Smith v. Commissioner of Social Security Administration

Filing 14

Memorandum and Order that the Commissioner's final decision is AFFIRMED. Magistrate Judge David A. Ruiz on 3/25/2019. (G,CA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
ADRIAN D. SMITH,
Plaintiff,
v.

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COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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Case No. 1:17CV2600

MAGISTRATE JUDGE DAVID A. RUIZ

MEMORANDUM AND ORDER

Plaintiff Adrian D. Smith (“Smith” or “claimant”) challenges the final
decision of Defendant Commissioner of Social Security (“Commissioner”), denying
his application for Supplemental Security Income (“SSI”) under Title XVI of the
Social Security Act, 42 U.S.C. §§ 416(i), 423, 1381 et seq. (“Act”). This court has
jurisdiction pursuant to 42 U.S.C. § 405(g).
The issue before the court is whether the final decision of the Commissioner
is supported by substantial evidence and, therefore, conclusive. For the reasons set
forth below, the Commissioner’s final decision is affirmed.

I. PROCEDURAL HISTORY
On November 3, 2014, Smith filed an application for SSI benefits, alleging
disability beginning March 16, 2012. (R. 8, Transcript (“Tr.”), at 11, 666-669, 687689, 700-713.) Smith’s application was denied initially and upon reconsideration.
Id. at 591-607, 608-623, 624-626, 630-631. Thereafter, Smith filed a request for a
hearing before an administrative law judge (“ALJ”). Id. at 632-634.
The ALJ held the hearing on September 16, 2016. (R. 8, Tr., at 547-590.)
Smith appeared at the hearing, was represented by counsel, and testified. (Id. at
549, 553-580.) A vocational expert (“VE”) also attended the hearing and provided
testimony. (Id. at 559, 581-589.) On November 15, 2016, the ALJ issued his
decision, applying the standard five-step sequential analysis to determine whether
Smith was disabled. (R. 8, Tr., at 11-22; see generally 20 C.F.R. § 416.920(a).)
Based on his review, the ALJ concluded Smith was not disabled. Id. at 11, 22. The
Appeals Council denied Smith’s request for review, thus rendering the ALJ’s
decision the final decision of the Commissioner. (R. 8, Tr., at 1-4.)
Smith seeks judicial review of the Commissioner’s final decision pursuant to
42 U.S.C. § 405(g). The parties have completed briefing in this case.
Smith presents the following legal issues for the court’s review:
1. Whether the ALJ properly evaluated and assigned appropriate
weight to the opinion of David Harrison, a treating post masters nurse.
2. Whether the ALJ’s mental residual functional capacity finding is
supported by substantial evidence.
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(R. 12, PageID #: 1878.)

II. PERSONAL BACKGROUND INFORMATION
Smith was born on June 11, 1977, and was 37 years old, which is defined as a
younger individual age 18-49, on the date the application was filed. (R. 8, Tr., at 21,
553, 666.) He has a limited education, and is able to communicate in English. (R. 8,
Tr., at 21, 700, 702.) Smith has no past relevant work. (R. 8, Tr., at 21, 560, 581.)

III. RELEVANT MEDICAL EVIDENCE 1
Disputed issues will be discussed as they arise in Smith’s brief alleging error
by the ALJ. Smith applied for SSI benefits on November 3, 2014, alleging disability
beginning March 16, 2012. (R. 8, tr., at 11, 666-669.) He identified the physical or
mental conditions which limit his ability to work as: “degenerative disc disease,
depression, anxiety, sciatic nerve damage, sleep apnea, scoliosis, alcohol and drug
abuse.” Id. at 701. The claimant testified, in response to the ALJ’s question
regarding what prevents him from working, that it was back pain, shooting pains in
his legs, and an inability to get to the bus stop to go to work. (R 8, tr., at 562-563.)
On March 16, 2013, Smith presented to Fairview Hospital, reporting that he
was in a low-speed motor vehicle accident. (R. 8, tr., at 784.) Smith reported he
The summary of relevant medical evidence is not intended to be
exhaustive. It includes only those portions of the record cited by the parties and
also deemed relevant by the court to the assignments of error raised.
3
1

