IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Richard Dean Kinser, :

Plaintiff, :

v. : Case No. 2:13-cv-0081

 : JUDGE EDMUND A. SARGUS, JR.

Commissioner of Social Security, Magistrate Judge Kemp

Defendant. :

 REPORT AND RECOMMENDATION

 I. Introduction

 Plaintiff, Richard Dean Kinser, filed this action seeking

review of a decision of the Commissioner of Social Security

denying his application for supplemental security income. That

application was filed on January 22, 2009, and alleged that

plaintiff became disabled on January 2, 2009.

After initial administrative denials of his application,

Plaintiff was given a video hearing before an Administrative Law

Judge on July 20, 2011. In a decision dated September 8, 2011,

the ALJ denied benefits. That became the Commissioner’s final

decision on November 28, 2012, when the Appeals Council denied

review. 

After Plaintiff filed this case, the Commissioner filed the

administrative record on April 8, 2013. Plaintiff then moved for

a remand under 42 U.S.C. §405(g), sentence six. In an order

filed on July 29, 2013, the Court deferred a ruling on that

motion pending the submission of, and briefing on, Plaintiff’s

statement of errors. Plaintiff filed his statement of specific

errors on August 27, 2013. The Commissioner filed a response on

September 30, 2013. Plaintiff filed a reply brief on October

14, 2013, and the case is now ready to decide.

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II. Plaintiff’s Testimony at the Administrative Hearing

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

administrative hearing and who has a tenth grade education,

testified as follows. His testimony appears at pages 36-61 of

the administrative record.

Plaintiff testified that he quit school at age 17. He was

not quite eligible for special education classes but he flunked

all his grades. He served three years in the military and then

began working in the masonry business. He learned the trade from

his father, and that is the only type of work he has ever done. 

Many times he worked for cash and those earnings would not be

reflected on his earnings statement. 

In 1997, Plaintiff injured his lower back. He had two

surgeries in either 1997 or 1998, followed by rehabilitation. He

was off work for nine years and went back to work in 2006. In

2009, after his alleged disability onset date, he worked for two

months because of financial need. He worked on an off in 2010 as

well. He could not have worked continually during that year due

to his back problems. Other problems preventing him from working

included leg pain and COPD. 

As of the date of the hearing, Plaintiff was experiencing

pain in his groin and thigh, which had persisted since his second

surgery. He continued to have low back pain. Breathing was

difficult in bad weather, and also when he went up or down

stairs. He had trouble climbing or bending. He could walk half

a mile. 

On a daily basis, Plaintiff used a nebulizer three or four

times for shortness of breath. He watched very little TV and did

not read. He was most comfortable sitting on the floor with his

back against a couch. He could sit for fifteen or twenty minutes

before needing to get up and move around. He was able to mow the

lawn, do dishes, and cook. He could not stand in one position

more than twenty minutes at a time. He could lift his five-yearold granddaughter. He was also able to drive for ten or fifteen

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miles by himself. He could not write a check or read the

newspaper. 

In response to questioning from the Administrative Law

Judge, Plaintiff stated that he still had some issues with

alcohol abuse and drank a twelve-pack of beer twice a week. He

could read the help wanted ads in the newspaper and took a

written test for his driver’s license rather than an oral test.

III. The Medical Records

The medical records in this case are found beginning on page

215 of the administrative record. The Court summarizes the

pertinent records as follows. Because Plaintiff’s claims of

error relate to his physical impairments (and not to all of

them), the Court will focus its summary on the records dealing

with the physical conditions which Plaintiff has placed at issue

rather than other physical or psychological conditions.

VA hospital records from February 11, 2009, show that

Plaintiff was being treated for tobacco use disorder, low back

pain, a rotator cuff or capsule sprain, and an umbilical hernia. 

He had previously reported chest pain and underwent testing at

Licking Memorial Hospital, which did not reveal any cardiac

issues. The records go back to 2007 and indicate a work-related

injury that year from lifting heavy rocks at work. (Tr. 304-28).

Dr. Weaver saw Plaintiff on May 28, 2009 for purposes of

conducting a consultative physical examination. Plaintiff

reported a low back injury in 1997 and two prior surgeries

including a fusion at L4-5. He described significant limits on

sitting, walking and standing due to pain. He also told Dr.

