IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 EASTERN DIVISION 

MARK R. KNECE, 

 

 Plaintiff, 

 Civil Action 2:17-cv-1130 

 v. Judge Algenon L. Marbley 

 Chief Magistrate Judge Elizabeth P. Deavers 

COMMISSIONER OF 

SOCIAL SECURITY, 

 

 Defendant. 

 

REPORT AND RECOMMENDATION 

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

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

applications for Social Security Disability Insurance Benefits and Supplemental Security 

Income. This matter is before the United States Magistrate Judge for a Report and 

Recommendation on Plaintiff’s Statement of Errors (ECF No. 16), the Commissioner’s 

Memorandum in Opposition (ECF No. 25), and the administrative record (ECF No. 9). Plaintiff 

did not file a Reply. For the reasons that follow, it is RECOMMENDED that the Court 

OVERRULE Plaintiff’s Statement of Errors and AFFIRM the Commissioner’s decision. 

 
I. BACKGROUND

 Plaintiff protectively filed his applications for benefits in March 2011, alleging that he 

has been disabled since February 15, 2011, due to back pain and depression. (R. at 779.) 

Plaintiff’s applications were denied initially and upon reconsideration. Plaintiff sought a de novo 

hearing before an administrative law judge. Administrative Law Judge Paul E. Yerian (the 

“ALJ”) held a hearing on September 13, 2012. On October 26, 2012, the ALJ issued a decision 

finding that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 89–

102.) Plaintiff timely filed an action in this Court for review. On September 3, 2015, this Court 

remanded the case and ordered a more detailed explanation in weighing the opinions of 

Plaintiff’s treating physician, Donald Fouts, D.O. (R. at 888-914; see also Knece v. Comm’r Soc. 

Sec., Case No. 14-cv-353, Report and Recommendation (ECF No. 20); adopted and affirmed, 

Order (ECF No. 21.)) 

 On remand, the same ALJ held a hearing in November 2016 at which Plaintiff, who was 

represented by counsel, testified. A vocational expert, Richard Oestreich, (the “VE”) also 

testified. On January 24, 2017, the ALJ issued a decision finding that Plaintiff was not disabled 

within the meaning of the Social Security Act. (R. at 776-800.) The Appeals Council denied 

Plaintiff’s request for review and adopted the ALJ’s decision as the Commissioner’s final 

decision. (R. at 769-75.) Plaintiff then timely commenced this action. 

II. TREATING PHYSICIAN’S OPINIONS 

 Plaintiff puts forth one assignment of error. Specifically, Plaintiff maintains that the ALJ, 

on remand with express instructions to provide a more detailed explanation in weighing the 

opinions of Plaintiff’s treating physician, Dr. Fouts, again erred in assigning only “little weight” 

to his opinions. 
3 

On April 18, 2011, Dr. Fouts reported that he had been treating Plaintiff since February 

2007.1 Dr. Fouts listed Plaintiff’s diagnoses as back pain, lumbar spondylolisthesis, lumbar 

spondylosis, and depression. (R. at 755.) Dr. Fouts reported that Plaintiff’s pain and depression 

continued despite treatment. (Id.) He further noted that Plaintiff has lower back paraspinal 

tenderness, increased pain with range of motion and flexion and extension; decreased range of 

motion; depressed mood; decreased interest; decreased hope; and poor outlook. (R. at 756.) Dr. 

Fouts noted that Plaintiff has trouble affording medication due to lack of insurance. 

On April 25, 2011, Dr. Fouts opined that due to pain and decreased range of motion, 

Plaintiff is severely limited in his ability to work and has a limited ability to perform activities 

such as sitting, driving, lifting, carrying, stooping, kneeling, bending, walking for extended 

periods, and standing for extended periods. Dr. Fouts further opined that Plaintiff’s depression 

limits his ability to think clearly, concentrate, and interact with others. Dr. Fouts noted that 

Plaintiff’s depression creates a decreased interest in personal hygiene. (R. at 507-508.) He 

opined that Plaintiff was unable to lift, carry, stoop, kneel, bend, walk for extended periods, or 

stand for extended period. (R. at 508.) 

