IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Russell D. Davidson,

Plaintiff,

v. Case No. 2:17-cv-1121

Commissioner of

Social Security,

Defendant.

OPINION AND ORDER

Plaintiff Russell D. Davidson brings this action under 42

U.S.C. §405(g) for review of the final decision of the Commissioner

of Social Security (“Commissioner”) denying his applications for

social security disability insurance benefits and supplemental

security income. In a decision rendered on October 5, 2016, the

administrative law judge (“ALJ”) found that plaintiff has severe

impairments consisting of ischemic heart disease; inflammatory

bowel disease; diabetes mellitus, type II; hypertension;

degenerative joint disease of the right knee, status post meniscus

tear, osteoarthritis, and arthroscopic surgery in December, 2015;

degenerative joint disease of the hips; degenerative disc disease

of the spine; chronic obstructive pulmonary disease; and obesity. 

R 14. The ALJ concluded that plaintiff has the residual functional

capacity (“RFC”) to perform sedentary work, except that he:

could occasionally climb ramps and stairs, but would be

precluded from climbing ladders, ropes, and scaffolds. 

He could occasionally stoop, kneel, crouch, and crawl. 

He would be limited to occasional balancing and could

occasionally use right foot controls. Further, the

claimant could have frequent exposure to extreme cold,

extreme heat, wetness, and humidity.

R. 19. Upon consideration of the testimony of a vocational expert,
the ALJ concluded that there are a significant number of jobs in

the national economy which plaintiff could perform, and that he is

not disabled. R. 31-33. This matter is now before the court for

consideration of plaintiff’s February 19, 2020, objections to the

February 6, 2020, report and recommendation of the magistrate judge

which recommended that the decision of the Commissioner be

affirmed. The Commissioner has filed a response to the objections.

I. Standard of Review

If a party objects within the allotted time to a report and

recommendation, the court “shall make a de novo determination of

those portions of the report or specified proposed findings or

recommendations to which objection is made.” 28 U.S.C.

§ 636(b)(1); see also Fed. R. Civ. P. 72(b). Upon review, the

court “may accept, reject, or modify, in whole or in part, the

findings or recommendations made by the magistrate judge.” 28

U.S.C. § 636(b)(1).

The court’s review “is limited to determining whether the

Commissioner’s decision ‘is supported by substantial evidence and

was made pursuant to proper legal standards.’” Ealy v. Comm’r of

Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010) (quoting Rogers v.

Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also,

42 U.S.C. § 405(g) (“The findings of the Commissioner of Social

Security as to any fact, if supported by substantial evidence,

shall be conclusive.”). “Substantial evidence exists when ‘a

reasonable mind could accept the evidence as adequate to support a

conclusion [and] ... presupposes that there is a zone of choice

within which the decision-makers can go either way, without

interference by the courts.’” Blakley v. Comm’r of Soc. Sec., 581

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F.3d 399, 406 (6th Cir. 2009)(internal citation omitted). A

reviewing court will affirm the Commissioner’s decision if it is

based on substantial evidence, even if substantial evidence would

also have supported the opposite conclusion. Gayheart v. Comm’r of

Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013). However, “‘a

decision of the Commissioner will not be upheld where the

[Commissioner] 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 v. Comm’r of Soc. Sec., 582 F.3d

647, 651 (6th Cir. 2009) (quoting Bowen v. Comm’r of Soc. Sec., 478

F.3d 742, 746 (6th Cir. 2007)).

II. Plaintiff’s Objections

A. Consideration of Expert Opinions

1. Opinions of David DeWalt, D.O.

Plaintiff objects to the conclusion of the magistrate judge

that the ALJ provided good reasons for the weight assigned to the

opinions of plaintiff’s treating primary care physician, Dr.

DeWalt. On April 3, 2014, Dr. DeWalt completed a multiple

impairment questionnaire. R. 1074. On this check-box form, Dr.

DeWalt listed plaintiff’s symptoms and diagnoses. He stated that

plaintiff’s symptoms included rectal bleeding, poor balance,

numbness in the feet, abdominal pain in the lower quadrant, and

burning pain in the extremities caused by poor blood sugar levels. 