Weaver about the 2007 shoulder injury and noted that he had

surgery on the shoulder, followed by physical therapy and

exercises. He reported significant issues with using his right

arm for reaching, lifting and working overhead. The only

medications he took for either his back or shoulder were Flexeril

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and ibuprofen. 

On examination, Plaintiff walked with a slight limp and

became short of breath after walking forty feet. Testing showed

“ratchety giving way with pain inhibition in the right shoulder

muscles.” The range of motion in that shoulder was also

restricted. Involuntary muscle spasm was present in the lumbar

paravertebral muscles and range of motion in the low back was

also restricted. Straight leg-raising tests were negative

bilaterally. Based on these findings, Dr. Weaver concluded that

Plaintiff could do occasional light lifting and carrying, but he

would have limitations on sustained sitting, standing, walking,

climbing, reaching with the right arm, and performing repetitive

or moderate to heavy lifting. (Tr. 333-39).

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

residual functional capacity form on September 9, 2009. She

stated that, in her opinion, Plaintiff could do a range of light

work but, among other things, was “[l]imited to no overhead

reaching on the right.” She did not give much weight to Dr.

Weaver’s view that plaintiff was limited in his ability to walk

and stand. (Tr. 375-82). Her assessment was subsequently

confirmed by Dr. McCloud. (Tr. 422, 423).

There is a second set of VA treatment records which begin

with a February 23, 2010 summary of treatment. They show that

Plaintiff was still being treated for the same issues plus a

closed fracture of the sternum and essential hypertension. The

notes also show that Plaintiff was taking Tramadol for pain along

with acetaminophen. A third set of such notes, covering

treatment from January 14, 2010 through April 1, 2011, is also

part of the record. Those notes show, in relevant part, that the

flexion, extension and rotation of Plaintiff’s shoulder were all

normal (Tr. 425); that he had been hunting in the winter of 2010-

11 and walking over uneven terrain was causing him increased back

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pain (Tr. 431); that he was taking Vicodin for pain but was

asking for something stronger; that on January 6, 2011 he said he

had been “off work for the last 8 weeks” (Tr. 434); that x-rays

showed mild discogenic disease between L4-5 and more advanced

disease between L5 and S1 (Tr. 439); that on December 10, 2010 he

reported he was “dong really well” up until about two months

before when he lifted a heavy item and threw it over his head

(Tr. 448); that on August 2, 2010, the VA physician, Dr. Walker,

said that “for now I have no diagnosis to give medicaid as to why

he cannot work’ (Tr. 461); and that he did not, during that time,

report any pain or problems with his right shoulder. Similarly,

he did not mention any shoulder issues when he visited the

Emergency Room in February, 2011, and that was not one of the

diagnoses in those notes. (Tr. 482-85).

The final medical exhibit consists of more VA treatment

notes. They show that on March 28, 2011, Plaintiff was taken off

Vicodin and put on methadone, which was making him very sick, 

that he had also injured his right wrist while throwing firewood,

and that he was able to walk almost a quarter of a mile on a

treadmill. He could lift thirty pounds to shoulder level and

from floor to waist level, as well as thirty pounds from shoulder

level to overhead, and had a sitting tolerance of 35 minutes and

a standing tolerance of 7 minutes. There also appeared to be

some problems with the control of Plaintiff’s blood pressure and

an issue with his left shoulder requiring treatment by injection. 

(Tr. 486-542). These records are not on the ALJ’s list of

exhibits and he apparently believed, erroneously, that they were

simply duplicates of other VA records.

 IV. The Vocational Testimony

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

administrative hearing. His testimony begins at page 61 of the

record. 

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Mr. Coleman classified plaintiff’s past work as a masonry

laborer or brick layer helper as semi-skilled and heavy (per the

Dictionary of Occupational Titles), although Mr. Coleman would

classify it as very heavy work. Plaintiff did not have any

transferable job skills.

