Popp v. Commissioner of Social Security Administration

Filing 23

REPORT AND RECOMMENDATION re 3 Complaint filed by Robin R. Popp in that it is RECOMMENDED that Plaintiff's Statement of Errors be OVERRULED and that judgment be entered in favor of the Commissioner. Objections to R&R due by 1/23/2017. Signed by Magistrate Judge Kimberly A. Jolson on 1/9/17. (sem)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ROBIN R. POPP,
Plaintiff,
v.

Civil Action 2:15-cv-2977
Judge James L. Graham
Magistrate Judge Jolson

COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant.
REPORT AND RECOMMENDATION
Plaintiff Robin Popp filed this action under 42 U.S.C. §§ 405(g) and 1383(c) seeking
review of a final decision of the Commissioner of Social Security (the “Commissioner”) denying
her application for disability insurance benefits.

For the reasons that follow, it is

RECOMMENDED that Plaintiff’s statement of errors be OVERRULED, and that judgment be
entered in favor of the Commissioner.
I.

BACKGROUND
A. Prior Proceedings
Plaintiff applied for benefits on January 9, 2013, alleging a disability onset date of July 1,

2008. (Doc. 10 at Tr. 50, PAGEID #: 103). Her application was denied initially on April 9,
2013 (id. at Tr. 61, PAGEID #: 114), and upon reconsideration on September 18, 2013 (id. at Tr.
88, PAGEID #: 141). Administrative Law Judge George Gaffaney (the “ALJ”) held a hearing
on May 19, 2014 (id. at Tr. 26, PAGEID #: 79), after which he denied benefits in a written
decision on June 4, 2014. (Id. at Tr. 19, PAGEID #: 72). That decision became final when the
Appeals Council denied review on September 8, 2015. (Id. at Tr. 1, PAGEID #: 54). Plaintiff
now appeals.

(Doc. 10 (administrative record); Doc. 18 (statement of errors); Doc. 21

(response)).
B. Testimony at the Administrative Hearing
Plaintiff’s counsel began the hearing by listing Plaintiff’s “severe impairments” as
“impairments of the lumbar spine, impairments of the cervical spine, osteoarthritis of the knees,
obesity, and some mental health impairments that have been diagnosed by consultative exam.”
(Doc. 10 at 27, PAGEID #: 80). He explained further that Plaintiff had “been diagnosed with
spondylolisthesis of L4 over L5 with some central and foraminal stenosis,” and that an L4/L5
laminectomy and fusion” she “was to undergo” “in June of 2013” was postponed “due to a[n]
infection on her leg.” (See id. (“It has not been rescheduled because, in the interim, Ms. Popp
lost her medical insurance.”)). Regarding her knee pain, Plaintiff’s counsel explained that
Plaintiff has “a large horizontal cleavage tear” in her left meniscus, and a smaller, similar tear in
her right meniscus. (Id. at 27–28, PAGEID #: 80–81).
Plaintiff’s testimony followed her counsel’s statements. At the time of the hearing,
Plaintiff was 55 years old, 5’8” tall, weighed 260 pounds, and had an 11th-grade education. (Id.
at Tr. 27, 29, PAGEID #: 80, 82). Prior to filing for disability benefits, she worked most
recently as a security guard. (Id. at Tr. 29, PAGEID #: 82). She was forced to quit that job,
however, because she “couldn’t take all the walking up and down the steps” and the “sitting.”
(Id.). Specifically, according to Plaintiff’s testimony, she is “unable to sit for very long” or
“stand for very long,” and can only walk about 50 feet at a time. (Id. at Tr. 30, PAGEID #: 83;
see id. at Tr. 32–33, PAGEID #: 85–86 (Plaintiff testifying that she can stand for roughly ten
minutes at a time and sit for thirty minutes at a time). Plaintiff told the ALJ that her back pain
bothered her the most, testifying that she is in constant pain no matter what position she is in or
2

