks in a low 

stress job (which in this case is defined as no strict production quotas or 

significant time pressures) and requires no more than occasional decision making. 

 (R. at 27, 111.)2 ALJ Eppler further adopted ALJ Fina’s determination that although Plaintiff 

could not perform his past relevant work during this period, he could still perform jobs that 

existed in significant numbers in the national economy from June 12, 2008, until March 31, 

2010. (R. at 30.) ALJ Eppler explained as follows: 

 

1

 In the first determination, ALJ Fina found that Plaintiff had the following severe impairments: 

fibromyalgia; degenerative disc disease of the spine at the cervical, thoracic and lumbar levels; 

major depressive disorder, and anxiety. (R. at 109.) 

 

2

 ALJ Eppler’s residual functional capacity determination for June 12, 2008, until March 31, 

2010 includes the same limitations as ALJ Fina’s determination except that ALJ Eppler’s 

definition of a low-stress job additionally includes no strict production quotas or significant time 

pressures. (R. at 27, 111.) 

Case: 2:13-cv-00084-EPD Doc #: 12 Filed: 03/21/14 Page: 28 of 43 PAGEID #: <pageID>
 29

As summarized in the June 2008 ALJ decision, the Administrative Law Judge 

asked Michelle Peters, an impartial vocational expert, whether jobs existed in the 

national economy for an individual with the claimant’s age, education, work 

experience, and residual functional capacity. Ms. Peters testified that given all of 

these factors the individual would have been able to perform the requirements of 

representative occupations in the central Ohio primary metropolitan statistical 

area, including as an assembler (750 “unskilled” “light” exertional jobs); packager 

(850 “unskilled” “light” exertional jobs); and sorter (800 “unskilled” “light” 

exertional jobs). 

(Id.) (internal record citations omitted.) 

 On the other hand, ALJ Eppler determined that as of April 1, 2010, Plaintiff could no 

longer do light work with restrictions, but instead could only perform sedentary work as defined 

in 20 C.F.R. §§404.1567(a) and 416.97(a), subject to the same mental functional capacity 

restrictions as before: simple, routine and repetitive tasks in a low-stress job, with no strict 

production quotas, significant time pressures, or frequent decision making. (R. at 29). ALJ 

Eppler nevertheless determined that Plaintiff had already reached 50 years of age before April 1, 

2010, and that regulations mandate that persons over 50 years of age who can only perform 

unskilled sedentary work are to be determined disabled. (R. at 30–31.) Accordingly, based on 

Plaintiff’s age, education, and work experience, ALJ Eppler found that Plaintiff became disabled 

as of April 1, 2010, and has continued to be disabled for purposes of supplemental security 

income since that date. (R. at 30–31.) After reviewing the evidence, ALJ Eppler also concluded 

that Plaintiff’s statements about the intensity, persistence, and limiting effects of his impairments 

were not credible prior to April 1, 2010 because the objective medical evidence did not 

document a significant change in Plaintiff’s condition until that date. (R. at 28–29.) She further 

concluded that Plaintiff was not under a disability within the meaning of the Social Security Act 

at any time through December 31, 2009, the date last insured for purposes of disability insurance 

benefits. (R. at 30.) 

Case: 2:13-cv-00084-EPD Doc #: 12 Filed: 03/21/14 Page: 29 of 43 PAGEID #: <pageID>
 30

V. STANDARD OF REVIEW

When reviewing a case under the Social Security Act, the Court “must affirm the 

Commissioner’s decision if it ‘is supported by substantial evidence and was made pursuant to 

proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009) 

(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. § 

405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if supported by 

substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial evidence is 

defined as ‘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.’” Rogers, 486 

F.3d at 241 (quoting Cutlip v. Sec’y of Health & Hum. Servs., 25 F.3d 284, 286 (6th Cir. 1994)). 

