Hartley v. Commissioner of the Social Security Administration

Filing 19

REPORT AND RECOMMENDATIONS: It is RECCOMENDED that the Court OVERRULE Plaintiff's Statement of Errors and AFFIRM the Commissioner of Social Security's decision re 1 Complaint filed by Kimberly Jean Hartley. Objections to R&R due by 8/31/2017. Signed by Magistrate Judge Elizabeth Preston Deavers on August 17, 2017. (jlk)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

KIMBERLY JEAN HARTLEY,
Plaintiff,
Civil Action 2:16-cv-637
Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Elizabeth P. Deavers

v.

COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

REPORT AND RECCOMENDATION
Plaintiff, Kimberly Hartley, brings this action under 42 U.S.C. § 405(g) for review of a
final decision of the Commissioner of Social Security (“Commissioner”) denying her application
for supplemental social security income (“SSI”) and disability insurance benefits (“DIB”). This
matter is before the United States Magistrate Judge for a Report and Recommendation on
Plaintiff’s Statement of Errors (ECF No. 12), the Commissioner’s Memorandum in Opposition
(ECF No. 18), and the administrative record. (ECF No. 11.) For the reasons that follow, the
Undersigned RECCOMENDS that the Court OVERRULE Plaintiff’s Statement of Errors and
AFFIRM the Commissioner’s decision.
I.

BACKGROUND

Plaintiff filed her application for benefits on July 23, 2012, alleging that she had been
disabled since June 12, 2012. (R. at 11.) Plaintiff’s application was denied initially on January
15, 2013, and upon reconsideration on November 22, 2013. (Id.) Plaintiff sought a hearing
before an administrative law judge. On July 23, 2015, Plaintiff, represented by counsel,

appeared and testified before Administrative Law Judge Edmund E. Giorgione (“ALJ”). Jerry A.
Osheski, Ph. D., the vocational expert (“VE”) also appeared and testified at the hearing. On
August 21, 2015, the ALJ issued a decision finding that Plaintiff was not disabled within the
meaning of the Social Security Act. (R at 11–24.) The ALJ’s decision became the final Agency
decision on May 23, 2016. (R. at 4–7.) Plaintiff then timely commenced the instant action.
II.

HEARING TESTIMONY

A. Plaintiff’s Testimony
Plaintiff, who was fifty-two during the relevant time period, testified that she is married,
and lives in a one story house with her husband. (R. at 501–2.) She graduated from high school
and completed an associate’s degree in medical assisting. (R. at 502.) She reported that her legs
are her most severe problem, testifying “I can’t stand, and I can’t sit for long periods of time
either because they just hurt, and since the knee replacements the pain is better, but it’s still
there, and I really don’t know how to do anything else but jobs that entail standing.” (R. at 505.)
Plaintiff said that on a typical day her pain is a five out of ten. (Id.)
She testified that she is able to stand or sit for ten to fifteen minutes at a time. She
testified that she attends church, is able to dress herself, but at times she needs help showering
and uses a chair. (R. at 508.) Plaintiff and her husband share household chores. For example,
she testified that her husband loads the laundry and she folds. (R. at 508–9.) Plaintiff is a
smoker, but she testified she is trying to quit and has gone from smoking a pack of cigarettes a
day to smoking a half a pack of cigarettes. (R. at 509.) Plaintiff also testified that she spends the
majority of her day lying down. (R. at 513.) When asked why she spends a majority of her day
laying down she responded, “[b]ecause it hurts to move, and to stand, and to do things. I mean, I
try to do the things I have to do because you have to do things, you have to feed your husband,

