Hysell v. Commissioner of Social Security

Filing 20

REPORT AND RECOMMENDATIONS that Plaintiffs statement of errors be sustained to the extent that this case be remanded to the Commissioner pursuant to 42 U.S.C. §405(g), sentence four. Objections to R&R due by within fourteen (14) days. Signed by Magistrate Judge Terence P. Kemp on 12/3/2015. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Jaime M. Hysell,

:

Plaintiff,

:

v.

:

:
Commissioner of Social Security,
Defendant.

Case No.

2:14-cv-2348

JUDGE JAMES L. GRAHAM
Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION
I.

Introduction

Plaintiff, Jaime M. Hysell, filed this action seeking review
of a decision of the Commissioner of Social Security denying her
applications for disability insurance benefits and supplemental
security income.

Those applications were filed on December 10,

2012, and alleged that Plaintiff became disabled on January 1,
2010.
After initial administrative denials of her claim,
Plaintiff was given a hearing before an Administrative Law Judge
on March 11, 2014.
denied benefits.

In a decision dated May 23, 2014, the ALJ

That became the Commissioner’s final decision

on September 18, 2014, when the Appeals Council denied review.
After Plaintiff filed this case, the Commissioner filed the
administrative record on February 6, 2015.

Plaintiff filed her

statement of specific errors on March 11, 2015, to which the
Commissioner responded on June 12, 2015.

No reply brief has been

filed, and the case is now ready to decide.
II.

The Lay Testimony at the Administrative Hearing

Plaintiff, who was 36 years old at the time of the
administrative hearing and who has a college education, testified
as follows.

Her testimony appears at pages 59-79 of the

administrative record.
Plaintiff first testified that her last job was with Home
Instead Elderly Care.

The job included bathing a client, taking

the client to meals, and providing respite care.
she was a pre-school teacher.

Before that,

She said she could no longer work

because, due to depression, her memory was impaired.

She took

medication for depression, anxiety, headaches, high blood
pressure, and GIRD.
Concerning her depression, Plaintiff said that she had
memory lapses on occasions which caused her to forget where she
was.

It might take twenty minutes for her to recall.

Her

husband made sure she remembered to take her medications.

She

also had side effects from her medications, including dizziness
and sleepiness, and she napped quite often.
occurred every day.

Her headaches

Some were low pressure headaches, which were

made better by lying down.

She had a shunt implanted which had

given her some, but not much, relief for her other headaches, but
if they were severe, only a lumbar puncture relieved them.

She

underwent that procedure once a month.
In response to some additional questions from the ALJ,
Plaintiff testified that she still had soreness in her knee that
made kneeling or bending difficult, and that she could not stand
for two hours in a workday.
was problematic.

Sitting for as little as 15 minutes

In a typical day, Plaintiff prepared breakfast

for her children and got them ready for school.

After that, she

either went back to bed or sat on a couch and watched television.
On a good day, which occurred four or five times a month, she did
housework and prepared dinner.

On a bad day, she simply slept.

She tried to avoid leaving the house but did attend church.
III.

The Medical Records

The medical records in this case are found beginning on page
427 of the administrative record.
-2-

The Court will summarize those

records, as well as the opinions of the state agency reviewers,
to the extent that they are pertinent to Plaintiff’s four
statements of error.
The first record relating to the issues involved in this
case, apart from some office notes from her family doctor
indicating that Plaintiff had been treated for moderate
depression in 2008 and 2009, is an emergency department report
dated May 23, 2009.

It showed that Plaintiff had been in a motor

vehicle accident the previous day and that she developed a
headache shortly afterward.

Her past medical history included

pseudotumor cerebri (which is characterized by an increase in
intercranial pressure without obvious explanation, symptoms which
mimic those of an actual brain tumor) and depression.

She was

given medication and discharged to the care of her primary
physician.

(Tr. 483-84).

In 2009 and 2010, she sought treatment

specifically for her depression from Dr. Brandemihl, who, among
other things, added some medications for her.