 Although the substantial evidence standard is deferential, it is not trivial. The Court must 

“‘take into account whatever in the record fairly detracts from [the] weight’” of the 

Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting 

Univ. Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, “if substantial 

evidence supports the ALJ’s decision, this Court defers to that finding ‘even if there is 

substantial evidence in the record that would have supported an opposite conclusion.’” Blakley 

v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 

1997)). Finally, even if the ALJ’s decision meets the substantial evidence standard, “‘a decision 

of the Commissioner will not be upheld where the SSA fails to follow its own regulations and 

where that error prejudices a claimant on the merits or deprives the claimant of a substantial 

right.’” Rabbers, 582 F.3d at 651 (quoting Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 

(6th Cir. 2007)). 

Case: 2:13-cv-00084-EPD Doc #: 12 Filed: 03/21/14 Page: 30 of 43 PAGEID #: <pageID>
 31

VI. LEGAL ANALYSIS 

 In his Statement of Errors, Plaintiff asserts that ALJ Eppler improperly relied upon the 

ruling in Drummond v. Commissioner of Social Security, 126 F.3d 837 (6th Cir. 1997), to adopt 

ALJ Fina’s determination of non-disability for the period of June 12, 2008, until Plaintiff became 

disabled on April 1, 2010. Specifically, Plaintiff submits that his treating physicians, Drs. Resch, 

Neff, and Kauffman, offered new and material evidence that he was disabled during this period 

and that ALJ Eppler should have given those opinions controlling weight or better explained 

what weight she assigned to those opinions and the reasons for the assignments. (Pl’s Statement 

of Errors 12, ECF No. 8.) Plaintiff also asserts that the ALJ failed to properly evaluate his 

credibility. (Id. at 17.) Finally, Plaintiff argues that the ALJ relied upon flawed VE testimony. 

(Id. at 19.) The Court will address each of these assignments of errors in turn. 

A. The ALJ Properly Relied Upon the Principles in Drummond 

In his Statement of Errors, Plaintiff contends that ALJ Eppler erred in concluding that she 

was bound by ALJ Fina’s prior RFC determination. Plaintiff argues that that the record contains 

new and material evidence in the form of detailed opinions from Plaintiff’s treating physicians, 

Drs. Resch, Neff, and Kauffman, demonstrating changed circumstances. The Court disagrees. 

 In Drummond, the United States Court of Appeals for the Sixth Circuit held that 

principles of res judicata apply to both claimants and the Commissioner in Social Security cases. 

126 F.3d at 841–42. The Drummond Court specifically held that absent evidence of “changed 

circumstances” relating to a claimant’s condition, “a subsequent ALJ is bound by the findings of 

a previous ALJ.” Id. at 842. Accordingly, the Sixth Circuit reasoned that when an ALJ seeks to 

deviate from a prior ALJ’s decision, “[t]he burden is on the Commissioner to prove changed 

circumstances and therefore escape the principles of res judicata.” Id. at 843. Applying this 

Case: 2:13-cv-00084-EPD Doc #: 12 Filed: 03/21/14 Page: 31 of 43 PAGEID #: <pageID>
 32

approach, the Drummond Court concluded that an ALJ was bound by a previous ALJ’s 

determination that the claimant retained the RFC to perform sedentary work because evidence 

did not indicate that the claimant’s condition had improved. Id. at 843. 

 Following Drummond, both the Sixth Circuit and this Court have indicated that when a 

claimant seeks to avoid application of a prior ALJ’s finding, he or she must produce evidence 

demonstrating that his or her condition has worsened since the time of the prior determination. 

See, e.g., Caudill v. Comm’r of Soc. Sec., 424 F. App’x 510, 515 (6th Cir. 2011) (holding that an 

ALJ was justified, under Drummond, in adopting a previous ALJ’s finding that the claimant had 

a “limited education” because the claimant “introduced no new or additional evidence with 

respect to illiteracy versus limited education”) (internal quotations omitted); Holt v. Astrue, No. 

1:10–cv–439, 2011 WL 3861891, at *7 (S.D. Ohio July 6, 2011) (“[B]ecause Plaintiff failed to 

present any new and/or material evidence in the record that showed Plaintiff’s condition had 

worsened since [the] previous unfavorable decision, [the ALJ] acted properly by following 

Drummond and . . . adopting said decision.”) (Report and Recommendation later adopted); 

Salsgiver v. Comm’r of Soc. Sec. Admin., No. 1:11–CV–351, 2012 WL 2344095, at *12 (N.D. 