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and, you know.” (R. at 513–14.) However, she testified that when she first stopped working she
did not have to lay down all the time. (R. at 514.)
At the hearing Plaintiff wore a brace on her right hand, which she testified was for her
carpal tunnel syndrome. (Id.) Plaintiff’s last job was with All Clad Metal Crafters, and involved
standing while working and lifting heavy machinery. (R. at 503–4.) She testified that she left in
June 2012 because of the pain from standing. Two years after she stopped working she had knee
replacement surgery in both knees. (R. at 510.) She testified that it took until 2014 because she
no longer had insurance after she stopped working. (Id.)
B. Vocational Expert Testimony
The vocational expert (“VE”) testified at the administrative hearing that Plaintiff’s past
relevant employment as a machine operator at the cookware factory and personal care attendant
or nurse’s aide are medium semi-skilled positions, and work at the box factory where she worked
stacking boxes was a medium unskilled position. (R. at 517.)
The ALJ proposed a series of hypotheticals regarding Plaintiff’s residual functional
capacity (“RFC”) to the VE. (R. at 517–20.) Based on Plaintiff’s age, education, work
experience, and residual functional capacity, the VE testified that a similarly situated
hypothetical individual could not perform Plaintiff’s past work, but could perform jobs as an
assembler, with 3,000 jobs locally and 500,000 nationally; an inspector, with 600 jobs locally
and 250,000 nationally; or as a mail clerk, with 130 jobs locally and 255,000 nationally. (R. at
518.)

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III.

MEDICAL RECORDS

A. Dr. Gregory Cush
On May 15, 2014, Plaintiff visited Dr. Gregory Cush, an orthopedic surgeon, about her
left knee. An examination reveals no erythema, no increased warmth, no fluctuance, no pointing
lesions , and no ecchymosis. (R. at 488.) Dr. Cush did find that Plaintiff was tender, a
patellofemoral grind test was positive with crepitus noted, and Plaintiff’s range of motion was
“severely limited.” (Id.) On June 23, 2015, Plaintiff underwent a total knee replacement
surgery. (R. at 457.) In her six month postoperative evaluation, Dr. Cush reported Plaintiff’s
“symptoms are much improved compared to preoperative symptoms. Weight-bearing status:
100% . . . Patient has shown improvement in activity level.” (Id.) On March 30, 2015, Plaintiff
attended her pre-operative visit for her right knee replacement surgery. Dr. Cush’s notes explain
that she was scheduled for surgery on April 20, 2015, three months prior to the hearing. (R. at
452.) Plaintiff testified that she was prescribed a cane by Dr. Cush, however, none of Dr. Cush’s
treatment notes discuss the use of a cane. (R. at 511.)
B. Dr. Anna Mathew
On December 9, 2012, Dr. Mathew examined Plaintiff at the request of Social Security.
(R. at 291.) Dr. Mathew reported that Plaintiff has no assistive device and was “able to move
about without any difficulties.” (R. at 294.) Upon examination of the left knee she reported
tenderness over the joint line and a range of motion of “0 to 140 compared to 0 to 150.” (Id.)
Dr. Mathew found that Plaintiff could walk 5–6 hours in an 8 hour workday; sit without
limitation; and occasionally bend, kneel, stoop, crouch, balance, and climb. (R. at 297–98.)

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C. Dr. Scott L. Baron
On June 26, 2012, Dr. Baron observed on exam of Plaintiff that she demonstrated a good
range of motion in her wrist and forearm and that her finger motion is good except for a stiff
right thumb. (R. at 163.)
C. Dr. Justin Petrolla
On August 15, 2012, an electrodiagnostic study (“EMG”) was performed on Plaintiff’s
bilateral upper limbs. (R. at 161.) Dr. Petrolla reported that the study “is diagnostic for carpal
tunnel syndrome, which is in the mild category with some motor findings.”
D. Dr. Bradley J. Lewis
Dr. Lewis evaluated Plaintiff on November 7, 2013. He found that Plaintiff could stand
and/or walk for about six hours in an eight-hour workday; sit about six hours; frequently climb
ramps or stairs; frequently stoop; and occasionally balance, kneel, crouch, and crawl. (R. at
428.) He reported that Plaintiff “was able to walk in the room [without] difficulty, squatting,
doing heel/toe walk.” (Id.) He also noted Plaintiff had no established hearing limitations. (R. at
430.) He found Plaintiff only “partially credible,” reasoning that she is not fully credible
because she “brought a cane with her but it was not medically necessary.” (Id.)
E. Dr. Reynaldo Torio
State agency physician Dr. Torio, reviewed Plaintiff’s medical evidence on September
10, 2012. He reported that Plaintiff had severe impairments of osteoarthritis and allied disorders,
COPD, and “hearing loss not treated with cochlear implantation.” (R. at 42.) He found Plaintiff
had no restrictions of activities for daily living or in social functioning and found only mild
limitations in maintaining concentration, persistence or pace. (R. at 43.) He also found Plaintiff
to be only partially credible based on the evidence in the record. (Id.)

