IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Rhonda Sue Kershner, :

 Plaintiff, :

 v. : Case No. 2:13-cv-65

 : JUDGE EDMUND A. SARGUS, JR.

Commissioner of Social Security, Magistrate Judge Kemp

Defendant. :

 REPORT AND RECOMMENDATION

 I. Introduction

 Plaintiff, Rhonda Sue Kershner, filed this action seeking

review of a decision of the Commissioner of Social Security

denying her applications for disability insurance benefits and

supplemental security income. Those applications were filed on

November 25, 2009, and alleged that plaintiff became disabled on

June 6, 2007.

After initial administrative denials of her applications,

plaintiff was given a hearing before an Administrative Law Judge

on July 13, 2011. In a decision dated September 21, 2011, the

ALJ denied benefits. That became the Commissioner’s final

decision on November 26, 2012, when the Appeals Council denied

review. 

After plaintiff filed this case, the Commissioner filed the

administrative record on April 8, 2013. Plaintiff filed her

statement of specific errors on May 13, 2013. The Commissioner

filed a response on July 17, 2013. Plaintiff filed a reply brief

on July 29, 2013, 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 a twelfth grade education,

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testified as follows. Her testimony appears at pages 32-51 of

the administrative record.

Plaintiff worked for Donato’s Pizza for almost eighteen

years. She stopped working due to a car accident. She had

neither worked nor looked for work since the accident. She was a

manager at Donato’s and was on her way to work when she was the

victim of a chain of collisions caused by some geese being

trapped on the roadway. She was treated in the emergency room

that day and later settled a claim against the driver who caused

the accident.

At Donato’s, plaintiff’s work included being on her feet all

day except for doing paperwork, and supervising about eight

people. She had responsibilities for financial operations and

hiring, firing, and training employees. She attempted to go back

to work shortly after her accident but could not tolerate the

level of physical activity required. Even sitting at home to pay

bills bothers her back. 

Plaintiff testified to having problems with her shoulder and

neck as well. When she used a computer, if she did not

periodically readjust her neck position she got migraine

headaches. Also, using a computer hurt her left shoulder. If

she used the computer for half an hour, she would have to take a

20-minute break before resuming use. She also had pain in her

left hand and arm after about fifteen minutes of typing. Her

grip in that hand was reduced as well. Plaintiff testified that

she had sleep apnea and used a CPAP machine at night. She did

not sleep well and usually napped during the day. Finally, even

with medication she developed migraine headaches several times a

week which would incapacitate her for an entire day.

III. The Medical Records

The medical records in this case are found beginning on page

186 of the administrative record. The Court summarizes the

pertinent records as follows.

The first 388 pages of records are all treatment notes from

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Physicians Plus, and are dated from 1999 through 2008. These

records are very difficult to read, especially the dates. See

Tr. 186-676. Plaintiff makes little reference to them in her

statement of errors, stating only that these records show

“objective signs and symptoms, including spinal spasm, spinal

edema, and restricted range of motion throughout the cervical,

thoracic and lumbar regions of the spine.” Statement of Errors,

Doc. 11, at 3. Although plaintiff refers to them as a whole

later in her statement of errors for the proposition that the

records show objective signs of a back impairment, plaintiff

cites to no specific page or pages of these records. The Court

will not attempt to summarize them further here.

 The accident which plaintiff testified about happened on

June 6, 2007. She was treated in the emergency room of Grady

Memorial Hospital that day and diagnosed with cervical and back

strain. She was to be treated with analgesics and routine back

and neck care. (Tr. 723). Further hospital notes show that she

participated in physical therapy for two months and that she got

no lasting relief from the treatments and that she reported no

relief from chiropractic treatments either. She was having

trouble sleeping and with lifting objects weighing more than five

pounds. (Tr. 720-21). A subsequent note from Dr. Brightman

showed a diagnosis of chronic neck and back pain from the

accident. Objective tests showed only mild spondylosis of the

cervical spine and mild stenosis and degenerative disc disease of

the lumbar spine. (Tr. 716-17). A later MRI showed mild

spurring in the thoracic spine and very shallow scoliotic

curvatures of the cervical spine. (Tr. 696). Additional

hospital notes show that in 2009, plaintiff underwent physical

therapy for her left shoulder. She showed some increase in range

of motion at the end of the therapy but no improvement in her

pain. (Tr. 764). 