Ohio June 20, 2012) (“It is the claimant’s burden to present evidence showing that her symptoms 

have changed since the time of the Commissioner’s prior determination obviating the application 

of the ruling in Drummond.”). 

 Additionally, the Social Security Administration issued an Acquiescence Ruling 

following Drummond. Specifically, in light of Drummond, Social Security Acquiescence Ruling 

98–4(6) mandates as follows: 

Case: 2:13-cv-00084-EPD Doc #: 12 Filed: 03/21/14 Page: 32 of 43 PAGEID #: <pageID>
 33

[W]hen adjudicating a subsequent disability claim with an unadjudicated period 

arising under the same title of the Act as the prior claim, adjudicators must adopt 

such a finding from the final decision by an ALJ or the Appeals Council on the 

prior claim in determining whether the claimant is disabled with respect to the 

unadjudicated period unless there is new and material evidence relating to such a 

finding or there has been a change in the law, regulations or rulings affecting the 

finding or the method for arriving at the finding. 

AR 98–4(6), 1998 WL 283902, at *3 (June 1, 1998). Within the Social Security context, new 

evidence is evidence that was “not in existence or available to the claimant at the time of the 

administrative proceeding that may have changed the outcome of the proceeding.” 

Schmiedebusch v. Comm’r of Soc. Sec., 536 Fed. Appx. 637, 647 (6th Cir. 2013) (quoting 

Sullivan v. Finkelstein, 496 U.S. 617, 626 (1990)). Evidence is considered material if there is a 

reasonable probability that the Commissioner would have reached a different decision if he or 

she had considered the new evidence. Id. (quoting Sizemore v. Sec’y of Health & Human Servs., 

865 F.2d 709, 711 (6th Cir. 1988). 

 In this case, ALJ Eppler applied Drummond and concluded that she was bound by ALJ 

Fina’s RFC determination for the period of June 12, 2008, until Plaintiff became disabled on 

April 1, 2010. (R. at 26–29). ALJ Eppler examined the medical reports developed after the first 

determination, including those from Plaintiff’s treating physicians, and determined that they did 

not demonstrate that Plaintiff’s physical and mental condition deteriorated during this time 

frame. Substantial evidence supports that determination. 

1. Plaintiff’s Physical Impairments 

Plaintiff asserts that ALJ Eppler erroneously failed to afford controlling weight to 

opinions offered by his treating physicians, Drs. Neff and Kauffman. ALJ Eppler considered 

their opinions and determined that they did not demonstrate that Plaintiff’s physical condition 

deteriorated prior to April 1, 2010. Substantial evidence supports that determination. 

Case: 2:13-cv-00084-EPD Doc #: 12 Filed: 03/21/14 Page: 33 of 43 PAGEID #: <pageID>
 34

Specifically, throughout the relevant period of 2008 and 2009, treatment notes from Drs. 

Neff and Kauffman do not indicate that Plaintiff’s physical condition was worsening. Indeed, 

many of Dr. Neff’s treatment notes throughout this time frame indicated that Plaintiff “appeared 

to be his usual self.” (R. 303, 304, 468, 466.) Although Dr. Neff determined on June 30, 2008, 

that Plaintiff had mild to moderate degenerative arthritis involving both knees, in September 

2008, Plaintiff told Dr. Neff that steroid injections administered by Dr. Kauffman made his knees 

feel better. (R. at 469.) Similarly, in October 2008, Plaintiff told Dr. Kauffman that he was 

doing home exercises and that his knees were about 50% better. (R. at 456.) After receiving 

Synvisc injections in December 2008 and January 2009, Plaintiff told Dr. Kauffman on January 

22, 2009, that the injections had given him 60% relief. (R. at 469.) At that time, Dr. Kauffman 

opined that Plaintiff was showing “progressive improvement” with regard to his knee issues. (R. 

at 540.) In May 2009, Dr. Kauffman also noted that a cortisone shot administered in April 2009 

provided Plaintiff with relief after he had experienced increased pain in April. (R. at 539, 540.) 