movements she makes. (See id. at Tr. 32, PAGEID #: 85). She continued: “[The pain] goes
from my lower back down my right leg, and at times it causes my right leg to just kind of buckle
under me.” (Id.). Plaintiff testified that “[d]oing anything for a long period of time makes it
worse.” (Id.). According to Plaintiff, she was prepared to have surgery in the summer of 2013,
but was unable to do so because she lost her insurance. (See id. at Tr. 34, PAGEID #: 87).
Beyond that, she said she had not received any treatment for her lower back pain. (See id. at Tr.
33, PAGEID #: 86).
Plaintiff testified next regarding her neck pain. She told the ALJ her neck was stiff
“about 50 percent of the time,” which caused her to get “severe headaches.” (Id. at Tr. 34,
PAGEID #: 87). She further testified that her neck pain and headaches are occasionally bad
enough that she has to go sit in a dark room by herself with no noise. (See id. at Tr. 34–35,
PAGEID #: 87–88; see id. at Tr. 35, PAGEID #: 88 (Plaintiff testifying that she gets neckrelated headaches “[a]t least a couple times a week)).
Regarding her daily routine, Plaintiff testified that she spends most of her days watching
television, with an occasional trip to the porch to sit outside for a few minutes. (See id. at Tr.
36–37, PAGEID #: 89–90). Plaintiff’s pains, according to her testimony, prevent her from
showering every day. (See id. at Tr. 37, PAGEID #: 90). She said she was capable of loading
the washer and dryer, although she was unable to transport the clothes to and from the washer
and dryer. (Id.). In addition, Plaintiff testified that she is unable to drive and that her daughter
does the grocery shopping. (See id. at Tr. 38, PAGEID #: 91 (“Because I -- there’s been times
where I’ve forgot where I was, what I was doing. I had to pull over and actually force myself to
remember where I was or which way I was supposed to go . . . .)).
3

C. Relevant Medical Background
Plaintiff saw Dr. Sudhir Dubey for a psychological evaluation on July 23, 2012, for the
purpose of assessment only, with no treatment being recommended or provided. (Doc. 10, Tr.
236, PAGEID #: 289). Dr. Sudhir noted that Plaintiff drove herself to the appointment, her
“hygiene and grooming were unremarkable,” and her “[g]ait was unremarkable.” (Id. at Tr. 237–
38, PAGIEID #: 290–91). Plaintiff told Dr. Sudhir that her activities include socializing with her
friends and family, “purchasing supplies as necessary, paying bills as necessary, deciding how to
spend the day, having the ability to drive, [keeping up with] self-care, and managing a daily
routine.” (Id. at Tr. 239, PAGEID #: 292).
On August 23, 2012, Plaintiff presented to consultative examiner Dr. Judith Brown for
“back and knee problems.” (Id. at Tr. 244, PAGEID #: 297). Dr. Brown noted that “[t]he
claimant ambulates with a normal gait, which is not unsteady, lurching or unpredictable. She
does not require the use of an ambulatory aid. She appears stable at station and comfortable in
the supine and sitting positions.” (Id. at Tr. 245, PAGEID #: 298). There was no muscle
weakness noted and her manual muscle testing appeared normal. (Id. at Tr. 248–49, PAGEID #:
301–02). Regarding Plaintiff’s physical capacity for work, Dr. Brown indicated that Plaintiff’s
“ability to perform work-related activities such as bending, stooping, lifting, walking, crawling,
squatting, carrying and traveling as well as pushing and pulling heavy objects appears to be at
least mildly affected by the findings noted.” (Id. at Tr. 248, PAGEID #: 301). Dr. Brown
ultimately found that Plaintiff “could probably perform light duty work.” (Id.).
On that same day, Plaintiff had an x-ray of her left knee and lumbar spine. The x-ray
showed “mild medial compartment osteoarthritis without acute body abnormality” in the knee,
4