She also had been

seeing a specialist for her pseudotumor cerebri; that physician,
Dr. Eubank, reported in July, 2010 that she had been doing well
on Topamax but then experienced a return of her headaches, which
prompted Dr. Eubank to suggest a lumbar puncture if things did
not improve.

(Tr. 502-03).

She did have such a procedure done

in 2010, apparently without much improvement in her symptoms.
On September 20, 2010, Dr. Schulz performed a consultative
psychological evaluation.

Plaintiff told him she could not work

due to pseudotumor, depression, anxiety, and hypertension.
was attending weekly counseling sessions at that time.

She

Her

affect and mood were appropriate and she did not show any
physical signs of depression or anxiety.

The diagnoses included

an anxiety disorder and a depressive disorder, and her GAF was
rated at 58.

Dr. Schulz thought that Plaintiff was mildly

impaired in her ability to relate to others and to follow
-3-

instructions, as well as in her ability to maintain attention,
concentration, persistence, and pace, and that she was moderately
impaired in her ability to handle work stress.

(Tr. 581-88).

Another such evaluation was done in 2012, this time by Dr.
Johnson, also a psychologist.

New symptoms at that time included

visual hallucinations and contemplating suicide.
tearful at times.

Her affect was

Dr. Johnson diagnosed anxiety (but not

depression), rated Plaintiff’s GAF at 57, and viewed her as
having some limitations in the area of dealing with work stress,
but only minor limitations in other areas of work-related
functioning.

(Tr. 936-42).

Plaintiff discontinued seeing Dr. Eubank for almost two
years, but returned for a visit on August 22, 2012.

She said she

had gotten a neurological consult to discuss the placement of a
shunt, but her headaches improved and she did not follow through
with that procedure.

However, the headaches again worsened and

she had undergone two lumbar punctures with some temporary
relief.

(Tr. 739).

He referred her for possible placement of

stents in the intercranial sinus system, but that procedure was
not recommended by Dr. Pema, to whom she had been referred.

She

had a headache in November, 2012, which caused her to pass out
and fall; she was treated at Riverside Hospital afterwards, after
having a lumbar puncture done at the emergency room.
in 2013, Plaintiff had an LP shunt implanted.

Eventually,

She continued to

be treated for headaches after that time, including at the
emergency room.

Dr. Eubank saw her on September 25, 2013, and

wrote Dr. Richardson a letter saying that after some adjustments
to the shunt, Plaintiff’s low-pressure headaches were better, but
she was still having daily headaches which caused nausea and
occasional vomiting.

Dr. Eubank did not think there were many

treatment options left, but he did increase her dosage of
Topamax.

(Tr. 1272-73).
-4-

Dr. Richardson, Plaintiff’s primary care physician,
completed a residual functional capacity questionnaire on
February 22, 2013.

He said that she experienced symptoms of

confusion, cognitive impairment, weakness, and loss of some
reflexes; that her medications could cause drowsiness and
dizziness; that she could sit for eight hours a day but could not
stand or walk at all; that she could occasionally lift up to ten
pounds; that she would miss work more than four days per month;
and that she could not sustain work activity.

(Tr. 945-46).

He

completed another assessment on December 13, 2013, indicating
that Plaintiff could not sit, stand, or walk at all during a
workday, and he also completed a mental assessment form on which
he said that she had marked impairments in every work-related
area of functioning.

(Tr. 1432-37).

Plaintiff underwent a psychiatric hospitalization in
November, 2013.

At that time, she was facing arson charges after

burning down a shed on her property to get insurance money.

Her

GAF was rated at 25, and she was treated for unstable mood and
suicidal thoughts.

She was discharged with a recommendation to

follow up with mental health counseling, which she did.

At her

initial counseling assessment, Plaintiff reported a five-year
history of daily feelings of helplessness and hopelessness as
well as frequent crying spells.

She also said that she began to

have problems with concentration eleven years before, with
symptoms worsening recently.

