# Haning v. Commissioner of Social Security

> District Court, S.D. Ohio · October 8, 2021

URL: https://www.frixlaw.com/law-library/cases/10378771

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** October 8, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

JOHN EUGENE HANING,

Plaintiff,

v. Civil Action 2:20-cv-5918
Judge Sarah D. Morrison
Magistrate Judge Chelsey M. Vascura
COMMISSIONER OF SOCIAL
SECURITY,

Defendant.

REPORT AND RECOMMENDATION
Plaintiff, John Eugene Haning (“Plaintiff”), brings this action under 42 U.S.C. § 405(g)
for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying
his application for Social Security Period of Disability benefits. This matter is before the Court
on Plaintiff’s Statement of Errors (ECF No. 19), the Commissioner’s Memorandum in
Opposition (ECF No. 20), and the administrative record (ECF No. 15). For the reasons that
follow, it is RECOMMENDED that Plaintiff’s Statement of Errors be OVERRULED and that
the Commissioner’s decision be AFFIRMED.
I. BACKGROUND
Plaintiff filed his application for Title II Period of Disability Benefits on November 5,
2013, alleging, after amendment, that he became disabled on January 1, 2014. (R. 278–84.) On
March 30, 2016, following administrative denials of Plaintiff’s application initially and on
reconsideration, Administrative Law Judge John M. Wood issued a decision finding that Plaintiff
was not disabled within the meaning of the Act. (R. 61–72.) Plaintiff filed an action in this
Court seeking judicial review of the Commissioner’s decision. See Haning v. Commissioner of
Social Security, No. 2:17-cv-278. On July 2, 2018, the Court remanded the case for further
proceedings at the administrative level. (R. 1493–1503.)
Pursuant to this Court’s remand order, the Appeals Council remanded this case to
Administrative Law Judge M. Drew Crislip (the “ALJ”), who held a hearing on November 7,

2019. (R. 1434–60.) Plaintiff, represented by counsel, appeared and testified. Vocational expert
Nancy Shapero (the “VE”) also appeared and testified at the hearing. On November 27, 2019,
the ALJ issued a decision denying benefits. (R. 1414–25.) On September 17, 2020, the Appeals
Council denied Plaintiff’s request for review and adopted the ALJ’s decision as the
Commissioner’s final decision. (R. 1404–07.) Plaintiff then timely commenced the instant
action. (ECF No. 1.)
In his Statement of Errors (ECF No. 19), Plaintiff asserts two contentions of error: (1) the
ALJ erred in evaluating Plaintiff’s symptoms; and (2) the ALJ’s residual functional capacity is
not supported by substantial evidence because he failed to order a consultative examination. (Id.

at 6–11.)
II. THE ALJ’S DECISION
On November 27, 2019, the ALJ issued a decision finding that Plaintiff was not disabled
within the meaning of the Social Security Act. (R. 1414–25.) At step one of the sequential
evaluation process,1 the ALJ found that Plaintiff had not engaged in substantial gainful activity
since his date last insured of September 30, 2014. (Id. at 1416.) At step two, the ALJ found that,
through his date last insured, Plaintiff had the severe impairments of chronic renal
failure/interstitial cystitis, cervical disc disease, and chronic obstructive pulmonary disease
(“COPD”). (Id.) He further found at step three that Plaintiff did not have an impairment or

combination of impairments that met or medically equaled one of the listed impairments
described in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id. at 1417–18.)
At step four of the sequential process, the ALJ set forth Plaintiff’s residual functional
capacity (“RFC”)2 as follows:
After careful consideration of the entire record, I find that, through the date last
insured, the claimant had the residual functional capacity to lift, carry, push, and
pull 20 pounds occasionally and 10 pounds frequent[ly]. The claimant could sit six
hours and stand and/or walk six hours in an eight-hour day. He required the ability
to alternate from standing or walking to sitting for two to three minutes after every