and “mild degenerative changes in lower lumbar spine without acute body abnormality.” (Id. at
Tr. 261–62, PAGEID #: 314–15).
Plaintiff saw Dr. Frank Fumich on October 1, 2012, for lumbar and cervical pain. (Id. at
Tr. 269, PAGEID #: 322). During a physical examination, Dr. Fumich noted Plaintiff had “intact
strength” in her lower extremities and that her “knee and ankle range of motion were full.” (Id.
at Tr. 270, PAGEID #: 323). Upon review of Plaintiff’s lumbar spine x-ray, Dr. Fumich noted
“grade 1 spondylolisteseis seen on L4 over L5” and “significant cervical spondylosis of the level
of C5-C6 with both anterior and posterior formation.” (Id.). In order for Plaintiff to be precertified for an MRI, she was ordered to complete physical therapy for her neck and low back,
and was see Dr. Fumich again on an as-needed basis if her symptoms persisted. (Id.).
Plaintiff saw Dr. William Sanko twice in October 2012 for knee pain. (Id. at Tr. 267,
272, PAGEID #: 320, 326). During one of those visits, Plaintiff described her knee problems as
ongoing for approximately twenty years, with her only treatment being Ibuprofen and Tylenol.
(Id. at Tr. 272, PAGEID #: 326). Dr. Sanko found “some mild patellofemoral crepitus with
range of motion” with “a mildly positive patellar grind.” (Id.). There was “positive medial joint
line tenderness to palpitation” and some discomfort “with forward flexion of the knees.” (Id.).
Dr. Sanko noted that Plaintiff’s x-rays showed “medial compartment mild to moderate joint
space narrowing” and that the patellofemoral joints were well preserved.

(Id. at Tr. 273,

PAGEID #: 326).
During the second appointment in October, Dr. Sanko reviewed an MRI scan of both
Plaintiff’s knees and found it was consistent with a “large horizontal cleavage tear involving the
posterior horn of her lateral meniscus” in the left knee and that the right knee had a “similar tear
5

but smaller.” (Id. at Tr. 267, PAGEID #: 320). Arthroscopic intervention was discussed, and Dr.
Sanko stated he believed “that, followed by physical therapy would most likely give [Plaintiff]
the most relief.” (Id.). The same MRI, interpreted by Dr. Susie Kim, also showed that the ACL,
PCL, MCL, and lateral collateral ligament were all intact. (Id. at Tr. 275, PAGEID #: 328).
Plaintiff presented to Mary Rutan Hospital Physical Rehabilitation Center on October 22,
2012, for an initial physical therapy evaluation regarding her back pain. (Id. at Tr. 286, PAGEID
#: 339). Plaintiff attended three sessions following her initial evaluation, cancelled four, did not
show up to one, and was eventually discharged due to her inconsistent attendance. (Id. at Tr.
282, 288–97, PAGEID #: 335, 341–50). As such, Plaintiff’s physical therapist was unable to
“accurately evaluate [her] overall functional disability.” (Id. at Tr. 282, PAGEID #: 335).
Plaintiff again saw Dr. Fumich on April 30, 2013, for her back pain. (Id. at Tr. 338,
PAGEID #: 391). Dr. Fumich noted, incorrectly, that Plaintiff “went through physical therapy as
prescribed,” and that she returned to the office since her pain continued. (Id.). Dr. Fumich
reviewed x-rays of Plaintiff’s back, which showed “grade 1 spondylolisthesis of 6mm of L4 over
L5” and “increased anterolistehsis to 8mm of L4 over L5 in flexion.” (Id.). Dr. Fumich ordered
an MRI based on his clinical suspicion of “severe spinal stenosis.” (Id. at Tr. 339, PAGEID #:
392).
Plaintiff’s MRI, interpreted by Dr. Jane Burk, revealed “L4-5 scant disc bulge and
moderate facet arthropathy” and “multilevel low-grade facet arthroses and low-grade
capsulosynovitis.” (Id. at Tr. 348, PAGEID #: 401). Dr. Fumich, reviewed the MRI himself and
opined that the scan “shows a grade 1 spondylolistheses and lumbar spinal stenosis of the L4
over L5 level.” (Id. at Tr. 335, PAGEID #: 388). According to Dr. Fumich’s notes, Plaintiff
6