was in the front passenger seat, banged his knees on the dashboard, and
complained of right knee pain, as well as low back pain. Id. On physical
examination, Smith had normal range of musculoskeletal motion, with no
tenderness, although he had mild spinal and paraspinal tenderness. Id. at 785.
Bilateral knee exam was nontender, with no effusions and no ecchymosis. Id. Xrays of the back and right knee were normal. Id. at 788-789. Smith was diagnosed
with lumbar strain and knee contusion. Id. at 786.
Smith presented at North Coast Health on April 30, 2014, for a diagnostic
assessment of his longstanding depression and anxiety. (R. 8, tr., at 1092-1096.)
Adrian Jurkiw, LISW, assessed Smith with Major Depressive Disorder, recurrent,
and Post Traumatic Stress disorder. Id. at 1096.
On October 15, 2014, Smith present to Samuel Rosenberg, M.D., for a spine
consult for back pain which radiates to both toes. (R. 8, tr., at 1030.) On
neurological examination, Smith had full range of motion with both arms and legs,
although he reported cervical and lumbar tenderness on both sides. Id. at 10311032. He also experienced back pain bilaterally on straight leg raises. Id. at 1032.
Dr. Rosenberg’s impression was lumbar radiculopathy, C7 radiculopathy on the
right, depression and anxiety, with a history of alcohol and marijuana use. Id. at
1032-1033. The doctor prescribed neurontin, and X-rays of the lumbar spine and
hips. Id. at 1033. MRIs were done of the lumbar spine on October 24, 2014, which
revealed L3 through S1 disc disease, without significant canal or foramin pathology.
Id. at 1009-1010, 1492. On October 28, 2014, Kevin Leisinger, M.D., reviewed the
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results of the MRI with Smith, which showed degenerative disc disease, with some
bulging at L3, and recommended he follow up with MetroHealth Spine Center. Id.
at 1071-1072.
Smith filed his application for SSI benefits on November 3, 2014. (R. 8, tr., at
11, 666-669.)
On November 26, 2014, the claimant presented to pain specialist Hong Shen,
M.D., at Lutheran Hospital. (R. 8, tr., at 1449-1456.) Smith reported low back pain
that radiates to both legs, for the past two years. Id. at 1449. He reported that
over-the-counter pain medications did not help his pain, but the Percocet, Ultram
and Flexiril he was treated with after the auto accident helped. Id. at 1449, 1451.
Neurosurgeon Dr. Rosenberg recommended an injection, but the record noted
“patient is not interested.” Id. at 1451. On examination, Smith had normal range
of motion in all joints, with some tenderness on palpitation over paraspinous. Id. at
1452. His gait was normal. Id. Straight leg test was negative. Id. Smith was
assessed with chronic low back pain, and lumbar disc displacement without
myelopathy. Id. Dr Shen recommended that Smith lose weight and become more
active. Id. Dr. Shen noted that the neurosurgeon Dr. Rosenberg had offered an
epidural injection, which Smith had declined, and Dr. Shen again offered an
epidural steroid injection, which claimant again declined. Id. at 1452-1453. The
doctor indicated that the patient has significant psychological issues, and needed to
have a comprehensive chronic pain rehabilitation program. Id. at 1453.

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Mitchell Wax, Ph.D., conducted a consultative psychological evaluation of
claimant on December 19, 2014. (R. 8, tr., at 1291-1297.) Smith reported to Dr.
Wax that the main reason he is not able to work is “because he has medical
problems.” Id. at 1292. Smith reported he had residual back pain from the car
accident two years before, plus disc disease and scoliosis. Id. at 1292. The claimant
reported he had a long criminal history, having been arrested over twenty times,
including three times for drug trafficking, at least four times for disorderly conduct,
and two terms of incarceration for possession of cocaine. Id. at 1293. “The claimant
stated that even though he has been arrested multiple times for trafficking cocaine
and for possession of cocaine, he never used cocaine.” Id. Smith stated he smokes
marijuana daily, and “drink[s] at least a fifth of alcohol three times a week,” to help
him deal with his pain. Id.
Smith reported to Dr. Wax that he was usually depressed, frequently had
crying spells, and had problems with anger. (R. 8, tr., at 1294.) Dr. Wax noted that
claimant appeared fretful, and claimed to have daily panic attacks. Id. at 1295. Dr.
Wax did not conduct any psychological testing, but based on his clinical interview
and the social worker’s April 2014 assessment, he diagnosed claimant with major
depression, polysubstance dependence, and panic disorder with agoraphobia. Id. at
1291, 1295; see generally tr., at 1092-1096 (April 2014 assessment).
Dr. Wax’s functional assessment was that Smith would be able to
understand, remember, and carry out instructions on a job, as well as maintain
attention and concentration. Id. at 1296. The psychologist noted that claimant was
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able to perform simple and multi-step tasks. Id. Dr. Wax stated Smith would
respond appropriately to supervisors and coworkers in a work setting, although he
noted that Smith stated that he gets in arguments with family members and
strangers three to four times a week. Id. Dr. Wax assessed that Smith would not
respond appropriately to work pressures in a work setting, due to his depression.
Id. at 1297.
On referral from Dr. Shen, Smith presented to Judith Scheman, Ph.D., at the
Cleveland Clinic Neurological Center for Pain, for a pain medicine evaluation on
January 2, 2015. (R. 8, tr., at 1328-1333.) Smith’s chief complaints were low back
pain, bilateral leg pain, and occasional neck pain. Id. at 1328. Dr. Scheman’s
impressions included that claimant was catastrophizing his increasing pain, and
that his depression and anxiety were contributing to his pain perceptions. Id. at
1331. Dr. Scheman recorded diagnoses of chronic low back pain, lumbar disc
displacement without myelopathy, and psychological factors affecting his physical
condition. Id. at 1329, 1331. The psychologist noted that Smith had a severe
problem with sleep, and recommended an evaluation of that issue occur before the
chronic pain rehabilitation program. Id. at 1331. Dr. Scheman also recommended a
substance abuse evaluation and treatment recommendation prior to admission in
the pain program. Id.
Dr. Scheman’s goals for Smith were to decrease his pain, improve his mood
and function, and eliminate habituating drugs, through his participation in the