 The record contains Dr. Fouts’ treatment notes from May 19, 2011 until February 6, 

2012. Examinations during this time generally revealed intact gait, bilateral lower paraspinal 

muscle tenderness, reduced lumbar flexion, and reduced lumbar extension. (R. at 673, 677, 679, 

682, 686-689, 700, 703, 708, 732.) Dr. Fouts noted that Plaintiff had decreased sensation in the 

 1

Because the Court has already set out a detailed description of Plaintiff’s medical 

records in Case No. 14-cv-353 and because Plaintiff’s sole assignment of error relates to the 

ALJ’s analysis of Plaintiff’s treating physician, the Undersigned focuses the discussion on Dr. 

Fouts’ treatment records and opinions. The Undersigned will discuss the relevant facts and other 

medical records in the course of analyzing Plaintiff’s arguments. 
4 

right anterior lateral thigh to touch; deep tendon reflexes of 3+/4+ bilaterally in the patella and 

3+/4+ bilaterally in the achilles; negative straight leg raise bilaterally; positive straight leg raise 

at 30 degrees on the right on two occasions; decreased range of motion; tender lateral left ankle 

and reduced left knee flexion; and joint line tenderness. Dr. Fouts also frequently noted that 

Plaintiff appeared depressed. 

On February 6, 2012, Dr. Fouts completed a Physical Capacity Evaluation on behalf of 

Plaintiff. He opined that Plaintiff could occasionally lift 5 pounds, and that he could not lift any 

weight frequently. Dr. Fouts found that Plaintiff could stand and walk less than 30 minutes in an 

8-hour workday, and could sit less than 30 minutes in an 8-hour workday. Dr. Fouts noted that 

Plaintiff could sit 10 to 15 minutes before needing to stand, and could stand 10 to 15 minutes 

before needing to sit. Dr. Fouts also opined that Plaintiff must lie down 2-4 times in an 8-hour 

workday. Plaintiff could never twist, stoop, bend, crouch, or climb ladders, and could 

occasionally climb stairs. Plaintiff could never perform pushing or pulling, could occasionally 

perform reaching, and could frequently perform handling, fingering, and feeling. Dr. Fouts 

further opined that Plaintiff needed to avoid even moderate exposure to wetness because he is a 

fall risk. Dr. Fouts opined that Plaintiff must avoid all exposure to hazards. He also noted that 

Plaintiff’s depression creates problems with his ability to respond appropriately to supervisors, 

co-workers, and to changes in a routine work setting. Dr. Fouts concluded that Plaintiff could 

work 0-3 days per week and less than 3 consecutive weeks per month. (R. at 711-13.) 

 On February 8, 2012, Dr. Fouts prepared a narrative in which he reported that he treated 

Plaintiff on a regular basis for pain management both prior and following surgery.2 He opined 

 2

 Plaintiff testified during the second hearing before the ALJ that Dr. Fouts prescribed 

opioid pain medication to him for years. (R. at 863.) He indicated that after he stopped seeing 
5 

that Plaintiff is severely limited due to his pain and has been unable to work. He further opined 

that Plaintiff could not sit for more than 1 to 2 hours at a time. He also noted that Plaintiff has 

increased pain with activities that require standing for extended periods of time, including doing 

dishes, laundry, or mowing grass. Dr. Fouts also submitted that Plaintiff suffers from 

depression, with suicidal ideation. Dr. Fouts opined that Plaintiff likely will not obtain 

significant pain relief from additional surgical procedures. He concluded that Plaintiff is 

permanently and totally disabled due to chronic lower back pain and believes Plaintiff is going to 

require long term pain management in the future. (R. at 715-16.) 

III. STANDARD OF REVIEW 

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

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

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

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

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

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

defined as ‘more than a scintilla of evidence but less than a preponderance; it is such relevant 

evidence as a reasonable mind might accept as adequate to support a conclusion.’” Rogers, 486 

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

 

Dr. Fouts—Plaintiff believes Dr. Fouts terminated him from the practice because he owed 

money—he discovered that, although he never abused the medication, he was dependent on and 

addicted to opioids. Plaintiff began searching for pain pills on his own and at some point started 

using heroin for short period. (R. at 864-65.) He was able to stop using heroin when he started 

taking Suboxone and was still on Suboxone at the time of the hearing. (R. at 865.) 
6 

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

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

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

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

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

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

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

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

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

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

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

(6th Cir. 2007)). 