stated she “wishe[d] to proceed with definitive surgical intervention” on her back. (Id., Tr. 336,
PAGEID #: 389). Specifically, Plaintiff was scheduled to undergo a lumbar laminectomy on
June 19, 2013. (Id. at Tr. 385, PAGEID #: 438). Prior to surgery, however, skin lesions
consistent with an infected pubic hair folliculitis was discovered on the left medial thigh and left
buttock. (Id. at Tr. 387, PAGEID #: 440). Due to the high risk of wound infection the surgery
was cancelled. (Id.).
On August 27, 2013, Plaintiff again saw Dr. Brown for a physical consultative
examination regarding, among other things, her knee, back, and neck pain. (Id. at Tr. 413,
PAGEID #: 466). Dr. Brown noted that Plaintiff “ambulates with a normal gait, which is not
unsteady, lurching or unpredictable. The claimant carries a walker but does not seem to lean on
it.” (Id. at Tr. 414, PAGEID #: 467). An examination of Plaintiff’s knees revealed tenderness
over the lateral joint line but there was no “redness, warmth, selling, effusion, laxity or crepitus
in either knee.” (Id. at Tr. 415, PAGEID #: 467). In terms of Plaintiff’s back, there was
additional tenderness over L1-L5 and the straight leg raise test was limited in the supine position,
but appeared normal and without pain in the sitting position bilaterally. (Id. at Tr. 416, PAGEID
#: 469). Finally, Dr. Brown noted, consistent with her previous examination, that Plaintiff’s
“ability to perform work-related activities such as bending, stooping, lifting, walking, crawling,
squatting, carrying and traveling as well as pushing and pulling heavy objects appears to be at
least mildly impaired by the findings noted.” (Id. at Tr. 417, PAGEID #: 470).
D. The ALJ’s Decision
The ALJ found that Plaintiff suffered from the following severe impairments:
degenerative disc disease, obesity, and depression. (Doc. 10, Tr. 13, PAGEID #: 66). The ALJ
7

also addressed Plaintiff’s non-severe impairments, which included hypertension, right knee
degenerative joint disease, and Plaintiff’s headaches. (Id.). At step three, the ALJ found that
Plaintiff did not have an impairment or combination of impairments that met or equaled a listed
impairment. (Id. at Tr. 13–15, PAGEID #: 66–68). As to Plaintiff’s residual functional capacity
(“RFC”), the ALJ stated:
Through the date last insured, the claimant had the residual functional capacity
to perform light work as defined in 20 CFR 404.1567(b) where the claimant
lifted or carried 20 pounds occasionally and 10 pounds frequently, stood or
walked for six of eight hours during the workday, and sat for six of eight hours
during the workday. She could only occasionally climb stairs, stoop, kneel,
crouch, and crawl. Her work is limited to simple, routine tasks (unskilled) with
occasional changes in work setting, and occasional interactions with the public.
(Id. at Tr. 15, PAGEID #: 68). In making this determination, the ALJ considered the opinions
and corresponding reports of consultative examiners Dr. Judith Brown, Dr. Cynthia Waggoner,
Dr. Jennifer Swain, Dr. Sudhir Dubey, and Dr. Donald McIntire consultative examination
reports. (See id. at Tr. 15–18, PAGEID #: 68–71). The ALJ also analyzed Plaintiff’s medical
treatment records. (See id.). In assessing Plaintiff’s credibility, the ALJ highlighted Plaintiff’s
“inconsistent work history prior to her onset date,” that Plaintiff was “noncompliant” with her
physical therapy sessions, that she “takes only Tylenol and Ibuprofen for pain[] as opposed to
more powerful narcotic medications,” and that “the record is absent any outpatient psychiatry or
counseling treatment” despite Plaintiff’s allegation of depression. (Id. at Tr. 16, PAGEID #: 69).
Relying on these and other considerations, the ALJ ultimately concluded that, through
Plaintiff’s date of last insured, “there were jobs that existed in significant numbers in the national
economy that the claimant could have performed.” (Id. at 18, PAGEID #: 71). The ALJ
therefore denied benefits. (Id.).
8