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chronic pain rehabilitation program (substance abuse education track) for three to
four weeks. (R. 8, tr., at 1331.) Her prognosis for him was fair to good. Id.
On initial review, state agency physician Maria Congbalay, M.D., completed
a physical residual functional capacity (“RFC”) assessment on January 9, 2015. (R.
8, tr., at 601-603.) Dr. Congbalay opined that Smith was limited to lifting and
carrying twenty pounds occasionally, and ten pounds frequently, and otherwise
unlimited ability to push or pull. Id. at 601. Smith was capable of standing,
walking, or sitting for about six hours of an eight-hour workday. Id. The claimant
could occasionally climb ramps or stairs, and never climb ladders, ropes or scaffolds.
Id. He could frequently balance; occasionally stoop, kneel, crouch or crawl; and
needs to avoid all exposure to unprotected heights or dangerous machinery. Id. at
601-602.
A psychiatric review completed by Bruce Goldsmith, Ph.D., on January 15,
2015, found that Smith had affective disorders (12.04) and anxiety-related disorders
(12.06). (R. 8, tr., at 599.) These disorders resulted in a mild restriction of activities
of daily living, and moderate difficulties in maintaining social functioning and in
maintaining concentration, persistence or pace. Id.
Dr. Goldsmith also completed a mental RFC assessment on January 15,
finding that Smith was moderately limited in his abilities to: maintain attention
and concentration for extended periods, work in coordination with or in proximity to
others without being distracted by them, and complete a normal workday without
interruptions from psychologically based symptoms, and perform at a consistent
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pace without an unreasonable number and length of rest periods. (R. 8, tr., at 603604.) Dr. Goldsmith opined that Smith would be best suited for work tasks that
would not require collaboration with others, strict or high productivity demands, or
a consistent fast pace. Id. at 604.
Dr. Goldsmith also assessed that Smith was moderately limited in his ability
to interact appropriately with the general public, and in the ability to get along with
coworkers or peers without distracting them or exhibiting behavioral extremes. (R.
8, tr., at 604.) He said the claimant would be best suited for non-public work, with
superficial interactions with others. Id. In addition, Dr. Goldsmith rated Smith as
moderately limited in the ability to respond appropriately to changes in the work
setting. Id. The psychologist stated that Smith would be best suited for a work
environment where job duties and requirements are generally static, and changes in
routine are infrequent and easily adaptable. Id.
On February 23, 2015, clinical psychologist Giries W. Sweis, Psy.D., at the
Cleveland Clinic Neurological Center for Pain completed a pain psychology progress
note on Smith. (R. 8, tr., at 1709-1713.) Dr. Sweis indicated that Smith was late for
his follow-up appointment, appearing unengaged, withdrawn, and slightly
disheveled and malodorous. Id. at 1709. Smith reported that he continued to
struggle with pain, and had been to the Emergency Department twice earlier that
month, where he received ibuprofen and a 10-day supply of Percocet. Id. Dr. Sweis
assessed chronic pain intertwined with chemical dependency, moderately severe
depression and profound pain related functional impairment. Id. at 1709-1710.
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The psychologist diagnosed claimant with alcohol dependence, cannabis
dependence, chronic low back pain, lumbar disc displacement without myelopathy,
and psychological factors affecting his physical condition. Id. at 1710. Dr. Sweis
recommended cognitive behavioral therapy for behavior modification and cognitive
restructuring. Id. Dr. Sweis indicated that Smith needed to have a clean urine
toxicology screen in three to four weeks given his history of daily cannabis use, that
he needed to stop using marijuana and alcohol, and that he needed to attend AA or
NA meetings three times per week. Id. Dr. Sweis ordered a urine toxicology screen
for that day, and a follow-up appointment in one week. Id.
On March 2, 2015, Smith presented for a sleep medicine consultation with
Tina Waters, M.D., at the Cleveland Clinic Sleep Disorders Center. (R. 8, tr., at
1714-1719.) Dr. Leisinger referred claimant for evaluation of his sleep apnea. Id.
at 1714. Dr. Waters planned a polysomnogram to evaluate for obstructive sleep
apnea and rapid eye movement sleep behavior disorder (RBD). Id. at 1719. She
referred him to behavioral sleep medicine, and to follow up after the sleep study.
Id. The subsequent sleep study did confirm severe obstructive sleep apnea. Id. at
1727.
A psychiatric review completed by Vicki Warren, Ph.D., on April 13, 2015, on
reconsideration agreed with the earlier review done by Dr. Goldsmith, finding that
Smith had affective disorders (12.04) and anxiety-related disorders (12.06), which
resulted in a mild restriction of activities of daily living, with moderate difficulties
in maintaining social functioning and in maintaining concentration, persistence or
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pace. (R. 8, tr., at 615-616.) Dr. Warren’s mental RFC assessment was also in
complete accord with Dr. Goldsmith’s assessment. Id. at 619-621.
Robin Benis, M.D., conducted a consultative internal medicine examination
on April 20, 2015. (R. 8, tr., at 1338-1346.) Smith reported to Dr. Benis that his
chief complaints were chronic low back pain, herniated discs, hypertension, and
sleep apnea. Id. at 1338. He claimed to have severe sciatica that radiates down
both legs, that he is unable to walk far distances or to lift or carry. Id. Smith said
he had pain all day and at night. Id. He reported he goes to the E.R. frequently,
where he gets percocet and morphine for his severe pain. Id. He also has
hypertension and asthma. Id. Dr. Benis reported his gait was halting, that he
seemed to have pain while walking, but he did not use an assistive device. Id. at
1339. Manual muscle testing results were reliable and mostly normal. Id. at 1343.
There was some reduced range of motion in the dorsolumbar spine. Id. at 1345.
Dr. Benis’ diagnosis was low back pain with sciatica, radiculopathy,
hypertension, history of possible asthma and chest pain. (R. 8, tr., at 1341.)
Smith’s prognosis was fair. Id. The doctor’s medical source statement indicated
that claimant had mild to moderate limitations with ambulation due to chronic low
back pain. He should avoid activities requiring moderate, or greater, exertion
because of chest pain. Smith should not be exposed to particulate matter due to the
history of possible asthma. Id. at 1342.
On reconsideration, state agency physician James Cacchillo, D.O., completed
a physical RFC assessment on May 9, 2015, which found identical limitations as
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those assessed in January by Dr. Congbalay. (R. 8, tr., at 617-619, see id. at 601603.)
Smith presented to Seerat K. Bahnimal, LISW, for psychological evaluation
on May 17, 2016. (R. 8, tr., at 1811-1818.) Smith reported his chief complaint was
“I just feel down in the dumps.” Id. at 1812. During the mental status
examination, Smith reported: a history of depression, seeing shadows “trying to
take me off this planet,” a sense of paranoia and belief people were plotting against
him. Id. at 1814. The claimant reported nightmares and flashbacks, and . an
obsession with the pain he was currently experiencing. Id. The social worker
reported that claimant seemed to be seeking pain medications, but given claimant’s
history of substance abuse, it was recommended not to prescribe any. Id. The
social worker diagnosed Smith with schizophrenia, paranoid type; anxiety disorder,
post traumatic stress disorder; and cannabis abuse. Id.
Physician Assistant2 David Harrison completed a Medical Source Statement
on the patient’s physical capacity on August 5, 2016. (R. 8, tr., at 1652-1653.)
Harrison indicated that Smith was limited to lifting or carrying 15 pounds

