Simpson v. Commissioner of Social Security

Filing 22

REPORT AND RECOMMENDATION that the decision of the Commissioner be Affirmed and this matter be Closed on the docket of the Court. Objections to R&R due by 1/25/2016. Signed by Magistrate Judge Karen L. Litkovitz on 1/6/2016. (art)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
SHENA LYNN SIMPSON,
Plaintiff,

Case No. 1: 14-cv-80 1
Dlott, J.
Litkovitz, M.J.

vs.

COMMIS SIONER OF
SOCIAL SECURIT Y,
Defendant.

REPORT AND
RECOMMENDATION

Plaintiffb rings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) for judicial
review of the final decision of the Commiss ioner of Social Security (Commissioner) denying
plaintiffs applications for disability insurance benefits (DIB) and supplemental security income
(SSI). This matter is before the Court on plaintiffs Statemen t of Errors (Doc. 13), the
Commiss ioner' s response in opposition (Doc. 18), and plaintiffs reply memorandum (Doc. 20).

I. Procedural Background
Plaintiff protectively filed applications for DIB and SSI in Decembe r 2010,
alleging disability since October 26, 2009, due to bi-polar disorder, anxiety disorder, ADHD
(attention deficit hyperactivity disorder), rage disorder, dyslexia, PTSD (post-traumatic stress
disorder), and depression.' (Tr. 332). These applications were denied initially and upon
reconsideration. Plaintiff, through counsel, requested and was granted a de novo hearing before
Administrative Law Judge (ALJ) Kenneth Wilson. Plaintiff and a vocational expert (VE)
appeared and testified at the ALJ hearing. On July 17, 2013, the ALJ issued a decision denying

1

Piaintiffpreviously filed applications for benefits on November 13,2006. (Tr. 11 0). Plaintiffs application
s were
denied at the administrative level. (Tr. 139).

plain tiffs DIB and SSI applications. Plain tiffs request
for review by the Appeals Council was
denied, making the decision of the AU the final administra
tive decision of the Commissioner.

II. Analysis
A. Legal Framework for Disability Determinations
To qualify for disability benefits, a claimant must suffer

from a medically determinable

physical or mental impairment that can be expected to resul
t in death or that has lasted or can be
expected to last for a continuous period of not less than
12 months. 42 U.S.C. §§ 423(d )(l)(A )
(DIB), 1382c(a)(3)(A) (SSI). The impairment must rende
r the claimant unable to engag
work previously performed or in any other substantial gainf

e in the

ul employment that exists in the

national economy. 42 U.S.C . §§ 423(d)(2), l382c (a)(3 )(8).
Regulations promulgated by the Commissioner establish
a five-step sequential evalu
process for disability detenninations:
1) If the claimant is doing substantial gainful activity, the
claimant is not disabled.
2) If the claimant does not have a severe medically deter
minable physical or
mental impairment - i.e., an impairment that significantl
y limits his or her
physical or mental ability to do basic work activ ities- the
claimant is not
disabled.
3) If the claimant has a severe impairment(s) that meets
or equals one of the
listings in Appendix 1 to Subpart P of the regulations and
meets the duration
requirement, the claimant is disabled.
4) If the claim ant's impairment does not prevent him or
her from doing his or her
past relevant work, the claimant is not disabled.
5) If the claimant can make an adjustment to other work
, the claimant is not
disabled. If the claimant cannot make an adjustment to
other work, the claimant is
disabled.

2

ation

Rabbers v. Comm 'r ofSoc. Sec. , 582 F.3d 647, 652 (6th Cir. 2009) (citing 20
C.F.R. §§
404.1520(a)(4)(i)-(v), 404.1520(b)-(g)). The claima nt has the burden of proof
at the first four
steps of the sequential evaluation process. !d. ; Wilson v. Comm 'r ofSoc. Sec.
, 378 F.3d 541 , 548
(6th Cir. 2004). Once the claima nt establishes a prima facie case by showin
g an inability to
perform the relevant previous employment, the burden shifts to the Comm issione
r to show that
the claiman t can perform other substantial gainful employ ment and that such
employment exists
in the national economy. Rabbers, 582 F.3d at 652; Harmon v. Apfel, 168 F.3d
289,29 1 (6th
Cir. 1999).

B. The Administrative Law Judge's Findings
The ALJ acknow ledged that prior to the instant applications, plainti ff had filed
applications for DIB and SSI on Novem ber 13, 2006, alleging disability beginn
ing October 28,
2006. (Tr. 22). Follow ing a hearing on the previous applications, ALJ Debora
h Smith had
issued a decisio n dated August 27, 2009, in which she found that plainti ff retaine
d
the residual functional capacity [RFC] to perform sedenta ry work as defined
in 20
CFR 404.1567(a) and 416.967(a), except she must not use foot controls on
the left
side. She can perform work in which little variation in job duties are expecte
d.
The claima nt can work around others, including the public. Howev er, she would
do best in a job involvi ng occasional, superficial interpersonal contact. She
is
capable of perform ing simple, repetitive tasks and some modera tely comple
x
routine tasks.
(Tr. 114). Upon consideration of the present applications and all of the eviden
ce of record, the
ALJ determined that departu re from the previously established RFC was warran
ted for the period
beginn ing after August 27, 2009, the date the decision was issued. (Tr. 22,
citing Drummond v.