II.

STANDARD OF REVIEW
The Court’s review “is limited to determining whether the Commissioner’s decision is

supported by substantial evidence and was made pursuant to proper legal standards.” Winn v.
Comm’r of Soc. Sec., 615 F. App’x 315, 320 (6th Cir. 2015); see 42 U.S.C. § 405(g).
“[S]ubstantial evidence is defined as ‘more than a scintilla of evidence but less than a
preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.’” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)
(quoting Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994)). The
Commissioner’s findings of fact must also be based upon the record as a whole. Harris v.
Heckler, 756 F.2d 431, 435 (6th Cir. 1985). To this end, the Court must “take into account
whatever in the record fairly detracts from [the] weight” of the Commissioner’s decision.
Rhodes v. Comm’r of Soc. Sec., No. 2:13-cv-1147, 2015 WL 4881574, at *2 (S.D. Ohio Aug. 17,
2015).
III.

DISCUSSION
In her only assignment of error, Plaintiff contends that the ALJ’s RFC determination is

not supported by substantial evidence. (Doc. 18 at 11-20). A claimant’s RFC is the most that a
claimant can do despite his or her limitations and impairments. 20 U.S.C. §§ 404.1545(a)(1).
“In making this determination, the ALJ must consider all relevant evidence in the case record.
This evidence includes medical records, opinions of treating physicians, and the claimant’s own
description of his limitations.” Collins v. Comm’r of Soc. Sec., 357 F. App’x 663, 668 (6th Cir.
2009) (citations omitted).

Reviewing courts “are to accord the ALJ’s determinations of

credibility great weight and deference.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 476 (6th
9

Cir. 2003). In addition, review on this issue is “limited to evaluating whether or not the ALJ’s
explanations” in support of the RFC analysis “are reasonable and supported by substantial
evidence in the record.” Id. In other words, the question at this stage is not whether the Court
would have come to the same conclusion as the ALJ, but whether substantial evidence supports
the ALJ’s RFC determination. See Winn v. Comm’r of Soc. Sec., 615 F. App’x 315, 320 (6th Cir.
2015).
A. Plaintiff’s Arguments
Plaintiff identifies and criticizes eight premises on which the ALJ relied to find that the
RFC rests at light work, and not sedentary work: (1) Plaintiff’s good functioning during physical
consultative examinations; (2) Lumbar spine imaging revealing only mild to moderate changes,
and no stenosis or nerve root compression; (3) Plaintiff’s noncompliance with physical therapy;
(4) Plaintiff’s generally benign physical examination findings; (5) the absence of discussion of
surgery to the left knee; (6) the use of only Tylenol and ibuprofen to treat Plaintiff’s pain; (7)
Plaintiff’s activities of daily living inconsistent with her allegations of more limited functioning;
and (8) the opinions of Dr. Brown. (Doc. 18 at 12–13).
1. Good Functioning During Physical Consultative Examinations
In its decision, the ALJ noted that despite Plaintiff’s alleged back and knee pain, she
displayed “good functioning during her consultative examination.” (Doc. 10, Tr. 15, PAGEID #:
68). In support, the ALJ explained that during two consultative examinations in August 2012
and August 2013, respectively, “the claimant walked with a normal gait.”

