Gardner v. Commissioner of Social Security

Filing 21

Memorandum Opinion and Order remanding case under Sentence Four of 42 U.S.C. § 405(g) for proceedings consistent with this opinion. Magistrate Judge James R. Knepp, II on 9/7/17. (A,P)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

CARMELLA CATERINA GARDNER,

Case No. 1:16 CV 1839

Plaintiff,
v.

Magistrate Judge James R. Knepp, II

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

MEMORANDUM OPINION AND ORDER

INTRODUCTION
Plaintiff Carmella Caterina Gardner (“Plaintiff”) filed a Complaint against the
Commissioner of Social Security (“Commissioner”) seeking judicial review of the
Commissioner’s decision to deny disability insurance benefits (“DIB”). (Doc. 1). The district court
has jurisdiction under 42 U.S.C. §§ 1383(c) and 405(g). The parties consented to the undersigned’s
exercise of jurisdiction in accordance with 28 U.S.C. § 636(c) and Civil Rule 73 (Doc. 14). For
the reasons stated below, the undersigned reverses the Commissioner’s decision and remands for
further proceedings consistent with this opinion.
PROCEDURAL BACKGROUND
Plaintiff filed for DIB in January 2013, alleging a disability onset date of June 1, 2009. (Tr.
224-25). Her claims were denied initially and upon reconsideration. (Tr. 136-42). Plaintiff then
requested a hearing before an administrative law judge (“ALJ”). (Tr. 143). Plaintiff (represented
by counsel), and a vocational expert (“VE”) testified at a hearing before the ALJ on February 11,

2015. (Tr. 68-107).1 On March 24, 2015, the ALJ found Plaintiff not disabled in a written decision.
(Tr. 38-46). The Appeals Council denied Plaintiff’s request for review, making the hearing
decision the final decision of the Commissioner. (Tr. 1-7); 20 C.F.R. §§ 404.955, 404.981. Plaintiff
filed the instant action on July 21, 2016. (Doc. 1).
FACTUAL BACKGROUND2
Personal Background, Statements, and Testimony
Plaintiff was born in February 1950 and was 59 years old at her alleged onset date. (Tr.
59). At the time of the hearing, Plaintiff lived alone, Tr. 76, in a two-story house, “but [her] living
[was] on the first floor only”, Tr. 77-78. She did not go upstairs because it was “too much of a
chore” and she had “fallen down those stairs too many times.” (Tr. 78). Plaintiff testified that after
her hip replacement, she had “no balance anymore” and had “to hold onto something.” (Tr. 85).
Last time she climbed the stairs in her house, when coming back down “it seemed like [she] went
numb on one side and [she] ended up just rolling down the stairs.” (Tr. 86).
Plaintiff’s husband and son accompanied her to the hearing. (Tr. 78). Plaintiff saw her son
approximately every other day, and her daughter once per week. (Tr. 79). Plaintiff testified her
adult children helped with “the heavy stuff” like mopping and vacuuming. (Tr. 77). She was able
to do her own laundry, wash dishes, and prepare simple meals for herself, primarily in the
microwave. Id. Plaintiff testified she could do her own grocery shopping “and [her] kids pick[ed]

1. The ALJ originally held a hearing on October 21, 2014, at which Plaintiff did not appear due to
illness. (Tr. 53-67). A VE testified at the October 2014 hearing, and a different VE testified at the
February 2015 hearing. See Tr. 60 & 101.
2. Plaintiff’s challenge is directed at the ALJ’s consideration of her credibility regarding her
physical limitations. Plaintiff has waived argument on issues not raised in her opening brief.
Kennedy v. Comm’r of Soc. Sec., 87 F. App’x 464, 466 (6th Cir. 2003). The Court will therefore
summarize the facts relevant to the credibility argument raised by Plaintiff.
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up a lot of things for [her]” because if she walked around the grocery store, she could not “even
get [her] groceries back into the house right away.” Id.
Plaintiff was able to drive, but did not drive long distances. (Tr. 78). She liked to read, and
watch television, but did not use a computer. (Tr. 80). Her pain would sometimes interfere with
her reading: “if I sit there too long either one side gets stiff or I just need to un-stiff myself and
change positions or put the book down and try to get up and move a little bit.” (Tr. 99). Plaintiff
had friends with whom she tried to get together every couple of months for lunch or a visit. (Tr.
80). She would, however, frequently cancel outings, and her friends would come to her house
instead. (Tr. 99).
Plaintiff testified that on a typical day, she would sleep a lot (due to her medications and
poor night sleep). (Tr. 81). She testified to difficulty sleeping at night, and would nap during the
day to make up lost sleep. Id.; Tr. 96-97. Typically, she estimated, she would sleep for two to three
hours during the day. (Tr. 97).
Plaintiff testified she left her prior job as a realtor because “[i]t became too physical, too
demanding and [she] just couldn’t keep appointments that [she] had set because [she] was starting
to feel really bad and it got in the way of losing [her] clients or having to give them to somebody
and then it was just the patience it takes to deal with someone making a large purchase.” (Tr. 83).
When she first left the work, “it was tiredness” and “aches and pains” that made her leave. (Tr.
84). Before she stopped working, Plaintiff would nap after work. (Tr. 98).
Plaintiff testified that she tried not to take any pain medication, but did use a muscle relaxer
approximately once per month. (Tr. 93). She dealt with her pain by stretching, laying down, and
avoiding activities that caused her pain. Id.