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IV.

ADMINISTRATIVE DECISION

On August 21, 2015, the ALJ issued his decision (R. at 11–24.) At step one of the
sequential evaluation process, 1 the ALJ found that Plaintiff had engaged in substantially gainful
activity from October 2012 through December 2012, but that there had been a continuous
twelve-month period during which the Plaintiff did not engage in substantially gainful activity.
(R. at 13.) The ALJ found Plaintiff has the severe impairments of “osteoarthritis with status
post bilateral knee replacement; obesity; chronic obstructive pulmonary disease and asthma; a
depressive disorder; and an anxiety disorder.” (Id.) He found that “[t]here is a lack of objective
medical evidence in the record to demonstrate that the claimant’s bilateral carpal tunnel
syndrome . . . cause[s] more than minimal functional limitations.” (R. at 14.) He reasoned that
although Plaintiff has undergone thumb and finger injections, she has a “good range of motion of
the wrists and forearms, as well as good finger motion except [for a] stiff right thumb.” (Id.)
Moreover, the ALJ reasoned that any evidence of carpal tunnel syndrome reflected that it is in

1

Social Security Regulations require ALJs to resolve a disability claim through a five-step
sequential evaluation of the evidence. See 20 C.F.R. §416.920(a)(4). Although a dispositive
finding at any step terminates the ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th
Cir. 2007), if fully considered, the sequential review considers and answers five questions:
1.
2.
3.

4.
5.

Is the claimant engaged in substantial gainful activity?
Does the claimant suffer from one or more severe impairments?
Do the claimant’s severe impairments, alone or in combination, meet or
equal the criteria of an impairment set forth in the Commissioner’s Listing of
Impairments, 20 C.F.R. Subpart P, Appendix 1?
Considering the claimant's residual functional capacity, can the claimant
perform his or her past relevant work?
Considering the claimant's age, education, past work experience, and residual
functional capacity, can the claimant perform other work available in the national
economy?

See 20 C.F.R. §416.920(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009);
Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001).

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the “mild category,” that Plaintiff exhibited normal grip strength, and noted that Plaintiff has not
spoken to her orthopedist about her carpal tunnel syndrome yet. (R. at 13, 18.)
He further found that Plaintiff did not have an impairment or combination of impairments
that met or medically equaled one of the listed impairments described in 20 C.F.R. Part 404,
Subpart P, Appendix 1. (Id.) At step four of the sequential process, the ALJ set forth Plaintiff’s
RFC as follows:
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to lift and carry 20 pounds
occasionally and 10 pounds frequently; stand and walk 6 hours out of an 8-hour
workday, sit 6 hours out of an 8-hour workday; push and pull on an unlimited
basis except as defined by the ability to lift and carry; frequently climb
ramps/stairs, stoop, and crouch; occasionally climb ladders/ropes/scaffolds, kneel,
and crawl; should avoid even moderate exposure to extreme cold, humidity,
fumes, odors, dust, gases, and poor ventilation. The claimant would need written,
simple instructions that involve repetitive work tasks in a low stress environment
with no more than occasional, superficial interaction.
(R. at 17.) In reaching this determination, the ALJ assigned Dr. Mathew’s opinion that Plaintiff
was capable of a range of light work “great weight,” reasoning that her opinion “is generally
consistent with the medical evidence of record as a whole.” (R. at 18.) The ALJ also gave
“great weight” to the state agency medical consultant’s, Doctors Fox and Lewis, assessments that
Plaintiff can perform work activities generally consistent with the light exertional level. (Id.)
The ALJ gave Dr. Sethi’s opinion, in which he found no restrictions or limitations, “less weight,”
reasoning that the “totality of the medical evidence of record shows that the claimant has
osteoarthritis and has had bilateral knee replacements since Dr. Sethi’s examination, which
would reasonably cause her some limitations as assessed herein.” (R. at 20.)
Based on the testimony of the VE, the ALJ concluded that considering Plaintiff’s age,
education, and residual functional capacity, she is capable of performing work that exists in

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significant numbers in the national economy. (R. at 23–24.) The ALJ therefore concluded that
Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 24.)
V.