Dr. DeWalt opined that plaintiff could sit for a total of three

hours and stand or walk for a total of one hour in a workday, that

he had limitations in reaching, handling, fingering and lifting,

and that he would likely be absent from work more than three days

a month. In a letter prepared on June 29, 2015, Dr. DeWalt

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described plaintiff’s diagnoses, and indicated that plaintiff also

saw specialists in gastroenterology, pain management and

cardiology. He opined that plaintiff could not work a full-time

job in light of his medical problems, and that he was likely

permanently disabled. R. 1678.

Treating-source opinions must be given “controlling weight”

if: (1) the opinion “is well-supported by medically acceptable

clinical and laboratory diagnostic techniques”; and (2) the opinion

“is not inconsistent with the other substantial evidence in [the]

case record.” See 20 C.F.R. §404.1527(c)(2); Soc. Sec. Rul. No.

96-2p, 1996 WL 374188 at *2-3 (Soc. Sec. Admin. July 2, 1996). If

the opinion of the treating doctor does not meet these “controlling

weight” criteria, this does not mean that the opinion must be

rejected; rather, it “may still be entitled to deference and be

adopted by the adjudicator.” Soc. Sec. Rul. No. 96-2p, 1996 WL

374188 at *1. If the Commissioner does not give a treating-source

opinion controlling weight, then the opinion is weighed based on

factors such as the length, frequency, nature, and extent of the

treatment relationship, the treating source’s area of specialty,

and the degree to which the opinion is consistent with the record

as a whole and is supported by relevant evidence. 20 C.F.R.

§404.1527(c)(2)-(6); Gayheart, 710 F.3d at 376. However, the ALJ

is not required to address each of these factors in the written

decision. Tilley v. Comm’r of Soc. Sec., 394 F. App’x 216, 222

(6th Cir. 2010); see also Friend v. Comm’r of Soc. Sec., 375 F.

App’x 543, 551 (6th Cir. 2010)(a formulaic recitation of factors is

not required).

The Commissioner is required to provide “good reasons” for

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discounting the weight given to a treating-source opinion. 

§404.1527(c)(2). These reasons must be “supported by the evidence

in the case record, and 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.” 

Soc. Sec. Rul. No. 96-2p, 1996 WL 374188 at *5; Rogers, 486 F.3d at

242. However, an ALJ need not discuss every piece of evidence in

the record for his decision to stand, see Thacker v. Comm’r of Soc.

Sec., 99 F.App’x 661, 665 (6th Cir. 2004), and the failure to cite

specific evidence does not indicate that it was not considered, see

Simons v. Barnhart, 114 F. App’x 727, 733 (6th Cir. 2004). See

also Bayes v. Comm’r of Soc. Sec., 757 F. App’x 436, 445 (6th Cir.

2018)(ALJ was not required to address each check mark on form

completed by doctor). The ALJ may also accomplish the goals of the

“good reasons” requirement by indirectly attacking the

supportability of the treating physician’s opinion or its

consistency with other evidence in the record. Coldiron v. Comm’r

of Soc. Sec., 391 F. App’x 435, 439-41 (6th Cir. 2010); Nelson v.

Comm’r of Soc. Sec., 195 F. App’x 462, 470-72 (6th Cir. 2006).

This court agrees with the conclusion of the magistrate judge

that the ALJ provided sufficient reasons for the weight he assigned

to Dr. DeWalt’s opinions. The ALJ properly assigned little weight

to Dr. DeWalt’s 2015 opinion that plaintiff was not employable, was

unable to work a full-time job, and would “[m]ost likely” be

permanently disabled. R. 28, 1678. The ALJ correctly noted that

Dr. DeWalt’s opinion that plaintiff is disabled was speculative and

that he described no functional limitations in his letter which

would restrict plaintiff’s ability to work. The ALJ and the

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magistrate judge did not err in observing that the determinations

of whether a claimant is disabled or unable to work are reserved to

the Commissioner. R. 28. See Bass v. McMahon, 499 F.3d 506, 511

(6th Cir. 2007)(determination of disability is reserved to the

Commissioner); see also Turner v. Comm’r of Soc. Sec., 381 F. App’x

488, 492-93 (6th Cir. 2010)(opinion concerning whether claimant is

disabled or unable to work is on an issue reserved to the

Commissioner and is not entitled to any particular weight).