Commissioner ofSocial Security, 126 F.3d 837 (6th Cir. 1997); Acquie scence
Ruling 98-04(6);

3

Denna rd v. Secretary ofHealth and Human Services, 907 F.2d 598 (6th
Cir. 1990);
Acquiescence Ruling 98-03(6). 2
The ALJ applied the sequential evaluation process and made the follow
ing findings of
fact and conclusions of law:
1. The [plaintiff] meets the insured status requirements of the Social
Security Act
through December 3 1, 20 11.
2. The [plaintiff] has not engaged in substantial gainful activity since
October 26,
2009, the alleged disability onset date (20 CFR 404.1571 et seq., and
416.971 et
seq.).
3. The [plaintiff] has the following severe impairments: history ofleft
leg tibial
plateau fracture with ORIF (open reduction internal fixation), history
of left knee
arthroscopy and synovectomy disorders, osteoarthritis of the hip, obesity
, anxiety
disorder, and borderline intellectual functioning (20 CFR 404.1520(c)
and
416.920(c)).
4. The [plaintiff] does not have an impairment or combination of impair
ments that
meets or medically equals the severity of one of the listed impainnents
in 20 CFR
Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.15 25,404
.1526,
416.92 0(d), 416.925 and 416.926).
5. After careful consideration of the entire record, [the ALJ] finds that
the
[plaintiff] has the residual functional capacity to perform sedentary work
as
defined in 20 CFR 404.1567( a) and 416.967(a) except she can perfor
m postural
activities on an occasional basis. She cannot operate foot contro ls with
the left
foot. She can perform overhead reach/work no more than two hours
in an eighthour workday. She should have no exposure to hazardous machinery
or
unprotected heights. She can understand, remember, and carry out simple
routine
repetitive tasks. She is able to maintain attention and concentration for
two-hour
periods across an eight-hour workday with normal breaks. She can interac
t
appropriately with co-workers and supervisors on a superficial level and
any
2

Under these provisions, Social Security claimants and the Commissioner
are barred from re-litigating issues that
have previously been determined unless certain conditions are met. AR
98-4(6), 1998 WL 283902, at *3; AR 9803(6), 1998 WL 283901 , at *3 ("When adjudicating a subsequent disabili
ty claim with an unadjudicated period
arising under the same title of the Act as the prior claim, adjudicators
must adopt such a finding from the final
decision by an ALJ or the Appeals Council on the prior claim in determi
ning whether the claimant is disabled with
respect to the unadjudicated period unless there is new and material evidenc
e relating to such a finding or there has
been a change in the Jaw....").

4

contact with the public should be no more than occasional. The job could not
have high production quotas.
6. The [plaintiff] is unable to perform any past relevant work (20 CFR 404.1565
and 416.965). 3
7. The [plaintiff] was born [in] ... 1977 and was 32 years old, which is defined as
a younger individual age 18-44, on the alleged disability onset date (20 CFR
404.1563 and 416.963).
8. The (plaintiff] has a limited education and is able to communicate in English
(20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a finding
that the [plaintiff] is "not disabled," whether or not the (plaintiff] has transferable
job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the [plaintiff] ' s age, education, work experience , and residual
functional capacity, there are jobs that exist in significant numbers in the national
economy that the [plaintiff] can perform (20 CFR 404.1569, 404.1569(a),
416.969, and 416.969(a)).4
11 . The (plaintiff] has not been under a disability, as defined in the Social Security
Act, from October 26,2009, through the date of[the ALJ's] decision (20 CFR
404.1520(g) and 416.920(g)).
(Tr. 25-36).

C. Judicial Standard of Review
Judicial review of the Commissioner's determination is limited in scope by 42 U.S.C. §
405(g) and involves a twofold inquiry: (I) whether the findings of the ALJ are supported by
substantial evidence, and (2) whether the ALJ applied the correct legal standards. See Blakley v.

3

Plaintiffs past relevant work was as a waitress, a semi-skilled job which plaintiff performed at the medium
level of exertion. (Tr. 35).

4

The ALJ relied on the VE's testimony to find that plaintiff would be able to perfonn the requirements of
representative unskilled sedentary occupations such as addressing clerk (200 jobs in the local economy and 25,000
jobs in the national economy), inspector (200 jobs in the local economy and 15,000 jobs in the national economy),
and packager (400 jobs in the local economy and 30,000 jobs in the national economy). (Tr. 36).

5

Comm 'r ofSoc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see also Bowen v. Comm
'r ofSoc. Sec.,
478 F.3d 742, 745-46 (6th Cir. 2007).
The Commissioner's findings must stand if they are supported by "such relevan
t evidence
as a reasonable mind might accept as adequate to support a conclusion." Richar
dson v. Perales,
402 U.S. 389, 401 (1971) (citing Consolidated Edison Co. v. N.L. R.B., 305 U.S.
197, 229
( 1938)). Substantial evidence consists of "more than a scintilla of evidence but
less than a
preponderance.... " Rogers v. Comm 'r ofSoc. Sec., 486 F.3d 234, 241 (6th Cir.
2007). In
deciding whether the Commissioner's findings are supported by substantial evidenc
e, the Court
considers the record as a whole. Hephner v. Mathews, 574 F.2d 359 (6th Cir.
1978).
The Court must also determine whether the ALJ applied the correct legal standar
ds in the
disability determination. Even if substantial evidence supports the ALJ's conclus
ion that the
plainti ff is not disabled, "a decision of the Commissioner will not be upheld where
the SSA fails
to follow its own regulations and where that error prejudices a claimant on the
merits or deprives
the claimant of a substantial right. " Rabbers, 582 F.3d at 651 (quoting Bowen,
478 F.3d at 746).
See also Wilson, 378 F.3d at 545-46 (reversal required even though ALJ's decisio
n was
otherwise supported by substantial evidence where ALJ failed to give good reasons
for not giving
weight to treating physician's opinion, thereby violating the agency 's own regulat
ions).

D. Specific Errors
Plainti ff alleges three errors on appeal: (1) the ALJ ' s finding at step five of the
sequential
evaluation process is not supported by substantial evidence because the hypoth
etical question
posed to the VE did not accurately portray plainti ffs physical and mental impairm
ents; (2) the
ALJ failed to properly weigh the medical opinions of record; and (3) the ALJ
failed to properly

6

evaluate plainti ffs credibility. (Docs. 13 and 20). The Court will consider plainti
ffs
assignments of error in a different order than presented in the Statement of Errors.
1. Weigh ing of the medical opinions of record (Secon d assignm ent of error)