1 Social Security Regulations require ALJs to resolve a disability claim through a five-step
sequential evaluation of the evidence. See 20 C.F.R. § 404.1520(a)(4). Although a dispositive
finding at any step terminates the ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th
Cir. 2007), if fully considered, the sequential review considers and answers five questions:
1. Is the claimant engaged in substantial gainful activity?
2. Does the claimant suffer from one or more severe impairments?
3. Do the claimant’s severe impairments, alone or in combination, meet or equal the
criteria of an impairment set forth in the Commissioner’s Listing of Impairments, 20
C.F.R. Subpart P, Appendix 1?
4. Considering the claimant’s residual functional capacity, can the claimant perform his
or her past relevant work?
5. Considering the claimant’s age, education, past work experience, and residual
functional capacity, can the claimant perform other work available in the national
economy?
See 20 C.F.R. § 404.1520(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009);
Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001).
2 A claimant’s RFC is an assessment of “the most [she] can still do despite [her] limitations.” 20
C.F.R. § 404.1545(a)(1).
hour, but could remain on task during all position changes, though some would be
covered by typical work breaks or time off task. The claimant could occasionally
operate hand and foot controls bilaterally. He could occasionally reach overhead,
but frequently reach in all other directions with the right upper extremity. The
claimant could never climb ladders, ropes, or scaffolds and crawl. He could
occasionally climb ramps and stairs, balance (SCO definition of balancing as
“maintaining body equilibrium to prevent falling when walking, standing,
crouching, or running on narrow, slippery, or erratically moving surfaces”), kneel,
and crouch. The claimant could frequently stoop. He must have no exposure to
unprotected heights, moving mechanical parts, dangerous machinery, dust, odors,
fumes, pulmonary irritants, extreme cold, extreme heat, and vibration. The
claimant could occasionally operate a motor vehicle. He could tolerate occasional
exposure to humidity and wetness. The claimant could work in moderate noise. In
addition to normal breaks, the claimant would have been off task 10 percent of time
in an eight-hour workday.
(Id. at 1418.)
At step five of the sequential process, relying on the VE’s testimony, the ALJ found that,
through the date last insured, Plaintiff was unable to perform any past relevant work, but that
jobs existed in significant numbers in the national economy that Plaintiff could have performed,
such as customer service, office helper, and cashier. (Id. at 1423–24.) The ALJ therefore
concluded that Plaintiff had not been under a disability at any time from January 1, 2014, the
alleged onset date, through September 30, 2014, the date last insured. (Id. at 1424–25.)
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)).
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.” Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746
(6th Cir. 2007).

IV. ANALYSIS
As set forth above, Plaintiff asserts two contentions of error: (1) the ALJ erred in
evaluating Plaintiff’s symptoms; and (2) the ALJ’s residual functional capacity is not supported
by substantial evidence because the ALJ failed to order a consultative examination. (Pl.’s
Statement of Errors 6–11, ECF No. 19.) The undersigned considers each contention of error in
turn.
A. The did not err in evaluating Plaintiff’s symptoms.
Plaintiff takes issue with two statements made by the ALJ during his analysis of
Plaintiff’s subjective statements about his symptoms. First, Plaintiff contends that the ALJ held
him to an inappropriately high standard by requiring that Plaintiff’s allegations be “entirely
consistent” with the remaining record evidence before they could be credited. (Pl.’s Statement of
Errors, 8.) Second, Plaintiff contends that the ALJ improperly relied on Plaintiff’s continuing
use of cigarettes against medical advice to conclude that Plaintiff’s impairments did not produce
symptoms of the alleged intensity, persistence, or limiting effects. (Id. at 8–9.) Both arguments
lack merit.

1. Standards for Evaluation of Subjective Complaints
For decisions rendered on or after March 28, 2016, the ALJ will evaluate a claimant’s
statements concerning the intensity, persistence, and limiting effects of symptoms of an alleged
disability under SSR 16-3p. SSR 16-3p, 2017 WL 5180304 (Oct. 25, 2017). SSR 16-3p
superseded SSR 96-7p, 1996 WL 374186 (July 2, 1996), which required the ALJ to evaluate the
overall credibility of a plaintiff’s statements. In contrast, SSR 16-3p requires the ALJ to evaluate
the consistency of a plaintiff’s statements, without reaching the question of overall credibility, or
character for truthfulness. See id. at *11 (“In evaluating an individual’s symptoms, our
adjudicators will not assess an individual’s overall character or truthfulness in the manner
typically used during an adversarial court litigation. The focus of the evaluation of an