Both parties have misidentified Harrison’s job title. The ALJ apparently
misread Harrison’s signature, followed by “PA-C,” as “PM-C.” See R. 8, tr., at 20,
1653. The court was unable to locate a medical abbreviation, PM-C, which led to
further investigation. The plaintiff misstates Harrison’s credentials, identifying him
as “the post masters nurse who cared for Mr. Smith at Lutheran Hospital.” (R. 12,
PageID #: 1892.) The defendant refers to Harrison as a “nurse practitioner.” (R. 13,
PageID #: 1904.) In fact, reference to the Cleveland Clinic’s website indicates that
“David Harrison, PA-C” is a Physician Assistant in the Center for Spine Health at
Lutheran Hospital, with a degree from Cuyahoga Community College (a two-year
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occasionally, and 10 pounds frequently, as heavier amounts would increase stress
on Smith’s “injured low back area.” Id. at 1652. Harrison opined that Smith can
stand or walk less than one hour in an 8-hour workday, and less than five minutes
at a time. Id. Smith was only capable of sitting for about three hours in a workday,
and only for ten minutes at a time. Id. Harrison also opined that Smith could
rarely climb, balance, stoop, crouch, kneel or crawl. Id. All of the aforementioned
limitations were due to lumbar disc displacement with radiculopathy. Id.
PA Harrison also indicated that Smith could rarely reach, push or pull, that
he could occasionally perform gross manipulation, and he could frequently perform
fine manipulation. (R. 8, tr., at 1653.) Harrison noted that Smith would need to be
restricted from heights, moving machinery, and temperature extremes. Id.
Harrison indicated that Smith had been prescribed a cane and a walker, as well as
a CPAP breathing machine. Id. Smith would also need to alternate positions
between sitting, standing, and walking, at will. Id. PA Harrison further indicated
that Smith experienced severe pain that would interfere with concentration, take
him off task, and cause absenteeism. (R. 8, tr., at 1653.) Smith would need to
elevate his legs at will, and would also require additional unscheduled rest periods
during the workday. Id.
On September 29, 2016, consultative clinical psychologist, Richard G. Litwin,
Ph.D., prepared a psychological evaluation of Smith, to determine if competitive
college which only confers Associate’s degrees and certificates). See
https://my.clevelandclinic.org/staff/14448-david-harrison.
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employment was feasible at that time. (R. 8, tr., at 1825-1828.) Smith reviewed his
medical history and his current medications for Dr. Litwin. Id. at 1825. Given the
claimant’s reduced mobility, Dr. Litwin administered the various tests at Smith’s
home. Id. at 1826. Results of the Wechsler Adult Intelligence Scale-IV placed
Smith’s intellectual skills in the borderline range. Id. Weakness was noted in
processing speed, abstract reasoning, and attention span, although his command of
simple vocabulary was adequate. Id. Results of the Wide Range Test of
Achievement-4 revealed learning limitations in reading, spelling, and math. Id. at
1827. Dr. Litwin assessed Smith with major depressive disorder, recurrent, severe
with psychotic features; schizophrenia; reading disorder; cannabis use; and
borderline intellectual functioning. Id. at 1827.
Dr. Litwin’s summary impressions were that Smith is severely symptomatic,
“has hallucinations, feels paranoid, is overwhelmed by depressive symptoms, has
suicidal thoughts and has been increasingly anxious if not agoraphobic.” (R. 8, tr.,
at 1828.) Dr. Litwin noted that Smith was very focused on his physical pain,
seemed “emotionally brittle,” and may need more intensive psychiatric intervention.
Id. Dr. Litwin concluded that, given the above, he did not believe that Smith was
employable. Id.