Plainti ff alleges as her second assignment of error that the ALJ erred in weighi
ng the
opinions of her treating orthopedist, Dr. Angelo Colosimo, M.D., and Dr. Paula
Peake, M.D. ,
plainti ffs primary care physician who assessed plainti ffs mental limitations.
(Doc. 13 at 11-12;
Doc. 20).
It is well-established that the findings and opinions of treating physicians are
entitled to

substantial weight. "In general , the opinions of treating physicians are accorde
d greater weight
than those of physicians who examine claimants only once." Walters v. Comm
'r ofSoc. Sec. ,
127 F.3d 525, 530-31 (6th Cir. 1997). See also Harris v. Heckler, 756 F.2d 431,
435 (6th Cir.
1985) ("The medical opinions and diagnoses of treating physicians are general
ly accorded
substantial deference, and if the opinions are uncontradicted, complete deferen
ce."). "The
treating physician doctrine is based on the assumption that a medical professional
who has dealt
with a claimant and his maladies over a long period of time will have a deeper
insight into the
medical condition of the claimant than will a person who has examined a claima
nt but once, or
who has only seen the claima nt's medical records." Barker v. Shalala , 40 F.3d
789, 794 (6th Cir.
1994).
"Treating-source opinions must be given ' controlling weight' if two conditions
are met:
(1) the opinion ' is well-supported by medically acceptable clinical and laborat
ory diagnostic
techniques' ; and (2) the opinion ' is not inconsistent with the other substantial
evidence in (the]
case record. '" Gayheart v. Comm 'r ofSoc. Sec. , 710 F.3d 365, 376 (6th Cir.
2013) (citing 20

7

C.F.R. § 404.1527(c)(2)). See also Cole v. Astrue, 661 F.3d 931,937 (6th Cir. 2011). IftheAL
J
declines to give a treating source's opinion controlling weight, the AU must balance the
factors
set forth in 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6) in determining what weight
to
give the opinion. See Gayheart, 710 F.3d at 376; Wilson, 378 F.3d at 544. These factors
include
the length, nature and extent of the treatment relationship and the frequency of examination.
20
C.F.R. §§ 404.1527(c)(2)(i)(ii), 416.927( c)(2)(i)(ii); Wilson, 378 F.3d at 544. In addition
, the
ALJ must consider the medical specialty of the source, how well-supported by evidence
the
opinion is, how consistent the opinion is with the record as a whole, and other factors which
tend
to support or contradict the opinion . 20 C.F.R. §§ 404.1527(c)(3)-(6), 416.927(c)(3)-(6);

Gayheart, 710 F.3d at 376; Wilson, 378 F.3d at 544.
"Importantly, the Commissioner imposes on its decision makers a clear duty to ' always
give good reasons in [the] notice of determination or decision for the weight [given a) treating
source's opinion. "' Cole, 661 F.3d at 937 (citation omitted). See also 20 C.F.R. §§
404.1527(c)(2), 416.927(c)(2); Wilson, 378 F.3d at 544 (ALJ must give "good reasons" for
the
ultimate weight afforded the treating physician opinion). Those reasons must be "suppor
ted by
the evidence in the case record, and must be sufficiently specific to make clear to any subsequ
ent
reviewers the weight the adjudicator gave to the treating source's medical opinion and the
reasons for that weight." Cole, 661 F.3d at 937 (citing SSR 96-2p). This procedural requirem
ent
"ensures that the ALJ applies the treating physician rule and permits meaningful review of
the

ALl's appl ication ofthe rule." Gayheart, 710 F.3d at 376 (quoting Wilson, 378 F.3d at 544).
Here, the ALJ gave several reasons for affording "little weight" to the opinions of
plaintif fs treating orthopedist, Dr. Colosimo, and to the opinions of plaintiff s primary care

8

physician, Dr. Peake. (Tr. 33-34). Plaintiff alleges that the ALJ did not provide
any specific
bases for his findings and the reasons he gave are not "good reasons" for declini
ng to give the
treating physicians' opinions " controlling weight." (Doc. 13 at 11-12). Contra
ry to plaintiff's
allegation, the ALJ thoroughly reviewed the medical and other evidence of record
and provided
"good reasons" for giving less than "contro lling weight" to the opinions of Drs.
Colosimo and
Peake. Those reasons are substantially supported by the record as discussed below.

a. Treating orthopedist Dr. Colosimo
Dr. Colosimo performed knee and shoulder surgery on plainti ff and treated her
for a knee
condition, a shoulder injury, and complaints of hip pain. Dr. Colosimo issued
four assessments
of plaintiff's physical functional capacity. Dr. Colosimo assessed the following
limitations:
• March 2, 2010 Basic Medical Assessment: No lifting; no restrictions on standin
g,
walking, or sitting (Tr. 835)
• April 11, 2011 Basic Medical Assessment: Lift/carry 5 pounds; sit a total of
5 hours in an
8-hour workday and stand/walk a total of 2 hours and 30 minutes without interrup
tion;
markedly limited in pushing/pulling and bending; moderately limited in reachin
g and
repetiti ve foot movements; not significantly limited in handling (Tr. 837-38).
•April 3, 2012 Basic Medical Assessment: No lifting; sit a total of 4 hours in
an 8-hour
workday and 20 minutes uninterrupted and stand/walk 1 hour and 10 minutes
uninterrupted; extremely limited in pushing/pulling; markedly limited in repetiti
ve foot
movements; moderately limited in bending and hearing (Tr. 839-40)
•March 18-19, 2013 Basic Medical Assessment and Medical Assessment of Ability
to Do
Work-Related Activities (Physical): Lift 10 pounds; stand/walk a total of 1-2
hours in an
8-hour workday and 15 minutes without interruption and sit 6 hours and 1 hour
without
interruption; rarely balance; never stoop, crouch, kneel, climb or crawl; marked
ly limited
in pushing/pulling and bending; moderately limited in repetitive foot movements;
no
restrictions on exposure to heights, moving machinery, or other environmental
conditions
(Tr. 780-85)