In sum, these documents not only fail to indicate a worsening of Plaintiff’s condition, they 

suggest that Plaintiff experienced some improvement with treatment. 

Plaintiff points to the questionnaires completed by Drs. Neff and Kauffman in May and 

June 2009, and argues that ALJ Eppler should have given these opinions controlling weight. 

(Pl’s Statement of Errors 14, 15, ECF No. 8.) In her determination, ALJ Eppler specifically 

considered these two questionnaires. She concluded as follows: 

In May 2009, [Dr. Neff] indicated that [Plaintiff] was limited to a range of 

sedentary work and would be unable to sustain full time work activity on a regular 

basis . . . Similarly, in June 2009, [Dr. Kauffman] assessed a limitation to a 

substantially reduced range of sedentary work. However, in July 2009, Dr. 

Kauffman acknowledged that [Plaintiff] had had only a limited set of 

nonoperative treatment and had not undergone any extensive physical therapy or 

any surgical procedure . . . Dr. Kauffman concluded that he was “a little guarded 

to say that [Plaintiff] is fully disabled at this time.” 

Case: 2:13-cv-00084-EPD Doc #: 12 Filed: 03/21/14 Page: 34 of 43 PAGEID #: <pageID>
 35

(R. at 28.) ALJ Eppler thus reasoned that the opinions concerning Plaintiff’s capacities in these 

questionnaires were not well-supported by medically acceptable and clinical and laboratory 

diagnostic techniques. (Id.) In such circumstances, an ALJ may decline to give opinions from 

treating physicians controlling weight, provided that the ALJ provides a reason for doing so. 20 

C.F.R §404.1527(d). Jones v. Comm’r of Soc Sec., 336 F.3d 469, 477 (6th Cir. 2003). ALJ 

Eppler adequately explained her assessment of these questionnaires. 

Moreover, ALJ Eppler specifically determined that these documents did not demonstrate 

that Plaintiff’s condition deteriorated. (R. at 29.) Substantial evidence supports this 

determination. For example, in his May 2009 questionnaire, Dr. Neff indicated that Plaintiff’s 

primary symptoms included generalized muscle and joint pain—not knee pain. (R. at 497.) Also 

in that document, Dr. Neff noted that cortisone injections were helpful for Plaintiff’s knee pain. 

(R. at 501.) Dr. Neff’s questionnaire therefore does not establish that Plaintiff’s knee issues had 

caused his condition to worsen. Moreover, even though Dr. Neff stated: “[m]ost of the patients I 

follow and treat for fibromyalgia are able to function and work full time . . . . [but Plaintiff’s] 

pain is disabling,” he also indicated that in his best medical opinion, the symptoms and 

limitations contained in the questionnaire were applicable since 1993. (R. at 503.) Thus, the 

opinions set forth in Dr. Neff’s May 2009 questionnaire likewise do not establish that Plaintiff’s 

condition deteriorated after the first determination in June 2008, and do not, even if controlling, 

permit Plaintiff to avoid the preclusive effect of Drummond. See Salsgiver, 2012 WL 2344095, 

at *12 (explaining that a plaintiff must present new and material evidence showing that his or her 

condition deteriorated after an ALJ makes a determination). 

In addition, ALJ Eppler determined that Plaintiff’s treatment records following the 

questionnaires did not demonstrate deterioration. (R. at 28.) Substantial evidence likewise 

Case: 2:13-cv-00084-EPD Doc #: 12 Filed: 03/21/14 Page: 35 of 43 PAGEID #: <pageID>
 36

supports this determination. Specifically, the records reflect that for several months after the 

questionnaires were prepared, Plaintiff told Drs. Neff and Kaufman and Physician Assistant 

Scott Cryder that his knees were better after receiving injections. (R. at 552, 536, 551, 539.) 

