IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

William Newkirk, :

 Plaintiff, :

 v. : Case No. 2:12-cv-0285

Commissioner of Social : JUDGE GEORGE C. SMITH

 Security, Magistrate Judge Kemp

 :

Defendant. 

 

 REPORT AND RECOMMENDATION

 I. Introduction

 Plaintiff, William Newkirk, 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 applications were filed on October 10,

2007, and October 11, 2007, respectively, and alleged that

plaintiff became disabled on August 15, 2007.

After initial administrative denials of his applications,

plaintiff was given a vidoeconference hearing before an

Administrative Law Judge on April 30, 2010. In a decision dated

June 9, 2010, the ALJ denied benefits. That became the

Commissioner’s final decision on February 27, 2012, when the

Appeals Council denied review. 

After plaintiff filed this case, the Commissioner filed the

administrative record on June 8, 2012. Plaintiff filed his

statement of specific errors on August 7, 2012. The Commissioner

filed a response on October 9, 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 44 years old at the time of the

administrative hearing and who has an eleventh grade education,

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with a subsequent GED, testified as follows. His testimony

appears at pages 27-48 of the administrative record.

Plaintiff began by testifying that his daily activity

consists mostly of watching television. He can microwave meals

but does no household chores or yard work. 

His problems started at work when the vertebrae in his neck

began to deteriorate. He had surgery but has gotten steadily

worse. He deals with chronic pain on a daily basis and takes

medication every day to manage it. Even when he was working, he

was forced to take a lengthy medical leave.

Plaintiff testified that his pain worsens with the weather. 

He will often wake up and be unable to feel his legs and arms,

and such numbness happens other times as well. He also

experiences episodes of blurred vision. He takes OxyContin for

pain and lithium, as well as other medications, for bipolar

disease. He does not socialize but does talk to his son. He

experiences problems with concentration and confusion. 

As far as physical capabilities are concerned, plaintiff

thought he could walk about a block before either becoming short

of breath or having his legs start to hurt. He is careful how he

moves about. He is afraid to lift anything for fear he will

injure his neck. He did not deal well with stress.

Plaintiff also testified about his past employment. He last

worked for a medical distribution company where he drove a

forklift and did other warehouse work. He had also worked in the

construction trades, doing fireproofing and other laboring jobs. 

The warehouse job included frequent lifting of weights up to 50

pounds. In response to questions from the ALJ, plaintiff

acknowledged a past history of cocaine use and some alcohol

abuse, but said those things had ended. He would, however, use

marijuana occasionally, and one of his physicians had suggested

that plaintiff would be subjected to drug tests on occasion.

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III. The Medical Records

The medical records in this case are found beginning on page

287 of the administrative record. The pertinent records can be

summarized as follows. The Court will focus mainly on the

records relating to plaintiff’s mental impairment because that is

also the primary focus of his statement of errors.

 Plaintiff had neck surgery in 2007, including procedures at

C5-6 and C6-7. The surgery confirmed a pre-operative diagnosis

of spondylosis and foraminal stenosis at those levels. He had

been off work since some time in 2006 as a result of this

condition. Four weeks after the surgery, he was experiencing

pain but the surgical site was healing well. He was to start

physical therapy shortly thereafter and was not to work for the

next several weeks. (Tr. 361). When seen by a consultative

examiner in early 2008, plaintiff reported no improvement in his

neck pain following surgery, nightly pain which woke him up,

limits on his ability to stand and walk due to pain, and problems

with hip pain in the area where bone was harvested for the

surgery. The examiner, Dr. Harris, thought that physical therapy

and medication would reduce the pain and allow plaintiff to

perform more activities. (Tr. 427-29). A state agency reviewer,

Dr. McCloud, concluded that plaintiff could do essentially a full

range of light work. (Tr. 434-41).

Plaintiff underwent a consultative psychological examination

on January 2, 2008. The examiner, Dr. Schulz, reported that

plaintiff attributed his inability to work to cervical disc

disease and bipolar disorder. Plaintiff said he had been

hospitalized for depression in 2003 or 2004 and had attended

mental health counseling for a short while after being released

from the hospital. Plaintiff described a history of alcohol and

cocaine use and also said he had been arrested on various charges

including DUI, assault, and possession of drug paraphernalia. He

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obtained a GED while in the military. He left his last job due

to physical pain. He described his daily activities as being

restless and having difficulty concentrating. Dr. Schulz thought

plaintiff suffered from bipolar disorder and cocaine abuse and

rated his GAF at 51. He concluded that plaintiff was mildly to

moderately impaired in his ability to relate to others, was not

impaired in his ability to follow instructions or to maintain

attention, concentration, or perform simple repetitive tasks, and

was moderately to severely impaired in his ability to withstand

the stress and pressure of everyday work activity. (Tr. 400-05).

