IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Gary K. Gartin, :

 Plaintiff, :

 v. : Case No. 2:12-cv-0281

Commissioner of Social : JUDGE MICHAEL H. WATSON

 Security, Magistrate Judge Kemp

 :

Defendant. 

 

 REPORT AND RECOMMENDATION

 I. Introduction

 Plaintiff, Gary K. Gartin, filed this action seeking review

of a decision of the Commissioner of Social Security denying his

applications for disability insurance benefits and supplemental

security income. Those application either were filed on, or had

an effective filing date of, May 30, 2008 and alleged that

plaintiff became disabled on August 24, 2007.

After initial administrative denials of his applications,

plaintiff was given a hearing before an Administrative Law Judge

on July 5, 2010. In a decision dated September 21, 2010, the ALJ

denied benefits. That became the Commissioner’s final decision

on February 3, 2012, when the Appeals Council denied review. 

After plaintiff filed this case, the Commissioner filed the

administrative record on June 26, 2012. Plaintiff filed his

statement of specific errors on July 27, 2012. The Commissioner

filed a response on August 23, 2012. No reply brief has been

filed, and the case is now ready to decide.

II. Plaintiff’s Testimony at the Administrative Hearing

 Plaintiff, who was 49 years old at the time of the

administrative hearing and who has a twelfth grade education,

testified as follows. His testimony appears at pages 23-38 of

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the administrative record.

Plaintiff last worked as a quality control supervisor for

Walmart optical. The job involved lifting approximately 50

pounds of trays and carrying them from one point to another

within the laboratory. He stopped performing that job due for a

period of time due to its lifting requirements and the impact it

had on his shoulders. However, he was actually terminated from

the job because he failed to disclose a prior criminal conviction

on his job application, which happened after he had returned from

a medical leave of absence. Plaintiff had also worked in

painting and remodeling, owning his own business. 

As far as household activities are concerned, plaintiff can

do some cooking but is no longer able to vacuum or make beds. 

Others, such as his landlord, do outdoor chores. Plaintiff does

need to alternate between sitting and standing to help with the

pain in his shoulders, which begins in the neck and radiates to

his elbows, with numbness or tingling in his hands and fingers. 

He can use a computer for ten minutes at most, and often has

numbness in his hands which prevents him from picking things up

or causes him to drop things. He also naps during the day

because he does not sleep through the night. 

 III. The Medical Records

The medical records in this case are found beginning on page

184 of the administrative record. The pertinent records can be

summarized as follows. 

Plaintiff began receiving treatment for neck pain as early

as 2004, when an x-ray showed mild to moderate plate spurring and

disc space narrowing at C5 through C7. In 2006 an x-ray showed

some degenerative disc disease at T11 through L1 as well, and an

MRI showed multilevel degenerative changes in the cervical spine. 

At an examination in 2006, plaintiff reported neck stiffness and

pain as well as tingling in his hands, and an examination showed

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tenderness in the paravertebral muscles of the cervical and upper

thoracic spine and a limited range of motion in the neck. 

Treatment included medication and physical therapy, with some

improvement noted. By March, 2008, plaintiff was requesting that

disability forms be completed, noting that he had lost his job

and had dropped things at work. He also reported increasing

weakness and numbness in his upper extremities, and an

examination confirmed these symptoms on the left side. (Tr. 184-

97). Several months after that examination, Dr. Blake, one of

the physicians at Darby Creek Family Health, where plaintiff had

been treated, completed a form indicating that plaintiff could

stand or walk for three to four hours in a work day, was not

limited in his ability to sit, and had marked limits on his

ability to push, pull, bend and reach as well as a moderate limit

on his handling ability. He could only lift up to five pounds,

and Dr. Blake considered him unemployable. (Tr. 198). 

A state agency physician, Dr. Klyop, later reviewed the

records and concluded that plaintiff could do light work with

occasional balancing, frequent climbing, and limited handling and

fingering with the left upper extremity. Concentrated exposure

to hazards also had to be avoided. Dr. Klyop did not think that

the five pound lifting limitation or the limitation on standing

and walking were supported by either the results of the reported

neurological examinations or the MRI. (Tr. 201-08). Dr.