Indeed, Plaintiff reported that his knees were 40% better on July 20, 2009, and 50% better on 

August 19, 2009. (R. at 536, 551.) Consistently, on September 24, 2009, Plaintiff again 

informed Dr. Kauffman and Physician Assistant Scott Cryder that he had experienced 

improvement with his knee pain. (R. at 558.) At that time, Dr. Kauffman opined that Plaintiff 

was proceeding well with pain management using ibuprofen and Voltaren gel and recommended 

that he increase his activities as tolerated. (R. at 559.) On January 27, 2010, Plaintiff also 

informed Dr. Neff that he was “hanging in there” and that the injections from Dr. Kauffman 

“help[ed] some,” even though he had intense pain three or four times a week. (R. at 609.) 

The Court find that substantial evidence instead supports ALJ Eppler’s determination that 

the record reflected that Plaintiff’s condition had worsened as of April 1, 2010. ALJ Eppler 

reasoned that Drs. Neff and Kauffman’s April 2010 questionnaires evidenced a worsening in 

Plaintiff’s condition as of April 1, 2010. (R. at 29.) She also cited records from treatments after 

this date demonstrating a change for the worse in Plaintiff’s condition, including Plaintiff’s 

November 2010 prescription from Dr. Neff for a cane and November 2010 x-rays depicting 

tricompartmental degenerative changes in Plaintiff’s knee. (Id.) ALJ Eppler correctly noted that 

in the updated questionnaires, both doctors included restrictions for sedentary work given the 

additional restrictions set forth in the updated documents. (R. at 29.) In addition, in his 

questionnaire, Dr. Kaufmann indicated that although Plaintiff’s pain had improved with 

injections, his “increasing pain” was “becoming more constant” and would now frequently 

interfere with his ability to concentrate. (R. at 583, 586.) Notably, Dr. Kauffman had previously 

Case: 2:13-cv-00084-EPD Doc #: 12 Filed: 03/21/14 Page: 36 of 43 PAGEID #: <pageID>
 37

indicated in his June 2009 questionnaire that Plaintiff’s pain would only cause periodic 

interference with concentration. (R. at 527.) Dr. Kauffman also indicated in his April 2010 

questionnaire that Plaintiff could now sustain ambulation for short periods and distances only; 

Dr. Kauffman previously indicated in his June 2009 questionnaire that Plaintiff had no inabilities 

in this area. (R. at 524, 583.) 

Plaintiff counters that that in his April 2010 questionnaire, Dr. Kauffman opined that the 

symptoms he identified in that document applied since August 26, 2008. (Pl’s Statement of 

Errors 15, ECF No. 8.) Plaintiff contends that ALJ Eppler should have afforded this opinion 

controlling weight and found that Plaintiff’s condition deteriorated in August 2008, or should 

have explained why Dr. Kauffman’s opinion about onset date was not fully credited. (Id.) The 

Court finds no reversible error. Nevertheless, ALJ Eppler explained at length that medical 

records, including Dr. Kauffman’s treatment notes and reports by the state-agency reviewing 

physicians, did not demonstrate that Plaintiff’s physical condition had deteriorated in 2008 and 

2009. (R. at 28.) ALJ Eppler’s discussion illustrates that Dr. Kauffman’s notation relating to an 

August 26, 2008 onset date is inconsistent with other substantial record evidence. Thus, even 

though ALJ Eppler did not specifically explain why this particular notation in Dr. Kauffman’s 

questionnaire was not given controlling weight, that failure does not constitute reversible error. 

See Nelson v. Comm’r of Soc. Sec., No. 05-5879, 2006 WL 2472910, at *7 (6th Cir. Aug. 28, 

2006) (explaining that an ALJ may indirectly attack the supportability of a treating physician’s 

opinion by examining and discussing other evidence). 

2. Plaintiff’s Mental Impairments 

Plaintiff next argues that ALJ Eppler erroneously failed to afford controlling weight to 

opinions contained in Dr. Resch’s May 14, 2009 Psychiatric/Psychological Questionnaire. (Pl’s 

Case: 2:13-cv-00084-EPD Doc #: 12 Filed: 03/21/14 Page: 37 of 43 PAGEID #: <pageID>
 38

Statement of Errors 16, ECF No. 8.) In addition, Plaintiff argues that ALJ Eppler erroneously 

failed to explain why the opinions in that questionnaire were not controlling. (Id.) The Court 

disagrees. 