individual’s symptoms should not be to determine whether he or she is a truthful person.”).
Although SSR 16-3p supersedes SSR 96-7p, “according to the very language of SSR 16-3p, its
purpose is to ‘clarify’ the rules concerning subjective symptom evaluation and not to
substantially change them.” Brothers v. Berryhill, No. 5:16-cv-01942, 2017 WL 2912535, at
*10 (N.D. Ohio June 22, 2017). The rules were clarified primarily to account for the difference
between a credibility determination, which necessarily impacts the entirety of a claimant’s
subjective testimony, and a consistency determination, which applies only to specific statements
regarding symptoms. See SSR 16-3p at *2. It follows, therefore, that the procedures for
reviewing an ALJ’s credibility assessment under SSR 16-3p are substantially the same as the
procedures under SSR 96-7p. Accordingly, the undersigned concludes that existing case law
controls to the extent it is consistent with the clarification of the rules embodied in SSR 16-3p’s
clarification.
The Sixth Circuit has provided the following guidance in considering an ALJ’s credibility
assessment:

Where the symptoms and not the underlying condition form the basis of the
disability claim, a two-part analysis is used in evaluating complaints of disabling
pain. 20 C.F.R. § 416.929(a); Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001);
Felisky v. Bowen, 35 F.3d 1027, 1038-39 (6th Cir. 1994). First, the ALJ will ask
whether the there is an underlying medically determinable physical impairment that
could reasonably be expected to produce the claimant’s symptoms. 20 C.F.R. §
416.929(a). Second, if the ALJ finds that such an impairment exists, then he must
evaluate the intensity, persistence, and limiting effects of the symptoms on the
individual’s ability to do basic work activities. Id.
Rogers, 486 F.3d at 247.
The ALJ’s credibility determination “with respect to [a claimant’s] subjective complaints
of pain” is generally given deference. Allen v. Comm’r of Soc. Sec., 561 F.3d 646, 652 (6th Cir.
2009) (quoting Siterlet v. Sec’y of Health & Hum. Servs., 823 F.2d 918, 920 (6th Cir. 1987)).
Despite this deference, “an ALJ’s assessment of a claimant’s credibility must be supported by
substantial evidence.” Walters, 127 F.3d at 531. Furthermore, the ALJ’s decision on credibility
must be “based on a consideration of the entire record.” Rogers, 486 F.3d at 247 (internal
quotation omitted). An ALJ’s explanation of his or her credibility decision “must be sufficiently
specific to make clear to the individual and to any subsequent reviewers the weight the
adjudicator gave to the individual’s statements and the reasons for that weight.” Id. at 248; see
also Mason v. Comm’r of Soc. Sec. Admin., No. 1:06–CV–1566, 2012 WL 669930, at *10 (N.D.
Ohio Feb. 29, 2012) (“While the ALJ’s credibility findings ‘must be sufficiently specific’,
Rogers, 486 F.3d at 248, the intent behind this standard is to ensure meaningful appellate
review.”). In addition, the Regulations list a variety of factors an ALJ must consider in
evaluating the severity of symptoms, including a claimant’s daily activities; the effectiveness of
medication; and treatment other than medication. 20 C.F.R. § 404.1529(c)(3); SSR 16–3p; but
see Ewing v. Astrue, No. 1:10–cv–1792, 2011 WL 3843692, at *9 (N.D. Ohio Aug. 12, 2011),
adopted, 2011 WL 3843703 (suggesting that although an ALJ is required to consider such
factors, he or she is not required to discuss every factor within the written decision).

2. The ALJ did not err by using boilerplate language stating that Plaintiff’s
allegations were “not entirely consistent” with the remaining record
evidence.
First, Plaintiff contends that the ALJ held him to an inappropriately high standard by
requiring that Plaintiff’s allegations be “entirely consistent” with the remaining record evidence
before they could be credited. Plaintiff asserts the use of this “entirely consistent” standard
violated SSR 16-3p, which requires only that the ALJ consider “the extent to which the
symptoms can reasonably be accepted as consistent with the objective medical and other
evidence in the individual’s record.” SSR 16-3p, at *2 (emphasis added). The relevant passage
of the ALJ’s decision reads as follows:
After careful consideration of the evidence, I find that the claimant’s medically
determinable impairments could reasonably be expected to cause the alleged
symptoms; however, the claimant’s statements concerning the intensity, persistence
and limiting effects of these symptoms are not entirely consistent with the medical
evidence and other evidence in the record for the reasons explained in this decision.
(R. 1419.)
Plaintiff’s reading of the ALJ’s analysis is untenable. The ALJ’s remark that Plaintiff’s
statements were “not entirely consistent” with the record does not logically imply that the ALJ
incorrectly applied a standard requiring a finding of non-disability unless Plaintiff’s statements
were entirely consistent with the record. It appears to the undersigned that the ALJ was merely
acknowledging that Plaintiff’s subjective complaints were at least somewhat consistent with the
record, while at the same time concluding that Plaintiff was nonetheless able to work during the
relevant period. Plaintiff does not develop or support this contention of error with argument or
citation to authority. Further, courts have repeatedly found that use of this same “not entirely
consistent” boilerplate language does not, by itself, constitute error. See Baker v. Comm’r of
Soc. Sec., No. 2:17-CV-784, 2020 WL 372681, at *13 (S.D. Ohio Jan. 23, 2020), report and
recommendation adopted sub nom. Baker v. Saul, 2020 WL 1165622 (S.D. Ohio Mar. 11, 2020)