The ALJ afforded some weight to Dr. DeWalt’s statement

concerning plaintiff’s listed conditions, but concluded that the

record did not support the severity of those conditions as opined

by Dr. DeWalt. R. 28. The ALJ further stated that although

plaintiff would experience some physical limitations as a result of

his conditions, the record showed that plaintiff’s cardiologist had

indicated that the cardiac condition has not worsened and is not

significantly limiting, and that plaintiff’s lower extremity and

spinal degeneration resulted in no gait abnormalities, strength

deficits, reflex problems, or muscle atrophy. R. 29. The ALJ

concluded that Dr. DeWalt’s 2015 letter was not consistent with the

medical evidence and other opinion evidence. This was sufficient

to comply with the regulations. See Bledsoe v. Barnhart, 165 F.

App’x 408, 412 (6th Cir. 2006). 

 As to the April, 2014, assessment, the ALJ assigned little

weight to Dr. DeWalt’s opinion that plaintiff would be unable to

engage in work activities on a sustained basis. R. 29. The ALJ

stated that this opinion was not supported by the totality of the

evidence, and correctly noted that the issue of disability was

reserved to the Commissioner. The ALJ further concluded that the

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likelihood that plaintiff would miss three or more workdays per

month was not supported by the record, as there was no evidence

that plaintiff receives medical treatment which would prevent him

from attending work regularly or which would require multiple day

recovery time. Dr. DeWalt’s estimate of likely work absences also

concerned an issue reserved to the Commissioner. See Saulic v.

Colvin, No. 5:12CV2753, 2013 WL 5234243, at *9 (N.D. Ohio Sept. 16,

2013)(treating source’s statement regarding likely work absences

was not a medical opinion). The ALJ afforded some weight to the

proposed limitations on standing, sitting, walking, lifting, and

carrying, but concluded that plaintiff was capable of these

activities within the definition of sedentary work. R. 29. The

ALJ rejected the limitations on grasping, engaging in fine

manipulation or reach, noting that although plaintiff reported some

hand pain and swelling, he did not report any functional

limitations or dropping of objects, and that he engaged in the

daily activities of cooking, driving, preparing meals, dressing,

and tying shoes without the need for assistance. R. 29. The ALJ

also noted that the additional medical evidence received after 2014

concerning plaintiff’s chronic obstructive pulmonary disease was

accommodated by the environmental limitations in the RFC. R. 29-

30.

The ALJ also thoroughly discussed plaintiff’s medical records. 

The ALJ concluded that even though plaintiff did not specifically

report that his weight (recently 280 pounds) negatively impacted

his physical mobility, plaintiff’s obesity was taken into account

by limiting him to sedentary work. R. 20. The ALJ also noted that

despite plaintiff’s intermittent pulmonary conditions such as

bronchitis and one instance of pneumonia, there was no evidence of

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pulmonary disease or embolism, he received conservative treatment

with medication, and his symptoms were adequately addressed by the

sedentary work level. R. 20-21. The ALj observed that plaintiff’s

diabetic condition was recently controlled and was taken into

account by the physical limitations in the RFC. R. 21. The ALJ

recognized plaintiff’s history of bowel problems, including a

remote history of Crohn’s disease and irritable bowel syndrome, but

noted that his conditions were under good control in 2015. R. 22. 

The ALJ also addressed plaintiff’s right knee, hip and back pain,

noting that despite these conditions, plaintiff walked with a

normal gait, had normal reflexes, body control, and motor strength, 

and he reported that he could walk distances without the use of a

cane. R. 22-23. The ALJ noted that, following multiple

catheterizations, plaintiff’s coronary artery disease was stable,

and that his treating cardiologist noted in 2015 and 2016 that

plaintiff’s heart conditions, including angina, were not limiting

or causing any symptoms. R. 24-25.

Plaintiff argues that the ALJ erred in citing a conflict

between the 2014 opinion, in which Dr. DeWalt stated that plaintiff

could perform low stress work, and his later conclusion in 2015

that plaintiff was unable to work. Plaintiff contends that the

plaintiff’s ability to tolerate low stress in the workplace does

not mean that he is otherwise physically capable of working. The

magistrate judge correctly concluded that even if the ALJ erred in

this observation, reversal is not warranted because the ALJ

identified several additional reasons why plaintiff was capable of

a reduced range of sedentary work. See Ulman v. Comm’r of Soc.

Sec., 693 F.3d 709, 714 (6th Cir. 2012)( upholding decision despite

ALJ’s partial reliance on an erroneous factual finding because the

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ALJ cited other substantial, legitimate evidence to support his

factual conclusions).