Plaintiff denied any homicidal

ideation and any recent (since her hospitalization) suicidal
ideation.

Individual counseling, group counseling, and

psychiatric services were recommended.

Her GAF was rated at 45.

(Tr. 1421-29).
Finally, state agency reviewers expressed opinions as to
Plaintiff’s functional capacity.

In 2013, Dr. Bolz found no

exertional restrictions at all, but one postural limitation (no

-5-

climbing of ropes, ladders, or scaffolds) and some environmental
limitations.

(Tr. 128-29).

Dr. Cacchillo disagreed to some

extent, limiting Plaintiff to medium work.

(Tr. 164-66).

Neither mentioned obesity as a limiting factor.

On the

psychological side, both reviewers, Drs. Tangeman and Rivera,
found some moderate limitations but thought that Plaintiff could
work in an environment where duties were routine and predictable.
(Tr. 146-47, 166-68).

Both also found that she could relate to

others on a superficial and occasional basis.
IV.

The Vocational Testimony

Eric Pruitt, a vocational expert, testified at the
administrative hearing.

His testimony begins at page 79 of the

administrative record.
Mr. Pruitt began by testifying about Plaintiff’s past
relevant work.

He was told to assume that the caregiver job was

not done at the substantial gainful activity level, so the
primary job in question was the teaching job.
skilled and light.

That job was

It appeared that Plaintiff had also worked as

a customer service representative, a sedentary, semi-skilled job,
and as a data entry operator, which was the same.
Mr. Pruitt was then asked to answer some questions about a
hypothetical person who could do light work and who could
occasionally climb ramps or stairs, stoop, crawl and who could
never climb ladders, ropes, or scaffolds or be exposed to hazards
such as machinery and heights.

The person also was limited to

simple, routine, repetitive tasks in a low-stress environment
involving only frequent (as opposed to constant) contact with
others.

According to Mr. Pruitt, such a person could not do

Plaintiff’s past work, but he or she could work as a
housekeeper/cleaner, laundry press operator, or office helper.
He gave numbers for such jobs as they existed in the regional and
national economies and also said that his testimony was

-6-

consistent with the DOT.
Next, Mr. Pruitt was asked to assume that the person had
frequent headaches and depression and would be off task for 20%
of the time for that reason.

He testified that such limitations

would eliminate all competitive jobs, as would missing work four
or more times per month.
V.

The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 3747 of the administrative record.

The important findings in that

decision are as follows.
The Administrative Law Judge found, first, that Plaintiff
met the insured status requirement of the Social Security Act
through June 30, 2012.

Next, she found that Plaintiff had not

engaged in substantial gainful activity since her alleged onset
date of January 1, 2010.
Going to the second step of the sequential evaluation
process, the ALJ determined that Plaintiff had severe impairments
including left knee arthroscopy with chondroplasty of the
patella, status post placement of programmable lumbar peritoneal
lumbar puncture shunt, status post tear of the long head of the
biceps tendon, headaches secondary to pseudotumor cerebri,
obesity, sacroiliitis, a bipolar disorder, and anxiety.

The ALJ

also found that these impairments did not, at any time, meet or
equal the requirements of any section of the Listing of
Impairments (20 C.F.R. Part 404, Subpart P, Appendix 1),
including sections 12.04 and 12.06.
Moving to step four of the sequential evaluation process,
the ALJ found that Plaintiff had the residual functional capacity
to perform work at the light exertional level except that she
could never climb ladders, ropes, or scaffolds or be exposed to
hazards, hazardous machinery, or heights.

Further, she was

limited to unskilled work that is simple, routine, and repetitive

-7-

in nature which could be performed in an environment which
required frequent but not constant contact with coworkers and the
public.
The ALJ found that, with these restrictions, Plaintiff could
not perform her past relevant work, but she could do the jobs
identified by the vocational expert including housekeeper/
cleaner, laundry press operator, and office helper.

The ALJ also

concluded that these jobs existed in significant numbers in the
region and nationally.