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Plaintiff estimated she could stand for 20 to 30 minutes before needing to sit down. (Tr.
93-94). Standing was worse on harder surfaces. (Tr. 94). Plaintiff also estimated she could sit for
30 to 45 minutes “depending on what [she was] sitting on.” (Tr. 95). Plaintiff generally sat in a
recliner so she could elevate her legs. (Tr. 96); see also Tr. 99-100 (“Well I don’t sit on the couch,
I may lie on the couch but I’m always in my recliner.”). Standing was “harder” than sitting. (Tr.
99).
In February 2013, Plaintiff completed a symptom report describing her symptoms as
including pain, fatigue, agility, stamina, sleep problems, and stiffness. (Tr. 259). She reported the
symptoms were “always there” but got worse when she walked, sat, slept, did daily tasks, or
cleaned. Id. She indicated her pain and fatigue were nine out of ten on a good day, and ten out of
ten on a bad day. (Tr. 260). She reported she had zero good days in a week; rather, she had all bad
days. Id. Plaintiff also reported she could not bend, stoop, or walk for any length of time. (Tr. 261).
Rest and warm or hot showers helped her pain. Id. She reported she was not taking any medication
for her symptoms. Id.
In a disability report dated April 2013, Plaintiff reported difficulty getting in and out of
bed. (Tr. 278). She also reported her son helped her to shower, and she had dropped hot food when
she tried to cook. Id. She reported “[n]eck and knee pain” and that she “ha[d] to be on antidepressants (because of [her] depression [she was] unable to work)”. Id.
Relevant Medical Evidence
Treatment Evidence
A December 2008 MRI of Plaintiff’s cervical spine showed degenerative changes at the
C4/5 and C5/6 levels. (Tr. 424).

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In February 2009, Plaintiff saw Shreeniwas Lele, M.D., with neck pain, going down her
arm. (Tr. 386). Dr. Lele noted, among other things, “[n]eck pain, with radiculopathy”, referred her
“for possible neck operation”, and suggested she try physical therapy. Id.
X-Rays taken of Plaintiff’s right knee in July 2010 due to “[t]rauma” showed “[s]mall
spurring . . . at the insertion of the quadriceps tendon, but no joint effusion, fracture, or dislocation.
(Tr. 419). An X-ray of Plaintiff’s left hip the same day showed “advanced osteoarthritis” which
was “stable from [the] prior study [in June 2010].” (Tr. 420).
A few days later, also in July 2010, Plaintiff reported to the emergency room after a fall in
which she fractured her hip. (Tr. 311, 314-16). She was admitted to the hospital for five days,
during which time she underwent a “[c]losed reduction, cannulated hip screw fixation, right hip.”
(Tr. 314). Subsequent x-rays in September and October 2010 showed a stable radiographic
appearance of orthopedic screws without evidence of hardware failure. (Tr. 415-16).
In April 2011, Plaintiff returned to Dr. Lele complaining of fatigue as well as “excruciating
neck pain, going into arm and legs.” (Tr. 377). On examination, Dr. Lele found diffuse tenderness
in Plaintiff’s neck, as well as pain along the right arm. Id. She also noted “some arthritis and pain”
in the right arm and leg, but normal sensory and motor functioning. Id. Dr. Lele assessed neck
pain, radiculopathy and arthritis, prescribed Vimovo, and noted she would monitor Plaintiff. Id.
In August 2011, Plaintiff returned to Dr. Lele, who noted “[o]verall, she is feeling well.”
(Tr. 376). Her arthritis was “[s]omewhat . . . bothering her.” Id. She also reported her “[a]nxiety
and stress” were “okay”. Id. On examination, Dr. Lele noted “[m]inimal swelling and tenderness
present”. Id. She assessed osteoarthritis and advised Plaintiff to continue her current medications.
Id.