STANDARD OF REVIEW

When reviewing a case under the Social Security Act, the Court “must affirm the
Commissioner’s decision if it ‘is supported by substantial evidence and was made pursuant to
proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. at 2009)
(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. at 2007)); see also 42
U.S.C. § 405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if
supported by substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial
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, 486 F.3d at 241 (quoting Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286
(6th Cir. 1994)).
Although the substantial evidence standard is deferential, it is not trivial. The Court must
“take into account whatever in the record fairly detracts from [the] weight” of the
Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting
Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, “if substantial
evidence supports the ALJ’s decision, this Court defers to that finding ‘even if there is
substantial evidence in the record that would have supported an opposite conclusion.’” Blakley
v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir.
1997)).
Finally, even if the ALJ’s decision meets the substantial evidence standard, “a decision of
the Commissioner will not be upheld where the SSA fails to follow its own regulations and

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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 v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th
Cir. 2007)).
VI.

ANALYSIS

Plaintiff brings four contentions of error. First, she argues that the ALJ’s determination
at step two of the sequential evaluation was not supported by substantial evidence. Second, she
contends that the ALJ failed to consider all of Plaintiff’s impairments when formulating the
RFC. Third, she argues that the ALJ erred in assessing her credibility. Finally, Plaintiff
contends that the ALJ erred by not considering benefits for a closed period. (See SOE, ECF No.
12.)
A. ALJ’s Determination at Step Two
The ALJ’s findings at step two are supported by substantial evidence. At step two, the
ALJ must determine whether the claimant has a severe impairment, which is construed as a “de
minimus hurdle . . . intended to ‘screen our totally groundless claims.” Nejat v. Comm'r of Soc.
Sec., 359 F. App’x 574, 576 (6th Cir. 2009) (citing Farris v. Sec’y of Health & Human Servs.,
773 F.2d 85, 89 (6th Cir. 1985)). Thus, if an impairment has “more than a minimal effect” on
the claimant’s ability to do basic work activities, the ALJ must treat it as “severe.” Soc. Sec.
Rul. 1996 WL 374181, at *1 (1996). Once an ALJ finds at least one severe impairment, “an
ALJ’s failure to find additional severe impairments at step two does ‘not constitute reversible
error.’” Nejat, 359 F. App’x. at 577 (citing Maziarz v. Sec’y of Health & Human Servs., 837
F.2d 240, 244 (6th Cir. 2009).
Plaintiff argues the ALJ erred at step two by finding Plaintiff’s carpal tunnel syndrome
non-severe and not addressing Plaintiff’s hearing loss. (SOE at 4–6.) At step two the ALJ found

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severe Plaintiff’s “osteoarthritis with status post bilateral knee replacement; obesity; chronic
obstructive pulmonary diseases and asthma; a depressive disorder and an anxiety disorder.” (R.
at 13.) The ALJ found that the record lacked objective evidence supporting Plaintiff’s claim that
her carpal tunnel syndrome caused more than minimal functional limitations. (R. at 14.) The
ALJ acknowledged that Plaintiff has had finger injections, but looked at evidence demonstrating
that “she has a good range of motion of the wrist and forearms, as well as good finger motion
except [for a] stiff right thumb.” (Id.) He also cited to an EMG report evidencing the existence
of carpal tunnel syndrome, but noting that it was found to be “in the mild category with some
motor findings.”
The ALJ further considered Plaintiff’s carpal tunnel syndrome throughout the sequential
process. (R. at 13–21.) For instance, the ALJ considered Plaintiff’s testimony and reports that as
a result of her carpal tunnel she experienced numbness, tingling, and difficulty grasping items;
but noted that she stated she had not yet spoken to an orthopedist about her symptoms. (R. at
18.) As the ALJ found other severe impairments and did consider Plaintiff’s carpal tunnel
syndrome through the sequential process, he committed no reversible error in finding Plaintiff’s
carpal tunnel non-severe. See Fisk v. Astrue, 253 F. App’x 580, 583 (6th Cir. 2007) (“When an
ALJ considers all of a claimant’s impairments in the remaining steps of the disability
determination, an ALJ’s failure to find additional severe impairments at step two does not
constitute reversible error.”)
In regards to the ALJ’s treatment of Plaintiff’s hearing loss, Plaintiff points to State
Agency physician Dr. Torio’s report, which stated Plaintiff had the severe impairments of
“osteoarthritis and allied disorders, COPD, [and] hearing loss not treated with cochlear
implantation.” (R. at 42.) The record, however, reflects no limitations resulting from Plaintiff’s