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Plaintiff was seeing Dr. Held when the vehicle accident

happened. Five days after, Dr. Held gave her Motrin and Vicodin

for low back pain, and noted a history of degenerative disease in

the spine. A note of July 2, 2007 seems to indicate that

plaintiff was back at work but was having pain in the middle and

lower back regions. It appears she stopped working three days

later. She was doing physical therapy and exercise at home. A

note from September 11, 2007, showed some neck pain and

headaches. The diagnosis at that time was whiplash and shoulder

and neck spasms. Other notes from subsequent visits throughout

2008 and 2009 show referrals to a pain specialist and

neurosurgeon and some left shoulder problems which were being

treated with cortisone shots. An MRI of the neck was normal,

however. Plaintiff was also being treated by a chiropractor and

with massages. One note also makes mention of fibromyalgia. (Tr.

767-892).

Plaintiff was evaluated by Dr. Reddy for pain management on

February 14, 2008. By then, she was reporting a lengthy history

of low back and left leg pain, made worse by the accident. She

also began experiencing neck pain, headaches, and left arm and

shoulder pain after the accident. Examination revealed normal

posture, transfers and gait and fairly full ranges of motion in

the spine and shoulder. Strength and sensation were normal as

were reflexes. Dr. Reddy recommended injections as well as a

continuation of medications. (Tr. 845-47). In November of that

year, plaintiff felt her symptoms were “fairly well-managed at

this time.” (Tr. 848). Further notes are similar but did show

little pain relief. By January, 2010, Dr. Reddy was reporting

that plaintiff continued to suffer from fibromyalgia, occipital

neuritis, lumbar degenerative disc disease, and supraspinatus

tendonitis “with a tinge of whiplash associated disorder.” (Tr.

898). Plaintiff had also been started on Lyrica for pain but had

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not responded to the initial dosage. 

Dr. Held completed a form on February 11, 2010 indicating

that plaintiff could use her extremities for activities of daily

living but could not run a sweeper. She was stiff in her joints

and could not lift more than ten pounds, with no lifting ability

in the left arm. That report did not indicate total disability. 

(Tr. 945). However, in a report apparently completed in 2009,

Dr. Held did state that plaintiff could stand for no more than

20-30 minutes in a work day and sit only 15-30 minutes. (Tr.

1114-15). 

Dr. McGrail, one of the treating physicians, filled out a

functional capacity report on June 14, 2010. He did not list any

diagnoses in his report, but, most significantly, limited

plaintiff to a total of six hours of either standing or sitting

during a work day. He also included a number of postural and

environmental restrictions. He thought plaintiff could work only

0-3 days per week and less than four weeks per month and that

these limitations had existed since the car accident. (Tr. 980-

82). He cited as support for his evaluation the MRIs and records

of his examinations. 

Plaintiff began seeing Dr. Barker for primary care some time

in 2010. In May, 2010, he noted that plaintiff had not tolerated

any stabilizing medicines for fibromyalgia and that she also was

showing some abnormal liver findings. He suggested weight loss

and regular exercise. By June, 2010, she walking “a lot” but

still was not sleeping well and was tired during the day. By

September, she was using a CPAP machine for sleep apnea. Many of

his subsequent notes deal with her efforts to lose weight. By

December, she was reporting a lot of fatigue and was not walking

outdoors due to fear of falling. It appears from later notes

that she was doing water aerobics, and that her energy level had

improved since she was started on Wellbutrin. Dr. Barker

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subsequently ordered x-rays of her cervical spine which were read

as showing only some minor anterior ossific spurring at C6-7,

which finding was characterized as “fairly minimal.” (Tr. 1155).