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In September 2014 (three years later), Plaintiff returned to Dr. Lele with pain behind her
right knee, with redness and swelling. (Tr. 453). She reported pain that was seven out of ten. Id.
Plaintiff also reported feeling fatigued and weak. Id. On examination, Dr. Lele noted a red,
inflamed area on Plaintiff’s right thigh, which she opined might be a boil or staph infection. Id.
She assessed cellulitis and prescribed medication. (Tr. 454).
In October 2014, Plaintiff returned to Dr. Lele reporting “excruciating back pain going on
in her leg” and “not feeling well”. (Tr. 448). Her back pain was “getting worse”, the pain “was
going in her legs”, and she had “[d]ifficulty walking on and off.” Id. On examination, Dr. Lele
found diffuse tenderness and painful movement in Plaintiff’s back. Id. Dr. Lele assessed back pain
with radiculopathy and prescribed physical therapy. (Tr. 449).
Medical Opinion Evidence
Consultative Examination
At a consultative examination with Naomi Waldbaum, M.D. in September 2011, Plaintiff
reported pain, stiffness, and numbness in her feet, leg, and low back. (Tr. 339). Dr. Waldbaum
noted Plaintiff underwent back surgery in 2011, and hip surgery in 2010. Id. On examination, Dr.
Waldbaum found Plaintiff had full strength in her upper and lower extremities, as well as normal
grip, manipulation, pinch, and fine coordination. (Tr. 335). No muscle atrophy was noted, and
Plaintiff had normal range of motion in her cervical spine, shoulder, elbow, and wrist. (Tr. 336).
Plaintiff had some reduced range of motion in her dorsolumbar spine (under which Dr. Waldbaum
added “no discomfort noted”) (Tr. 337), and some reduced range of motion in her hip (Tr. 338).
Her straight leg raising test was normal. (Tr. 340). Dr. Waldbaum noted Plaintiff had “mild
discomfort palpating the lumbosacral angle area and over the right sacroiliac joint area.” Id. In
conclusion, Dr. Waldbaum noted Plaintiff’s “[e]xamination reveal[ed] a very functional client with

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no significant abnormal pathology” who she believed was “capable of performing many different
types of sedentary to light type work activities.” (Tr. 341). A lower back x-ray taken for purposes
of the consultative examination showed “[r]eversal of normal lumbar lordosis, “[e]nd plate
sclerosis and spur formation”, and “mild narrowing of L4-L5 disc space.” (Tr. 333) 
Reviewing Physicians
In March 2013, state agency physician Maria Congbalay, M.D., reviewed Plaintiff’s
records at the request of the state agency. (Tr. 115-16). She concluded Plaintiff could perform light
work, with postural limitations of: 1) frequent climbing of ramps and stairs; 2) stooping, kneeling,
crouching, and crawling; and 3) never climbing ladders, ropes, and scaffolds. (Tr. 116). She noted
these limitations were due to back pain. Id.
In May 2013, state agency physician Eli Perencevich, D.O., reviewed Plaintiff’s records at
the request of the state agency. (Tr. 126-27). He reached the same conclusions as Dr. Congbalay,
but added a further limitation that Plaintiff should avoid even moderate exposure to hazards such
as machinery or heights. (Tr. 127).
Treating Physician
In October 2014, Dr. Lele completed a pain questionnaire, which requested her answers
address “the time period from Condition prior 12/31/11 through the present.” (Tr. 435). She listed,
as Plaintiff’s impairments: back pain and COPD. Id. She listed an MRI as the objective clinical
findings supporting Plaintiff’s pain. Id. In response to a question about whether Plaintiff’s pain
affected her ability to do work-related activities, Dr. Lele noted that Plaintiff “can’t bend” when
her pain flares up. Id. She also opined there was a psychological component to Plaintiff’s
allegations of pain, and that Plaintiff’s pain frequently interfered with her attention and
concentration. Id.

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The next day, also in October 2014, Dr. Lele completed a document entitled “Medical
Statement – Physical Abilities and Limitations – CONDITION PRIOR 12/31/11 AND
CONTINUING.” (Tr. 438). In it, she opined Plaintiff could only work four hours per day. Id. She
thought Plaintiff could sit or stand for four hours in a workday, 30 minutes at a time. Id. She
believed Plaintiff could lift ten pounds occasionally, and five pounds frequently. Id. Dr. Lele
opined Plaintiff could occasionally: 1) bend, 2) stoop, 3) balance, 4) raise right arm to shoulder
level, 5) work around dangerous equipment, 6) operate a motor vehicle, 7) tolerate heat or cold, 8)
tolerate dust, smoke or fumes, 9) tolerate noise, and 10) tolerate heights. Id. She opined Plaintiff
could frequently perform fine and gross manipulations with both hands. Id. Dr. Lele opined
Plaintiff would need to frequently elevate her legs above waist level in an eight-hour workday. Id.
Finally, she opined Plaintiff experienced “moderate” pain and she would expect Plaintiff’s
impairments to cause her to be absent from work about twice per month. Id. 
VE Testimony
Two hearings were held in this case, and a VE testified at each. See Tr. 60-68, 101-05.
In October 2014, VE Carol Mosley testified before the ALJ. (Tr. 60-68). The VE opined
Plaintiff had past work as a realtor and as a server, both light exertional jobs as generally performed
and actually performed. (Tr. 61).
The ALJ asked the VE to consider a hypothetical individual with the same age, education
and past work as Plaintiff who could: 1) perform light work, with unlimited push/pull other than
as limited for lift and or/carry; 2) frequently climb ramps and stairs, but never climb ladders, ropes,
or scaffolds; 3) frequently stoop, kneel, crouch, and crawl; but 4) must avoid even moderate
exposure to hazards such as unprotected heights and hazardous machinery. (Tr. 62). The VE
testified such an individual could return to her past work as a realtor or server. Id.