IV. ALJ’s DECISION
The ALJ made the following findings of fact and conclusions of law in his
November 15, 2016, decision:
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1. The claimant has not engaged in substantial gainful activity since
November 3, 2014, the application date (20 CFR 416.971 et seq.).
2. The claimant has the following severe impairments: degenerative
disc disease, obesity, obstructive sleep apnea, diabetes mellitus,
affective disorders, anxiety disorders and substance addition disorders
(20 CFR 416.920(c)).
3. The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20
CFR 416.920(d), 416.925, and 416.926).
4. After careful consideration of the entire record, I find that the
claimant has the residual functional capacity to perform light work as
defined 20 CFR 416.967(b), except he can occasionally climb ramps or
stairs, but never climb ladders, ropes, or scaffolds. The claimant can
occasionally balance, stoop, kneel, crouch, and crawl. The claimant
can never be exposed to unprotected heights or moving mechanical
parts. Mentally, the claimant can work in an environment with no
production rate pace requirements. The claimant can occasionally
interact with the public, co-workers and supervisors. He can tolerate
occasional routine workplace changes.
5. The claimant does not have any past relevant work (20 CFR
416.965).
6. The claimant was born on June 11, 1977, and was 37 years old,
which is defined as a younger individual age 18-49, on the date the
application was filed (20 CFR 416.963).
7. The claimant has a limited education and is able to communicate in
English (20 CFR 416.964).
8. Transferability of job skills is not an issue in this case because the
claimant’s past relevant work is unskilled (20 CFR 416.968).
9. Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform (20
CFR 416.969, and 416.969(a)).

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10. The claimant has not been under a disability, as defined in the
Social Security Act, since November 3, 2014, the date the application
was filed (20 CFR 416.920(g)).
(R. 8, Tr., at 13, 15, 21, 22.)
V. DISABILITY STANDARD
A claimant is entitled to receive SSI benefits only when he establishes
disability within the meaning of the Social Security Act. See 42 U.S.C. §§ 423, 1381.
A claimant is considered disabled when he cannot perform “substantial gainful
employment by reason of any medically determinable physical or mental
impairment that can be expected to result in death or that has lasted or can be
expected to last for a continuous period of not less than twelve (12) months.” 20
C.F.R. § 416.905(a).
Social Security Administration regulations require an ALJ to follow a fivestep sequential analysis in making a disability determination. See 20 C.F.R. §
416.920(a); Heston v. Commissioner of Social Security, 245 F.3d 528, 534 (6th Cir.
2001). The Sixth Circuit has outlined the five steps as follows:
First, the claimant must demonstrate that he has not engaged in
substantial gainful activity during the period of disability. 20 C.F.R.
§ 404.1520(a)(4)(i). Second, the claimant must show that he suffers
from a severe medically determinable physical or mental
impairment. Id. § 404.1520(a)(4)(ii). Third, if the claimant shows
that his impairment meets or medically equals one of the
impairments listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1, he is
deemed disabled. Id. § 404.1520(a)(4)(iii). Fourth, the ALJ
determines whether, based on the claimant's residual functional
capacity, the claimant can perform his past relevant work, in which
case the claimant is not disabled. Id. § 404.1520(a)(4)(iv). Fifth, the
ALJ determines whether, based on the claimant's residual
functional capacity, as well as his age, education, and work
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experience, the claimant can make an adjustment to other work, in
which case the claimant is not disabled. Id. § 404.1520(a)(4)(v).
The claimant bears the burden of proof during the first four steps,
but the burden shifts to the Commissioner at step five. Walters v.
Comm'r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997).
Wilson v. Commissioner of Social Security, 378 F.3d 541, 548 (6th Cir. 2004); see
also 20 C.F.R. § 416.920(a)(4).