10

hearing loss. In fact, Plaintiff’s medical records reflect no hearing limitations. In a letter written
on July 23, 2012, one of Plaintiff’s doctors wrote “she reports today that she is hearing better
now and that she is not experiencing any otalgia or otorrhea.” (R. at 167.) In any event, Plaintiff
has failed to point to any evidence suggesting that her hearing loss imposed any limitations on
her ability to perform work. Plaintiff’s argument conflates the concepts of diagnosis and
disability. “A diagnosis, in and of itself, is not conclusive evidence of disability because it does
not reflect the limitations, if any, that it may impose upon an individual.” Tracy v. Comm'r of
Soc. Sec., No. 1:12-cv-588, 2013 WL 3287113, at *4 (S.D. Ohio June 28, 2013) (citing Higgs v.
Bowen, 880 F.2d 860, 863 (6th Cir. 1988) (“The mere diagnosis . . . of course, says nothing
about the severity of the condition.”). In fact, in Plaintiff’s brief before her hearing, she claimed
to suffer from the impairments of “joint pain, degenerative joint disease bilateral hands, coronary
heart disease, chronic chest pain/heart palpitations, shortness of breath, asthma, arthritis,
lymphedema and carpal tunnel syndrome,” but never mentioned suffering from hearing loss. (R.
at 25.) Plaintiff, moreover, cites no objective medical findings supporting a severe hearing
limitation. Nor does she cite to her testimony or reports to any physicians alleging severe
hearing limitations. Furthermore, there is no evidence to suggest that the ALJ failed to consider
all relevant medical evidence submitted. Accordingly, Plaintiff has not shown that the ALJ
committed reversible error at step two and, even if there had been error, it was completely
harmless. See Anthony v. Astrue, 266 F. App’x 451, 457 (6th Cir. 2008) (citing Mariarz v. Sec’y
of Health & Human Servs., 837 F.2d 240, 244 (6th Cir. 1987) (holding that the failure to find
that an impairment was severe was harmless error where other impairments were deemed
severe).

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B. RFC Formulation
Plaintiff contends that the ALJ erred in formulating her RFC because the RFC exceeded
the opined limitations by examining physician Dr. Mathew. 2 (SOE 7–8.) The Undersigned
disagrees, finding instead that the ALJ properly evaluated objective medical evidence, which
supports the ALJ’s RFC assessment.
An ALJ is required to “evaluate every medical opinion” against a variety of factors,
including the nature of the treatment relationship, the supporting medical basis for the opinion,
and the overall consistency with the record as a whole. 20 C.F.R. §§ 404.1527(d) and 416.927;
Norris v. Comm’r of Soc. Sec., 461 F. App’x 433, 438–39 (6th Cir. 2012). An opinion from a
treating source is “‘accorded the most deference by the SSA’ because of the ‘ongoing treatment
relationship’ between the patient and the opining physician.” Id. (quoting Smith v. Comm’r of
Soc. Sec., 482 F.3d 873, 875 (6th Cir. 2007)). Non-treating sources who physically examine a
claimant but who do not have or did not have an ongoing treatment relationship with the
claimant fall next along the continuum in terms of weight. Id. (citing Smith, 482 F.3d at 875).
Where an ALJ’s opinion satisfies the goal of § 416.927 and is otherwise supported by
substantial evidence, the failure to explicitly provide the weight assigned is harmless. See, e.g.,
Pasco v. Comm’r of Soc. Sec., 137 F. App’x 828, 839 (6th Cir. 2005) (harmless error where the
ALJ failed to mention or weigh the report of consultative neurologist who only evaluated
2