9

The ALJ afforded Dr. Colosimo' s varying assessments "little weight" on the grounds the
limitations he assessed were not supported by the objective medical evidence; they were not
consistent with plaintiff's activities of daily living; and they were not supported by his treatment
notes. (Tr. 33). Substantial evidence supports the ALJ's findings.
First, there is little objective or other medical evidence to support the severe lifting,
standing/walking, and sitting limitations assessed by Dr. Colosimo. Although Dr. Colosimo
restricted plaintiff to no lifting in March 2010, the month following her shoulder surgery (Tr.
835), the treatment notes from April 2010 show that plaintiff's shoulder condition improved
significantly during the intervening month. (Tr. 688). Physical examination of the right shoulder
disclosed no abnormal objective findings. (ld.). Plaintiffhad full range of motion, strength was
5/5 and 4+/5, and the shoulder was neurovascularly intact distally. (ld.). The treatment notes
reflect that plaintiffhad discharged herself from physical therapy at that point, she was
continuing to work out and swim at a gym she had joined, and her only symptom was "a little bit
ofweakness." (ld.). Plaintiff reported she was "completely pain free," she was "doing well,"
and she " [had] no complaints." (ld.). She was advised to continue to work on strengthening the
shoulder. (!d.).
Plaintiff has not pointed to any objective findings that indicate her shoulder condition
subsequently deteriorated and which support the severe lifting restrictions Dr. Colosimo
imposed. In March 2011, plaintiff reported she had experienced "some upper back pain" after
sustaining a fall when her knee gave out, and she reported secondary complaints of consistent hip
pain. (Tr. 681-82). On physical examination, plaintiff had full range of motion of the shoulders
and right hip and shoulder strength was intact. (Tr. 681 ). Yet, the following month Dr.

10

Colosimo assessed plaintiff as limited to lifting/carrying 5 pounds, he opined that she was
markedly limited in pushing/pulling, and he assessed her as moderately limited in reaching. (Tr.
837-38). Although there are no treatment notes for the period March 2011 to October 2012, in
April 2012 Dr. Colosimo assessed plaintiff as unable to perform any lifting. (Tr. 839-40). In
March 2013, Dr. Colosimo opined that plaintiffs lifting capacity had increased to 10 pounds
occasionally and 5 pounds frequently. (Tr. 781-82). Given the discrepancies in Dr. Colosimo's
assessments as to plaintiffs lifting capacity and the lack of objective evidence to support the
severe lifting limitations Dr. Colosimo imposed, the ALJ reasonably discounted Dr. Colosimo's
assessments on this ground.
Similarly, the ALJ reasonably determined that the medical evidence of record did not
support the sitting and standing/walking restrictions imposed by Dr. Colosimo, which varied
from one assessment to the next without explanation. When seen two weeks post status left knee
hardware removal, plaintiff was "doing well" and she had full range of motion of the knee and
crepitus throughout the range of motion; she was neurovascularly intact distally; and the calf was
nontender with negative Homans ' sign. 5 (Tr. 686). On November 23, 2010, three weeks after
surgery, the same objective findings were reported and Heather Kennedy, P.A., with Dr.
Colosimo's practice noted that plaintiff was "doing absolutely wonderful at this point in time."
(Tr. 685). Plaintiff reported she was not going to have a total knee replacement until some point
during the following year because she "just want[ ed] to recover well and continue on at this
point." (ld.). Plaintiff was to continue with physical therapy. (!d.). On December 14,20 10,
plaintiff was reportedly "doing wonderful" with " minimal complaints." (Tr. 684). Objective

5

Homans' sign is "pain in the calf of the leg upon dorsiflexion of the foot with the leg extended that is diagnostic of
thrombosis in the deep veins of the area." http://www.merriam-webster.com/medical/Homans'%20sign.

11

findings were essentially negative with crepitus throughout full range of motion of the knee and a
possible neuroma. Plaintiff stated that she " would like to hold off on the total knee arthroplasty
as long as possible." (ld.). Although a course of physical therapy was recommended , plaintiff
attended only four physical therapy sessions in November and December 20 10 and she cancelled
or failed to show for eight to nine appointments , resulting in her discharge from the program for
noncompliance. (Tr. 642-60). An MRI ofthe right hip performed on March 16, 2011 , showed
only a "subtle small spur" and a "mild distention" at one level." (Tr. 682).
In the March 2013 assessment, Dr. Colosimo listed plaintiff's diagnoses as left knee tricompartmental osteoarthritis, lumbar spine osteoarthritis, and right hip pain with a possible labral
tear and osteoarthritis. (Tr. 780). He opined that plaintiff required a total left knee arthroplasty
and he restricted plaintiff to standing/walking a total of 1-2 hours in an 8-hour workday and 15
minutes without interruption. (Tr. 781 ). Despite Dr. Colosimo's findings, plaintiff reported that
her left knee had "been doing okay" since undergoing arthroscopic surgery and left knee
hardware removal in preparation for a total knee replacement, and she elected not to proceed with
the knee replacement at that point in time. (Tr. 790). Dr. Colosimo also reported that hip x-rays
from 2009 showed "very minimal degenerative changes and no acute abnormalities ," and he
noted that plaintiff did not want to undergo surgery on the hip even if abnormal findings were
disclosed. (Jd.). Dr. Colosimo ordered MRis, which were unremarkable for the shoulder and hip
and showed "high grade full patellar chondromalacia and mal tracking" of the right knee. (Tr.
788). The possibility of treating the right knee with injections was discussed with plaintiff, but
she declined by stating she was "not ready for that." (Id.).

12

Thus, although there is objective support for some standing and walking restrictions, the
ALJ reasonably concluded that the severe restrictions Dr. Colosimo assessed over the course of
his treatment of plaintiff were not substantially supported by the evidence. The ALJ likewise
reasonably rejected the sitting restrictions Dr. Colosimo assessed as unsupported by the objective
evidence. The limitations ranged from no restrictions in this area of functioning in March 2010
to restricting plaintiff to 4 hours of sitting in an 8-hour workday in April 2011, 5 hours in April
2012, and 6 hours in March 2013. (Tr. 835, 837-38, 839-40, 780-85). Dr. Colosimo provided no
explanation for the changes in this particular area of functioning. Accordingly, the ALJ's finding
that Dr. Colosimo's assessments of plaintiffs sitting limitations were not supported by the
objective medical evidence finds substantial support in the record.
In addition, the ALJ reasonably determined that the restrictions Dr. Colosimo assessed

were not consistent with plaintiffs activities of daily living, which required plaintiff to lift, bend,
walk, stand and sit. (Tr. 33). Plaintiff reported to Professional Clinical Counselor Deborah
Grooms, PCS, at Centerpoint Health in February 2010 that she had joined a gym because she
wanted to lose weight. (Tr. 668-69). Plaintiff reported that her family leisure activities included
going to the movies, visiting friends, fundraising for school, and swimming in the summer. (Tr.
671 ). She spent time with friends watching movies, going to the park, exercising together, dining
out, and barbequing. (!d.). Ms. Grooms reported in February 2011 that plaintiff was able to
prepare food , perform household chores, shop (until panic attacks occurred), and drive. (Tr.
667). There is no indication in Ms. Grooms' notes that plaintiff was physically restricted in her
ability to perform these activities. The ALJ reasonably relied on plaintiffs reports of daily
activities in determining the weight to afford Dr. Colosimo's opinion. See 20 C.P.R. §