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The ALJ then asked the VE to consider a hypothetical individual with the same prior
postural restrictions, but who could: 1) occasionally lift and carry ten pounds; 2) frequently lift
and carry five pounds; 3) stand and walk two hours in an eight-hour workday; 4) and sit for six
hours in an eight-hour workday. (Tr. 63). The VE testified that such an individual could not
perform past work, but could perform the sedentary job of real estate clerk. (Tr. 63-64).
Plaintiff’s counsel asked the VE to add a limitation that the person would need to have a
sit/stand option every 30 minutes, where the person would need to walk away from the work area
every hour. (Tr. 64-65). The VE testified that person would not be able to sustain competitive
employment. (Tr. 65). Without the requirement that the person need to leave the work area, the
VE testified the person could still perform the previously identified real estate clerk position. (Tr.
65-66). Additionally, the VE testified that under the first or second hypothetical situation, if one
added a limitation that the person would be absent twice per month, the person would have
difficulty maintaining competitive employment. (Tr. 66).
In February 2015, VE Kevin Yi testified at the hearing before the ALJ. (Tr. 101-05).
The ALJ first asked the VE if there would be any jobs where an individual could be absent
from work twice per month. (Tr. 102). The VE responded that no unskilled jobs would be available
to such an individual, but “[f]or skilled jobs normally it’s different and I mean . . . take a realtor
for example, as well you can schedule out of time normally is a lot.” Id. The VE testified that in
general, an absentee rate of two to four days per month would be tolerated in a skilled job. Id.
The VE also testified that if an individual needed to frequently elevate their legs above
waist level, there would be no competitive employment for unskilled jobs, and even in skilled jobs,
such a restriction would require an accommodation from the employer. (Tr. 102-03).

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The ALJ then asked the VE to consider a hypothetical individual with the same age,
education, and past work as Plaintiff who could: 1) occasionally lift ten pounds; 2) frequently lift
five pounds; 3) stand and walk for four hours of an eight-hour workday, 30 minutes at a time; 4)
sit for four hours in an eight-hour workday, 30 minutes at time; 5) occasionally bend, stoop, and
balance; 6) frequently perform fine and gross manipulation bilaterally; 7) occasionally raise arms
over the shoulder level bilaterally; 8) occasionally tolerate heat, cold, dust, smoke, fumes, or
heights; 9) would need to frequently elevate their legs above waist level; and 10) would be absent
from work twice per month. (Tr. 103-04). The VE testified that such an individual could not
perform any jobs “full-time competitively.” (Tr. 104).
ALJ Decision
In a written decision dated March 24, 2015, the ALJ found Plaintiff last met the insured
status requirements for DIB on December 31, 2011, and had not engaged in substantial gainful
activity from her alleged onset date of June 1, 2009, through her date last insured. (Tr. 40). She
concluded Plaintiff had severe impairments of degenerative disc disease and osteoarthritis, and
that these impairments did not meet or equal a listed impairment. (Tr. 40-43). The ALJ then found
Plaintiff retained the residual functional capacity
to perform light work as defined in 20 CFR 404.1567(b), subject to the following
limitations. The claimant can frequently climb ramps and stairs, but never climb
ladders, ropes, or scaffolds. Further, the claimant can frequently stoop, kneel,
crouch, and crawl, but must avoid even moderate exposure to hazards such as
unprotected heights and hazardous machinery.
.
(Tr. 43). Based on this RFC, the ALJ found Plaintiff was capable of performing her past work as
a realtor, and therefore, she was not disabled. (Tr. 46).  