Villanueva, another state agency reviewer, affirmed that

assessment. (Tr. 209).

A CT scan of the chest done on March 24, 2010 showed severe

emphysema. Some calcified nodules were also seen in the upper

lung lobes bilaterally. (Tr. 217). The study was done based on

plaintiff’s report of shortness of breath. (Tr. 223-25). 

Plaintiff underwent another MRI in 2010. It showed no stenosis

in the thoracic spine but various changes in the cervical spine,

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including significant spinal stenosis which had progressed from

the 2006 study. (Tr. 227-28). 

On July 10, 2010, Dr. Blake completed another form asking

about plaintiff’s physical capacity. Dr. Blake noted diagnoses

of spinal stenosis, COPD, parasthesia hypoesthesia, and a frozen

shoulder. He limited plaintiff to lifting five pounds

occasionally and one to two pounds frequently, to standing,

walking or sitting less than 30 minutes in a work day, and to

alternate between sitting and standing every 30 minutes. Dr.

Blake also thought that plaintiff needed to lie down twice during

a work day and that he was limited in other activities as well. 

He also could not reach, push, or pull, and could handle and

finger only occasionally. His COPD limited plaintiff from having

concentrated exposure to heat and any exposure to fumes, odors or

dust. Dr. Blake said these restrictions had existed since

February, 2006. (Tr. 229-31).

 IV. The Vocational Testimony

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

administrative hearing. His testimony begins at page 38 of the

record. He characterized plaintiff’s past work in the optical

laboratory as either light or sedentary, and it was all skilled. 

The house repairer job was medium and skilled. To the extent

that plaintiff also worked as a construction laborer, that job

was heavy and semi-skilled.

Mr. Hartung was asked some questions about a hypothetical

person who was limited to lifting twenty pounds occasionally and

ten pounds frequently. That person could sit, stand or walk for

six hour each out of a work day, could do only frequent handling

and fingering with the left hand, could occasionally climb ropes,

ladders or scaffolds, and could not have concentrated exposure to

moving machinery or unprotected heights. Mr. Hartung testified

that one of plaintiff’s past jobs, precision inspector, could be

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performed by someone with these limitations. However, someone

who had to take unscheduled breaks for up to two hours during the

work day could not work at all, and the same would be true if

that person could sit, stand and walk for less than an hour a

day.

V. The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 8

through 15 of the administrative record. The important findings

in that decision are as follows.

The Administrative Law Judge found, first, that plaintiff

met the insured requirements for disability benefits through

December 31, 2012. Next, plaintiff had not engaged in

substantial gainful activity from his alleged onset date of

August 24, 2007 through the date of the decision. As far as

plaintiff’s impairments are concerned, the ALJ found that

plaintiff had severe impairments including degenerative spinal

stenosis and bone spurs, upper neck and mid-shoulder pain,

tingling of the hands, and emphysema. The ALJ also found that

these impairments did not, at any time, meet or equal the

requirements of any section of the Listing of Impairments (20

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

Moving to the next step of the sequential evaluation

process, the ALJ found that plaintiff had the residual functional

capacity to perform the lifting requirements of light work, but

that he had limited use of his left arm or hand for fingering and

handling, and that he needed to avoid concentrated exposure to

moving machinery and unprotected heights and could only

occasionally climb ladders, ropes and scaffolds. He also found

that plaintiff could understand, remember and carry out simple

tasks and instructions, could maintain concentration and

attention for two-hour segments of an eight-hour work period,

could respond appropriately to supervisors and co-workers in a

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setting where contact with others was casual and infrequent, and

that he could adapt to simple changes and avoid hazards in the

workplace. Based on the vocational expert’s testimony, which,

according to the administrative decision, was based on asking the

vocational expert to assume “the residual functional capacity as

assessed by the undersigned here,” Tr. 14, the ALJ found that

plaintiff could do his past work as a precision inspector. 