In her determination, ALJ Eppler specifically explained that Dr. Resch’s May 2009 

questionnaire did not document that Plaintiff’s condition had deteriorated and was, therefore, not 

entitled to significant weight. ALJ Eppler explained as follows: 

In July 2008, William Resch, D.O. opined that [Plaintiff] was disabled from a 

combination of mental and physical disorders . . . but at that point, the updated 

evidence of record did not document a change in Plaintiff’s condition since the 

June 2008 ALJ decision . . . For these same reasons, Dr. Resch’s May 2009 

disabling assessment . . . is also not entitled to controlling weight. 

(R. at 28 (emphasis added).) Substantial evidence supports this conclusion. In the May 2009 

questionnaire, Dr. Resch wrote that that the symptoms and limitations in that document applied 

since January 10, 2007. (R. at 512.) That document does not purport to reflect changes since the 

first determination, and thus cannot be used to show a worsening in Plaintiff’s condition. 

 ALJ Eppler also explained that other record evidence did not reflect that Plaintiff’s 

condition had deteriorated. To begin, ALJ Eppler explained that the report from evaluating 

physician Dr. Miller on November 6, 2008, indicated that Plaintiff would have a moderately 

impaired ability to relate to others and a moderate to markedly impaired ability to deal with work 

stress or pressure. (R. at 27.) She similarly noted that in November 2008, reviewing physician 

Dr. Johnson indicated that Plaintiff was moderately limited in social functioning. (Id.) ALJ 

Eppler, however, determined that Plaintiff’s social functioning was only mildly limited. (Id.) 

She also determined that Plaintiff only had moderate limitations as to concentration, pace, and 

persistence. (Id.) In reaching this conclusion, she correctly noted that Dr. Miller’s report 

indicated that Plaintiff: 

Case: 2:13-cv-00084-EPD Doc #: 12 Filed: 03/21/14 Page: 38 of 43 PAGEID #: <pageID>
 39

was early for his appointment, average in appearance and grooming, reliable, 

credible, cooperative, mannerly, aware, talkative, alert, and fully oriented. 

[Plaintiff] maintained good eye contact and intelligible, understandable fluent 

speech with goal directed conversation. [Plaintiff] reported. . . that he does not 

nap during the day and eats three meals a day, maintains a driver’s license, goes 

to the library once or twice a week, prepares meals, does laundry, cleans, grocery 

shops, and manages finances. [Plaintiff also] reported a good relationship with 

his father and his children and his siblings. 

(Id.) Further, she noted that in his March 2009 report, reviewing physician Dr. Edwards opined 

that treatment notes did not indicate that Plaintiff’s mental condition had deteriorated. (Id.) ALJ 

Eppler therefore determined that pursuant to the principles in Drummond, the findings in the first 

determination would not be disturbed. (Id.) 

 Substantial evidence supports this determination. The July 2008 letter from Dr. Resch 

and Therapist O’Dea did not indicate that Plaintiff’s condition deteriorated after the first 

determination. (R. at 345, 346–47.) Instead, both letters expressed dissatisfaction with how ALJ 

Fina had ruled in the first determination and urged the Appeals Council to closely examine 

Plaintiff’s appeal in that case. (Id.) In addition, treatment records after July 2008 do not 

document detrimental changes to Plaintiff’s mental condition. The records reflect that Plaintiff’s 

treatment was related to his depression and anxiety disorder. (R. at 350–51, 425–26, 507, 632–

33, 630–31.) ALJ Fina considered Plaintiff’s depression and anxiety disorder. (R. at 114.) 

Plaintiff’s treating physician, Dr. Neff, noted that Plaintiff’s experienced anxiety issues since at 

least 1993. (R. at 503, 601.) 