Consequently, the ALJ decided that

Plaintiff was not entitled to benefits.
VI.

Plaintiff’s Statement of Specific Errors

In her statement of specific errors, Plaintiff raises four
issues.

She asserts that (1) the ALJ erred by not finding that

her bipolar disorder met section 12.04 of the Listing of
Impairments; (2) the ALJ’s residual functional capacity finding
was not supported by substantial evidence; (3) the ALJ’s
credibility finding was not supported by substantial evidence;
and (4) the ALJ’s step five determination was not supported by
substantial evidence.

These issues are considered under the

following legal standard.
Standard of Review.

Under the provisions of 42 U.S.C.

Section 405(g), "[t]he findings of the Secretary [now the
Commissioner] as to any fact, if supported by substantial
evidence, shall be conclusive. . . ."

Substantial evidence is

"'such relevant evidence as a reasonable mind might accept as
Richardson v. Perales, 402

adequate to support a conclusion'"

U.S. 389, 401 (1971) (quoting Consolidated Edison Company v.
NLRB, 305 U.S. 197, 229 (1938)).
scintilla.'" Id.
Cir. 1976).

It is "'more than a mere

LeMaster v. Weinberger, 533 F.2d 337, 339 (6th

The Commissioner's findings of fact must be based

upon the record as a whole.

Harris v. Heckler, 756 F.2d 431, 435

(6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366 (6th

-8-

Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir.
1984).

In determining whether the Commissioner's decision is

supported by substantial evidence, the Court must "'take into
account whatever in the record fairly detracts from its weight.'"
Beavers v. Secretary of Health, Education and Welfare, 577 F.2d
383, 387 (6th Cir. 1978) (quoting Universal Camera Corp. v. NLRB,
340 U.S. 474, 488 (1951)); Wages v. Secretary of Health and Human
Services, 755 F.2d 495, 497 (6th Cir. 1985).

Even if this Court

would reach contrary conclusions of fact, the Commissioner's
decision must be affirmed so long as that determination is
supported by substantial evidence.

Kinsella v. Schweiker, 708

F.2d 1058, 1059 (6th Cir. 1983).
A.

Listing Section 12.04

Plaintiff’s first statement of error asserts that the ALJ
erred in her analysis of Plaintiff’s psychological impairment
under section 12.04 of the Listing of Impairments.

Specifically,

she argues that her bipolar disorder should have been found to
equal that section, and particularly the requirements of the “B”
criteria, based primarily on the evaluation done by Dr.
Richardson, plus some of the symptoms observed by Dr. Vishnupad
during her November, 2013 hospitalization.

The Commissioner

responds that substantial evidence supports the ALJ’s decision on
this issue.
Like many of the sections of the Listing relating to
psychological impairments, the “B” criteria accompanying section
12.04 provide that, in order to satisfy that particular
subsection, the claimant’s impairment must produce marked
restrictions in at least two of four areas: (1) activities of
daily living; (2) social functioning; (2) maintaining
concentration, persistence, and pace; and (4) repeated episodes
of decompensation in work or work-like settings.

Plaintiff’s

argument is that she had “at least marked restrictions in
maintaining concentration, persistence, or pace and in
-9-

maintaining social functioning.”
at 10.

Statement of Errors, Doc. 14,

The ALJ found no marked restrictions in any of the “B”

criteria categories.
In the section of the administrative decision where the ALJ
analyzed this issue, the ALJ found that Plaintiff had no more
than moderate restrictions in activities of daily living, social
functioning, and maintaining concentration, persistence, or pace.
In support of the latter two findings, the ALJ noted that both
Drs. Johnson and Schulz found only mild or minor restrictions in
this area, and that Plaintiff was able to relate to family
members, spend time with others, attend church, and perform other
tasks outside the home.
any of this evidence.

Plaintiff does not specifically address

As to concentration, persistence, and

pace, the ALJ pointed out that, again, neither of the
consultative examiners found marked restrictions here.