13

416.929(c)(3)(i) (authorizing an ALJ to consider activities when evaluating pain and functional
limitations).
Although the ALJ cited extensively to the record in deciding to give "little weight" to Dr.
Colosimo 's opinion, plaintiff alleges that the ALJ erred by discounting Dr. Colosimo 's opinion
because the ALJ did not rely on another medical opinion in doing so and in fashioning the RFC.
(Doc. 20 at 4, citing Hall v. Celebrezze, 314 F.2d 686, 689-90 (6th Cir. 1963) (Appeals Council
erred by rejecting uncontradicted opinions of the plaintiffs two treating physicians that the
plaintiff could not perform any physical work)). The Social Security regulations vest the ALJ
with responsibility "for reviewing the evidence and making findings of fact and conclusions of
law." 20 C.F.R. §§ 404.1527(e)(2), 416.927(e)(2). The ALJ is responsible for assessing a
claimant' s RFC based on all of the relevant medical and other evidence. 20 C.F.R. §§
404.1545(a)(3), 416.945(a)(3), 404.1546(c), 416.946(c). See also Moore v. Astrue, No. CIV.A.
07-204-HRW, 2008 WL 2051019, at *5 (E.D. Ky. May 12, 2008) (the ALJ is responsible for
assessing the claimant' s RFC by examining all the evidence in the record) (citing 20 C.F.R. §§
404.1545(a)(3), 404.1546(c); Bingaman v. Comm'ro fSoc. Sec. , 186 F. App ' x 642,647 (6th Cir.
2006)). "The decision regarding a claimant' s residual functional capacity is expressly reserved
for the Commissioner, not physicians." Moore, 2008 WL 205 1019, at *5 (citing Ford v. Comm 'r

ofSoc. Sec. , 114 F. App ' x 194, 198 (6th Cir. 2004)). The ALJ must make decisions concerning
which evidence to accept when faced with conflicting evidence in the record. !d. (citing King v.

Heckler, 742 F.2d 968, 974 (6th Cir. 1984)). However, the "ALJ must not substitute his own
judgmen t for a doctor's conclusion without relying on other medical evidence or authority in the
record. " Mason v. Comm 'rofSoc. Sec., No. 1:07-cv-5 1, 2008 WL 1733181 , at *13 (S.D. Ohio

14

April 14, 2008) (Beckwith, J.) (citations omitted); Hammock v. Comm
'r of Soc. Sec., No. 1:12cv-250 , 2013 WL 1721943, at *8 (S.D. Ohio Apr. 22, 2013) (Report
and Recommendation)
(Bowman, M.J.), adopted, 2013 WL40 80714 (S.D. Ohio Aug. 13, 2013)
(Beckwith, J.).
Plaint iff alleges that the ALJ was not qualified to reject Dr. Colos imo's
assessments ,
interpret the medical records, and formulate an RFC that deviated from
the treating physician' s
findings. A review of the ALl' s opinion and the evidence of record refutes
plaint iffs position
that the ALJ erroneously substituted his opinion for that of plaint iffs
treating

orthopedist. (Tr.

28-33). The ALJ extensively reviewed the medical and other eviden
ce when assessing the
severity of the limitations imposed by plaint iffs knee and shoulder injurie

s and other physical

complaints. (Tr. 28-33). The ALJ reasonably relied on objective medica
l findings, plaint iffs
subjective reports , and plaintiff's activities to discount the severe limitat

ions imposed by Dr.

Colosimo. Although the ALJ discounted Dr. Colos imo's opinions, the
ALJ also adopted a
number of the less severe restrictions imposed by Dr. Colosimo in his
most recent assessment in
limiting plaintiff to sedentary work with additional restrictions. Plaint
iff has not provided any
other objective medical evidence to support more severe physical restric

tions than those imposed

by the ALJ. The ALJ made a decision based on conflicting evidence
of record , includ

ing

conflicts in Dr. Colosimo's own assessments, and supported his decisio
n with ample citations to
the record. The ALJ did not err by discounting Dr. Colosimo's opinio
n and fashioning an RFC
that incorporated only those limitations that the ALJ found to be substa
ntially supported by the
evidence of record.

15

b. Primary care physician Dr. Peake
Plaintiff alleges that the ALl erred by crediting the consultative examining psychologists'
assessments of plaintiffs mental functioning over the mental health assessment of plaintiff s
primary care physician , Dr. Peake. (Doc. 13 at 12). Dr. Peake treated plaintiff for depression
with anxiety, anger outbursts , and ADHD/ADD. (Tr. 832-34). She prescribed Prozac, Xanax
and Adderall XR to treat plaintiffs mental health symptoms. (!d.). Dr. Peake completed a
Medical Assessment of Ability to Do Work-Related Activities (Mental) on April2, 2013. (Tr.
829-31). Dr. Peake opined that plaintiffs ability to follow work rules, use judgmen t and
function independently was fair (limited but satisfactory); her ability to relate to co-workers, deal
with the public, interact with supervisors, deal with work stresses, maintain attention and
concentration, and persist at work-like tasks was poor (seriously limited but not precluded); her
ability to understand, remember and carry out simple job instructions was good; her ability to
understand, remember and carry out detailed but not complex job instructions was fair; her
ability to understand, remember and carry out complex job instructions was poor; and her ability
to behave in an emotionally stable manner, relate predictably in social situations, and
demonstrate reliability was poor. (Tr. 829-30).
The ALJ gave " little weight" to Dr. Peake's opinion because she is not a mental health
expert, her treatment notes did not support her assessment, and her opinion appeared to be based
almost entirely on plaintiffs self-report from the date of the assessment. (Tr. 34, citing Tr. 828834). Plaintiff acknowledges that the ALJ discounted Dr. Peake's opinion because mental health
is not her specialty and because the ALl found her treatment notes did not support her
assessment. (Doc. 13 at 12). However, plaintiff alleges these are not "good reasons" for