(Id. at Tr. 16,

PAGEID #: 69). The record is replete with other such examples: Dr. Dubey noted in July 2012
that Plaintiff’s “[g]ait was unremarkable” (Id. at Tr. 238, PAGEID #: 291); Dr. Brown noted in
10

more detail that Plaintiff “ambulates with a normal gait, which is not unsteady, lurching or
unpredictable” and “does not require the use of an ambulatory aid” (id. at Tr. 245, PAGEID #:
298); and Dr. Fumich stated Plaintiff “presents to the office using no assistive devices for
ambulation” and “has non-antalgic, non-antaxic gait.” (Id. at Tr. 335, PAGEID #: 388).
Plaintiff, on the other hand, notes several different limitations found by various doctors
who saw Plaintiff. However, the limitations mentioned included observations that Plaintiff had
difficulty in straight leg raising bilaterally, difficulty standing on one leg, and decreased cervical
spine range of motion. (Doc. 18, Tr. 17, PAGEID #:13–14). These so-called limitations did not
change the fact that Plaintiff presented with good functioning during her examinations.
2. Lumbar Spine Imaging
In regards to Plaintiff’s degenerative disc disease, the ALJ acknowledged that “the record
showed mild to moderate spinal abnormalities” but it “did not affect the claimant’s ability to
walk or her strength.” (Doc. 10, Tr. 15, PAGEID #: 68). Specifically, the ALJ discussed in
detail the findings of a March 2012 lumbar x-ray, an October 2012 cervical x-ray, and a May
2013 lumbar MRI. (See id. (“A March 2012 lumbar x-ray showed that the claimant had mild
degenerative changes at the L4-L5 and L5-S1 disc levels.”)).
Plaintiff claims, however, that the ALJ “glosses over Dr. Fumich’s interpretation” of the
May 2013 MRI and offers no explanation for why he relies on other interpretations over Dr.
Fumich’s.

(Doc. 18 at 14).

To the contrary, the ALJ explained that in “May 2013, the

claimant’s orthopedist mentioned stenosis at the L4-L5 disc level, which was not depicted in the
results of the MRI, or any other imaging in the record.” (Doc. 10, Tr. 16, PAGEID #: 69). In
fact, the doctor who interpreted Plaintiff’s MRI made no mention of stenosis. (See id. at Tr. 348,
11

PAGEID #: 401). Thus, the ALJ considered Dr. Fumich’s interpretation but ultimately found it
was inconsistent with the record as a whole. See 20 C.F.R. § 404.1527 (“Generally, the more
consistent an opinion is with the record as a whole, the more weight we will give to that
opinion.”).
3. Noncompliance With Physical Therapy
The ALJ explained that Plaintiff began physical therapy sessions for her back but was
discharged for noncompliance, “attending only four out of nine sessions.” (Doc. 10, Tr. 16,
PAGEID #: 69). This fact was used by the ALJ in making a credibility determination. (Id.).
Plaintiff does not deny the ALJ’s statement but instead argues that the ALJ failed to consider
Plaintiff’s reason for cancelling her physical therapy sessions. (Doc. 18 at 15–16). Specifically,
Plaintiff argues that the ALJ failed to mention her agoraphobia diagnosis in addressing
noncompliance and state that “on several of the occasions she missed appointments, Plaintiff
cancelled because she did not have transportation to the office.” (Id. at 15).
First, there is no evidence in the record that Plaintiff’s agoraphobia diagnosis was a
contributing factor in her absence from physical therapy. Second, Plaintiff missed five therapy
sessions in the span of less than three weeks, only two of which can arguably be attributed to
lack of transportation. (See Doc. 10, Tr. 288–97, PAGEID #: 341–50). Finally, it is entirely
proper for an ALJ to rely on noncompliance with physical therapy as a factor in determining
credibility and supporting a finding of “not disabled.” See Zanders v. Comm’r of Social Sec.,
No. 1:13-cv-137, 2014 WL 272165, at *6 (S.D. Ohio Jan. 23, 2014); Simpson v. Comm’r of
Social Sec., No. 1:14-cv-801, 2016 WL 74420, at *11 (S.D. Ohio Jan. 6, 2016) (holding that
because “[t]he record does not show that plaintiff followed through on her treating orthopedist's
12