Dr. Lewin, a state agency reviewer, concurred with Dr. Schulz’

diagnoses and found moderate limitations in plaintiff’s ability

to deal with detailed instructions, maintain attention and

concentration for extended periods, complete a workday or work

week without interruption from psychologically-based symptoms,

interact with the general public, co-workers or supervisors, and

to respond appropriately to changes in the work setting. She

thought plaintiff could “handle simple instructions in a low

stress work setting where concentration needed is short term and

relating is minimized or superficial.” (Tr. 408-25).

A psychiatric consultation note from Dr. Spare dated July 7,

2009 showed that plaintiff had been referred for anger problems

and mood swings. Plaintiff described long-term issues with

emotional stability and with alcohol and drug use. He was

diagnosed with intermittent explosive disorder, PTSD, atypical

bipolar disorder, polysubstance abuse, and a character disorder

with borderline features. (Tr. 477). When seen a month later,

plaintiff looked a little better and was tolerating lithium

without difficulty. He was prescribed additional medications. 

(Tr. 502). 

Dr. Eboh saw plaintiff in 2009 for his neck and back pain. 

Studies showed a well-healed fusion and there were few

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abnormalities noted on the examination. Dr. Eboh thought the

pain was going to be chronic and he advised against fast-acting

narcotic medications. He had plaintiff sign a controlled

substance prescription contract and prescribed OxyContin with

monitoring. (Tr. 586-87). That dosage was later increased. Dr.

Eboh also made a note on August 31, 2009, that plaintiff reported

improvement in his psychological symptoms with the lithium and

Seroquel, although he was beginning to notice some hand tremors. 

(Tr. 615). Later in 2009, Dr. Eboh’s notes describe an effort to

transition plaintiff’s pain medication from OxyContin to morphine

or methadone. By December 7, 2009, Dr. Eboh was reporting that

plaintiff was happy with his pain medications and his pain was

well-controlled. (Tr. 625). A note of February 1, 2010 also

shows that plaintiff was again feeling better psychologically due

to medication changes. (Tr. 640). 

The only other pertinent records are progress notes from Dr.

Spare. Collectively, they show that over time, plaintiff

continued to have problems being around people, isolating himself

and at times being irritable or making inappropriate comments. 

He also experienced an increase in anger after discontinuing his

medications. 

 IV. The Medical Testimony

A medical expert, Dr. Smiley, was called to testify at the

administrative hearing. His testimony begins on page 48 of the

administrative record.

Dr. Smiley is a retired thoracic and cardiovascular surgeon. 

He identified plaintiff’s documented impairments as degenerative

disk disease of the cervical spine status post C6-7 diskectomy

and fusion with persistent, radiation pain; a history of

substance abuse; and mental impairments which Dr. Smiley was not

qualified to evaluate. He ruled out COPD. He did not believe

that plaintiff’s condition satisfied any of the Listing of

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Impairments, but he thought that the combination of chronic pain

and bipolar disorder would “make [plaintiff’s] ability to

function in the work place quite questionable ....” (Tr. 51).

Due to plaintiff’s pain and the problems which activity

causes, Dr. Smiley thought that plaintiff could do only sedentary

work which allowed him to shift positions to deal with positional

pain. Climbing would be very dangerous for him. 

 V. The Vocational Testimony

A vocational expert, Ms. Johnson, also testified at the

administrative hearing. Her testimony begins at page 52 of the

record. She characterized plaintiff’s past work in the warehouse

setting as medium and semi-skilled and as a general laborer as

medium and unskilled. He did not have any transferable job

skills.

Ms. Johnson was asked some questions about a hypothetical

person who was limited to working at the sedentary level and who

needed a sit-stand option with the ability to move around while

seated. The person could not climb ladders, ropes or

scaffolding, could only frequently stoop, should not work at

unprotected heights, could not work around hazards or dangerous

equipment, and could follow only simple job instructions and

perform routine, repetitive tasks without high stress or forced

pace. That person could also have only occasional contact with

co-workers and supervisors and only incidental contact with the

general public. With those restrictions, that person could, in

Ms. Johnson’s view, not do plaintiff’s past work, but could

perform certain unskilled sedentary jobs such as order clerk,

optical goods worker, and surveillance system monitor. Those

same jobs would be available to someone with environmental

restrictions. However, someone whose ability to attend and

concentrate in the work place and to deal with changes in the

work setting was poor and who could not have more than incidental

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contact with co-workers or supervisors could not do even those

jobs.