16

discounting the treating physicia n's opinion and that the ALJ's comments "are without
substance." (Jd.).
The ALJ thoroughly reviewed the evidence of record and gave "good reasons" which are
substantially supported by the record for discounting Dr. Peake's assessment of plaintif fs
mental
limitations. (Tr. 34). The ALJ reasonably discounted Dr. Peake' s opinion based on her
lack of
specialization in the field ofmenta l health. (Tr. 34). See 20 C.F.R. §§ 404.1527(c)(5),
416.927(c)(5) ("We generally give more weight to the opinion of a specialist about medical
issues related to his or her area of specialty than to the opinion of a source who is not a
specialist.").
The ALJ also reasonably determined that Dr. Peake's treatment notes did not support her
assessment. Dr. Peake reported in her April 2, 2013 assessment that plaintiff was " [e]xtreme
ly
distractable [sic] due to ADHD. " (Tr. 830). However, the progress notes from that same
date
state that plaintif fs ADD/ADHD medication had been "mostly effective" with residual
symptoms in the late afternoon and evening. (Tr. 832). Plaintif f asked that the afternoon
dose of
medication be increased "slightly ." (!d.). Earlier progress notes report that after being prescrib
ed
Adderall following an evaluation for ADD in April 2008 (Tr. 628), plaintif fs ADD/ADHD
was
"stable" or "well-controlled." (Tr. 625- 9/30/08; Tr. 623- 12/30/08; Tr. 621- 3/24/09; Tr.
6206/19/09; Tr. 619- 7/20/09; Tr. 616- 8/25/09; Tr. 608- 9/22/09; Tr. 618- 12/21 /09; Tr. 61710/22/09 ; Tr. 614- 1119/10; Tr. 612- 4/13110; Tr. 611-7/20/ 10; Tr. 610- 10/26110). Further,
the
treatment notes do not support Dr. Peake's "poor" assessment of plaintif fs ability to behave
in
an emotionally stable manner, relate predictably in social situations, and demonstrate reliabili
ty.
(Tr. 830). The April 2, 2013 progress notes state that plaintiff reported a history of "anger

17

outbursts," and Dr. Peake noted that plaintiff had previously informed her that she does not like
people and prefers to be alone. (Tr. 832). However, as noted earlier, plaintiff reported to Ms.
Grooms at Centerpoint Health that she engaged in numerous social activities with family and
friends, including going to the movies, visiting friends, fundraising for school, going to the park,
exercising together, dining out, and barbequing. (Tr. 671 ). Plaintiff has not cited other evidence
in the record that supports Dr. Peake' s assessment of plaintiffs abilities in these areas.
Finally, the ALl properly considered the extent to which Dr. Peake' s opinion was
supported by objective evidence as opposed to plaintiffs subjective allegations. See 20 C.F.R.
§§ 404.1527(c)(3), 416.927(c)(3) ("The more a medical source presents relevant evidence to
support an opinion, particularly medical signs and laboratory findings, the more weight we will
give that opinion."). Objective evidence in the psychiatric/psychological context includes
"medical signs," 20 C.F.R. §§ 404.1512(b )(l), 416.912(b) (l), which are defined as
"psychological abnormalities which can be observed, apart from your statements (symptoms)....
Psychiatric signs are medically demonstrable phenomena that indicate specific psychological
abnormalities, e.g., abnormalities ofbehavior , mood, thought, memory, orientation, development,
or perception. They must also be shown by observable facts that can be medically described and
evaluated." 20 C.F.R. §§ 404.1528(b), 416.928(b) . As indicated above, the serious limitations
imposed by Dr. Peake conflicted with her own treatment notes reflecting stable ADD/ ADHD
symptoms which were largely controlled. In addition, plaintiff has not directed the Court to
clinical observations by Dr. Peake which would support her assessment.
Instead of crediting the mental health assessment issued by Dr. Peake, the ALl gave
"good weight" to the assessments of the consultative examining psychologists, Dr. Richard

18

Sexton, Ph.D., and Mr. Dale Seifert, M.S. Ed. (Tr. 34). Mr. Seifert conducted a clinical
interview ofplainti ffand administered psychological tests on April27, 2007, in connection with
her prior applications for disability benefits. (Tr. 370-76). Mr. Seifert opined that plaintiff has
borderline intellectual functioning. (Tr. 375). He assessed plaintiff as having moderate
limitations in her ability to relate to others, including coworkers and supervisors; mild limitations
in her ability to understand and follow instructions; mild limitations in her ability to maintain
attention to perfonn simple, repetitive tasks; and moderate limitations in her ability to withstand
the stress and pressures associated with day-to-day work activity due to her depression and
anxiety. (!d.). Dr. Sexton evaluated plaintiff on December 21, 2011. (Tr. 771-78). Dr. Sexton
determined that plaintiffs intelligence fell at the low end of the low average range. (Tr. 776).
Dr. Sexton opined that plaintiff could "understand and apply instructions in the work setting
consistent with low [a]verage intellectual functioning"; she would not be expected to
demonstrate difficulties in the area of maintaining attention/concentration and in maintaining
persistence/pace to perform simple/multi-step tasks ; she had "[s]ome limitations in her ability to
conform to social expectations in a work setting"; and she was "expected to respond
appropriately to work place pressures." (Tr. 777 -78).
Substantial evidence supports the ALJ's decision to credit the opinions of the examining
mental health providers over the mental health assessment of plaintiffs primary care physician.
The ALJ thoroughly reviewed the evidence related to Mr. Seifert and Dr. Sexton's assessments
and gave "good weight" to their opinions based on their supporting findings, plaintiffs activities ,
and medical evidence showing that plaintiff s ADHD and anxiety were controlled with
medication. (Tr. 32, 34-35). Plaintiff alleges that no "objective evidence" contradicts Dr.