IV. ANALYSIS 

 Plaintiff asks the Court to reverse the ALJ’s nondisability finding because the ALJ again 

failed to appropriately weigh and analyze Dr. Fouts’ opinions. The Undersigned disagrees. 

The ALJ must consider all medical opinions that he or she receives in evaluating a 

claimant’s case. 20 C.F.R. § 416.927(c). The applicable regulations define medical opinions as 

“statements from physicians . . . that reflect judgments about the nature and severity of your 

impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite 

impairment(s), and your physical or mental restrictions.” 20 C.F.R. § 416.927(a)(2). 

 The ALJ generally gives deference to the opinions of a treating source “since these are 

likely to be the medical professionals most able to provide a detailed, longitudinal picture of [a 

patient’s] medical impairment(s) and may bring a unique prospective to the medical evidence 
7 

that cannot be obtained from the objective medical filings alone . . . .” 20 C.F.R. § 

416.927(c)(2); Blakley, 581 F.3d at 408. If the treating physician’s opinion is “well-supported 

by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with 

other substantial evidence in [the claimant’s] case record, [the ALJ] will give it controlling 

weight.” 20 C.F.R. § 404.1527(c)(2). 

 If the ALJ does not afford controlling weight to a treating physician’s opinion, the ALJ 

must meet certain procedural requirements. Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 

(6thCir. 2004). Specifically, if an ALJ does not give a treating source’s opinion controlling 

weight: 

[A]n ALJ must apply certain factors—namely, the length of the treatment 

relationship and the frequency of examination, the nature and extent of the 

treatment relationship, supportability of the opinion, consistency of the opinion 

with the record as a whole, and the specialization of the treating source—in 

determining what weight to give the opinion. 

Id. Furthermore, an ALJ must “always give good reasons in [the ALJ’s] notice of determination 

or decision for the weight [the ALJ] give[s] your treating source’s opinion.” 20 C.F.R. § 

416.927(c)(2). Accordingly, the ALJ’s reasoning “must be sufficiently specific to make clear to 

any subsequent reviewers the weight the adjudicator gave to the treating source’s medical 

opinion and the reasons for that weight.” Friend v. Comm’r of Soc. Sec., No. 09-3889, 2010 WL 

1725066, at *7 (6th Cir. Apr. 28, 2010) (internal quotation omitted). The United States Court of 

Appeals for the Sixth Circuit has stressed the importance of the good-reason requirement: 

“The requirement of reason-giving exists, in part, to let claimants understand the 

disposition of their cases,” particularly in situations where a claimant knows that 

his physician has deemed him disabled and therefore “might be especially 

bewildered when told by an administrative bureaucracy that she is not, unless some 

reason for the agency’s decision is supplied.” Snell v. Apfel, 177 F.3d 128, 134 (2d 

Cir.1999). The requirement also ensures that the ALJ applies the treating physician 
8 

rule and permits meaningful review of the ALJ’s application of the rule. See 

Halloran v. Barnhart, 362 F.3d 28, 32–33 (2d Cir. 2004). 

Wilson, 378 F.3d at 544–45. Thus, the reason-giving requirement is “particularly important 

when the treating physician has diagnosed the claimant as disabled.” Germany-Johnson v. 

Comm’r of Soc. Sec., 312 F. A’ppx 771, 777 (6th Cir. 2008) (citing Rogers, 486 F.3d at 242). 

 There is no requirement, however, that the ALJ “expressly” consider each of the Wilson

factors within the written decision. See Tilley v. Comm’r of Soc. Sec., No. 09-6081, 2010 WL 

3521928, at *6 (6th Cir. Aug. 31, 2010) (indicating that, under Blakley and the good reason rule, 

an ALJ is not required to explicitly address all of the six factors within 20 C.F.R. § 

404.1527(c)(2) for weighing medical opinion evidence within the written decision). 

 In the ALJ’s first decision, his discussion of Dr. Fouts’ opinions was limited: 

Dr. Fouts has submitted three medical source statements, all of which would 

support a finding of disability. Dr. Fouts appears to qualify as a treating source 

within the meaning of the regulations, as there is a treatment relationship dating 

back to 2007 (Exhibit 19F). The regulations further provide that a treating source 

opinion is entitled to controlling weight where it is well supported by and not 

inconsistent with objective clinical and laboratory findings. 