(finding ALJ’s use of “not entirely consistent” boilerplate consistent with pertinent regulations
and rulings when the ALJ’s decision contained “a robust review of the many examinations,
studies, reports, and statements by Plaintiff that support his determination that Plaintiff’s
statements were not entirely consistent with the record as a whole”); Cook v. Comm’r of Soc.
Sec., No. 1:19-CV-1068, 2020 WL 7253307, at *8 (S.D. Ohio Dec. 10, 2020), report and
recommendation adopted, 2021 WL 22522 (S.D. Ohio Jan. 4, 2021) (approving of use of “not
entirely consistent” boilerplate when the ALJ “went well beyond that summation in explaining
the inconsistencies she found between the claimant’s statements and the medical evidence and
other evidence in the record”). Similarly, the ALJ here substantively discussed the

inconsistencies between Plaintiff’s allegations and the objective medical evidence:
In summary, while the claimant reported problems with his neck/right extremity at
a consultative medical examination in January 2014, the results of the examination
did not show that he would be unable to perform basic work activities at that time.
He underwent cervical fusion in August 2014, and at post-operative visits, he was
described as doing well, and the results of imaging were described as “superb.”
Although the claimant was diagnosed with COPD, he responded well to
medications, and denied significant breathing symptoms on numerous occasions,
despite the fact that [ ]he continued to smoke cigarettes against recommended
advice. Finally, despite the claimant’s allegations of disability, his multiple bladder
procedures were prior to his amended alleged onset date, and his symptoms appear
to have dissipated, as evidenced by progress notes during the period in question.
However, in establishing the residual functional capacity, I considered the
claimant’s combined physical issues, and find a limitation to light exertional work
with position change as identified, as well as postural, hand and foot controls, right
upper extremity reaching, and environmental restrictions. I further included a time
off task in addition to normal breaks of 10 percent during an eight-hour workday.
This is consistent with the claimant’s testimony that he went to the restroom five
or six times a day, including evening hours, with each visit lasting four to five
minutes total in 2014 and continuing. He stated he went to the restroom three times
during the night. Accordingly, since the claimant acknowledged his five or six
restroom breaks includes all hours except overnight, it stands to reason that not all
would occur during working hours and, furthermore, breaks as he described them
would generally adequately be covered by off task time/typical work breaks as
reflected in his residual functional capacity.
(R. 1422.) The ALJ having provided a thorough explanation for his conclusion that Plaintiff’s
allegations are “not entirely consistent” with the objective medical evidence of record, the
undersigned finds no error with the ALJ’s use of the “not entirely consistent” boilerplate
language.
3. The ALJ did not err by considering Plaintiff’s continued cigarette smoking
against medical advice.
Next, Plaintiff contends that the ALJ improperly relied on Plaintiff’s continuing use of
cigarettes against medical advice to conclude that Plaintiff’s impairments did not produce
symptoms of the alleged intensity, persistence, or limiting effects. (Pl.’s Statement of Errors, 8–
9.) The ALJ did, indeed, note that Plaintiff continued to smoke cigarettes despite being advised
to stop; but the ALJ also noted that even with Plaintiff’s continued cigarette use, his COPD
symptoms were stable:
The claimant admitted that he smoked between one and two packages of cigarettes
a day for about 40 years (Exhibit 20F, p.28). Despite being advised to stop smoking
on numerous occasions, progress notes through the date last insured and slightly
afterwards, indicate that the claimant continued to smoke. For example, in October
2014, he reported that he was continuing to smoke on a regular, daily basis. Yet,
he denied shortness of breath, wheezing and coughing (Exhibits 9F, 11F, and 17F).
On February 9, 2015, Dr. Yellamraju noted that the claimant’s COPD was stable
with inhalers (Exhibit 20F).
(R. 1420.)
Plaintiff argues that “[a]n ALJ may not rely on a claimant’s tobacco use as evidence that
her impairments did not produce pain/symptoms of the alleged intensity/persistence/limiting
effects unless an ALJ cites evidence that establishes that, if the claimant quit smoking, his
impairments would improve and become non-severe.” (Id. at 8, citing Rousey v. Heckler, 771
F.2d 1065, 1069 (7th Cir. 1985) and Shramek v. Apfel, 226 F.3d 809, 813 (7th Cir. 2000)). But
that is not what happened here. The ALJ here noted that, despite Plaintiff’s admission that he
smoked 1–2 packs of cigarettes per day, Plaintiff denied shortness of breath, wheezing, and