VI. The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 8

through 18 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, 2011. Next, plaintiff had not engaged in

substantial gainful activity from his alleged onset date of

August 15, 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 disc

disease of the cervical spine, major depressive disorder, bipolar

disorder, polysubstance abuse in remission, chronic obstructive

pulmonary disease, hip pain and lower back pain. 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 a limited ranged of sedentary work. 

Plaintiff’s lifting, carrying, pushing and pulling were all

limited to ten pounds, and he needed a sit-stand option with the

ability to shift his weight while sitting. Also, he could not

climb ladders, ropes and scaffolds and could not work at or

around unprotected heights or dangerous equipment, in temperature

extremes, in damp or dry places, or in places with excessive

gasses, fumes, dust, smoke or chemicals. He could frequently

stoop. The ALJ also found that plaintiff could understand,

remember and carry out only simple tasks and instructions, could

not handle high stress jobs, could not work at a forced pace or

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on an assembly line, and could have only occasional contact with

co-workers and supervisors and only incidental contact with the

general public. The ALJ found that, with these restrictions,

plaintiff could not perform any of his past relevant work, but he

could perform those jobs identified by the vocational expert,

such as order clerk, optical goods worker, and surveillance

system monitor, and that significant numbers of such jobs existed

in the State and national economies. Consequently, the ALJ

concluded that plaintiff was not entitled to benefits.

VII. Plaintiff’s Statement of Specific Errors

 In his statement of specific errors, plaintiff raises three

issues. He argues (1) that the ALJ did not properly evaluate the

evidence from the various medical sources including the

consultative examining psychologist, the agency reviewing

psychologists, and the medical expert; (2) that substantial

evidence does not support the ALJ’s finding as to plaintiff’s

mental residual functional capacity; and (3) that substantial

evidence does not support the finding that plaintiff is not

disabled from the combination of his physical and mental

impairments. 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

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

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

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

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

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

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

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

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

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

would reach contrary conclusions of fact, the Commissioner's

decision must be affirmed so long as that determination is

supported by substantial evidence. Kinsella v. Schweiker, 708

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

Plaintiff’s first claim of error relates to the ALJ’s

evaluation of the medical evidence. In particular, plaintiff

argues that the ALJ disregarded Dr. Schulz’ evaluation of his

ability to withstand the stress and pressure of everyday work

activity, and did not credit the state agency reviewers’ various

limitations on plaintiff’s work activities. Plaintiff also

contends that because Dr. Smiley, the medical expert, was unable

to assess how the combination of plaintiff’s physical and mental

impairments affected his ability to work, the ALJ should have

obtained additional expert opinion on this point. 

The administrative decision is certainly not a model of

clarity as to how the evidence from the various mental health

professionals was evaluated. It contains a fairly detailed

discussion of that evidence as it relates to the question of

whether any section of the Listing of Impairments has been met,

but there is only a cursory review of the results of Dr. Schulz’

examination in the section of the decision devoted to residual

functional capacity (Tr. 14), no mention at all of the opinion of

Dr. Lewin, and only the briefest reference to one page of

treatment notes (from Dr. Eboh, and not Dr. Spare, who was the

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treating mental health source) about plaintiff’s improvement with

psychotropic medication. None of Dr. Spare’s progress notes are

cited or discussed. Nevertheless, the Commissioner argues that

the decision is both supported by substantial evidence and not

contrary to law because the ALJ need not cite to every single

piece of medical evidence - a proposition supported, according to

the Commissioner, by the decision in Morgan v. Astrue, 2011 WL

3714781 (S.D. Ohio July 20, 2011) - and because the residual

functional capacity finding is consistent with Dr. Lewin’s

opinion, even if the ALJ did not explicitly say so. The

Commissioner also takes issue with the notion that the record was

insufficient to permit the ALJ to reach conclusions about

plaintiff’s mental residual functional capacity without

additional evidence from a mental health expert.

The Court is troubled by the ALJ’s failure even to

acknowledge significant portions of the record dealing with

plaintiff’s mental impairments and the limitations they caused. 

In the Court’s experience, it is highly unusual for an ALJ who,

as appears to have occurred in this case, adopts almost verbatim

the limitations contained in a state agency reviewer’s report

never to mention that report in his discussion of residual

functional capacity. Had the ALJ’s findings conflicted in any

substantial way with the conclusions of Dr. Schulz or Dr. Lewin,

this lack of discussion would present extreme difficulties for

the Court in determining exactly how the ALJ reached his ultimate

conclusion, and how and why he discounted the opinions of the

examining and reviewing experts. That type of conflict does not

exist here, however, because, as noted, the ALJ’s assessment of

plaintiff’s ability to work from a mental standpoint is almost

exactly the narrative assessment given by Dr. Lewin, and Dr.