19

Peake's evaluation except for unspecified, selected aspects of the mental health providers'
examinatio ns, and then only "to some extent." (Doc. 20 at 6). However, the ALJ was entitled to
rely on the consultativ e examinations, which he reasonably concluded were supported by the
evidence for the reasons explained in his decision. (Tr. 34-35). Plaintiff further alleges that the
ALJ erred because Mr. Seifert's evaluation predates the alleged onset date by more than two

years. (Doc. 13 at 6; Doc. 20 at 3). However, plaintiff has not shown that her mental symptoms
changed significantly following Mr. Seifert' s evaluation or that his opinion differs materially
from that rendered by Dr. Sexton, who examined plaintiff nearly four years later.

c. Conclusion
The record demonstrat es that the ALJ reasonably discounted the opinions of plaintiffs
treating orthopedist and the mental health assessment provided by plaintiffs primary care
physician. The ALJ gave "good reasons" for affording less than controlling weight to the
opinions of Drs. Colosimo and Peake, and those reasons are substantially supported by the
record. Plaintiffs second assignment of error should be overruled.

2. The ALJ's credibility finding (Third assignment of error)
Plaintiff alleges as her third assignment of error that the ALJ erred in assessing her
credibility. (Doc. 13 at 12-13). Plaintiff alleges that the ALJ did not cite physical activities she
performed that are consistent with the performanc e of sedentary work; instead, the ALJ
erroneously relied on plaintiffs performanc e of household chores and activities such as watching
television and listening to music to discount her credibility. (ld., citing Tr. 82-86, 32).
Title 20 C.F.R. §§ 404.1529,4 16.927 and Social Security Ruling 96-7p describe a twopart process for assessing the credibility of an individual 's statements about symptoms, including

20

pam. First, the ALJ must determine whether a claimant has a medically determinable physical or
mental impairment that can reasonably be expected to produce the symptoms alleged; second, the
ALJ must evaluate the intensity, persistence, and functional limitations of those symptoms by
considering objective medical evidence and other evidence, including: (1) daily activities; (2) the
location, duration, frequency, and intensity of pain or other symptoms; (3) precipitating and
aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medication taken
to alleviate pain or other symptoms; (5) treatment, other than medication, received for relief of
pain or other symptoms; (6) any measures used to relieve pain or other symptoms; and (7) other
factors concerning functional limitations and restrictions due to pain or other symptoms. 20
C.P.R.§§ 404.1529(c), 416.927(c); SSR 96-7p.
In light of the ALJ 's opportunity to observe the individual 's demeanor at the hearing, the
ALJ's credibility finding is entitled to deference and should not be discarded lightly.

Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001); Kirk v. Sec. ofH.H.S., 667 F.2d 524, 538
(6th Cir. 1981 ). Nonetheless, an ALJ's assessment of a claimant's credibility must be supported
by substantial evidence. Walters v. Comm 'r ofSoc. Sec., 127 F.3d 525, 531 (6th Cir. 1997)
(citing Villarreal v. Sec y ofHealth and Human Servs., 818 F.2d 461, 463 (6th Cir. 1987)). "If
an ALJ rejects a claimant's testimony as incredible, he must clearly state his reasons for doing
so." Felisky v. Bowen, 35 F.3d 1027, 1036 (6th Cir. 1994). The ALl's articulation of reasons for
crediting or rejecting a claimant's testimony must be explicit and "is absolutely essential for
meaningful appellate review." Hurst v. Sec. ofH.H.S., 753 F.2d 517,519 (6th Cir. 1985) (citing

Zblewski v. Schweiker, 732 F.2d 75, 78 (7th Cir. 1984)).

21

Here, the ALl's credibility determination is substantially supported by the record and is
entitled to deference. In determining credibility, the ALJ may consider the claimant' s testimony
oflimitat ions in light of other evidence of the claimant' s ability to perform other tasks such as
walking and exercising, going to church, going on vacation, cooking, and other household and
social activities. Heston v. Commissioner, 245 F.3d 528, 536 (6th Cir. 2001); Blacha v.
Secretary, 927 F.2d 228, 231 (6th Cir. 1990). See also Warner v. Comm 'r ofSoc. Sec. , 375 F.3d
387, 392-93 (6th Cir. 2004) (citing Walters, 127 F.3d at 532) ("An [administrative law judge]
may also consider household and social activities engaged in by the claimant in evaluating a
claimant' s assertions of pain or ailments."). The ALJ reasonab ly considered plaintiffs ability to
perform activities of daily living and her social activities when assessing the credibility of her
complaints of disabling pain and mental limitation s. Evidence showing that plaintiff attended
movies with family and friends, visited friends, participated in fundraising for school, dined out,
performed household chores such as cooking and vacuuming, drove on a daily basis, went
shopping, and traveled significant distances for vacation casts doubt on her assertions of
debilitating pain and mental impairments. (See Tr. 352,373 ,671, 373,832, 841).
In addition, the ALJ considered evidence other than plaintiffs activities of daily living
and social activities in determining that plaintiffs complaints were not fully credible. The ALJ
properly discounted plaintiffs disability based on evidence showing that plaintiff failed to fully
comply with prescribed treatment and treatment advice. (Tr. 31 ). See SSR 96-7p, 1996 WL
374186, at *7 ("[T]he individual's statements may be less credible if the level or frequency of
treatment is inconsistent with the level of complaints, or if the medical reports or records show
that the individual is not following the treatment as prescribed and there are no good reasons for

22

this failure."). The record shows that plaintiff was discharged from physical therapy for
noncompliance after attending only four of 12 to 13 physical therapy sessions in November and
December 2010. (Tr. 642-60). Physical therapy records dated December 2007 indicate that
plaintiff refused to wear an unloader brace on her left knee, which Dr. Colosimo had supplied to
her, after undergoing surgery on the knee earlier that month. (Tr. 427). Those records further
indicate that plaintiff was not using a crutch, which she had discontinued using "on her own."