coughing and that Plaintiff’s physician stated Plaintiff’s COPD was stable with inhalers. (R.
1420, 1422.) Thus, the ALJ did not improperly conclude that a finding of non-disability was
warranted because Plaintiff would be able to work if only he would quit smoking; if anything, it
appears the ALJ concluded that Plaintiff retained the ability to work even while he continued to
smoke, based on Plaintiff’s physician’s treatment notes and Plaintiff’s own self-reports.
Moreover, even if the ALJ had discredited Plaintiff’s allegations based on his cigarette
use, SSR 16-3p “permit[s] the ALJ to consider evidence showing that the claimant is not
following the prescribed treatment in weighing the claimant’s claims of allegedly disabling
symptoms.” Barncord v. Comm’r of Soc. Sec., No. 2:16-CV-389, 2017 WL 4160886, at *4 (S.D.

Ohio Sept. 19, 2017). And, contrary to the out-of-circuit authority relied on by Plaintiff, the
United States Court of Appeals for the Sixth Circuit has upheld an ALJ’s consideration of a
claimant’s failure to quit smoking against medical advice in assessing the claimant’s credibility.
See Sias v. Sec’y of Health & Hum. Servs., 861 F.2d 475, 480 (6th Cir. 1988) (per curiam)
(finding that “[t]he claimant’s style of life is not consistent with that of a person who suffers
from intractable pain or who believes his condition could develop into ‘a very quick life-
threatening situation’” in part because the claimant smoked two packs of cigarettes per day
against the advice of his doctor). Accordingly, the undersigned finds no error in the ALJ’s
consideration of Plaintiff’s cigarette use.
B. The ALJ’s residual functional capacity is supported by substantial evidence.
Finally, Plaintiff contends that the ALJ’s residual functional capacity (“RFC”) is not
supported by substantial evidence because the ALJ failed to order a consultative examination.
This contention also lacks merit.
The determination of a claimant’s RFC is an issue reserved to the Commissioner. 20

C.F.R. §§ 404.1527(e), 416.927(e). Nevertheless, substantial evidence must support the
Commissioner’s RFC finding. Berry v. Astrue, No. 1:09-cv-411, 2010 WL 3730983, at *8 (S.D.
Ohio June 18, 2010). The Social Security Act and agency regulations require an ALJ to
determine a claimant’s RFC based on the evidence as a whole. 42 U.S.C. §§ 423(d)(5)(B),
1382c(a)(3)(H)(i) (incorporating § 423(d) for Title XVI). Consistently, Social Security Ruling
96-8p instructs that the ALJ’s RFC assessment must be based on all of the relevant evidence in
the case record, including factors such as medical history, medical signs and laboratory findings,
the effects of treatment, daily activities, lay evidence, recorded observations, medical source
statements, effects of symptoms, and evidence from attempts to work. SSR 96-8P, 1996 WL
374184 (July 2, 1996). An ALJ must explain how the evidence supports the limitations that he