I do not assign controlling weight to any of these statements. First, I note that Dr. 

Fouts is a primary care physician and is not a specialist in occupational medicine, 

physical medicine or rehabilitation or in orthopedics or neurology. The absence of 

any specialized training is a factor to be considered in determining weight of 

medical source opinions. 

Rather, [] very little weight is given to the opinions dated February 6, 2012 (Exhibit 

35F) and February 8, 2012 (Exhibit 36F), as these opinions (i.e. sitting, standing, 

and walking less than four hours and having to lie down up to four hours in an 

eight-hour day) are more restrictive than the totality of the medical evidence 

suggests. Such a conclusion is inconsistent with his own treatment notes at Exhibits 

34F and 37F. Further, the final responsibility to determine whether a [Plaintiff] is 

“disabled” or “unable to work” is reserved for the Commissioner pursuant to 20 

CFR 404.1527(e) and 416.927(e). For these reasons I also assign little weight to 

the conclusory statements dated April 25, 2011 (Exhibit 19F p. 2), as the opinion is 

inconsistent with the totality of the medical evidence of the record and other 
9 

credible medical opinions as noted herein. Moreover, the doctor failed to provide 

a function-by-function analysis that specified specific abilities. 

(R. at 95-96.) 

 The Court found this discussion inadequate. Specifically, the Court found as follows:

A review of the ALJ’s discussion of the objective evidence demonstrates that the 

ALJ failed to consider the entire record in assessing whether Dr. Fouts’ opinions 

were entitled to controlling weight. Rather than focusing on the signs and 

symptoms that Plaintiff exhibited upon medical examination, the ALJ points to all 

the signs and symptoms that were not present. In doing so, the ALJ attempts to use 

the purported lack of evidence to conclude that Plaintiff is not credible and that Dr. 

Fouts’ opinions are inconsistent with the objective evidence in the record. In doing 

so, however, the ALJ misstated some important evidence and improperly failed to 

consider other evidence. 

 

(R. at 911.) 

 By comparison, the ALJ provided the following reasoning for assigning only “little 

weight” to Dr. Fouts’ opinions after the second hearing. After thoroughly summarizing the 

clinical and laboratory findings, as well as noting Plaintiff’s daily activities of living extensively, 

the ALJ concluded as follows: 

I give little weight to the opinions, as they are more restrictive than the totality of 

the medical evidence suggests, though I do acknowledge that the claimant is limited 

to sedentary work. I also give little weight to his assessment that the claimant could 

not lift, carry, stoop, kneel, bend, walk for extended periods, or stand for an 

extended period. Final responsibility to determine whether a claimant is “disabled” 

or “unable to work” is reserved for the Commissioner pursuant to 20 CFR 

404.1527(e) and 416.927(e). Dr. Fouts is a treating source within the meaning of 

the regulations, as there is a treatment relationship dating back to 2007. The 

regulations further provide that a treating source opinion is entitled to controlling 

weight where it is well supported by and not inconsistent with objective clinical 

and laboratory findings. I do not assign controlling weight to any of Dr. Fouts’ 

statements, as I do not find that [they] are well supported by or consistent with the 

above-summarized clinical and laboratory findings. While the summarized record 

documents some findings on examinations, such as positive [straight leg raises] 

results and an antalgic gait, such findings have been inconsistent, and the record 

generally documents a normal gait, an ability to ambulate without assistance, and 

the absence of neurological deficits. Additionally, the claimant’s subjective reports 

have been inconsistent with objective findings and/or other reports and 
10 

observations. There was relatively little treatment in 2012, and, in December 2012, 

he sought treatment for a one-day history of headache but denied joint pain, back 

pain, neck pain, numbness, tingling, and weakness. Elsewhere, he also denied back 

tenderness, and he had no motor or sensory deficits. An April 2014 treatment note 

indicated that he was exercising, changing his diet, and going on walks two to three 

times a week, and he was ambulatory without assistance. In July 2014, he appeared 

comfortable when seated but grimaced when he stood and walked, though he was 

able to walk without assistance. In February 2015, he fell while walking up steps 

to a mobile home but had no significant discomfort until later, and he did not want 

his right knee x-rayed. He was neurovascularly intact. In March 2015, he reported 

chronic knee pain, though he denied inability to bear weight, numbness, tingling, 