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 two

issues. He argues (1) that the ALJ improperly discounted the

opinion of his treating physician, Dr. Blake; and (2) that the

ALJ did not properly evaluate his credibility. The Court

generally reviews the administrative decision of a Social

Security ALJ under this legal standard:

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

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

Commissioner] as to any fact, if supported by substantial

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

would reach contrary conclusions of fact, the Commissioner's

decision must be affirmed so long as that determination is

supported by substantial evidence. Kinsella v. Schweiker, 708

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

The primary issue here is the ALJ’s treatment of Dr. Blake’s

opinion which, if accepted, would support a finding of

disability. In analyzing this opinion, the ALJ made the

following findings:

The undersigned finds glaring inconsistencies with Dr.

Blake’s findings and opinions. According to the

claimant, he last worked August 2007. Since Dr. Blake

stated the claimant was so severely disabled, then the

claimant must have been able to engage in substantial

gainful activity with these impairments from February

2006 to August 2007. This inconsistency reveals the

claimant is not as disabled as Dr. Blake suggests. Dr.

Blake provided no explanation for believing the

claimant is under such extreme impairments according to

his medical opinion. Consequently, the undersigned

assigns no weight to Dr. Blake’s medical opinion.

(Tr. 13). The ALJ then discussed Dr. Klyop’s opinion and

found that it was consistent with the ALJ’s own assessment,

was persuasive, and was an opinion from a specialist who

considered “the entire medical record ....” Id. Therefore,

the ALJ assigned that opinion significant weight. Finally,

the ALJ found that plaintiff sought medical treatment not to

alleviate his symptoms but to generate evidence for his

disability application. (Tr. 14).

It has long been the law in social security disability

cases that a treating physician's opinion is entitled to

weight substantially greater than that of a nonexamining

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medical advisor or a physician who saw plaintiff only once. 

20 C.F.R. §404.1527(d); see also Lashley v. Secretary of

H.H.S., 708 F.2d 1048, 1054 (6th Cir. 1983); Estes v.

Harris, 512 F.Supp. 1106, 1113 (S.D. Ohio 1981). However,

in evaluating a treating physician’s opinion, the

Commissioner may consider the extent to which that

physician’s own objective findings support or contradict

that opinion. Moon v. Sullivan, 923 F.2d 1175 (6th Cir.

1990); Loy v. Secretary of HHS, 901 F.2d 1306 (6th Cir.

1990). The Commissioner may also evaluate other objective

medical evidence, including the results of tests or

examinations performed by non-treating medical sources, and

may consider the claimant’s activities of daily living. 

Cutlip v. Secretary of HHS, 25 F.3d 284 (6th Cir. 1994). No

matter how the issue of the weight to be given to a treating

physician’s opinion is finally resolved, the ALJ is required

to provide a reasoned explanation so that both the claimant

and a reviewing Court can determine why the opinion was

rejected (if it was) and whether the ALJ considered only

appropriate factors in making that decision. Wilson v.

Comm’r of Social Security, 378 F.3d 541, 544 (6th Cir.

2004).

Plaintiff suggests that the ALJ’s decision is fatally

flawed because, first, the ALJ failed to take into account

the fact that plaintiff was on disability leave for a

substantial period of time between February, 2006 and

August, 2007; second, the ALJ seemed to give no weight to

the fact that Dr. Blake had examined plaintiff, whereas Dr.

Klyop had not; and, third, that the ALJ generally ignored

the various factors he was required to consider under 20

C.F.R. §404.1527(d), including the length of the treating

relationship (almost four years), the nature and extent of

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the treatment rendered, and the support for his opinion from

medical tests and physical examinations. Plaintiff also

points out that Dr. Klyop’s opinion was rendered in 2008 and

that he did not have the opportunity to review the 2010 MRI

which provided part of the support for Dr. Blake’s 2010

opinion. 

In response, the Commissioner first argues that Dr.

Blake was not really a treating source since the records

suggest that, at most, he saw plaintiff on one occasion

(although others in his practice group saw plaintiff as

well). Consequently, the Commissioner argues that the ALJ

was not required to give Dr. Blake’s opinion any particular

weight or to comply with §404.1527(d) when explaining why he

rejected it. 