or she sets forth in the claimant’s RFC:
The RFC assessment must include a narrative discussion describing how the
evidence supports each conclusion, citing specific medical facts (e.g., laboratory
findings) and nonmedical evidence (e.g., daily activities, observations). In
assessing RFC, the adjudicator must discuss the individual’s ability to perform
sustained work activities in an ordinary work setting on a regular and continuing
basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule), and
describe the maximum amount of each work-related activity the individual can
perform based on the evidence available in the case record. The adjudicator must
also explain how any material inconsistencies or ambiguities in the evidence in the
case record were considered and resolved.
Id. at *7 (internal footnote omitted).
Here, Plaintiff contends that the ALJ’s RFC is unsupported by substantial evidence
because “the record is devoid of any RFC assessments from any physicians (treating or
examining) whatsoever. . . . With the relative lack of opinion evidence in the file the ALJ should
have sent Mr. Haning to a consultative examiner for an opinion as to his residual functional
capacity or requested interrogatories from a medical expert.” (Pl.’s Statement of Errors 10–11,

ECF No. 19.)
The undersigned finds that the ALJ’s RFC is supported by substantial evidence, including
progress notes of Plaintiff’s treating physicians, a consultative examination report, opinions of
state agency reviewers, and Plaintiff’s self-reports and testimony. (See generally R. 1419–22.)
The ALJ acknowledged that Plaintiff had a biopsy at the Veterans Administration Medical
Center (“VAMC”) dated October 28, 2013, which showed chronic cystitis. (R. 1419, citing R.
1033.) On January 6, 2014, Plaintiff’s VAMC physicians determined that Plaintiff’s reported
pain in his right groin was not related to cystitis and that he should treat his pain with Tramadol
rather than long-acting opioids such as Vicodin (R. 1419, citing R. 1033). On March 6, 2014,

Plaintiff reported to a VAMC doctor that he was self-catheterizing three times per week, his
spasms were better, and he denied burning urination, blood in the urine, fever, or chills. (R.
1419, citing R. 1025–27.) The ALJ noted that treatment recommendations were “conservative,
as laboratory testing was scheduled for six and eleven months, and he was advised to follow up
in a year. Furthermore, a CT scan of the abdomen/pelvis taken on March 20, 2014, showed the
claimant had no acute abnormality.” (R. 1420, citing R. 1008, 1025–27.) Plaintiff reported
“intermittent” self-catheterization on July 11, 2014, and in October 2014, he denied urgency,
frequency, blood in urine, painful urination, leakage of urine, loss of bladder control, blood in
stool, loss of bowel control, and abdominal pain. (Id., citing R. 1048, 1078.)
As to Plaintiff’s COPD, in March 2014, Plaintiff reported no shortness of breath, no
chronic cough, and no wheezing. Plaintiff’s VAMC physician observed no rhonchi, wheezing,
crackles, or use of accessory muscles, upon examination and assessed Plaintiff’s COPD as stable
with inhalers. Plaintiff refused his physician’s offer of medication, nicotine replacement, or
counseling for smoking cessation. (Id., citing R. 1025–27.) Imaging dated May 1, 2014, and

July 29, 2014, showed COPD and mild pulmonary emphysema, but x-rays on August 13, 2014,
showed no acute process with lungs expanded and free of active infiltrate. (Id., citing R. 975,
1055, 1070.) As noted above, Plaintiff declined to stop smoking against advice from his
physicians, but denied shortness of breath, wheezing, or coughing. (Id., citing, e.g., R. 953,
1078.)
Regarding spinal and right upper extremity complaints, the ALJ noted that Plaintiff
underwent a consultative examination with Stephen Nutter, M.D., in January 2014, in which
Plaintiff reported problems with his neck and right upper extremity, and Dr. Nutter opined that
Plaintiff’s ability to bend, stoop, lift, walk, crawl, squat, carry, travel, and push/pull heavy

objects was at least moderately impaired. (R. 1420, citing R. 803–07.) The ALJ gave Dr.
Nutter’s opinions only partial weight due to the lack of definitive limitations, but agreed that
Plaintiff was moderately impaired in these areas based on objective findings during Dr. Nutter’s
examination. (Id.) Notes from Plaintiff’s treating physicians consistently documented Plaintiff’s
pain complaints, and imaging of Plaintiff’s cervical spine on May 29, 2014, revealed notable
degeneration. (R. 1421, citing R. 964–65.) Imaging on May 2, 2014 of Plaintiff’s lumbar spine
and right shoulder was unremarkable. (Id., citing R. 1002.) On examination on July 11, 2014,
Plaintiff had full range of motion in the cervical spine and right upper extremity, but
demonstrated some weakness of the right upper extremity; Plaintiff had full strength in all other
extremities. (Id., citing 1048–52.) Further imaging on July 29, 2014, demonstrated no acute
fracture or malalignment, but revealed moderate multilevel changes in the cervical spine. (Id.,
citing R. 1054–56.) As a result, on August 21, 2014, Plaintiff underwent anterior cervical fusion
from C3-C7 and C6 corpectomy with a formal decompression from C5-C7 with no
complications. (Id., citing R. 1060–69.) At follow up on October 3, 2014, Plaintiff reported 50–