neck pain, back pain, myalgias, extremity pain, and extremity swelling. In 

November 2015, he reported left knee pain but was in no acute distress. A 

December 2015 postsurgical treatment note revealed that he safely moved about 

the community, had not fallen in the last six months, and had normal, unassisted 

walking and striding without hesitation. More recently, in June 2016, he reported 

continued back pain with radiation to his groin and numbness to his legs and 

reportedly had gotten a wheelchair, but he had a normal gait and station on 

examination with no neurological deficits. In July 2016, he presented with low 

back pain a level of 5 on a 10-point scale and had some positive findings on 

examination, but was ambulatory without assistance. September 2016 

electrodiagnostic testing revealed no evidence of any focal neuropathy or 

radiculopathy. I also note that the claimant’s alleged intensity and frequency of 

symptoms, as reported to Dr. Fouts, were inconsistent with the claimant’s activities 

of daily living, as summarized throughout this decision. For all these reasons, I 

give Dr. Fout’s opinions little weight. 

(R. at 792-93.) 

 As set forth above, in April 2011, Dr. Fouts opined that Plaintiff’s pain and reduced range 

of motion severely limited in his ability to work; he had pain with limited activity such as 

sitting/driving; and was unable to lift, carry, stoop, kneel, bend, or walk or stand for an extended 

period. (R. at 508.) 

On February 6, 2012, Dr. Fouts completed a “Physical Capacity Evaluation” in which he 

opined that Plaintiff could occasionally lift and carry five pounds, stand/walk less than thirty 

minutes, sit less than thirty minutes, and needed to alternate sitting/standing every ten to fifteen 

minutes and lie down two to four times in an eight-hour work day. (R. at 711.) Dr. Fouts also 
11 

opined that Plaintiff could occasionally climb stairs; never twist, stoop/bend, crouch, and climb 

ladders; never push/pull; occasional reach; and frequently handle, finger, and feel. (R. at 712-

13.) Dr. Fouts further opined that Plaintiff could only perform the above activities on a sustained 

basis up to three days per week and less than three consecutive weeks per month. (R. at 713.) 

On February 8, 2012, Dr. Fouts opined that Plaintiff was unable to work due to chronic 

and severe pain, and was unable to sit for more than one to two hours due to worsening of pain. 

(R. at 716.) Dr. Fouts further opined that Plaintiff was “permanently and totally disabled due to 

chronic lower back pain.” (Id.) 

As an initial matter, the ALJ reasonably rejected Dr. Fouts’ conclusions that Plaintiff is 

disabled and unable to work because such determinations are specifically reserved to the 

Commissioner. Bass v. McMahon, 499 F.3d 506, 511 (6th Cir. 2007) (holding that the ALJ 

properly rejected a treating source’s opinion that the claimant was disabled because such a 

determination was reserved to the Commissioner). This opinion “is not a medial opinion 

requiring consideration.” Allen v. Comm’r of Soc. Sec., 561 F.3d 646, 652 (6th Cir. 2009). 

Nevertheless, Plaintiff contends that the ALJ’s reasoning was “predominantly focused on 

an assertion that the physical examinations of record do not support the limitation assessed by 

Dr. Fouts because of normal findings on exam, even though there are some abnormal findings on 

exam.” (Pl’s Brief at p. 27.) He maintains that the reasoning employed by the ALJ “is very 

similar to the reasoning in his first decision . . . .” (Id.) 

The Undersigned finds that the ALJ complied with the necessary procedural requirements 

in determining how much weight to assign the medical opinions. The ALJ provided specific 

reasons for assigning less weight to Dr. Fouts’ assessments. First, the ALJ noted that Dr. Fouts’ 

assessment was not fully supported by his own treatment records and with the record as a whole. 
12 

These are good reasons to discount a treating physician’s opinion. See Bledsoe v. Barnhart, 165 

F. App’x 408, 412 (6th Cir. 2006) (concluding that an ALJ’s assessment that a treating 

physician’s conclusions were “not well supported by the overall evidence of record and [were] 

inconsistent with other medical evidence of record” was a “specific reason for not affording 

controlling weight” to the treating physician); see also 20 C.F.R. § 404.1527(c)(3) (“Generally, 

the more consistent an opinion is with the record as a whole, the more weight we will give to that 

opinion.”). 