Plaintiff seemingly questions the ALJ’s grant of “great weight” to Dr. Mathew’s opinion,
contending that Dr. Mathew “performed her examination two years before Plaintiff was able to
obtain insurance and undergo bilateral total knee replacement.” But then, in contradiction,
Plaintiff argues that the ALJ failed to impose all limitations opined by Dr. Mathews. The
Undersigned finds that upon review of the record as a whole, the ALJ did not err in granting Dr.
Mathew’s opinion “great weight” as there is “no categorical requirement that [a] non-treating
source’s opinion be based on a ‘complete’ or ‘more detailed and comprehensive’ case record.”
Helm v. Comm’r of Soc. Sec., 405 F. App’x 997, 1002 (6th Cir. 2011) (quoting SSR 96–6p).
Moreover, the Court notes that the medical evidence after Plaintiff’s knee surgeries reflect
general improvement. (R. at 457.)
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plaintiff once and was not a treating source); Dykes v. Barnhart, 112 F. App’x 463, 467–69 (6th
Cir. 2004) (failure to discuss or weigh opinion of consultative examiner was harmless error).
Finally, the Commissioner reserves the power to decide certain issues, such as a
claimant’s residual functional capacity. 20 C.F.R. § 404.1527(d). Although the ALJ will
consider opinions of treating physicians “on the nature and severity of your impairment(s),”
opinions on issues reserved to the Commissioner are generally not entitled to special
significance. 20 C.F.R. § 404.1527(d); Bass v. McMahon, 499 F.3d 506, 511 (6th Cir. 2007).
Plaintiff takes issue with the ALJ’s treatment of Dr. Mathew’s opinion. She contends
that the ALJ erred when he determined “that Plaintiff could frequently climb ramps/stairs, stoop,
and crouch” instead of adopting Dr. Mathew’s opinion that Plaintiff “could only do these things
occasionally.” (R. at 18; SOE at 8) (emphasis added.) The ALJ however, did not give “great
weight” to Dr. Mathew’s opinion carte blanche, but instead held that “[g]reat weight is given to
the opinion of Dr. Mathew wherein she opined that the claimant was capable of a range of light
work (Exhibit 6F), which is generally consistent with the medical evidence of record as a
whole.” (R. at 19.)
The ALJ supported his determination that Plaintiff could frequently climb ramps and
stairs, stoop, and crouch with substantial evidence referring to the record as a whole. Coldiron v.
Comm’r of Soc. Sec., 391 F. App’x 435, 439 (6th Cir. 2010) (“The ALJ is charged with the
responsibility of evaluating the medical evidence and the claimant’s testimony to form an
assessment of [the claimant’s] residual functional capacity.”) (quoting Webb v. Comm’r of Soc.
Sec., 368 F.3d 629, 633 (6th Cir. 2004) (citation omitted). For example, the ALJ also gave great
weight to State Agency medical consultants’ assessments, including Dr. Lewis, who similarly
opined that Plaintiff could “frequently” climb ramps and stairs, balance, stoop, crouch; and

13

occasionally climb ladders/ropes/scaffolds, kneel and crawl. (R. at 44, 428.) Moreover, the ALJ
assessed Plaintiff’s activities of daily living and determined that her wide range of activities,
including caring for her personal care, driving, socializing, using a computer, performing
household chores, and shopping, “are not restricted to the extent that she would be precluded
from the range of work assessed herein.” (R. at 21.) As such, the ALJ supported his
determination with substantial evidence. See Jenkins v. Chater, 76 F.3d 231, 233 (6th Cir. 1996)
(“[i]t is within the authority of the ALJ to resolve any conflicts among” physicians’ opinions).
Accordingly, the Undersigned finds that the ALJ supported the RFC with substantial evidence.
C. Credibility Determination
Additionally, Plaintiff posits that the ALJ erred in assessing Plaintiff’s subjective
complaints, arguing that the ALJ “erroneously found that Plaintiff made inconsistent or
exaggerated statements.” (SOE at 9.) The Undersigned disagrees.
“The ALJ’s assessment of credibility is entitled to great weight and deference, since he
[or she] had the opportunity to observe the witness’s demeanor.” Infantado v. Astrue, 263 F.
App’x 469, 475 (6th Cir. 2008) (citing Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th
Cir. 1997)); Sullenger v. Comm’r of Soc. Sec., 255 F. App’x 988, 995 (6th Cir. 2007) (declining
to disturb the ALJ’s credibility determination, stating that: “[w]e will not try the case anew,
resolve conflicts in the evidence, or decide questions of credibility” (citation omitted)). This
deference extends to an ALJ’s credibility determinations “with respect to [a claimant’s]
subjective complaints.” Allen v. Comm’r of Soc. Sec., 561 F.3d 646, 652 (6th Cir. 2009)
(quoting Siterlet v. Sec’y of Health & Human Servs., 823 F.2d 918, 920 (6th Cir. 1987)). Despite
this deference, “an ALJ’s assessment of a claimant’s credibility must be supported by substantial
evidence.” Walters, 127 F.3d at 531. Furthermore, the ALJ’s decision on credibility must be