VI. STANDARD OF REVIEW
Judicial review of the Commissioner’s benefits decision is limited to a
determination of whether the ALJ applied the correct legal standards, and whether
the findings of the ALJ are supported by substantial evidence. Blakley v.
Commissioner of Social Security, 581 F.3d 399, 405 (6th Cir. 2009); Richardson v.
Perales, 402 U.S. 389, 401 (1971). “Substantial evidence” has been defined as more
than a scintilla of evidence, but less than a preponderance of the evidence. Wright
v. Massanari, 321 F.3d 611, 614 (6th Cir. 2003); Kirk v. Sec’y of Health & Human
Servs., 667 F.2d 524, 535 (6th Cir. 1981). Thus, if the record evidence is of such a
nature that a reasonable mind might accept it as adequate support for the
Commissioner’s final benefits determination, then that determination must be
affirmed. Wright, 321 F.3d at 614; Kirk, 667 F.2d at 535.
The Commissioner’s determination must stand if supported by substantial
evidence, regardless of whether this court would resolve the issues of fact in dispute
differently, or substantial evidence also supports the opposite conclusion. Bass v.
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McMahon, 499 F.3d 506, 509 (6th Cir. 2007); Mullen v. Bowen, 800 F.2d 535, 545
(6th Cir. 1986). This court may not try the case de novo, resolve conflicts in the
evidence, or decide questions of credibility. Wright, 321 F.3d at 614; Garner v.
Heckler, 745 F.2d 383, 387 (6th Cir. 1984). The court, however, may examine all the
evidence in the record, regardless of whether such evidence was cited in the
Commissioner’s final decision. See Walker v. Sec’y of Health & Human Servs., 884
F.2d 241, 245 (6th Cir. 1989); Hubbard v. Commissioner, No. 11-11140, 2012 WL
883612, at *5 (E.D. Mich Feb. 27, 2012) (quoting Heston, 245 F.3d at 535).

VII. ANALYSIS
A. Opinion Evidence
The first issue Smith presents is “Whether the ALJ properly evaluated and
assigned appropriate weight to the opinion of David Harrison, a treating post
masters nurse.” (R. 12, PageID #: 1878, 1892-1895.) As noted earlier, Harrison is a
Physician Assistant, not a “post masters nurse.” Smith contends that the ALJ
failed to utilize the appropriate standards when evaluating Harrison’s functional
assessment. Id. at 1892.
The ALJ addressed Harrison’s assessment as follows:
I give little weight to the opinion of David Harrison, PM-C [sic]
(Exhibit 18F). He is not an acceptable medical source. Also, the
opinion is not supported by medical evidence of record, which generally
shows limitation of range of motion in lumbar spine but normal gait
and normal neurological findings.
(R. 8, tr., at 20.)
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The ALJ has the responsibility for reviewing all the evidence in making his
determinations. 20 C.F.R. § 416.927(e)(2). In addition, the ALJ must consider any
statements about the claimant’s functional capacity that have been provided by
medical sources, whether or not based on formal medical examinations. 20 C.F.R. §
416.945(a)(3).
Harrison, as a physician assistant, is not an “acceptable medical source”
within the meaning of the regulations; and, therefore, he cannot render a “medical
opinion.” Trollinger v. Berryhill, No. 1:17CV01358, 2018 WL 2163824, at *17 (N.D.
Ohio Apr. 25, 2018), adopted by 2018 WL 2149274 (N.D. Ohio May 10, 2018);
Scroggins v. Commissioner, No. 15CV10366, 2016 WL 1090375, at *5 (E.D. Mich.
Mar. 21, 2016); Irizarry v. Colvin, No. 1:13CV2161, 2014 WL 6879117, at *12 (N.D.
Ohio Dec. 4, 2014); see also 20 C.F.R. §§ 416.913(a) (2016), 416.913(d)(1) (2016); SSR
06-3p, 2006 WL 2329939, at *1. Under the regulations that were in effect at the
time 3 that Harrison’s claim was filed and adjudicated, “medical opinions” are
defined as “statements from acceptable medical sources that reflect judgments
about the nature and severity of your impairment(s), including your symptoms,

Revisions to regulations regarding the evaluation of medical evidence went
into effect on March 27, 2017, and purport to apply to the evaluation of opinion
evidence for claims filed before March 27, 2017. 82 Fed. Reg. 5844-5884 (Jan. 18,
2017). Plaintiff’s claim was filed before March 27, 2017, and the ALJ’s decision was
rendered before the new regulations took effect. For the sake of consistency, the
court continues to cite the language from the former regulations that were in effect
at the time of the ALJ’s decision.
3