suggestions despite her complaints of disabling pain” the ALJ was reasonable in discounting
Plaintiff’s complaints).
4. Generally Benign Physical Examination Findings
Plaintiff argues that “[c]ontrary to the ALJ’s assertion that the record reflects
predominantly normal physical examination findings, the record is replete with abnormal exam
findings.” (Doc. 18 at 16). While the ALJ’s opinion did focus on the relatively normal physical
examinations of Plaintiff, he also noted the numerous imaging studies done on Plaintiff and
carefully analyzed the results. (See Doc. 10, Tr. 15–16, PAGEID #: 69–70). Moreover, the ALJ
reasonably pointed out the “normal physical examination findings” to show that Plaintiff’s
physical condition did not necessarily reflect that of someone who is disabled. (See id. at Tr. 16,
PAGEID #: 69) (The ALJ noted that“[e]xaminations in October 2012 and April 2013 showed no
joint tenderness and claimant was neurologically normal”)).
5. The Absence of Discussion of Surgery To The Left Knee
In discussing Plaintiff’s knee condition, the ALJ stated that “[t]he claimant did not have
any knee surgery or discussions related to setting up a knee surgery.” (Doc. 10, Tr. 16, PAGEID
#: 69). The ALJ also noted, however, that “[a]n October 2012 left knee MRI showed a lateral
meniscus tear and intermediate chondromalacia,” demonstrating that the ALJ had a firm grasp on
Plaintiff’s condition.

(Id.).

Plaintiff, on the other hand, argues that the “ALJ repeatedly

minimizes the Plaintiff’s left knee condition” and points to the fact that Dr. Sanko suggested
arthroscopic surgery to the left knee on October 25, 2012. (Doc. 18 at 18). However, the ALJ
never denied that Dr. Sanko and Plaintiff had discussed surgery. Instead, he was making the
point that despite Plaintiff’s contention of debilitating knee pain, surgery had not occurred, nor
13

been scheduled, despite discussing arthroscopic surgery in October 2012, well before the date of
last insured. This inconsistency was reasonably noted.
6. The Use of Only Tylenol And Ibuprofen To Treat Pain
In discussing Plaintiff’s credibility, the ALJ noted that “the claimant reported that she
takes Tylenol and Ibuprofen for pain, as opposed to more powerful narcotic medications.” (Doc.
10, Tr. 16, PAGEID #: 69). Plaintiff’s only response is to point to the fact that she could have
had surgery, and “this treatment is more substantial than treatment via narcotic pain
medications.” (Doc. 18 at 18). However, the ALJ properly considered her treatment of over-thecounter medications under the Regulations in his evaluation of Plaintiff’s credibility. Walters v.
Comm’r of Social Sec., 127 F.3d 525, 531 (6th Cir. 1997) (“The regulations indicate that if
disabling severity cannot be shown by objective medical evidence alone, the Commissioner will
also consider other factors, such as daily activities and the type and dosage of medication
taken.”); See also 20 C.F.R. §404.1529(c)(v) (information regarding what medications or
treatments a claimant uses to alleviate her symptoms is “an important indicator of the intensity
and persistence of your symptoms” and overall credibility). While this was certainly not a
deciding factor for the ALJ, it was reasonable for him to consider it making a disability
determination.
7. Activities Of Daily Living
In finding that Plaintiff’s impairments were not disabling, the ALJ relied on the fact that
she was “still able to perform a good amount of activities of daily living including watching
television, paying bills, preparing simple meals, assisting with laundry, and shopping.” (Doc. 10,
Tr. 17, PAGEID #: 70).