On May 27, 2011, Dr. Barker also filled out a physical capacity

evaluation form. Like Drs. Held and McGrail, he made findings

inconsistent with the ability to work on a full-time basis, such

as being able to sit and stand for two hours or less in a work

day and the need to lie down three or four times a day. (Tr.

1167-71). Dr. Barker appeared to attribute plaintiff’s inability

to work to her fibromyalgia.

In April and May of 2011, plaintiff did more physical

therapy. By her discharge date, the physical therapist stated

that she had a good prognosis and that she had shown improvements

in range of motion and strength, although, as with her other

experiences with physical therapy, she did not show any

improvement in her symptoms. She was able to carry five to ten

pounds, to drive independently, and to reach without difficulty,

but she could not do heavy housework, forward bending, or

vacuuming, sweeping or mopping. (Tr. 1223-25).

IV. The Medical Expert Testimony

A medical expert, Dr. Kendrick, testified at the

administrative hearing. His testimony begins on page 48 of the

record.

Dr. Kendrick identified plaintiff’s impairments as lumbar

spondylosis, rotator cuff tendinopathy of the left shoulder,

carpal tunnel syndrome on the left side, fibromyalgia, diabetes

mellitus, and sleep apnea. He did not believe any of these

impairments satisfied any portion of the Listing of Impairments. 

Dr. Kendrick testified that plaintiff could do sedentary work

with these restrictions: lifting ten pounds occasionally and five

pounds frequently, standing or walking for up to 30 minutes at a

time for up to two hours in a day; sitting for up to one hour at

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a time for up to six hours in a day; and bending, stooping,

kneeling and crawling occasionally. She could occasionally climb

stairs but not ladders, should not work at heights or around

dangerous machinery, and could use her left hand or arm for fine

and gross manipulation and reaching and handling for only 50% of

a work day. He further testified that his assessment took into

account any pain which plaintiff suffered either in the form of

headaches or in other parts of her body. 

 V. The Vocational Testimony

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

administrative hearing. Her testimony begins at page 61 of the

record. 

Ms. Kaufman classified plaintiff’s past work as a manager of

a fast food restaurant as light and skilled, although plaintiff

may have performed it at the heavy exertional level. There was

no other past relevant work.

Ms. Kaufman was asked questions about someone who could do

sedentary work activity as described by Dr. Kendrick and who, in

addition, was moderately impaired in her ability to withstand the

stress of everyday work. She responded that such a person could

not do plaintiff’s past work but could do about 800 jobs in the

central Ohio area. The small number was due primarily to the

restrictions placed on plaintiff’s use of her left arm and hand. 

Jobs such as film inspector, sorter, and clerk would be included. 

If plaintiff were limited in the ways she testified, however, Ms.

Kaufman did not think she could work. 

VI. The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 10

through 19 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 of the Social Security Act through

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December 31, 2012. Next, he found that she had not engaged in

substantial gainful activity after her alleged onset date of June

6, 2007. As far as plaintiff’s impairments are concerned, the

ALJ found that plaintiff had severe impairments including

degenerative disease/strain of her cervical and lumbar spine and

left shoulder, fibromyalgia, obesity, sleep apnea, and left

carpal tunnel syndrome. 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 sedentary work with only those restrictions

described in Dr. Kendrick’s testimony (that is, lifting ten

pounds occasionally and five pounds frequently, standing or

walking for up to 30 minutes at a time for up to two hours in a

day; sitting for up to one hour at a time for up to six hours in

a day, bending, stooping, kneeling and crawling occasionally,

climbing stairs occasionally but not ladders, no work at heights

or around dangerous machinery, and using her left hand and arm

for fine and gross manipulation and reaching and handling for

only 50% of a work day). The ALJ found that, with these

restrictions, plaintiff could not perform her past relevant work,

but she could do those jobs identified by Ms. Kaufman, totaling

about 800 in the local economy. The ALJ also found that such

jobs exist in significant numbers because they are in several

different industries, are not of an isolated nature, and exist in

an area where plaintiff would not have to travel significant

distances in order to work. Consequently, the ALJ concluded that

plaintiff was not entitled to benefits. 