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diagnosis and prognosis, what you can still do despite impairment(s), and your
physical or mental restrictions.” 20 C.F.R. § 416.927(a)(1) (2016).
At the time of the regulations in effect when the ALJ rendered his decision, a
physician assistant was not an “acceptable medical source,” but was rather
considered an “other source.” 20 C.F.R. § 416.913(d)(1) (2016); Trollinger, 2018 WL
2163824, at *17; Scroggins, 2016 WL 1090375, at *5; Irizarry, 2014 WL 6879117, at
*12; see generally 20 C.F.R. § 416.913(a) (2016) (listing acceptable medical sources).
SSR 06-3p discusses the importance of the distinction between “acceptable
medical sources” and other health care providers, as follows:
The distinction between “acceptable medical sources” and other health
care providers who are not “acceptable medical sources” is necessary
for three reasons. First, we need evidence from “acceptable medical
sources” to establish the existence of a medically determinable
impairment. Second, only “acceptable medical sources” can give us
medical opinions. Third, only “acceptable medical sources” can be
considered treating sources whose medical opinions may be entitled to
controlling weight.
SSR 06-3p, 2006 WL 2329939, at *2 (internal citations omitted).
Because a physician assistant is not considered an “acceptable medical
source” under the regulations, an ALJ is not required to give any special deference
to a physician assistant’s report. Trollinger, 2018 WL 2163824, at *17; Scroggins,
2016 WL 1090375, at *5; see generally Noto v. Commissioner, No. 15-1309, 2015 WL
7253050, at *4 (6th Cir. Nov. 16, 2015); Hill v. Commissioner, 560 Fed. Appx 547,
550 (6th Cir. 2014); Turner v. Colvin, 2015 WL 5474081, at *5 (E.D. Ky. Sept. 16,
2015). The ALJ has discretion to assign such evidence any weight he feels is
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appropriate based on the evidence of record. See generally Noto, 2015 WL 7253050,
at *4; Cruse v. Commissioner, 502 F.3d 532, 541 (6th Cir. 2007).
Although information from other sources such as a physician assistant
cannot establish the existence of an impairment, “the information may provide
insight into the severity of the impairment,” and how it affects the individual’s
ability to function. SSR 06-3p, 2006 WL 2329939, at *2; Cruse, 502 F.3d at 541;
Trollinger, 2018 WL 2163824, at *17; Reynolds v. Colvin, No. 1:12CV2994, 2013 WL
5316578, at *7 (N.D. Ohio Sept. 23, 2013). The ALJ must consider the other
source’s evidence, and how much weight to give to it. Cruse, 502 F.3d at 541. In
evaluating such evidence, the ALJ should consider factors such as the length of the
treating relationship, the consistency with other evidence, and how well the source’s
opinion is explained. Trollinger, 2018 WL 2163824, at *17; Irizarry, 2014 WL
6879117, at *12; see generally McNamara v. Commissioner, No. 15-1231, 2015 WL
8479642, at *1 (6th Cir. Dec. 10, 2015) (per curiam); Cruse, 502 F.3d at 541;
Reynolds, 2013 WL 5316578, at *7. While the ALJ is directed to consider these
factors, no exhaustive analysis of them is required. See generally Francis v.
Commissioner, No. 09-6263, 2011 WL 915719, at *3 (6th Cir. March 16, 2011).
Upon review of the record, the court finds that substantial evidence supports
the ALJ’s decision to give little weight to PA Harrison’s medical source statement.
The ALJ determined that Harrison’s statement “is not supported by medical
evidence of record, which generally shows limitation of range of motion in lumbar
spine but normal gait and normal neurological findings.” (R. 8, tr., at 20.) In the
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ALJ’s earlier discussion of the medical evidence, he indicated that Dr. Shen had
found that Smith had limited range of motion in the lumbar spine, but his gait was
normal. Id. at 17, citing tr., at 1449-1456. His neurological exam was normal. Id.
The ALJ also noted that, during an Emergency Department visit in June 2015, the
doctors found Smith had normal strength and no neurological deficits. Id. at 17-18,
citing tr., at 1409-1410. A May 2016 examination also found full range of motion
and normal strength. Id. at 18, citing tr., at 1803. The ALJ indicated that a normal
gait had been observed in numerous visits to the emergency room. Id. at 19, citing
MER. Supportability and consistency of the evidence are two of the factors that the
ALJ properly considers. See SSR 06-3p, 2006 WL 2329939, at *4. The severe
physical limitations that Harrison opined were not supported by the objective
record and were inconsistent with other substantial evidence. The court finds no
error in the ALJ’s consideration of Harrison’s medical statement.