Moreover, the mental health treatment records also generally indicate that Plaintiff’s 

condition was not worsening. In October and December of 2008, Dr. Resch noted that although 

Plaintiff’s mood was anxious and depressed and “up and down,” his affect was appropriate. (R. 

at 425–26, 423–24.) In December, Dr. Resch noted that Plaintiff remained friendly and engaged 

even though his mother-in-law had passed away and his daughter had dropped out of school. (R. 

Case: 2:13-cv-00084-EPD Doc #: 12 Filed: 03/21/14 Page: 39 of 43 PAGEID #: <pageID>
 40

at 423–24.) Dr. Resch also noted that Plaintiff reported improved mood and sleep after his 

Remeron was increased in June 2009. (R. at 569–70.) Similarly, in September 2009, Plaintiff 

told Dr. Thalassinos that his mood was “pretty good” and that “medications help” and that he 

was “not too bad” in November 2009. (R. at 578, 576–77.) Plaintiff also told Dr. Thalassinos in 

January 2010 that he fared well over the holidays even though his anxiety typically worsened at 

that time of the year. (R. at 574–75.) Plaintiff also noted at various points throughout this period 

that he spent time with his kids and his grandson. (R. at 574–75, 576–77, 614–15, 617.) He also 

went on an outing with a female friend. (R. at 423–24.) 

In sum, substantial evidence supports ALJ Eppler’s conclusion that the record did not 

reflect deterioration of Plaintiff’s mental impairments after the first determination. 

Consequently, ALJ Eppler did not commit reversible error when, pursuant to Drummond, she 

adopted the findings related to Plaintiff’s mental condition set forth in the first determination. 

B. The ALJ Properly Assessed Plaintiff’s Credibility 

Next, Plaintiff asserts that ALJ Eppler erred in assessing his credibility. Specifically, he 

posits that ALJ Eppler erroneously failed to explain why Plaintiff’s testimony was not credible. 

(Pl’s Statement of Errors 17–18, ECF No. 8.) He also objects to ALJ Eppeler’s use of a 

“template” or boilerplate language. (Id.) 

 “[The] ALJ’s assessment of credibility is entitled to great weight and deference, since he 

[or she] had the opportunity to observe the witness’s demeanor.” Infantado v. Astrue, 263 F. 

App’x 469, 475 (6th Cir. 2008) (citing Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th 

Cir. 1997)); Sullenger v. Comm’r of Soc. Sec., 255 F. App’x 988, 995 (6th Cir. 2007) (declining 

to disturb the ALJ’s credibility determination, stating that: “[w]e will not try the case anew, 

resolve conflicts in the evidence, or decide questions of credibility” (citation omitted)). This 

Case: 2:13-cv-00084-EPD Doc #: 12 Filed: 03/21/14 Page: 40 of 43 PAGEID #: <pageID>
 41

deference extends to an ALJ’s credibility determinations “with respect to [a claimant’s] 

subjective complaints of pain.” Allen v. Comm’r of Soc. Sec., 561 F.3d 646, 652 (6th Cir. 2009) 

(quoting Siterlet v. Sec’y of Health & Hum. Servs., 823 F.2d 918, 920 (6th Cir. 1987)). Despite 

this deference, “an ALJ’s assessment of a claimant’s credibility must be supported by substantial 

evidence.” Walters, 127 F.3d at 531. Furthermore, the ALJ’s decision on credibility must be 

“based on a consideration of the entire record.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 

247 (6th Cir. 2007) (internal quotation omitted). An ALJ’s explanation of his or her credibility 

decision “must be sufficiently specific to make clear to the individual and to any subsequent 

reviewers the weight the adjudicator gave to the individual’s statements and the reasons for that 

weight.” Id. at 248; see also Mason v. Comm’r of Soc. Sec. Admin., No. 1:06–CV–1566, 2012 

WL 669930, at *10 (N.D. Ohio Feb. 29, 2012) (“While the ALJ’s credibility findings ‘must be 

sufficiently specific, the intent behind this standard is to ensure meaningful appellate review.”) 

(citation omitted). 