This assessment was consistent with the record.
14

In her first

psychological consultative examination with Dr. Dubey in July 2012, Plaintiff reported
“purchasing supplies as necessary, paying bills as necessary, deciding how to spend the day,
having the ability to drive, [keeping up with] self-care, managing a daily routine” and stated she
had the ability to drive. (Id. at Tr. 239, PAGEID #: 292). She also reported shopping at the
grocery store, preparing food or meals three times a week and aiding her husband in doing the
laundry. (Id. at Tr. 205–206, PAGEID #: 258–259).
Plaintiff alleges these daily activities are taken out of context and cites to portions of the
record that indicate she has pain when she sleeps or showers. (Doc. 18 at 19). However, the
Sixth Circuit has found that activities such as those reported by Plaintiff herself “can constitute
substantial evidence in support of a finding that a claimant is not disabled.” Dyer v. Social Sec.
Admin., 568 F. App’x 422, 427 (6th Cir. 2014) (Plaintiff reported, among other things, being able
to take care of her personal hygiene, grooming, cooking, laundry, driving, shopping, and visiting
with friends and family); see also 20 C.F.R. § 404.1529(c)(3)(i) (authorizing an ALJ to consider
activities when evaluating pain and functional limitations); Warner v. Comm'r of Soc. Sec., 375
F.3d 387, 392 (6th Cir.2004) (permitting an ALJ to consider daily activities such as housework
and social activities in evaluating complaints of disabling pain). Accordingly, the ALJ was
reasonable in considering Plaintiff’s inconsistency in her reported daily activities.
8. The Opinions Of Dr. Brown
The ALJ accorded “great weight” to the opinion evidence of consultative examiner Dr.
Judith Brown M.D., who found that the claimant could perform light work. (Doc. 10, Tr. 17,
PAGEID #: 70).

Dr. Brown’s assessment, according to the ALJ, was “consistent with

examination where the claimant ambulated with a normal gait and had other good functioning”
15

and “her findings [were] supported by lumbar imaging that did not show any nerve root
compression or stenosis.” (Id.). Moreover, her findings regarding Plaintiff’s straight leg raising
test were consistent with that of other evaluations. (Id. at Tr. 247, PAGEID #: 300).
Plaintiff counters that the great weight afforded to Dr. Brown is problematic because her
references to chronic lower back pain, chronic neck pain, and chronic knee pain are too vague.
(Doc. 18 at 19). Moreover, Plaintiff suggests Dr. Brown is not aware of “the substantial nature
of [her] diagnoses.” (Id. at 20). However, it appears from the record that Dr. Brown performed
a thorough examination on Plaintiff both times she was seen and had a comprehensive
understanding on Plaintiff’s symptoms that was consistent with the record. (See id. at Tr. 244–
260, 413–421 PAGEID #: 287–313, 466–474).

Therefore, the ALJ acted reasonably when he

assigned great weight to Dr. Brown’s opinions. Richardson v. Comm’r of Social Sec., 570 F.
App’x 537, 538 (6th Cir. 2014) (holding that “the ALJ reasonably gave great weight to the
opinion because [Doctor] fully explained the basis for his determination and his conclusions
were consistent with other substantial evidence in the record”).
IV.

CONCLUSION
Despite Plaintiff’s assertions, the ALJ’s opinion makes clear that his analysis was

reasonable and supported by substantial evidence in the record. This Court finds that the ALJ
considered all relevant evidence in the case record, including medical records, opinions of
treating physicians, and Plaintiff’s own description of her limitations. If anything, Plaintiff’s
arguments against eight of the ALJ’s findings support the fact that the ALJ thoroughly analyzed
the evidence to reach his RFC determination.

Therefore, for the reasons stated, it is

RECOMMENDED that Plaintiff’s statement of errors be OVERRULED, and that judgment be
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entered in favor of the Commissioner.
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). 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, 152–53 (1985).
IT IS SO ORDERED.

Date: January 9, 2017

/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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