Mr. Coleman was asked questions about someone who was

Plaintiff’s age and had his educational background, and who could

work at the light exertional level. That person could sit for

only four hours at a time, however, and stand and walk for two

hours at a time and up to six hours in a workday. The person

could not climb ropes, ladders or scaffolds, but could

occasionally climb ramps and stairs, balance, stoop, kneel,

crouch, and crawl. Finally, the person could accept only oral or

hands-on instruction, had to avoid even moderate exposure to

respiratory irritants and concentrated exposure to work hazards,

could do only simple, routine tasks, and could not do fast-paced

tasks or meet strict time-work production schedules. Mr. Coleman

responded that such a person could not do plaintiff’s past work,

but that such a person could perform jobs such as parking lot

attendant, hand packager, and warehouse checker. There would be

slightly fewer than 1000 such jobs in the regional economy and

over 150,000 in the national economy. If the same person were

limited as plaintiff testified, the medical-vocational guidelines

would deem him disabled. Also, if he could not maintain adequate

attention or focus due to back pain and would be off task 20% of

the time during a work day, or if he had to miss two days per

month due to medical problems, he could not work. 

V. The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 11

through 23 of the administrative record. The important findings

in that decision are as follows.

The Administrative Law Judge found, first, that Plaintiff

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had not engaged in substantial gainful activity after his

application date of January 22, 2009. As far as Plaintiff’s

impairments are concerned, the ALJ found that Plaintiff had

severe impairments including atypical chest pain, status post L4-

5 fusion, right rotator cuff repair, chronic obstructive

pulmonary disease, learning disability, depression and alcohol

abuse. The ALJ also found that Plaintiff’s impairments did not,

at any time, meet or equal the requirements of any section of the

Listing of Impairments (20 C.F.R. Part 404, Subpart P, Appendix

1).

Moving to the next step of the sequential evaluation

process, the ALJ found that Plaintiff had the residual functional

capacity to perform a significant range of light work. The

limitations caused by Plaintiff’s impairments were those

described in the hypothetical question posed to Mr. Coleman -

that is, the ability to lift, carry, push and pull twenty pounds

occasionally and ten pounds frequently, to sit for four hours at

a time and a total of eight hours during a work day, to walk or

stand for up to two hours at a time and a total of six hours

during a work day, never to climb ropes, ladders or scaffolds,

and occasionally to climb ramps or stairs, balance, stoop, kneel,

crouch, and crawl. Plaintiff also needed to avoid even moderate

exposure to respiratory irritants and concentrated exposure to

work hazards, could do only simple, routine tasks, and could not

do fast-paced tasks or meet strict time-work production

schedules. Lastly, he could accept oral instructions or hands-on

instructions as needed. 

The ALJ found that, with these restrictions, Plaintiff could

not do his past relevant work as a bricklayer helper. However,

he could perform those jobs identified by the vocational expert

such as parking lot attendant, hand packager, and warehouse

checker, and that such jobs existed in significant numbers in the

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national economy. Consequently, the ALJ concluded that plaintiff

was not entitled to benefits. 

VI. Plaintiff’s Statement of Specific Errors

 In his statement of specific errors, Plaintiff raises these

issues: (1) that the ALJ evaluated Plaintiff’s potential Listinglevel impairments under the wrong Listings; (2) that substantial

evidence does not support the ALJ’s residual functional capacity

finding; and (3), in accordance with his earlier motion, that the

Court should order a sentence six remand. The Court reviews the

first two issues using this legal standard:

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

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

Commissioner] as to any fact, if supported by substantial

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

would reach contrary conclusions of fact, the Commissioner's

decision must be affirmed so long as that determination is

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supported by substantial evidence. Kinsella v. Schweiker, 708

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

Plaintiff’s reply memorandum is helpful in clarifying the

issues which he intended to raise by his statement of errors. 

The Court will analyze the issues as they are explained there.

A. The Listings

In the responsive memorandum, the Commissioner construed

Plaintiff’s first statement of error to be an argument that the

ALJ erred by not finding that Plaintiff’s back impairment met or

equaled the criteria under the pertinent section of the Listing

of Impairments. However, Plaintiff explains in the reply that he

did not mean to argue that the ALJ should have evaluated his back

impairment under Section 1.04 of the Listing of Impairments or

that he should have found that impairment to be of Listing

Severity. Rather, he contends that the way the ALJ conducted

this portion of the analysis, which did not include any

discussion of the Listings relating to back impairments - the ALJ

focused on the shoulder injury and the psychological conditions

described in the record - showed that the ALJ took a “less-thanserious” approach to the entire case. Reply Memorandum, Doc. 17,

at 1.