There are several problems with this particular

argument. First, the record itself is, as the Commissioner

notes, somewhat ambiguous as to how often Dr. Blake himself

saw plaintiff, but clear that the same practice group

provided treatment to plaintiff on an ongoing basis since at

least 2004. Dr. Blake took over the case of plaintiff at

least as early as March of 2010; various notes from other

doctors indicate that he referred plaintiff to them for

either respiratory testing or spinal studies, and those

notes indicate that he is the treating and referring doctor. 

Plaintiff identified Dr. Blake as his treating doctor and

said that he had been seeing him for a determination of what

was occurring with his shoulder. (Tr. 32). Dr. Blake also

signed a disability evaluation form in 2008 (Tr. 198) and

stated that plaintiff had last been examined on June 27,

2008. 

A physician may qualify as a treating source even if he

or she has examined the plaintiff on only a few occasions so

long as the plaintiff has seen “the source with a frequency

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consistent with accepted medical practice for the type of

treatment and/or evaluation required for your medical

condition(s).” 20 C.F.R. §404.1502; see also Fry v. Astrue,

2012 WL 5830246, *5 (S.D. Ohio Nov. 16, 2012), adopted and

affirmed 2012 WL 6738661 (S.D. Ohio Dec. 31, 2012)(noting

that a claimant may have an “ongoing treatment relationship”

with a physician who has seen the claimant only a few times

but in conjunction with visits to other sources in the same

practice group, and also pointing out that the question of

who qualifies as a treating source is “fact-specific...”). 

Coupled with these factors is the ALJ’s own characterization

of Dr. Blake as a treating source. See Tr. 13 (referring to

“Byron Blake, M.D., treating physician”). The Court is not

generally permitted, in a social security case, to make

factual findings de novo, see Walters v. Comm’r of Social

Security, 127 F.3d 525, 528 (6th Cir. 1997), and it is

particularly reluctant to attribute certain lines of

reasoning to the ALJ on a post hoc basis if the ALJ did not

actually employ that reasoning process in reaching a

decision. See, e.g., Potts v. Astrue, 2012 WL 5878859, *2

(N.D. Ohio November 21, 2012)(“Any attempt by this Court to

uphold an ALJ's decision because of the presence of existing

evidence that the ALJ did not expressly rely upon would be a

post hoc rationalization”). The ALJ in this case did not

use the rationale advanced by the Commissioner in

discounting Dr. Blake’s opinion, and viewed him as a

treating source. It is incumbent upon the Court to do the

same.

Assuming Dr. Blake to be a treating source, the

Commissioner argues that the ALJ gave sufficient and valid

reasons for assigning no weight to his opinion. These

reasons include Dr. Klyop’s criticism of Dr. Blake’s earlier

opinion, which limited plaintiff to something between light

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and sedentary work, as not being supported by objective

evidence; the inconsistency between Dr. Blake’s later view

that plaintiff’s disability began in February, 2006, and the

fact that plaintiff was still employed in a medium job on

and after that date; and the fact that “Dr. Blake provided

no explanation for believing that claimant is under such

extreme impairments according to his medical opinion.” (Tr.

13). The Commissioner’s brief suggests other reasons as

well, but, again, the Court must look to the actual reasons

given by the ALJ in order to determine if there has been

compliance with 20 C.F.R. §404.1527(d). See Wilson, supra. 

Whatever the force of Dr. Klyop’s critique, it was made

in a report made in 2008, and without the benefit of the

results of the 2010 tests. While it may justify the ALJ’s

decision to give less weight to Dr. Blake’s 2008 opinion, it

has no relevance to the opinion rendered in 2010. That

leaves only the statement about the “glaring inconsistency”

in Dr. Blake’s reports and his failure to provide an

explanation for the severe restrictions he imposed.

Both of these factors might justify discounting his

opinion to some extent. Dr. Blake did appear to state that

plaintiff could not perform even sedentary work at a time

when he was actually doing much more, although Dr. Blake’s

2008 opinion is much more optimistic as to plaintiff’s

actual work ability on that date. This is an inconsistency,

but given that it arises solely from the completion of one

line of a form, it is not so significant as to justify

giving his opinion no weight at all.