VII. Plaintiff’s Statement of Specific Errors

 In her statement of specific errors, plaintiff asserts (1)

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that the ALJ did not give appropriate weight to the opinions of

three treating physicians, Drs. Held, McGrail, and Barker; (2)

that the ALJ did not properly assess the credibility of her

testimony; and (3) that the ALJ erred when he concluded that the

number of jobs identified by Ms. Kaufman were significant. The

Court reviews the ALJ’s decision 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

supported by substantial evidence. Kinsella v. Schweiker, 708

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

Plaintiff’s first assignment of error focuses on the ALJ’s

rejection of opinions from three treating sources - Dr. Held, Dr.

McGrail, and Dr. Barker. In order to place the issue into proper

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context, it is important to set forth in detail the ALJ’s

explanation for the treatment of these physicians’ opinions.

The ALJ explicitly adopted the residual functional capacity

finding made by Dr. Kendrick, the testifying medical expert. 

After explaining why he chose that evaluation over the less

restrictive opinions of the state agency reviewers, the ALJ

turned to the treating sources. He acknowledged that each of the

three treating doctors had, at one time or another, limited

plaintiff to a range of activities that would be inconsistent

with employment. (Tr. 16-17). He noted that he gave these

opinions “deference” but not controlling weight, stating that

“the objective findings simply do not support an inability to

sustain sedentary work with the enumerated limitations on a

sustained fulltime competitive basis.” (Tr. 17). Further, the

ALJ concluded that these three doctors “appear to have relied

significantly on the subjective statements of the claimant, who

is not found to be entirely credible.” Id. That conclusion was

apparently based on what the ALJ viewed as, again, the lack of

objective findings in the record to support plaintiff’s claim of

disabling symptoms, contradictory evidence in the form of Dr.

Thomas’ March, 2010 report about her muscle strength, and the

fact that her activities of daily living, described both to Dr.

Tanley and at the administrative hearing, were “not consistent

with the level and persistence of symptoms that she alleges.” 

Id. 

Taking these various rationales in reverse order, the first

concern the Court has with the ALJ’s findings is the reasons he

gave for discounting plaintiff’s credibility. Although the ALJ

has substantial leeway in evaluating the credibility of the

claimant, it is also true that a social security ALJ is not

permitted to reject allegations of disabling symptoms, including

pain, solely because objective medical evidence is lacking. 

Rather, the ALJ must consider other evidence, including the

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claimant's daily activities, the duration, frequency, and

intensity of the symptoms, precipitating and aggravating factors,

medication (including side effects), treatment or therapy, and

any other pertinent factors. 20 C.F.R. §404.1529(c)(3). 

Further, the ALJ must provide an explanation of the reasons why a

claimant is not considered to be entirely credible, and the Court

may overturn the ALJ’s credibility determination if the reasons

given do not have substantial support in the record. See, e.g.

Felisky v. Bowen, 35 F.3d 1027 (6th Cir. 1994).

Here, the ALJ does not explain what objective findings,

other than one report from Dr. Thomas, a non-examining medical

consultant, are actually inconsistent with plaintiff’s testimony

or report of symptoms to her other physicians. The finding to

which the ALJ referred was not actually made by Dr. Thomas, who

never saw plaintiff, but was part of what Dr. Thomas described as

a “recent examination.” (Tr. 970). Although it is not clear

what report Dr. Thomas meant, it could well be a report from Dr.

Reddy, who was treating plaintiff for pain, showing that

plaintiff’s strength in both her upper and lower extremities was

5/5, which is a normal finding. (Tr. 899). In fact, there are

many other such reports in the file as well. However, Dr. Reddy

also diagnosed plaintiff with fibromyalgia, and Dr. Thomas

appears to have concurred in that diagnosis and noted in her

report that plaintiff showed “18/18 points positive for

fibromyalgia.” (Tr. 966).