Again,

Plaintiff does not discuss this evidence in her statement of
errors.

It is also worth noting that neither of the state agency

reviewers found marked limitations in this area.
Plaintiff does point out, in a footnote, that the ALJ did
not acknowledge, in the section of the administrative decision
relating to the Listing of Impairments, that Dr. Richardson had
expressed an opinion as to the severity of Plaintiff’s mental
functional capacity.

She does not argue, however, that as to the

Listing issue, the ALJ erred in that regard by violating the
“treating physician” rule.

Because she does make that argument

in her next statement of error, the Court will address it below.
Absent a determination that the ALJ was bound to accept Dr.
Richardson’s conclusions on the “B” criteria issue, however, the
Court finds no error in the ALJ’s analysis and resolution of that
issue.
B.

The RFC Determination

Under this general statement of error, Plaintiff raises four
separate sub-issues.

They address, in turn, the ALJ’s treatment
-10-

of Dr. Richardson’s opinion, an alleged inconsistency between the
ALJ’s step two finding concerning certain physical impairments
and Plaintiff’s physical residual functional capacity, the way
the ALJ factored Plaintiff’s obesity into her decision, and the
ALJ’s discussion of Plaintiff’s headaches.

The Court will

discuss each of these issues separately.
1.

Dr. Richardson’s Opinion

First, Plaintiff faults the ALJ for preferring the opinions
of the state agency reviewers over that of Dr. Richardson
concerning Plaintiff’s mental residual functional capacity.

She

notes that he treated her for depression for seven years,
prescribed medication for that condition, and referred her to
individual counseling.

She also asserts that his conclusions

were consistent with those of Dr. Johnson and Dr. Vishnupad.
Ultimately, she argues that the ALJ’s discussion of Dr.
Richardson’s opinion was not “meaningful.”
It has long been the law in social security disability cases
that a treating physician's opinion is entitled to weight
substantially greater than that of a nonexamining medical
advisor or a physician who saw plaintiff only once.

20 C.F.R.

§404.1527(c); see also Lashley v. Secretary of H.H.S., 708 F.2d
1048, 1054 (6th Cir. 1983); Estes v. Harris, 512 F.Supp. 1106,
1113 (S.D. Ohio 1981).

However, in evaluating a treating

physician’s opinion, the Commissioner may consider the extent to
which that physician’s own objective findings support or
contradict that opinion.

Moon v. Sullivan, 923 F.2d 1175 (6th

Cir. 1990); Loy v. Secretary of HHS, 901 F.2d 1306 (6th Cir.
1990).

The Commissioner may also evaluate other objective

medical evidence, including the results of tests or examinations
performed by non-treating medical sources, and may consider the
claimant’s activities of daily living.
HHS, 25 F.3d 284 (6th Cir. 1994).

Cutlip v. Secretary of

No matter how the issue of the

weight to be given to a treating physician’s opinion is finally
-11-

resolved, the ALJ is required to provide a reasoned explanation
so that both the claimant and a reviewing Court can determine why
the opinion was rejected (if it was) and whether the ALJ
considered only appropriate factors in making that decision.
Wilson v. Comm’r of Social Security, 378 F.3d 541, 544 (6th Cir.
2004).
The ALJ had only this to say about Dr. Richardson’s
evaluation of Plaintiff’s mental residual functional capacity:
No weight was granted to the mental and physical
restrictions that Dr. Richardson reported in his
medical source statements.... These restrictions are
conclusory, speculative and not grounded on the mostly
unremarkable clinical signs reported in physical and
neurological examinations and in the clinical signs and
opinions provided by the consultative examiners.
(Tr. 45).

The ALJ made no effort to specify which physical and

neurological examinations she had in mind (neither of which would
appear to have any relationship to Plaintiff’s psychological
impairments) and did not make more specific reference to the
signs and opinions reported by the consultative examiners.