The Court does not view Plaintiff’s arguments about the

ALJ’s step three analysis, taken as a whole, to raise any

specific issue about the adequacy of that analysis. At step

three, the ALJ is required to determine if a claimant’s

impairment “meets or equals one of our listings in appendix 1 of

this subpart....” 20 C.F.R. §416.920(a)(4)(iii). The case law

establishes that “a claimant has the burden of demonstrating that

[his] impairment meets or equals a listed impairment.” Foster v.

Halter, 279 F.3d 348, 354 (6th Cir. 2001). “[T]here is no

heightened articulation standard” for a finding that the Listings

have not been met or equaled. Bledsoe v. Barnhart, 165 Fed.

Appx. 408, 41 (6th Cir. Jan. 31, 2006), citing Dorton v. Heckler,

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789 f.2d 363, 367 (6th cir. 1986). In order to obtain reversal

on this ground, “[a] claimant must satisfy all of the criteria to

meet the listing.” Rabbers v. Comm’r of Social Security, 582

F.3d 647, 653 (6th cir. 2009). Finally, even if a claimant has

presented such evidence, an ALJ’s choice not to credit that

evidence may not be disturbed unless that choice is not supported

by substantial evidence. Bledsoe, supra. 

Here, Plaintiff has not argued that the record contains

evidence that he met or equaled any section of the Listing. He

has also not argued that the ALJ’s determination that he did not

was not supported by substantial evidence. Consequently, there

is nothing in his first statement of error, at least as he has

argued it, which could support a reversal of the ALJ’s step three

determination.

 B. The Physical RFC Determination

In his second statement of error, Plaintiff seems to argue,

first, that the ALJ erred by stating at one point (even though he

ultimately found differently) that Plaintiff could perform a

range of medium work. Again, this argument appears to be part of

a larger concern that, in Plaintiff’s words, the ALJ had “a lessthan-completely open mind” about the overall issue of disability. 

Statement of Errors, Doc. 15, at 5. Plaintiff also criticizes

the ALJ for statements about the severity of his back condition

and for either misstating the evidence about the level of

Plaintiff’s pain or omitting any reference to positive test

results for pain. In his reply, he suggests that

“[d]ecisionmaking which appears to ignore aspects of the record

which are not in agreement with its conclusions, and which claims

the existence of evidence which is not borne out by the record,

can hardly be said to meet the ... admonition that evidence, in

order to be considered substantial, must take into account

‘whatever evidence detracts from its weight.’” Reply Memorandum

at 2, citing to Beavers v. Secretary of Health, Education and

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Welfare, 577 F.2d 383 (6th Cir. 1978). 

The problem with this argument, at least as it relates to

Plaintiff’s back condition, is that it does not point out why the

ALJ’s decision about the functional impact of his back condition

is more severe than the ALJ found it to be. There is no treating

physician opinion in this case which the ALJ rejected, and, in

fact, no such opinion at all beyond the statement from Dr. Wagner

that he had no diagnosis on which to premise a statement of

disability. There is a plethora of evidence, much of it cited by

the ALJ, to the effect that Plaintiff was able, at least for

short periods of time, to continue to do very heavy labor even

after his alleged onset date, and to perform other physical

activities (such as lifting his granddaughter, cutting wood, or

hunting) which are inconsistent with total disability. The ALJ

correctly pointed out that no physician had imposed limitations

which are inconsistent with the conclusion that plaintiff could

do a limited range of light work, and several, including Dr.

Walker, Dr. Torello, and Dr. McCloud, who thought he could. 

Those physicians reviewed the same medical evidence that the ALJ

cited, and Plaintiff does not argue that they construed it

incorrectly. Under these circumstances, the fact that the ALJ’s

decision may contain some misstatements or omissions does not

mean that the decision he reached is not supported by substantial

evidence. See, e.g., Goble v. Comm’r of Social Security, 2012 WL

832356, *5 (N.D. Ohio March 9, 2012), holding that the “ALJ's

misstatement [about the claimant’s panic attacks] does not

eviscerate the substantial evidence that supports the ALJ's

finding”, citing Brunson v. Astrue, 387 Fed. Appx. 459 (5th Cir.

July 16, 2010).