75% improvement with surgery and was happy with his progress. (Id. at 1421–22, citing R.
1077.) On February 16, 2015, just a few months after the date last insured, Plaintiff’s physician
noted, “[h]is films look superb and so does he” and that Plaintiff would be seen only on an as-
needed basis. (Id. at 1422, citing R. 1152.)
Finally, the state agency medical consultants who reviewed the record on March 26,
2014, and May 16, 2014, indicated Plaintiff could perform light exertion with limited ability to
push or pull, including operation of hand controls, with the right upper extremity; Plaintiff could
never climb ladders, ropes, or scaffolds and crawl; occasionally climb ramps or stairs, stoop,
kneel, and crouch; frequently balance; and occasionally reach overhead with the right upper

extremity; Plaintiff had to avoid concentrated exposure to extreme cold, extreme heat, humidity,
vibration, fumes, odors, dusts, gases, poor ventilation, and hazards; and Plaintiff should have
ease of access to toileting facilities. (R. 1422, citing R. 195–97, 207–09.) The ALJ gave these
opinions only partial weight because evidence submitted after the State agency review of the
record supports greater limitations, including the need to alternate from standing or walking to
sitting as identified, as well as being off task ten percent of time in addition to normal breaks,
which was provided in some part due to his alleged restroom visits. (Id.)
Thus, the ALJ discussed in detail the available record evidence, which—considering the
relevant period lasted only nine months—was ample. These treatment notes, state agency
reviewer opinions, and Plaintiff’s self-reports all constitute substantial evidence on which the
ALJ could rely to craft Plaintiff’s RFC. See 20 C.F.R. §§ 404.1529(c)(2) (objective medical
evidence is to be considered in evaluating symptoms, including pain); 404.1513a(b) (ALJs are
required to consider findings by state agency medical consultants).
Plaintiff’s argument that the ALJ was required to order a consultative examination due to

a lack of RFC opinions in the record is unavailing. First, the pertinent regulation provides only
that an ALJ may decide to purchase a consultative examination if he or she cannot get the
information needed from a claimant’s medical sources. 20 C.F.R. § 404.1519a(a). Courts have
repeatedly rejected arguments that ALJs were required to order a consultative examination. See,
e.g., Landsaw v. Sec’y of Health & Hum. Servs., 803 F.2d 211, 214 (6th Cir. 1986) (“[T]he
regulations do not require an ALJ to refer a claimant to a consultative specialist, but simply grant
him the authority to do so if the existing medical sources do not contain sufficient evidence to
make a determination.”); Brown v. Comm’r of Soc. Sec., 602 F. App’x 328, 331 (6th Cir. 2015)
(“[N]one of these cases even remotely suggests that an ALJ must, as a matter of law, seek out a

physician’s medical opinion where one is not offered.”) Robertson v. Comm’r of Soc. Sec., 513
F. App’x 439, 441 (6th Cir. 2013) (“Given the considerable amount of medical evidence in the
record concerning Robertson’s cardiovascular problems and his resulting functional capability,
including test results, physicians’ notes, and opinion evidence from multiple physicians, and the
lack of any significant inconsistencies in the evidence, the ALJ was not obligated to order a
consultative examination with a cardiologist.”). Plaintiff has made no showing that the available
medical evidence in the record was insufficient for the ALJ to reach a determination.
Furthermore, Plaintiff’s assertion that the record contains no “RFC opinions” is simply
inaccurate; the state agency reviewers offered opinions as to Plaintiff’s functional limitations.
Accordingly, the undersigned finds the ALJ’s RFC was supported by substantial evidence even
in the absence of a Commission-ordered consultative examination.
V. DISPOSITION
In sum, from a review of the record as a whole, the Court 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 of Social Security’s decision.

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/ Chelsey M. Vascura
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10378771. Public record. Not legal advice.