Other

portions of the administrative decision indicate that the ALJ
adopted the findings of the state agency reviewing psychologists
by granting them great weight.
The Commissioner asserts that Dr. Richardson’s opinion as to
mental capacity was “weak evidence” because it was expressed on a
“check the box” form and that it could not be given controlling
weight because it was not “well-supported by acceptable medical
evidence.”

The Commissioner also argues that Dr. Richardson’s

opinions were inconsistent with the record as a whole, and with
Plaintiff’s testimony that she was able to relate with others and
perform some activities like shopping and going to church.

The

problem with this argument is that it supplies a rationale which
cannot be found in the ALJ’s decision.

A discussion of the

opinions of a treating source as brief and non-specific as that
-12-

provided by the ALJ in this case simply does not comply with
either the mandate of §404.1527(c) or with the way that the Court
of Appeals has interpreted that regulation.
Evaluating a treating source opinion involves a series of
steps.

The first is to decide whether to give that opinion

controlling weight.

It is not entitled to such weight if “not

well-supported by medically acceptable clinical and laboratory
diagnostic techniques or if it is inconsistent with the other
substantial evidence in the case record.”
(SSR) 96-2p.

Social Security Ruling

However, if the ALJ declines to give a treating

source opinion controlling weight on this basis, he or she must
explain why in terms other than simply repeating the words of the
regulation.

As the Court of Appeals said in Gayheart v. Comm’r

of Social Security, 710 F.3d 365, 377 (6th Cir. 2013), “[t]he
failure to provide ‘good reasons’ for not giving [a treating
source’s] opinions controlling weight hinders a meaningful review
of whether the ALJ properly applied the treating-physician rule
that is at the heart of this regulation.”

In Gayheart, the court

found that a conclusory statement that the treating source
opinion was not well-supported by objective findings was too
ambiguous to satisfy the ALJ’s duty to articulate the reasons for
his or her findings, and also held that the failure to identify
the evidence which was inconsistent with the treating source
opinion - apart from a reference to non-treating or non-examining
doctors - was insufficient as well.

As the Gayheart court also

observed, “[s]urely the conflicting substantial evidence must
consist of more than the medical opinions of the nontreating and
nonexamining doctors. Otherwise the treating-physician rule would
have no practical force because the treating source's opinion
would have controlling weight only when the other sources agreed
with that opinion.”

Id.

Finally, that court held that it is

error to proceed to the second step of the process - determining
what weight to give the treating source opinion using the various
-13-

factors listed in §404.1527(c) - until the ALJ has properly
explained why the opinion was not entitled to controlling weight.
Here, the ALJ’s explanation of her decision to give no
weight to a treating source opinion is limited to the recitation
of a few conclusory statements which the ALJ applied generically,
and without differentiation, to both the physical or mental
limitations expressed in Dr. Richardson’s opinions.

The ALJ

identifies no inconsistent evidence apart from a general
reference to the consultative examiners, whose opinions, under
Gayheart, cannot constitute the sole basis for rejecting a
treating source opinion, and she also fails to mention any of the
factors set forth in §404.1527(c).

Even if the decision not to

accord controlling weight to Dr. Richardson’s opinion was
adequately explained - which it was not - the decision to give it
no weight whatsoever was also the product of a deficientlyarticulated reasoning process.

The Court also notes that

although the ALJ purported to give great weight to all of the
opinions of the state agency reviewers, she did not adopt their
opinions in their entirety and did not explain why some of their
limitations, such as those relating to contact with coworkers and
the general public, were not incorporated into the RFC finding.
Overall, taking the ALJ’s expressed rationale, as opposed to the
one provided in the Commissioner’s memorandum, as the basis for
its decision, the Court cannot conclude that the ALJ adequately
articulated her reasoning.

The Commissioner has not advanced an

alternative argument based on harmless error, and, as Wilson
recognized, such an argument is difficult to make when there has
been a violation of the reason-giving requirement of
§404.1527(c).

Therefore, the Court finds this first subpart of

Plaintiff’s second statement of error to be meritorious.
2.