Plaintiff makes a more focused argument about his right

shoulder condition. The ALJ found that Plaintiff did not have

any functional limitations from that condition because, although

the January, 2011 examination notes indicated only 4/5 strength

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in the shoulder due to pain, “in March, 2011, the claimant was

5/5 strength in his bilateral shoulder flexion, extension

abduction, adductions, and internal and external rotation

(Exhibit B14F/6)” and that he had not received any significant

treatment for his shoulder impairment. (Tr. 17). Plaintiff

contends that this statement is simply inaccurate. He also notes

that the state agency physicians imposed a limitation on overhead

reaching which the ALJ failed to mention either in his decision

or as part of the hypothetical question posed to the vocational

expert.

The Commissioner attempts to explain this seeming

inconsistency - made apparent by the fact that the ALJ gave both

Dr. Torello’s and Dr. McCloud’s opinions “great weight” while not

mentioning the restriction they placed on plaintiff’s use of his

right shoulder - by suggesting that the condition which those

physicians were evaluating was a “right rotator cuff repair” and

that the condition improved over time. There are multiple

problems with this argument. The ALJ never mentioned that aspect

of those physicians’ evaluation; it is impossible to know if he

simply missed it when reviewing their reports or, for the reasons

suggested by the Commissioner, found it unsupported by the

record. If the latter is the case, however, the ALJ’s citation

to record evidence discusses only medical records from January

and March, 2011, which is well after the reports in question. 

The ALJ does not appear to have considered if the restriction

existed at the time of their reports, which came more than a year

after Plaintiff applied for benefits, and whether, if it was a

rotator cuff repair problem, the restriction met the duration

requirement of the Social Security Act. No question was posed to

the vocational expert which differentiated Plaintiff’s overhead

reaching capabilities from the beginning to the end of the time

period under consideration. If such a restriction would have

prevented Plaintiff from performing a substantial number of jobs,

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at least while it lasted, he might have been entitled to a closed

period of disability. And, lastly, while there is some evidence

to support the fact that in January, 2011, Plaintiff’s strength

in his right shoulder was 5/5 for flexion, extension, abduction,

adduction, and internal and external rotation, his range of

motion was actually reduced in both shoulders. He showed similar

reduced range of motion when examined by Dr. Weaver. It is also

interesting to note that Dr. Weaver’s strength testing produced

fairly similar results (4/5 strength in the shoulder) and Dr.

Weaver was not sure those results were reliable, but he still

imposed some reaching restrictions. In short, the record

supports Plaintiff’s claim both that the ALJ appears to have

interpreted the results of the January, 2011 testing in a way

that may not be proper - and he did so without having a

physician’s opinion to rely on - and appears to have completely

disregarded, without offering any explanation, the views of the

state agency physicians which he otherwise accorded great weight. 

This is error, and the Commissioner has not argued it is

harmless. The case must therefore be remanded on that basis.

 C. The Sentence Six Remand Motion

It is apparently conceded that the ALJ did not review the

additional records which are the subject of the sentence six

remand motion. The Commissioner argues that none of the evidence

would have changed the ALJ’s decision and is therefore not

material. If a sentence four remand is ordered, that will moot

this issue because, as part of the remand, the ALJ will have the

opportunity to review this evidence. 

 VII. Recommended Decision

Based on the above discussion, it is recommended that the

plaintiff’s statement of errors be sustained to the extent that

the case be remanded to the Commissioner of Social Security

pursuant to 42 U.S.C. §405(g), sentence four. It is also

recommended that should the Court do so, the motion for a

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sentence six remand (Doc. 12) be denied as moot.

VIII. Procedure on Objections

If any party objects to this Report and Recommendation,

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

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

specific proposed findings or recommendations to which objection

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

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

portions of the report or specified proposed findings or

recommendations to which objection is made. Upon proper

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

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

may receive further evidence or may recommit this matter to the

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

 The parties are specifically advised that failure to

object to the Report and Recommendation will result in a

waiver of the right to have the district judge review the

Report and Recommendation de novo, and also operates as a

waiver of the right to appeal the decision of the District

Court adopting the Report and Recommendation. See Thomas v.

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

947 (6th Cir. 1981).

/s/ Terence P. Kemp 

 United States Magistrate Judge

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