As to the lack of explanation for his findings, the

Commissioner is correct that this Court has accepted a

somewhat similar rationale in other cases where less than

controlling weight is given to the opinion of a treating

source (although the Commissioner’s citation to Deaton v.

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Astrue, 2011 WL 4062993 (S.D. Ohio July 7, 2011), adopted

and affirmed 2011 WL 4064028 (S.D. Ohio Sept. 13, 2011)

actually deals with the ALJ’s rejection of the opinion of a

non-treating source). However, Dr. Blake, while he did not

provide a specific rationale, clearly indicated that he had

treated plaintiff for particular conditions, including

spinal stenosis and COPD, and his records - including

reports from various specialists to whom he had specifically

referred plaintiff - contained objective evidence both of

the existence of those conditions and their severity. 

Treating physicians are given some leeway in this regard;

there is a substantial difference between an opinion which

is not “well-supported by medically acceptable clinical and

laboratory diagnostic techniques,” which is a regulatory

standard found in §404.1527, and an opinion which is clearly

founded on such evidence but which lacks a detailed

explanation from the treating source as to how the evidence

actually supports the conclusions reached by that source. 

See, e.g., Bull v. Comm’r of Social Security, 629 F.Supp. 2d

768, 780-81 (S.D. Ohio 2008), citing Cornett v. Califano,

No. C-1-78-433 (S.D. Ohio Feb. 7, 1979).

Here, the ALJ did not actually reject Dr. Blake’s 2010

opinion because it was not supported by sufficient tests or

studies; rather, the ALJ simply said it deserved no weight

because, in addition to the inconsistency noted, Dr. Blake

did not explain his conclusions. That is not ordinarily a

reason to treat the opinion as if it had never been

rendered, which is what the ALJ did when he accorded it no

weight whatsoever, or a reason to disregard the test results

showing that plaintiff’s spinal condition was progressive

and worsening over time. In fact, those test results (Ex.

7F, 8F, and 9F) were not mentioned at all in the ALJ’s

decision; the only reference to any of them comes in the

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ALJ’s discussion of plaintiff’s credibility, where the ALJ

points out inconsistencies between plaintiff’s testimony and

Dr. Chinn’s notes. 

Overall, the ALJ’s rejection of Dr. Blake’s opinion,

and his decision to give it no weight at all, is not

supported by substantial evidence and is procedurally

deficient. The administrative decision does not, as

plaintiff notes, discuss many of the §404.1527 factors at

all, or indicate how they factored into the ultimate

decision. As the Rogers court stated, see 486 F.3d at 242,

citing Wilson, supra, at 544, “[w]hen the treating

physician's opinion is not controlling, the ALJ, in

determining how much weight is appropriate, must consider a

host of factors, including the length, frequency, nature,

and extent of the treatment relationship; the supportability

and consistency of the physician's conclusions; the

specialization of the physician; and any other relevant

factors.” It is impossible to tell if the ALJ did that

here, and the factors he did cite do not justify giving no

weight to Dr. Blake’s opinion, particularly in light of

medical evidence which post-dates the opinion which was

given controlling weight - Dr. Klyop’s - by almost two

years, and which Dr. Klyop clearly had no opportunity to

comment on or consider. A remand is therefore in order. 

There is one other unusual feature to this decision

which also should be clarified. The ALJ did not find any

severe mental impairment. He did not include any mental

limitations in the hypothetical question posed to the

vocational expert. Yet he found mental limitations in his

residual functional capacity finding. There is no evidence

that someone with these mental restrictions could perform

plaintiff’s past work. A remand will provide the

Commissioner with an opportunity to clear up this seeming

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inconsistency.

This conclusion largely moots any issue concerning the

way in which the ALJ made his credibility finding. The

Court does note, however, that this finding is committed to

the ALJ in the first instance, see, e.g. Felisky v. Bowen,

35 F.3d 1027 (6th Cir. 1994), and the ALJ did have evidence

before him of conflicting and inconsistent statements made

by the plaintiff which justified viewing the plaintiff’s

report of debilitating symptoms with some skepticism. 

VII. Recommended Decision

Based on the above discussion, it is recommended that

the plaintiff’s statement of errors be sustained to the

extent that this case be remanded to the Commissioner

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

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

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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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