The ALJ did not, as Plaintiff complains, discount Dr. Fouts’ opinions by focusing on 

Plaintiff’s intermittent normal exam findings and dismissing his abnormal findings. Rather, the 

ALJ expressly considered both Plaintiff’s abnormal medical findings and normal findings in 

giving Dr. Fouts’ opinions “little weight.” The ALJ summarized the record and noted some 

abnormal exam findings, such as positive straight leg raise-test results with an antalgic gait. The 

ALJ, however, concluded that these abnormal findings had been inconsistent and the record 

generally documented a normal gait, an ability to ambulate without assistance, and the absence 

of neurological deficits. (R. at 793.) The ALJ included a lengthy and thorough discussion of the 

record evidence, including the objective medical findings. See 20 C.F.R. § 404.1529(c)(2) 

(objective medical findings are useful in assessing the intensity and persistence of a claimant’s 

symptoms). Substantial evidence supports this conclusion. 

For instance, as the ALJ noted, in July 2014, Plaintiff appeared comfortable when seated, 

but grimaced when he stood and walked, although he was able to walk without assistance. (R. at 

1285.) The ALJ acknowledged that Plaintiff fell while walking up the stairs of a mobile home in 

February 2015, but noted Plaintiff had no significant discomfort until later, he did not want his 

right knee x-rayed, and he was neurologically intact. (R. at 1440-41.) Plaintiff reported chronic 
13 

knee pain in March 2015, but denied that he was unable to bear weight or had numbness, 

tingling, neck pain, back pain, myalgias, extremity pain or extremity swelling. (R. at 1431.) The 

ALJ thoroughly documented and the record confirms other inconsistencies such as a November 

2015 report of left knee pain, but Plaintiff was in no acute distress (R. at 1958) and a December 

2015 post-surgical treatment note indicating that he moved safely, had not fallen in the last six 

months, and had normal unassisted walking, and striding without hesitation. (R. at 1939.) 

Substantial evidence also supports the ALJ’s conclusions that Plaintiff’s subjective 

reports had been inconsistent with other objective findings and observations and that during the 

relevant period he had at times decline and not sought significant treatment. The ALJ noted that 

Plaintiff managed his pain conservatively since his initial surgery, and that he initially declined 

pain management and no further lumbar spine surgery had been recommended. (R. at 789.) 

Plaintiff also initially did not participate in physical therapy, occupational therapy, or other 

rehabilitative therapy. (R. at 613-14, 700, 736, 739.) Plaintiff often declined further medical 

treatment, including referral to the OSU spinal clinic and pain management. In June 2016, 

Plaintiff reported continued back pain with radiation to his groin and numbness to his legs and 

reportedly had a wheelchair, but he had a normal gait and station on examination with no 

neurological defects. (R. at 2377, 2379.) In July 2016, Plaintiff presented with low back pain at 

a level of 5 on a 10-point scale and some positive exam findings, but he was ambulatory without 

assistance. (R. at 2354-56.) In September 2016, Plaintiff’s EMG testing revealed no evidence 

of any focal neuropathy or radiculopathy. (R. at 2388.) Plaintiff received relatively little 

treatment in 2012. Plaintiff sought treatment for a one-day history of headache on December 9, 

2012, but at that time denied joint pain, back pain, neck pain, numbness, tingling, and weakness. 

(R. at 1219.) On December 13, 2012, Plaintiff denied back tenderness and had no motor or 
14 

sensory deficits. (R. at 1798.) Dr. Fouts’ opinion that Plaintiff was severely impaired and 

incapable of working is inconsistent with all of this record evidence. The ALJ properly 

discounted Dr. Fouts’ opinion for these reasons. See Rudd v. Comm’r of Soc. Sec., 531 F. App’x, 

719, 727 (6th Cir. 2013) (minimal or lack of treatment is valid reason to discount severity); 

Despins v. Comm’r of Soc. Sec., 257 F. App’x 923, 931 (6th Cir. 2007) (“The ALJ properly 

considered as relevant the fact that [the claimant’s] medical records did not indicate that 

[claimant] received significant treatment . . . during the relevant time period.”) 