B. Mental RFC
The second issue presented is “Whether the ALJ’s mental residual functional
capacity finding is supported by substantial evidence.” (R. 12, PageID #: 1878,
1895-1896.) Smith asserts that the ALJ’s mental RFC determination is “legally
insufficient and not supported by substantial evidence.” Id. at 1895.
The ALJ’s RFC found, in relevant part, that:
Mentally, the claimant can work in an environment with no production
rate pace requirements. The claimant can occasionally interact with
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the public, co-workers and supervisors. He can tolerate occasional
routine workplace changes.
(R. 8, tr., at 15.) Smith contends that there was evidence in the record which would
support greater social and stress tolerance restrictions than those in the ALJ’s RFC.
(R. 12, PageID #: 1895-1896.) The Commissioner asserts that the ALJ’s mental
RFC findings were supported by the opinions of the state agency psychological
consultants. (R. 13, PageID #: 1916-1917.)
The claimant’s RFC indicates what he can still do despite his limitations.
Bowman v. Commissioner, 683 Fed. Appx 367, 371 (6th Cir. 2017); 20 C.F.R. §
416.945(a)(1). The ALJ has the responsibility for reviewing all the evidence in
making this determination, and evaluates every medical opinion received in
evidence. 20 C.F.R. §§ 416.927(c), (e)(2). Although the ALJ reviews and considers
all the evidence before him, the responsibility for assessing the claimant’s residual
functional capacity rests with the ALJ. 20 C.F.R. § 416.946(c). This decision is an
administrative, not a medical, determination. Lumpkin v. Colvin, 112 F. Supp. 3d
1169, 1172 (D. Colo. 2015). “The ALJ is not bound to accept the opinion or theory of
any medical expert, but may weigh the evidence and draw his own inferences.”
Simpson v. Commissioner, No. 08-3651, 2009 WL 2628355, at *12 (6th Cir. Aug. 27,
2009); see also Lumpkin, 112 F. Supp. 3d at 1172.
State agency doctors and psychologists are considered highly-qualified
experts in disability evaluation, and the ALJ must consider their evidence. 20
C.F.R. § 416.927(e)(2). Although the ALJ generally accords more weight to opinions
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from a treating source over those of a non-examining source, the ALJ is not
prohibited from adopting the findings of a non-examining source. See generally
Smith v. Commissioner, 482 F.3d 873, 875 (6th Cir. 2007); 20 C.F.R. § 416.927(e).
Here, the ALJ gave great weight to the opinions of the reviewing
psychological consultants Dr. Goldsmith and Dr. Warren. (R. 8, tr., at 20.) The ALJ
stated that they limited the claimant to work that would not require collaboration
with others, high productivity demands or a fast pace. Id., citing R. 8, tr., at 603604, 615-616. In addition, they determined:
Claimant is best suited for nonpublic work with superficial interaction
with others. He is also best suited for a work environment where job
duties/requirements are generally static and changes in routine are
infrequent and easily adaptable.
Id. The Commissioner argues (R. 13, PageID #: 1916-1917), and the court agrees,
that the ALJ’s mental RFC findings are supported by the opinions of Dr. Goldsmith
and Dr. Warren.
Smith, however, contends that the ALJ should have relied instead on the
opinions of two consultative examiners, Dr. Wax and Dr. Litwin. Smith states that
Dr. Wax concluded he would not respond appropriately to work pressures due to
depression. (R. 12, PageID #: 1895, citing R. 8, tr., at 1297.) The ALJ recognized
the sole limitation which Dr. Wax had opined, agreeing that “claimant does have
some limits in functioning,” but overall gave Dr. Wax’s opinion “other weight.” (R.
8, tr., at 19.) The RFC reflected limits on work pressures (no production rate
requirements, occasional routine changes) and claimant’s interaction with others
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(occasional). (R. 8, tr., at 15.) Smith also states that Dr. Litwin found him severely
symptomatic with hallucinations, paranoia, depression, suicidal thoughts, and
anxiety. (R. 12, PageID #: 1895-1896, citing R. 8, tr., at 1828.) The ALJ gave Dr.
Litwin’s opinion little weight, “because it is based on a one-time evaluation and is
heavily dependent on the subjective report of the claimant.” (R. 8, tr., at 20.)
Although Smith points to evidence that could support a contrary conclusion
to the ALJ’s determination (R. 12, PageID #: 1895-1896), the relevant issue is not
whether there is evidence to support a ruling different than that reached by the
ALJ. Lebro ex rel. R.L. v. Commissioner, No. 1:13CV1355, 2014 WL 3749221, at *11
(N.D. Ohio July 29, 2014). The Commissioner’s determination must stand if
supported by substantial evidence, regardless of whether some evidence might
support another conclusion. See Kidd v. Commissioner, No. 99-6481, 2001 WL
345787, at *3 (6th Cir. Mar. 27, 2001); Martin ex rel. Martin v. Chater, 91 F.3d 144,
1996 WL 428403, at *4 (6th Cir. 1996) (TABLE, text in WESTLAW) (per curiam);
Mullen, 800 F.2d at 545; Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983)
(per curiam).
The ALJ cited sufficient evidence and reasonably assessed the pertinent
opinions when determining Smith’s mental RFC. Because the ALJ cited sufficient
reasons for discounting the consultative examiners opinions, the ALJ did not err
when determining their weight. The court finds the ALJ’s mental RFC is supported
by substantial evidence, and the record evidence as discussed in the ALJ’s decision
is such that “a reasonable mind might accept [it] as adequate” support for the ALJ’s
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RFC determination. See Kirk, 667 F.2d at 535 (quoting Richardson, 402 U.S. at
401).
VIII. CONCLUSION
For the foregoing reasons, the Commissioner’s final decision is AFFIRMED.
IT IS SO ORDERED.

s/ David A. Ruiz
David A. Ruiz
United States Magistrate Judge
Date: March 25, 2019

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