Severe Physical Impairments

In the next subsection of this argument, Plaintiff observes
that, at step two of the sequential evaluation process, the ALJ
-14-

found that Plaintiff’s severe impairments included left knee
arthroscopy with chondroplasty of the patella and status post
tear of the long head of the biceps tendon.

However, the ALJ did

not find that Plaintiff was limited in her ability to stoop,
kneel, crouch, crawl, balance, or reach.

This is an

inconsistency which, according to Plaintiff, is intensified by
Dr. Richardson’s finding that she could not lift over ten pounds,
and independently justifies a remand.

The Commissioner contends

that because the only treatment recommended for these conditions
was weight loss and exercise, limiting Plaintiff to light work
adequately accounted for these conditions.
Again, part of the issue here is the ALJ’s inadequatelyarticulated explanation for rejecting Dr. Richardson’s opinions
in their entirety, including his lifting restriction.

Further,

the treatment prescribed for these conditions does not equate to
an evaluation of the extent to which they limited Plaintiff’s
functioning.

Can Plaintiff actually stoop or kneel on a

repetitive basis notwithstanding the fact that she has a
documented (and by the ALJ’s own finding, a severe) knee
condition which has been treated by several physicians?

The

record does not indicate that she can, and the ALJ did not give a
substantial reason for finding no such limitations.

This issue

should be addressed on remand as well.
3.

Obesity

Next, Plaintiff asserts that the ALJ did not properly
evaluate her obesity under SSR 02-1p.

She notes that the ALJ

found, at step two, obesity to be a severe impairment, and argues
that the ALJ simply ignored the effects of that impairment at the
later stages of the process.

The Commissioner’s response is

essentially limited to the argument that “[t]here was no evidence
in the record that Plaintiff’s obesity caused an inability to
walk effectively.”

Memorandum in Opposition, Doc. 19, at 11.

An ALJ may properly account for a claimant's obesity by
-15-

relying on the functional capacity assessment of a physician who
has taken obesity into account. See Coldiron v. Comm'r of Social
Security, 391 Fed.Appx. 435, 443 (6th Cir. Aug. 12, 2010).
However, as this Court said in Smith v. Comm'r of Social
Security, 2014 WL 4351517 (S.D. Ohio Sept. 2, 2014), adopted and
affirmed 2014 WL 5502358 (S.D. Ohio Oct. 30, 2014), if it is not
clear that any of the evaluating sources actually took a
claimant’s obesity into account, and the ALJ also fails to
discuss it, a reversible error may have occurred.
Here again, the administrative decision is completely silent
on how the ALJ considered obesity when determining Plaintiff’s
residual functional capacity.
physicians mention it.

Nor did any of the state agency

The decision on remand therefore should

include a more complete discussion of how, if at all, Plaintiff’s
obesity impacted her ability to perform work-related activities.
4.

Headaches

Plaintiff’s final argument under this section relates to her
pseudotumor cerebri and the headaches resulting from that
condition.

Most of her argument on this point focuses on the

ALJ’s decision to credit the opinions of the state agency
reviewers over those of Dr. Richardson, a subject discussed more
thoroughly above.

She does suggest that the ALJ ignored

substantial evidence of the recurrence of her headaches despite
placement of the shunt, and that the ALJ mistakenly dismissed her
complaints about headaches because there was no neurological
confirmation of her symptoms.
The Commissioner’s memorandum does not appear to respond to
this argument.

Because the Court is recommending a remand for

other reasons, this issue can also be addressed as part of the
remand proceedings.

It is, of course, important that an ALJ not

rely on the absence of objective findings when evaluating a
condition which is well-documented but does not produce such
findings, so the ALJ should take that into account here.
-16-

Cf.

Rogers v. Comm’r of Social Security, 486 F.3d 234, 245 (6th Cir.
2007)(“in light of the unique evidentiary difficulties associated
with the diagnosis and treatment of fibromyalgia, opinions that
focus solely upon objective evidence are not particularly
relevant”).
C.