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STANDARD OF REVIEW
In reviewing the denial of Social Security benefits, the Court “must affirm the
Commissioner’s conclusions absent a determination that the Commissioner has failed to apply the
correct legal standards or has made findings of fact unsupported by substantial evidence in the
record.” Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). “Substantial evidence
is more than a scintilla of evidence but less than a preponderance and is such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.” Besaw v. Sec’y of Health &
Human Servs., 966 F.2d 1028, 1030 (6th Cir. 1992). The Commissioner’s findings “as to any fact
if supported by substantial evidence shall be conclusive.” McClanahan v. Comm’r of Soc. Sec.,
474 F.3d 830, 833 (6th Cir. 2006) (citing 42 U.S.C. § 405(g)). Even if substantial evidence or
indeed a preponderance of the evidence supports a claimant’s position, the court cannot overturn
“so long as substantial evidence also supports the conclusion reached by the ALJ.” Jones v.
Comm’r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003).
STANDARD FOR DISABILITY
Eligibility for benefits is predicated on the existence of a disability. 42 U.S.C. §§ 423(a),
1382(a). “Disability” is defined as the “inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a continuous period of not less
than 12 months.” 20 C.F.R. § 404.1505(a); see also 42 U.S.C. § 1382c(a)(3)(A). The
Commissioner follows a five-step evaluation process—found at 20 C.F.R. § 404.1520—to
determine if a claimant is disabled:
1.

Was claimant engaged in a substantial gainful activity?

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2.

Did claimant have a medically determinable impairment, or a combination
of impairments, that is “severe,” which is defined as one which substantially
limits an individual’s ability to perform basic work activities?

3.

Does the severe impairment meet one of the listed impairments?

4.

What is claimant’s residual functional capacity and can claimant perform
past relevant work?

4.

Can claimant do any other work considering her residual functional
capacity, age, education, and work experience?

Under this five-step sequential analysis, the claimant has the burden of proof in Steps One
through Four. Walters, 127 F.3d at 529. The burden shifts to the Commissioner at Step Five to
establish whether the claimant has the residual functional capacity to perform available work in
the national economy. Id. The ALJ considers the claimant’s residual functional capacity, age,
education, and past work experience to determine if the claimant could perform other work. Id.
Only if a claimant satisfies each element of the analysis, including inability to do other work, and
meets the duration requirements, is she determined to be disabled. 20 C.F.R. §§ 404.1520(b)-(f);
see also Walters, 127 F.3d at 529.
DISCUSSION
Plaintiff raises a single objection to the ALJ’s decision—that the ALJ erred in her analysis
of Plaintiff’s subjective symptom reports. (Doc. 17). Specifically, Plaintiff argues the ALJ failed
to comply with Social Security Regulation (“SSR”) 16-3p in that she “provided [a] . . . boilerplate
conclusion regarding [Plaintiff’s] statements” and did not consider the other factors required by
the regulation. Id. at 11. The Commissioner responds that the ALJ properly addressed Plaintiff’s
statements, the RFC is supported by substantial evidence, and there was no error. (Doc. 19). For
the reasons discussed below, the undersigned agrees with Plaintiff that the ALJ erred in her
credibility analysis and remand is required.

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The Sixth Circuit has long recognized, “pain alone, if the result of a medical impairment,
may be severe enough to constitute disability.” King v. Heckler, 742 F.2d 968, 974 (6th Cir.
1984); see also Grecol v. Halter, 46 F. App’x 773, 775 (6th Cir. 2002). As the relevant Social
Security regulations make clear, however, a claimant’s “statements about [his] pain or other
symptoms will not alone establish that [he is] disabled.” 20 C.F.R. § 404.1529(a); see also Walters
v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997); Hash v. Comm’r of Soc. Sec., 309 F.
App’x 981, 989 (6th Cir. 2009). Accordingly, “subjective complaints may support a finding of
disability only where objective medical evidence confirms the severity of the alleged
symptoms.” Workman v. Comm’r of Soc. Sec., 105 F. App’x 794, 800-01 (6th Cir.
2004) (citing Blankenship v. Bowen, 874 F.2d 1116, 1123 (6th Cir. 1989)). However, where the
objective medical evidence fails to confirm the severity of a claimant’s subjective allegations, the
ALJ “has the power and discretion to weigh all of the evidence and to resolve the significant
conflicts in the administrative record.” Id. (citing Walters, 127 F.3d at 531).
Instead, a claimant’s assertions of disabling pain and limitation are evaluated under the
following standard:
First, we examine whether there is objective medical evidence of an underlying
medical condition. If there is, we then examine: (1) whether objective medical
evidence confirms the severity of the alleged pain arising from the condition; or (2)
whether the objectively established medical condition is of such a severity that it
can reasonably be expected to produce the alleged disabling pain.
Walters, 127 F.3d at 531 (citations omitted). In determining whether a claimant has disabling pain,
the regulations require an ALJ to consider certain factors including: 1) daily activities; 2) location,
duration, frequency, and intensity of pain or symptoms; 3) precipitating and aggravating factors;
4) the type, dosage, effectiveness, and side effects of any medication; 5) treatment, other than
medication, to relieve pain; 6) any measures used to relieve pain; and 7) other factors concerning