(ld.). In May 2008, Dr. Colosimo had advised plaintiff that narcotic pain management was not
the best long-term option for her and she was " to modify her activities, lose weight, continue to
do [physical therapy], stay on an anti-inflammatory, quit smoking ... and [be] completely off
narcotics and off benzodiazepines[.]" (Tr. 699). The record does not show that plaintiff
followed through on her treating orthopedist's suggestions despite her complaints of disabling
pain.
Further, the ALJ reasonably relied on evidence that pain management treatment helped to
alleviate plaintiffs pain to discount her complaints of debilitating pain. Plaintiff reported on
multiple occasions that her back pain improved with treatment and that a back brace was
effective in alleviating her pain. (Tr. 30-31 , citing Tr. 800, 802, 805, 809).
For these reasons, the ALJ did not err in discounting plaintiffs complaints of pain and
mental limitations. The ALJ conducted a thorough evaluation of plaintiffs complaints in light of
the objective medical evidence of record and other pertinent evidence. (Tr. 28-33). Substantial
evidence supports the ALl's determination based on the medical and other evidence of record
that plaintiff does not suffer from debilitating pain and mental limitations but retains the RFC to
perform a reduced range of sedentary work with nonexertional restrictions. The ALJ's credibility

23

finding is entitled to deference. Plaintiff's third assignment of error should be ovenuled.

3. The ALJ's step five finding (First assignment of error)
Plaintiff alleges as her first assignment of enor that the ALI' s finding at step five of the
sequential evaluation process is not supported by substantial evidence because the hypothetical
question posed to the VE does not accurately portray her physical and mental impairments.
Plaintiff alleges that the ALl 's hypothetical to the VE did not take into account the following
limitations: (1) plaintiff's borderline intellectual ability, her "extremely low memory abilities in
several areas," and her third grade reading ability as demonstrated on the psychological tests
administered by Mr. Seifert in 2007 (Tr. 370-76); (2) a restriction against all lifting; (3) a
restriction against all work stress, which plaintiff suggests was assessed by Dr. Peake (Tr. 82931 ); (4) a restriction against any interaction with supervisors, which plaintiff suggests was
assessed by Dr. Peake and by Ms. Grooms (Tr. 829-31 , 823-27); (5) extreme limitations on
performing activities according to schedule and completing a normal work day and week without
interruption, which plaintiff appears to suggest were imposed by Ms. Groons (Tr. 823-27). 6
(Doc. 13 at 10). Plaintiff alleges when all of her physical and mental limitations are taken into
account, there are not a significant number of jobs in the national economy she could perform.
(Doc. 13 at 10-11 ).
In assessing the availability of jobs at step five of the sequential evaluation process, the
ALJ may rely upon the testimony of a vocational expert. Such testimony can constitute
substantial evidence, but it "must be given in response to a hypothetical question that accurately

6

Although plaintiff suggests that Dr. Peake imposed restriction against any work stress and interaction with
supervisors (Doc. 13 at I0, citing Tr. 829-31 ), Dr. Peake actually rated plaintiffs ability to function in this area as
"poor," which the assessment defined as "seriously limited, but not precluded." (Tr. 829).

24

describes the plaintiff in all significant, relevant respects." Felisky v. Bowen, 35 F.3d 1027, 1036
(6th Cir. 1994). See also Howard v. Comm 'r ofSocial Sec., 276 F.3d at 239, 241 (6th Cir. 2002)
(in order for aVE' s testimony in response to a hypothetical question to serve as substantial
evidence in support of the conclusion that a claimant can perform other work, the question must
accurately portray a claimant's physical and mental impairments); Webb v. Comm 'r of Soc. Sec.,
368 F.3d 629, 633 (6th Cir. 2004) (though an ALl need not list a claimant's medical conditions,
the hypothetical should provide the VE with ALl 's assessment of the what the claimant "can and
cannot do.").
Here, the ALJ posed a hypothetical to the VE at the ALJ hearing that was consistent with
the RFC finding. The hypothetical incorporated the following restrictions: the individual could
perform sedentary work with "occasional posturals"; no more than two hours of overhead
reaching in an eight-hour workday; no use of foot controls with the left foot; the ability to
understand , remember and carry out simple, routine and repetitive tasks; the ability to maintain
attention and concentration for two-hour periods with normal breaks; the ability to interact
appropriately with coworkers and supervisors on a superficial level; no more than occasional
contact with the general public; no high production quotas; and no exposure to hazardous
machinery or unprotected heights. (Tr. 90-91 ). In response to the ALJ' s hypothetical, the VE
testified there are 800 unskilled sedentary jobs in the region and 70,000 such jobs in the national
economy that the hypothetical individual with those limitations would be able to perform. (Tr.
90). When questioned by plaintiffs counsel, the VE testified that if the hypothetical individual
were unable to lift any weight, she could not perform the jobs he identified. (Tr. 95). The VE

25

also testified that the hypothetical individual would need to tolerate work stress
and interact with
a supervisor to perform any of the jobs the VE identified. (Tr. 96-97).
The ALJ did not err by failing to include the additional limitations identified by
plainti ff
in the hypothetical. The ALJ rejected the restriction against any lifting impose
d by Dr.
Colosimo, and he adopted the less extreme limitations on social interaction and
other areas of
mental functioning imposed by Mr. Seifert and Dr. Sexton for reasons that find
substantial
support in the record. (See§ D.l , supra). The hypothetical presented to the VE
accurately
portrayed plainti ffs physical and mental impairments. The step five finding
is substantially
supported by the evidence. Plainti ffs first assignment of error should be overrul
ed.

IT IS THEREFORE RECOMMENDED THAT:
The decision of the Commissioner be AFFIRMED and this matter be CLOS
ED on the
docket of the Court.

1/q, /;~

K~& ~

Date: --~.

~~~~-------

United States Magistrate Judge

26

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
SHENA LYNN SIMPSON,
Plaintiff,

CaseNo.1: 14-cv-801
Dlott, J.
Litkovitz, M.J.

vs.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

NOTICE TO THE PARTIES REGARDING THE FILING OF OBJECTIONS TO R&R
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum oflaw in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party's objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

27