Lewin’s report, like the section of Dr. Schulz’ report which

plaintiff claims was ignored, is based on a finding that

plaintiff has moderate difficulty in dealing with work stress.

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The Court is entitled to review evidence not cited by the

ALJ in determining if the administrative decision is supported by

substantial evidence. Simmons v. Barnhart, 114 Fed. Appx. 727,

733 (6th Cir. Nov. 18, 2004). Further, “an ALJ is not required

to discuss all the evidence submitted, and an ALJ's failure to

cite specific evidence does not indicate that it was not

considered.” Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000). 

As in that case, the Court finds it “unlikely” that the ALJ

failed to review Dr. Lewin’s report when there is no other source

from which the ALJ could reasonably have derived the limitations

he incorporated into his residual functional capacity finding. 

It is also important to note that Dr. Spare did not comment on

plaintiff’s work-related abilities in any of his reports, and

that plaintiff has not cited to any evidence which would

undermine the ALJ’s apparent reliance on Dr. Lewin; although

plaintiff contends that the ALJ disregarded Dr. Lewin’s findings

as set forth at Tr. 422-23, that can hardly be true, because Dr.

Lewin’s report specifically took those limitations into account

in concluding that plaintiff could handle simple instructions in

a low stress work setting with minimal contact with others, and

the ALJ made a similar if not identical finding. 

As the Court of Appeals has observed, if an ALJ agrees with

the opinion of a particular physician, the “failure to give

reasons for the amount of weight placed on [that] opinion is, at

most, harmless error.” Pasco v. Comm’r of Social Security, 137

Fed. Appx. 828, 840 (6th Cir. June 23, 2005). That seems to be

the case here. Although it would have been better for the ALJ to

have been more explicit about his adoption of Dr. Lewin’s

conclusion, and to have discussed the significance, if any, of

the progress notes from Dr. Spare, in the absence of any

indication that plaintiff was prejudiced by these failures, they

cannot serve as the basis for a remand.

Plaintiff’s second argument is not substantially different

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from his first, and also focuses on the residual mental

functional capacity finding. After reviewing the records from

Marion Area Counseling Center and Dr. Schulz’ opinion, plaintiff

contends that this evidence “supports greater nonexertional

limitations that those recognized by the ALJ making his residual

functional capacity unsupported by substantial evidence in the

record.” Statement of Errors, Doc. 12, at 17. He then argues

that because this finding is not properly supported, the

vocational expert’s testimony, which was based on the ALJ’s

purportedly flawed assessment, is also unreliable.

The Court agrees with the Commissioner that this argument

suffers from a fundamental flaw; it equates the existence of

evidence of greater limitations with the absence of evidence for

less severe limitations. The two are not the same. Further, the

Court has already explained why it does not believe that Dr.

Schulz’ opinion was actually disregarded and why the ALJ

reasonably took it into account, and why nothing in the progress

notes directly contradicts the ALJ’s residual functional capacity

assessment. For these reasons, the Court finds plaintiff’s

second claim of error to be without merit.

Plaintiff’s final argument is that the ALJ erred by not

finding him disabled due to the combined effect of his physical

and mental limitations. The only evidence to support this

argument is Dr. Smiley’s statement, made after he acknowledged

that he could not comment on the mental health issues in the

case, that it would appear questionable whether someone with

plaintiff’s physical limitations and with bipolar disorder could

function in the workplace.

The effect of a combination of mental and physical

impairments is usually determined by posing a hypothetical

question to a vocational expert which incorporates the

limitations imposed by each separate impairment. As this Court

has noted, “[t]he administrative law judge must accurately state

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each limitation that affects the claimant's ability to work.” 

Clutter v. Comm’r of Social Security, 2009 WL 3620798, *8 (S.D.

Ohio Oct. 29, 2009). If the hypothetical question is accurate

and incorporates all of the limitations stemming from each of the

plaintiff’s medically determinable impairments, it demonstrates

that the ALJ “fully considered” the combined effect of those

impairments. See Bishop v. Shalala, 64 F.3d 682 (6th Cir. August

15, 1995)(unreported). That is the case here. The hypothetical

question posed to Ms. Johnson incorporated both physical and

mental restrictions, and this Court has found no error in the

ALJ’s assessment of plaintiff’s residual functional capacity from

both a physical and mental standpoint. Therefore, this third

statement of error does not support either a reversal or a

remand.

VIII. Recommended Decision

Based on the above discussion, it is recommended that the

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

entered in favor of the defendant Commissioner of Social

Security.

IX. Procedure on Objections

If any party objects to this Report and Recommendation,

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

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

specific proposed findings or recommendations to which objection

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

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

portions of the report or specified proposed findings or

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

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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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