The magistrate judge did not err in observing that Dr. DeWalt

“provided almost no rationale for reaching his bare-boned

conclusions, offered mostly one or two-word answers and checked off

boxes on the questionnaire.” Doc. 14, p. 17. The magistrate judge

correctly concluded that the ALJ could assign little weight to an

opinion from a treating source when, in completing a checkbox form,

the physician provided little or no explanation for the

restrictions and cited no supporting objective medical evidence. 

See Ellars v. Comm’r of Soc. Sec., 647 F. App’x 563, 567 (6th Cir.

2016); Price v. Comm’r of Soc. Sec. Admin., 342 F. App’x 172, 176

(6th Cir. 2009); Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 530

(6th Cir. 1997). The magistrate judge also properly examined the

record evidence as a whole and cited additional evidence in

deciding whether the ALJ’s evaluation of Dr. DeWalt’s opinions was

based on substantial evidence. It is the function of the

magistrate judge and this court to review the record to determine

whether the Commissioner’s decision is supported by substantial

evidence. Ealy, 594 F.3d at 512; see also Heston v. Comm’r of Soc.

Sec., 245 F.3d 528, 535 (6th Cir. 2001)(review of the

Commissioner’s findings must be based on the record as a whole). 

The magistrate judge correctly concluded that the ALJ did not

violate the treating physician rule or otherwise err in his

consideration and weighing of Dr. DeWalt’s opinions.

2. Opinions of State Agency Physicians

Plaintiff argues that the ALJ erred in his consideration of

the opinions of the state agency physicians by giving their opinion

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greater weight than that accorded to Dr. DeWalt’s opinions. The

ALJ gave some weight to the May 6, 2014, opinion of Elizabeth Das,

M.D. (Exhibit 1A), and the September 9, 2014, opinion of Leon D.

Hughes, M.D. (Exhibit 5A). He also gave some weight to the 2014

opinion of Dr. DeWalt, although he gave little weight to Dr.

DeWalt’s 2015 letter opinion. Although the opinions of a treating

source are generally entitled to more weight than the opinion of a

non-examining source such as state agency consultants, Gayheart,

710 F.3d at 375, this is not a per se rule. See Norris v. Comm’r

of Soc. Sec., 461 F.App’x 433, 438-40 (6th Cir. 2012); SSR 96-6p,

1996 WL 374180 at *3 (July 2, 1996). The magistrate judge

correctly concluded that the weight the ALJ assigned to the

opinions of the state agency physicians was supported by

substantial evidence. In fact, the ALJ concluded that plaintiff

would have greater postural limitations than those posed by the

state consultants, and limited plaintiff to a sedentary level of

work rather than the light exertional level assessed by the

consultants. R. 30.

Plaintiff further argues that weight should not have been

assigned to the opinions of the state consultants because they did

not have the entire record before them when rendering their

opinions in 2014. However, neither did Dr. DeWalt when he rendered

his 2014 and 2015 opinions. As the magistrate judge observed,

there is “no categorical requirement that [a] non-treating source’s

opinion be based on a ‘complete’ or ‘more detailed and

comprehensive’ case record.” Helm v. Comm’r of Soc. Sec., 405 F.

App’x 997, 1002 (6th Cir. 2011); Kelly v. Comm’r of Soc. Sec., 314

F. App’x 827, 831 (6th Cir. 2009)(noting that there will always be

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a gap between the time the agency experts review the record and the

time the hearing decision is issued).

An ALJ can rely on a non-examining source who did not have the

opportunity to review later medical records as long as there is

some indication in the decision that the ALJ considered the new

evidence before giving weight to an opinion that is not based on a

review of a complete case record. Blakley, 581 F.3d at 409. Here,

the ALJ thoroughly discussed plaintiff’s treatment records,

including records from 2015 and 2016. R. 20-25. This review was

sufficient. See McGrew v. Comm’r of Soc. Sec., 343 F. App’x 26, 32

(6th Cir. 2009)(finding no error when it was clear from the ALJ’s

decision that he considered medical examinations that occurred

after the state agency physician’s assessment). Plaintiff argues

that the ALJ was impermissibly “playing doctor” in considering

evidence not before the state agency physicians. The ALJ was not

“playing doctor” in considering later medical records; rather, the

above cases indicate that he was required to consider all evidence

in the record, not just the evidence before the state agency

consultants. The ALJ properly assigned weight to the opinions of

the state agency consultants.