The ALJ also found that Plaintiff’s alleged intensity and frequency of symptoms, as he 

described to Dr. Fouts, were inconsistent with Plaintiff’s activities of daily living. The 

Undersigned concludes that ALJ reasonably considered the record evidence reflecting Plaintiff’s 

activities of daily living. See 20 C.F.R. § 404.1529(c)(3)(i) (daily activities may be useful to 

assess nature and severity of claimant’s symptoms); Warner v. Comm’r of Soc. Sec., 375 F.3d 

387, 392 (6th Cir. 2004) (“The administrative law judge justifiably considered [the claimant’s] 

ability to conduct daily life activities in the face of his claim of disabling pain.”). The evidence 

supports this conclusion. For instance, treatment notes in April 2014 indicated that Plaintiff was 

exercising and going on walks two to three times a week. (R. at 1281.) Plaintiff indicated in his 

April 2011 function report that he lived alone in a mobile home, tried to exercise and stretch, 

prepared simple meals once a day, went outside once a day, drove a car, and played guitar maybe 

twice a week. (R. at 318-28.) By November 2014, Plaintiff was living in a house with family, 

engaged in physical therapy, attended medical appointments, drove a car, grocery shopped once 

a month with his father’s assistance, and attended church a few times a month. 

During the second hearing before the ALJ in November 2016, Plaintiff testified that he 

showered using a shower chair, cleaned his bed if he wet it, dressed but with his mother’s 
15 

assistance, and stretched. (R. at 785.) However, also in November 2016, treatment notes 

indicated that Plaintiff reported that he had no limitation with respect to feeding himself and only 

a little limitation with respect to lifting and carrying groceries, bathing, dressing, and getting out 

of a chair. (R. at 2468.)3 While Plaintiff reported some limitations in his activities of daily 

living, the ALJ reasonably found that his alleged intensity and frequency of symptoms as he 

reported to Dr. Fouts were inconsistent with his daily activities. Under these circumstances, the 

ALJ properly considered the medical record and other evidence, including Plaintiff’s activities of 

daily living, in discrediting the Dr. Fouts’ opinions. See Miller v. Comm’r of Soc. Sec., 524 F. 

App’x 191, 194 (6th Cir. 2013) (discounting opinions of treating source that conflicted with 

other treatment records and evidence that the plaintiff could perform significant daily activities); 

Maloney v. Comm’r of Soc. Sec., 480 F. App’x 804, 809 (6th Cir. 2012) (discounting opinions of 

treating source that conflicted with the claimant's own testimony regarding her abilities); 

Hutchins v. Berryhill, 376 F. Supp. 3d 775, 780 (E.D. Mich., 2019) (“An ALJ may properly 

consider a claimant's ability to perform daily activities, as well as a claimant's testimony 

regarding his abilities, in discounting the opinions of a treating source.”) 

Plaintiff insists that the ALJ committed the same error in evaluating Dr. Fouts’ opinion in 

this case that he made after the first hearing. Specifically, Plaintiff argues that the ALJ’s 

reasoning in discounting Dr. Fouts here was “very similar to his first decision” and focused on 

 3

 Plaintiff did indicate that he had “a lot” of limitation with respect to running, lifting 

heavy objects, climbing stairs, bending, kneeling, stooping, and walking one block or mile. (R. 

at 2468.) The ALJ acknowledged these more significant limitations but nevertheless found that 

the record did not contain evidence of abnormal clinical and laboratory findings sufficient to 

document such restrictive loss of function. (R. at 791.) 
16 

intermittent normal physical findings and ignored abnormal findings without explanation. The 

Undersigned disagrees. 

 The ALJ’s evaluation of Dr. Fouts’ opinions on remand was thorough and addressed this 

Court’s remand order. (R. at 906-14.) Contrary to Plaintiff’s argument, the ALJ’s decision is 

not at all similar to his prior decision and does not focus solely on Plaintiff’s normal exam 

findings. The ALJ’s evaluation of Dr. Fouts’ opinions in his second decision is significantly 

more thorough and detailed than his prior decision. The ALJ conducted a detailed analysis of all 

the medical evidence and considered Plaintiff’s activities of daily living throughout his decision. 