 “Discounting credibility to a certain degree is appropriate where an ALJ finds 

contradictions among the medical reports, claimant’s testimony, and other evidence.” Walters, 

127 F.3d at 531. In addition, the Regulations list a variety of factors an ALJ must consider in 

evaluating the severity of symptoms, including a claimant’s daily activities; the effectiveness of 

medication; and treatment other than medication. 20 C.F.R. § 404.1529(c)(3); SSR 96–7p, 1996 

WL 374186 (July 2, 1996); but see Ewing v. Astrue, No. 1:10–cv–1792, 2011 WL 3843692, at 

*9 (N.D. Ohio Aug. 12, 2011) (suggesting that although an ALJ is required to consider such 

factors, he or she is not required to discuss every factor within the written decision) (Report and 

Recommendation later adopted). 

Case: 2:13-cv-00084-EPD Doc #: 12 Filed: 03/21/14 Page: 41 of 43 PAGEID #: <pageID>
 42

 Here, the Court declines to disturb ALJ Eppler’s credibility determination. ALJ Eppler 

specifically stated that after considering the evidence, Plaintiff’s “statements concerning the 

intensity, persistence, and limiting effects of [his] symptoms are not credible prior to April 1, 

2010, to the extent they are inconsistent with the residual capacity assessment” adopted from the 

first determination pursuant to Drummond. (R. at 28.) ALJ Eppler then proceeded to explain 

how the record evidence failed to show that Plaintiff’s condition deteriorated until April 1, 2010. 

(R at 28–29.) In that explanation, she summarized information in treatment records, including 

records from Plaintiff’s treating physicians, Drs. Resch, Neff, and Kauffman, his Treating 

therapist O’Dea, and reviewing physicians Klyop and Cho. (R. at 28.) She then concluded that 

“the summarized evidence does not document a significant change in Plaintiff’s physical or 

mental condition since the June 2008 ALJ decision for the period prior to April 1, 2010.” (R. at 

29.) As explained previously, substantial evidence supports that determination. 

Plaintiff additionally complains that ALJ Eppler’s explanation improperly used a 

template or boilerplate language in her credibility determination. (Pl’s Statement of Errors 18, 

ECF No. 8.) In this instance, however, ALJ Eppler’s credibility determination was based upon 

more than mere boilerplate assertions. Indeed, her discussion of how the evidence failed to show 

that Plaintiff’s condition deteriorated evinces a meaningful examination of the facts in the record. 

For these reasons, the ALJ did not commit reversible error when assessing Plaintiff’s credibility. 

C. The ALJ Properly Relied Upon Testimony from the VE in the First Determination 

Finally, Plaintiff asserts that ALJ Eppler erroneously relied upon flawed vocational 

expert testimony. (Pl’s Statement of Errors 19, ECF No. 8.) In support of this assertion, Plaintiff 

cites testimony from the May 19, 2011 hearing and submits that the hypothetical posed by ALJ 

Eppler to VE Lynn Kaufman did not accurately describe Plaintiff’s limitations. (Id.) 

Case: 2:13-cv-00084-EPD Doc #: 12 Filed: 03/21/14 Page: 42 of 43 PAGEID #: <pageID>
 43

The Court finds Plaintiff’s final contention to be without merit. ALJ Eppler did not rely 

upon VE testimony elicited from Ms. Kaufman at the May 2011 hearing. Rather, ALJ Eppler 

determined that because Plaintiff’s condition did not deteriorate until April 1, 2010, she was 

bound by the findings in the first determination until that date, including the RFC adopted by 

ALJ Fina and ALJ Fina’s determination that jobs existed in the economy that Plaintiff could 

perform with that RFC. (R. at 29–30.) This was a proper application of Drummond. 

VII. DISPOSITION

For the reasons set forth herein, Plaintiff’s Statement of Errors is OVERRULED, and the 

Commissioner’s decision is AFFIRMED. 

IT IS SO ORDERED. 

Date: March 21, 2014 /s/ Elizabeth A. Preston Deavers 

Elizabeth A. Preston Deavers 

 United States Magistrate Judge 

Case: 2:13-cv-00084-EPD Doc #: 12 Filed: 03/21/14 Page: 43 of 43 PAGEID #: <pageID>