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functional limitations and restrictions due to pain or other symptoms. 20 C.F.R. § 404.1529(c);
SSR 96-7p, 1996 WL 374186, at *3 (“20 CFR 404.1529(c) . . . describe[s] the kinds of evidence,
including the factors below, that the adjudicator must consider in addition to the objective medical
evidence when assessing the credibility of an individual’s statements”). Although the ALJ must
“consider” the listed factors, there is no requirement that the ALJ discuss every factor. White v.
Comm’r of Soc. Sec., 572 F.3d 272, 287 (6th Cir. 2009); Roberts v. Astrue, 2010 WL 2342492, at
*11 (N.D. Ohio).
In this respect, it is recognized that the ALJ’s credibility assessment “must be accorded
great weight and deference.” Workman, 105 F. App’x at 801 (citing Walters, 127 F.3d at 531); see
also Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 536 (6th Cir. 2001) (quoting Myers v.
Richardson, 471 F.2d 1265, 1267 (6th Cir. 1972) (“[i]t [i]s for the [Commissioner] and his
examiner, as the fact-finders, to pass upon the credibility of the witnesses and weigh and evaluate
their testimony”)). It is not for this Court to reevaluate such evidence anew, and so long as the
ALJ’s determination is supported by substantial evidence, it must stand. An ALJ’s finding that a
claimant’s subjective allegations are not fully supported is a finding that should not be lightly
disregarded. See Varley v. Sec’y of Health & Human Servs., 820 F.2d 777, 780 (6th Cir. 1987). In
fact, as the Sixth Circuit has stated, “[w]e have held that an administrative law judge’s credibility
findings are virtually unchallengeable.” Ritchie v. Comm’r of Soc. Sec., 540 F. App’x. 508, 511
(6th Cir. 2013) (citation omitted). Nevertheless, an ALJ’s decision to discount a claimant’s
credibility “must contain specific reasons for the finding on credibility, supported by the evidence
in the case record, and must be sufficiently specific to make clear to the individual and any
subsequent reviewers the weight the adjudicator gave to the individual’s statements and the reasons
for that weight.” SSR 96-7p, 1996 WL 374186, at *2. Moreover, the regulation at issue states

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specifically that the ALJ “will not reject your statements about the intensity and persistence of
your pain or other symptoms or about the effect your symptoms have on your ability work solely
because the available objective medical evidence does not substantiate your statements.” 20 C.F.R.
§ 404.1529(c)(2) (emphasis added).
As a preliminary matter, the undersigned notes that Plaintiff frames her argument
specifically in reference to SSR 16-3p, 2016 WL 1119029. This regulation supersedes SSR 96-7p,
1996 WL 374186, however, SSR 16-3p’s effective date in March 2016 post-dates the ALJ’s March
2015 decision. Plaintiff does not present a specific argument regarding retroactivity, and in her
reply brief, frames the issue as “the ALJ’s assessment of Plaintiff’s statements failed to comply
with SSR 96-7P and SSR 16-3P.” (Doc. 20, at 1) (emphasis added). District courts within this
Circuit have disagreed regarding the retroactivity of SSR 16-3p and the Sixth Circuit has not
decided the issue.
Those courts applying SSR 16-3p retroactively have relied on the fact that SSR 16-3p’s
purpose was clarification, rather than change. See, e.g., Sypolt v. Berryhill, 2017 WL 1169706, at
n.4 (N.D. Ohio) (applying SSR 16-3p retroactively). Those courts declining to apply SSR 16-3p
retroactively have relied upon prior Sixth Circuit statements regarding retroactivity in social
security cases. See, e.g., Brothers v. Berryhill, 2017 WL 2912535, at *10 (N.D. Ohio) (collecting
cases and declining to apply SSR 16-3p retroactively) (citing, inter alia, Cruse v Comm’r of Soc.
Sec., 502 F.3d 532, 541-42 (6th Cir. 2007) (“We are not aware of any constitutional or statutory
requirement that the Administration apply its [newly effective] policy interpretation rulings to
appeals then-pending in federal courts, absent, of course, ex post facto or due process concerns not
present here.”); Combs v. Comm’r Soc. Sec., 459 F.3d 640, 642 (6th Cir. 2006) (“The [Social