In Rogers v. Comm’r of Social Security, 486 F.3d 234, 243

(6th Cir. 2007), the Court of Appeals noted that often

“fibromyalgia patients present no objectively alarming signs.” 

In fact, they typically “‘manifest normal muscle strength ....’” 

Id. at 244, quoting Preston v. Sec’y of Health & Human Servs.,

854 F.2d 815, 820 (6th Cir. 1988). The Rogers court noted that

when an ALJ fails to discuss the diagnostic criteria for

fibromyalgia and discounts either the claimant’s testimony or the

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reports of treating physicians based on the absence of supporting

objective evidence, the ALJ commits error. It is therefore

difficult to sustain the ALJ’s credibility finding on that basis.

The only other evidence the ALJ cited was the fact that

plaintiff was able to drive, get her children off to school, play

cards, sing, and go to bed by 10:00 at night. That represents a

fairly selective view of the evidence, and also inexplicably

gives full credibility to plaintiff’s statements to one examiner

(Dr. Tanley) while deeming her statements to other physicians,

such as her treating doctors, less worthy of belief. In fact, it

is not even a fair characterization of plaintiff’s own testimony. 

At the hearing, plaintiff testified that although she got up with

her children, they fixed breakfast themselves and walked to the

school bus without her. She also testified, in testimony the ALJ

apparently did not credit, that she took a two or three-hour nap

each day due to fatigue and that although she went to bed at

10:00, she got up four or five times every night. She also

described in great detail the limitations she faced on a daily

basis due to pain in a report given to the Social Security

Administration (Ex. 7E, Tr. 124-34), but the ALJ made no mention

of that in his evaluation of her credibility. Overall, the Court

finds that the ALJ’s credibility determination is no more

sustainable here than was the one rejected in Kalmbach v. Comm’r

of Social Security, 409 Fed. Appx. 852, 864 (6th Cir. Jan. 7,

2011), where the ALJ in a fibromyalgia case also discounted a

claimant’s credibility based on the absence of objective medical

evidence and “grossly mischaracterize[d] the available evidence”

concerning her daily and social activities. 

The Court’s conclusion that the ALJ did not properly assess

plaintiff’s credibility substantially undermines his rationale

for rejecting the opinions of her three treating physicians. The

ALJ used the plaintiff’s lack of credibility as a reason for

finding her statements to those physicians less than believable,

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and for discounting their opinions because they relied on her

report of symptoms. But in a fibromyalgia case, where all of the

available objective indications supported that diagnosis, there

is often little else for a treating physician to rely on, other

than a longitudinal record of attempting various treatment

methods to reduce the patient’s pain, often without much success. 

The record seems to indicate such a course of treatment here. 

The only other reason provided by the ALJ for preferring Dr.

Kendrick’s assessment of plaintiff’s limitations over that of her

treating sources is, again, the absence of objective medical

evidence. Apart from the fact that the ALJ’s decision on this

issue is probably not sufficiently detailed in its description of

the medical evidence to satisfy the articulation standard set

forth in 20 C.F.R. §404.1527, as interpreted by Wilson v. Comm’r

of Social Security, 378 F.3d 541, 544 (6th Cir. 2004), it, too,

fails to take into account the lack of correlation between

objective findings and limitations due to fibromyalgia. Given

that both the rejection of the treating source opinions and the

evaluation of plaintiff’s credibility are not sustainable, the

case must be remanded for a more thorough analysis of these

issues.

Plaintiff also raises a claim about the ALJ’s conclusion

that the number of jobs identified by the vocational expert is

significant. It is certainly borderline, but the ALJ did give

specific reasons for finding that the small number of jobs were

not isolated and existed in different industries. On the other

hand, plaintiff argues (although without identifying any support

for her argument in the administrative record) that some of the

jobs identified by the vocational expert may not be available to

her, at least based on information from the Dictionary of

Occupational Titles. That is an argument that plaintiff is free

to pursue on remand, where the ALJ will have the responsibility

of insuring that a complete record is made on that issue. 

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 VIII. 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 for

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

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

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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