The Credibility Determination

Plaintiff also challenges the ALJ’s credibility
determination.

This argument has multiple parts as well.

Plaintiff contends that the ALJ did not properly evaluate her
testimony, finding (incorrectly) that her statements concerning
her abilities were consistent with the ability to perform light
work activity; that the ALJ improperly focused on the lack of
objective medical evidence instead of considering the entire
record, as required by SSR 96-7p; and that the ALJ did not
acknowledge the side effects of her medications.

The

Commissioner counters that the ALJ had a substantial basis for
her decision that Plaintiff’s testimony was not fully credible.
A social security ALJ is not permitted to reject allegations
of disabling symptoms, including pain, solely because objective
medical evidence is lacking.

Rather, the ALJ must consider other

evidence, including the claimant's daily activities, the
duration, frequency, and intensity of the symptoms, precipitating
and aggravating factors, medication (including side effects),
treatment or therapy, and any other pertinent factors.
§404.1529(c)(3).

20 C.F.R.

Although the ALJ is given wide latitude to make

determinations about a claimant’s credibility, the ALJ is still
required to provide an explanation of the reasons why a claimant
is not considered to be entirely credible, and the Court may
overturn the ALJ’s credibility determination if the reasons given
do not have substantial support in the record.

See, e.g. Felisky

v. Bowen, 35 F.3d 1027 (6th Cir. 1994).
The ALJ cited to the proper regulations and rulings and also
recited this standard properly.

(Tr. 42).

-17-

Subsequently, the ALJ

did reject Plaintiff’s claim of daily headaches because “the
clinical signs observed during multiple physical examinations
have been unremarkable ....”

(Tr. 43).

The ALJ added that

Plaintiff’s description of her headaches is “at times” consistent
with a moderate condition and that she often used Excedrin as
treatment, something used for mild to moderate pain.

Id.

The

ALJ did not discuss the fact that daily use of Excedrin is not
indicated and that no medication appeared to be helping
Plaintiff’s condition.

The ALJ did not mention side effects of

medication, although they are documented in the record, and the
ALJ suggested that Plaintiff’s ability to care for her family,
cook, and drive, were indicative of the ability to perform a
“wide range” of activities, even though that is not how the
Plaintiff described them.

(Tr. 44).

Giving all required deference to the ALJ’s position as the
judge of credibility, the Court finds this explanation of the
credibility determination insufficient as well.

In particular,

the ALJ’s reliance on the lack of objective neurological
findings, the failure to discuss side effects, and the comments
about the use of Excedrin, all detract from the supportability of
the ALJ’s decision.

A new credibility evaluation should also be

done on remand.
D.

The Step 5 Finding

Plaintiff’s last argument is that the Step 5 finding was
insufficient because the hypothetical question posed to the
vocational expert did not properly incorporate all of her
limitations.

This claim is moot in light of the discussion of

her other statements of error.

On remand, after the factors set

forth in this Report and Recommendation are considered, a new
hypothetical question can be formulated which will not have the
deficiencies which Plaintiff identifies in her brief.
VII.

Recommended Decision

Based on the above discussion, it is recommended that the
-18-

Plaintiff’s statement of errors be sustained to the extent that
this case be remanded to the Commissioner pursuant to 42 U.S.C.
§405(g), sentence four.
VIII.

Procedure on Objections

If any party objects to this Report and Recommendation,
that party may, within fourteen (14) days of the date of this
Report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection
is made, together with supporting authority for the objection(s).
A judge of this Court shall make a de novo determination of those
portions

of the report or specified proposed findings or

recommendations to which objection is made.

Upon proper

objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to
object to the Report and Recommendation will result in a
waiver of the right to have the district judge review the
Report and Recommendation de novo, and also operates as a
waiver of the right to appeal the decision of the District
Court adopting the Report and Recommendation.

See Thomas v.

Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d
947 (6th Cir. 1981).
/s/ Terence P. Kemp
United States Magistrate Judge

-19-