15

Security] Act does not generally give the SSA the power to promulgate retroactive regulations.”)),
report and recommendation adopted by 2017 WL 2908875.
The Sixth Circuit, while declining to reach the retroactivity issue, has characterized SSR
16–3p as merely eliminating “the use of the word ‘credibility’ . . . to ‘clarify that subjective
symptom evaluation is not an examination of an individual’s character.’” Dooley v. Comm’r of
Soc. Sec., 656 F. App’x 113, 119 n.1 (6th Cir. 2016). The undersigned finds it unnecessary to
decide this issue, as it is “largely academic here”, Goddard v. Berryhill, 2017 WL 2190661, at *20
(N.D. Ohio). Both SSR 16-3p and 96-7p refer to the two-step process described above, and the
factors listed in 20 C.F.R § 404.1529(c). Additionally, both rulings provide that an individual’s
subjective symptoms statements may not be rejected on the basis of objective evidence alone. See
SSR 96-7p, 1996 WL 374186, at *6 (“[A]llegations concerning the intensity and persistence of
pain or other symptoms may not be disregarded solely because they are not substantiated by
objective medical evidence. A report of negative findings from the application of medically
acceptable clinical and laboratory diagnostic techniques is one of the many factors that
appropriately are to be considered in the overall assessment of credibility.”); SSR 16-3p, 2016 WL
1119029, at *5 (“[W]e will not disregard an individual’s statements about the intensity,
persistence, and limiting effects of symptoms solely because the objective medical evidence does
not substantiate the degree of impairment-related symptoms alleged by the individual.[ ] A report
of minimal or negative findings or inconsistencies in the objective medical evidence is one of the
many factors we must consider in evaluating the intensity, persistence, and limiting effects of an
individual’s symptoms.”) (footnote omitted). The Court’s evaluation of Plaintiff’s argument herein
would be the same applying either SSR 16-3p or SSR 96-7p.

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Here, the ALJ explained the two-step process for evaluating symptoms. (Tr. 43). She then
summarized Plaintiff’s testimony and noted that in making her RFC determination, she “ha[d]
considered all symptoms and the extent to which these symptoms can reasonably be accepted as
consistent with the objective medical evidence and other evidence, based on the requirements of
20 CFR 404.1529 and SSRs 96-4p and 96-7p.” Id. The ALJ summarized Plaintiff’s subjective
symptom reports:
The claimant reported pain, fatigue, stiffness, a limited agility, alleging that she
can’t bend, stoop, or walk for any length of time (Ex. 3E, 1, 6). The claimant
testified that she sleeps frequently, but not a good solid sleep, and that she has
problems climbing stairs, often resulting in falls. Further, the claimant testified she
still experiences aches and pains, and has limited balance.
(Tr. 44). The ALJ then explained Plaintiff’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
credible due to normal physical findings and other medical evidence detailed below.” Id.
(emphasis added). Following this statement, the ALJ summarized the medical evidence, including:
1) Plaintiff’s right hip fracture and subsequent surgery; 2) Plaintiff’s lumbar spine x-ray, which
showed “only mild degenerative changes”; 3) the consultative examination with Dr. Waldbaum,
“which revealed largely normal findings”; and 4) the opinion evidence, including Dr. Waldbaum’s
opinion, Dr. Lele’s opinion, and Dr. Congbalay’s opinion, along with the ALJ’s reasons for the
weight given to each opinion. (Tr. 44-45). At the end of the ALJ’s RFC analysis, which included
the above credibility statement, the ALJ stated:
In sum, the above residual functional capacity assessment is supported by the
claimant’s testimony that her hip healed well, and record evidence documenting the
claimant’s right hip alignment was stable, with no new factures identified, and a
stable radiographic appearance of the orthopedic screw fixation femoral. Further
evidence that supports the residual functional capacity incudes only mild
degenerative changes of the lumbar spine and reversal of normal lumbar lordosis,
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and normal findings on physical exam, such as stable, non-antalgic gait, normal
range of motion bilaterally in the hips, and lumbar movements functional with no
particular discomfort noted.
(Tr. 45) (record citations omitted).
The ALJ’s decision as a whole, therefore, reflects that she did precisely what the applicable
regulation says she may not: “reject [Plaintiff’s] statements about the intensity and persistence of
[her] pain or other symptoms or about the effect [her] symptoms have on [her] ability work solely
because the available objective medical evidence does not substantiate [Plaintiff’s] statements.”
20 C.F.R. § 404.1529(c)(2) (emphasis added); see also SSR 96-7p, 1996 WL 374186, at *6
(“[A]llegations concerning the intensity and persistence of pain or other symptoms may not be
disregarded solely because they are not substantiated by objective medical evidence. A report of
negative findings from the application of medically acceptable clinical and laboratory diagnostic
techniques is one of the many factors that appropriately are to be considered in the overall
assessment of credibility.”).
Other courts in the Northern District of Ohio have held this to be reversible error. See
Anthony v. Comm’r of Soc. Sec., 2014 WL 4249782, at *8 (N.D. Ohio) (noting that the ALJ’s
explanation “shows that he discounted [the plaintiff’s] credibility based solely on his determination
that the objective medical evidence was insufficient to support her claims” and remanding after
stating that “[w]hile the Commissioner may be correct that substantial evidence exists in the record
to support the ALJ’s credibility finding, both the Sixth Circuit and this court have reversed and
remanded where the ALJ failed to comply with the applicable procedural requirements when
conducting the analysis”) (citing Felisky, 35 F.3d at 1039; Romig v. Astrue, 2013 WL 1124669, at
*6 (N.D. Ohio)); Romig, 2013 WL 1124669, at *5 (“Although the ALJ was under no obligation to
accept [the plaintiff’s] testimony as credible, he was obligated to provide reasons for his credibility