B. Evaluation of Plaintiff’s Testimony

Plaintiff objects to the conclusion of the magistrate judge

that the ALJ properly evaluated plaintiff’s statements regarding

his symptoms. Consideration of a claimant’s subjective symptoms is

governed by SSR 16-3p, 2016 WL 1119029 (Mar. 16, 2016), which

eliminated the use of the term “credibility” in order to “clarify

that subjective symptom evaluation is not an examination of an

individual’s character.” SSR 16-3p, 2016 WL 1119029 at *1. The

new ruling directs the ALJ to look at whether the claimant’s

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statements about the intensity, persistence and limiting effects of

symptoms are consistent with the objective medical evidence and

other evidence of record. Id., 2016 WL 1119029 at *7.

The ALJ summarized plaintiff’s testimony at the hearing. R.

19-20. The ALJ then concluded that plaintiff’s statements

concerning the intensity, persistence and limiting effects of his

symptoms were not entirely consistent with the medical evidence. 

R. 20. See Ferguson v. Comm’r of Soc. Sec., 628 F.3d 269, 273-74

(6th Cir. 2010)(ALJ can consider whether plaintiff’s subjective

complaints were supported by objective medical evidence). The ALJ

discussed the medical and opinion evidence at length in his

decision. The ALJ noted that symptoms reported by plaintiff on the

social security application forms, such as poor memory, blurred

vision, confusion, drowsiness, thirst, hunger, tiredness and

dizziness, were not reported to his treating medical providers and

were contradicted by treatment records. Plaintiff argues that the

ALJ mischaracterized the record by noting that plaintiff said that

he stopped working because he was laid off without acknowledging

treatment records for numbness/decreased sensation, limited motion,

decreased reflexes and muscle spasms. However, the ALJ explicitly

acknowledged those symptoms and the fact that plaintiff was

experiencing physical problems when he was laid off. R. 21, 22 and

26.

The ALJ discussed plaintiff’s daily activities, which included

caring for his personal needs, doing dishes, preparing meals,

taking out the trash, driving and managing his finances. R. 26. 

The ALJ did not rely exclusively on plaintiff’s daily activities in

determining the severity of his symptoms. The ALJ could properly

consider plaintiff’s daily activities along with the other evidence

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in evaluating whether plaintiff is disabled and in formulating his

RFC. See 20 C.F.R. §404.1529(c)(3)(i); Cruse v. Comm’r of Soc.

Sec., 502 F.3d 532, 543 (6th Cir. 2007). The ALJ also observed

that plaintiff made inconsistent reports to providers, and received

only conservative treatment. R. 26-27. See Lester v. Social Sec.

Admin., 596 F. App’x 387, 389 (6th Cir. 2015)(ALJ properly

considered conservative treatment in concluding that claimant was

not suffering from disabling impairments). The ALJ noted that

plaintiff was noncompliant with treatment, including not scheduling

cardiac treatment for years, and not using his prescribed diabetic

medications. R. 27. See SSR 16-3p, 2016 WL 1119029, *7-8 (Mar.

16, 2016)(allowing ALJ to consider evidence showing that the

claimant is not following the prescribed treatment in weighing

claimant’s claims of allegedly disabling symptoms). The ALJ did

not err in considering the above evidence in determining whether

plaintiff’s complaints of symptoms were consistent with the record

as a whole.

The ALJ stated that “the claimant’s complaints have not been

completely dismissed, but rather have been included in the residual

functional capacity to the extent that they are consistent with the

evidence as a whole.” R. 21. Substantial evidence supports the

ALJ’s evaluation of plaintiff’s complaints of symptoms, and this

objection is not well taken. 

III. Conclusion

For the reasons stated above, the court concludes that the ALJ

gave good reasons for the weight he assigned to the expert opinions

and did not err in his consideration of those opinions. The ALJ

also properly evaluated plaintiff’s testimony and other evidence

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concerning his symptoms in formulating his RFC. The ALJ’s nondisability finding is supported by substantial evidence. The court

overrules the plaintiff’s objections (Doc. 15), and adopts and

affirms the magistrate judge’s report and recommendation (Doc. 14). 

The decision of the Commissioner is affirmed, and the clerk is

directed to enter final judgment in this case.

Date: April 3, 2020 s/James L. Graham 

 James L. Graham

 United States District Judge

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