The ALJ did not, as Plaintiff contends, discount Dr. Fouts’ medical opinions based on 

intermittent normal findings. He did not ignore or dismiss abnormal exam findings. Rather, 

throughout his decision the ALJ noted several instances of medical record showing abnormal 

findings. The ALJ, however, assessed the entire record as a whole and reasonably concluded 

that Dr. Fouts’ opinion was inconsistent with it. He was entitled to do so. See 20 C.F.R. § 

404.1527(c)(4) (“Generally, the more consistent an opinion is with the record as a whole, the 

more weight we will give to that opinion”.); 20 C.F.R. § 404.1527(c)(2) (listing factors to be 

applied when a treating-source opinion is not given controlling weight, including the general 

consistency of the opinion with the record as a whole); Gayheart v. Commissioner of Social Sec., 

710 F.3d 365, 376 (6th Cir. 2013) (same). 

Instead, the ALJ expressly acknowledged records with abnormal findings. The ALJ’s 

robust description of all the medical record, including abnormal findings, indicates that he 

adequately considered the medical record as a whole in evaluating Dr. Fouts’ opinions. (R. at 

788-91, 793.) The ALJ expressly acknowledged treatment notes showing reduced range of 

motion of the lumbar spine, low back pain, lower extremity weakness, muscle tenderness, and 
17 

reduced range of motion, grimacing when standing in July 2014, and positive straight leg raising 

with an antalgic gait. (Id.) Reading the ALJ’s entire decision as a whole, however, he also noted 

treatment records showing that Plaintiff generally had a normal gait, an ability to ambulate 

without assistance, no motor or sensory deficits, and declined further treatment or did not 

participate in recommended physical therapy. Plaintiff also at times denied joint pain, back pain, 

back tenderness, neck pain, numbness, tingling, and weakness. (R. at 789, citing R. at 1219, 

1431, 1798). 

The ALJ properly found that while Plaintiff had some physical limitations, substantial 

evidence in the record does not support that Plaintiff was disabled or as limited as Dr. Fouts 

opined. To the extent Plaintiff objects because the ALJ did not highlight other specific records, 

the ALJ was not required to discuss every single piece of evidence. See Kornecky v. Comm’r of 

Soc. Sec., 167 F. App’x 496, 508 (6th Cir. 2006) (“While it might be ideal for an ALJ to 

articulate his reasons for crediting or discrediting each . . . opinion, it is well settled that an ALJ 

can consider all the evidence without directly addressing in his written decision every piece of 

evidence submitted by a party.”) (internal citations and quotations omitted); cf. Tilley v. Comm’r 

of Soc. Sec., No. 09 6081, 2010 WL 3521928, at *6 (6th Cir. Aug. 31, 2010) (indicating that, 

under Blakley and the good reason rule, an ALJ is not required to explicitly address all of the 

factors within 20 C.F.R. § 404.1527(d)(2) for weighing medical opinion evidence within the 

written decision). 

In sum, substantial evidence supports the ALJ’s decision discounting Dr. Fouts’ opinions 

that Plaintiff was unable to work, or unable to lift, carry, stoop, kneel, bend, or walk and stand 

for an extended period. The Undersigned finds that the ALJ sufficiently cured any inadequacies 
18 

in this discussion of the weight he assigned to Plaintiff’s treating physician, Dr. Fouts, in the 

second hearing. 

 V. CONCLUSION

 From a review of the record as a whole, the Undersigned concludes that substantial 

evidence supports the ALJ’s decision denying benefits. For the foregoing reasons, it is 

RECOMMENDED that the Court OVERRULE Plaintiff’s Statement of Errors and AFFIRM 

the Commissioner’s decision. 

VIII. PROCEDURE ON OBJECTIONS

 If any party seeks review by the District Judge of this Report and Recommendation, that 

party may, within fourteen (14) days, file and serve on all parties objections to the Report and 

Recommendation, specifically designating this Report and Recommendation, and the part in 

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). 

Response to objections must be filed within fourteen (14) days after being served with a copy. 

Fed. R. Civ. P. 72(b). 

 The parties are specifically advised that the failure to object to the Report and 

Recommendation will result in a waiver of the right to de novo review by the District Judge and 

waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex 

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate 

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district 

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that 
19 

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to 

magistrate judge’s report and recommendation). Even when timely objections are filed, 

appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 

981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to 

specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation 

omitted)). 

Date: July 12, 2019 /s/ Elizabeth A. Preston Deavers 

 Elizabeth A. Preston Deavers 

 Chief United States Magistrate Judge