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finding that are sufficiently specific to allow subsequent reviewer, such as this Court, to understand
the result. Here, the ALJ did not discuss any of the seven factors set forth in SSR 96-7p. While the
ALJ mentioned some of [the plaintiff’s] daily activities, he fails to explain how these activities
either support or detract from her credibility.”); see also Knight v. Comm’r of Soc. Sec., 2015 WL
5916181, at *4 (E.D. Mich.) (finding ALJ’s statements that “[t]he objective medical evidence does
not fully corroborate the claimant’s testimony regarding the extent of her limitations” and that
claimant was not credible “for the reasons explained in this decision” insufficient when the ALJ
“[did] not set forth those reasons.”).
The Commissioner’s arguments to the contrary are unpersuasive. Notably, the
Commissioner contends:
In accordance with the regulations, the ALJ discussed Plaintiff’s testimony and
allegations regarding the frequency and intensity of her symptoms and her
treatment history. The ALJ observed that Plaintiff complained of ‘pain, fatigue and
stiffness’ and limited mobility due to her impairments. The ALJ also acknowledged
Plaintiff’s testimony that she experienced diffuse pain and difficulty sleeping. The
ALJ further documented Plaintiff’s claims that she had difficulty climbing stairs,
had limited balance, and sometimes fell[.]
(Doc. 19, at 7) (record citations omitted). While it is true that the ALJ summarized these statements
in her opinion, she did not do in conjunction with her credibility analysis, and did not explain how
Plaintiff’s statements bore on the ALJ’s credibility decision or her reasons for discounting those
statements other than that they were not supported by objective evidence. See Tr. 44 (“[T]he
claimant’s statements concerning the intensity, persistence and limiting effects of these symptoms
are not entirely credible due to normal physical findings and other medical evidence detailed
below.”); see also Romig, 2013 WL 1124669, at *5 (“While the ALJ mentioned some of [the
plaintiff’s] daily activities, he fails to explain how these activities either support or detract from
her credibility.”). Although an ALJ is not required to discuss every factor in 20 C.F.R. §

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404.1529(c), White, 572 F.3d at 287, the regulation does require that she “consider” the listed
factors. A review of the ALJ’s credibility assessment here, Tr. 43-44, does not reflect consideration
of any of the seven factors: 1) daily activities; 2) location, duration, frequency, and intensity of
pain or symptoms; 3) precipitating and aggravating factors; 4) the type, dosage, effectiveness, and
side effects of any medication; 5) treatment, other than medication, to relieve pain; 6) any measures
used to relieve pain; and 7) other factors concerning functional limitations and restrictions due to
pain or other symptoms. 20 C.F.R. § 404.1529(c); SSR 96-7p, 1996 WL 374186, at *3 (“20 CFR
404.1529(c) . . . describe[s] the kinds of evidence, including the factors below, that the adjudicator
must consider in addition to the objective medical evidence when assessing the credibility of an
individual’s statements”) (emphasis added)
The Commissioner, in essence, reframes Plaintiff’s argument as a challenge to the RFC
and responds that “[s]ubstantial [e]vidence [s]upports the ALJ’s [r]esidual [f]unctional [c]apacity]
[d]etermination.” (Doc. 19, at 4). She then presents arguments in support of the ALJ’s treatment
of the opinion evidence and support for the ALJ’s RFC determination as a whole. Even if the RFC
determination is supported by substantial evidence, the ALJ’s credibility finding can still be error.
See Cole v. Astrue¸ 661 F.3d 931, 940 (6th Cir. 2011) (“An ALJ’s failure to follow agency rules
and regulations ‘denotes a lack of substantial evidence, even where the conclusion of the ALJ may
be justified based upon the record.’”) (quoting Blakely, 581 F.3d at 407). Although the
Commissioner may indeed be correct that substantial evidence exists in the record to support the
ALJ’s credibility finding, the ALJ here failed to comply with applicable procedural requirements
when performing her analysis thereof. Remand is therefore required.

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CONCLUSION
Following review of the arguments presented, the record, and the applicable law, the
undersigned finds the Commissioner’s decision denying DIB not supported by substantial
evidence. The Court therefore remands the case under Sentence Four of 42 U.S.C. § 405(g) for
proceedings consistent with this opinion.

s/James R. Knepp II
United States Magistrate Judge

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