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“based on a consideration of the entire record.” Rogers, 486 F.3d at 247 (internal quotation
omitted). An ALJ’s explanation of his or her credibility decision “must be sufficiently specific
to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave
to the individual’s statements and the reasons for that weight.” Id. at 248.
“Discounting credibility to a certain degree is appropriate where an ALJ finds
contradictions among the medical reports, claimant’s testimony, and other evidence.” Walters,
127 F.3d at 531. In addition, the Regulations list a variety of factors an ALJ must consider in
evaluating the severity of symptoms, including a claimant’s daily activities; the effectiveness of
medication; and treatment other than medication. 20 C.F.R. § 404.1529(c)(3); SSR 96–7p, 1996
WL 374186 (July 2, 1996); but see Storey v. Comm’r of Soc. Sec., No. 98–1628, 1999 WL
282700, at *3 (6th Cir. Apr. 27, 1999) (“[T]he fact that [the ALJ] did not include a factor-byfactor discussion [in his credibility assessment] does not render his analysis invalid.”).
In evaluating Plaintiff’s credibility with respect to his subjective claims, the ALJ must
determine whether there is an underlying medically determinable physical impairment that could
reasonably be expected to produce the claimant’s symptoms. Rogers v. Comm’r of Soc. Sec.,
486 F.3d 234, 247 (6th Cir. 2007). Second, if the ALJ finds that such impairment exists, then he
must evaluate the intensity, persistence, and limiting effects of the symptoms on the individual’s
ability to do basic work activities. Kalmbach v. Comm’r or Soc. Sec., 409 F. App’x 852, 863
(6th Cir. 2011). Pursuant to SSR 16–3p, the ALJ must evaluate seven factors in determining
credibility:
In addition to using all the evidence to evaluate the intensity, persistence, and
limiting effects of an individual’s symptoms, we will also use the factors set forth
in 20 CFR 404.1529(c)(3) and 416(c)(3). These factors include:
1. The individual’s daily activities;

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2. The location, duration, frequency, and intensity of pain other
symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of any
medication the individual takes or has taken to alleviate pain or
other symptoms;
5. Treatment, other than medication, the individual receives or has
received for relief of pain or other symptoms;
6. Any measures other than treatment the individual uses or has
used to relieve pain or other symptoms (e.g., lying flat on his or
her back, standing for 15 to 20 minutes every hour, or sleeping
on a board); and
7. Any other factors concerning the individual’s functional
limitations and restrictions due to pain or other symptoms.
SSR 16–3P, 2016 WL 1119029 (March 16, 2016).
SSR 16-3p tasks the ALJ with explaining his credibility determination with sufficient
specificity as “to make clear to the individual and to any subsequent reviewers the weight the
adjudicator gave to the individual’s statements and the reasons for that weight.” Brothers v.
Berryhill, Case No. 5:16-cv-01942, 2017 WL 29125, at *11 (N.D. Ohio June 22, 2017) (citing
Rogers, 486 F.3d at 248).
Upon review of Plaintiff’s medical records, testimony, and reported daily activities, the
ALJ reasonably concluded that “in addition to the general lack of objective evidence to support
her subjective complaints, there are other considerations, including inconsistent or exaggerated
statements, that weigh against the claimant’s overall credibility.” (R. at 21.) The record
supports the ALJ’s determination. See Hensley v. Comm’r Soc. Sec., Case No. 1:15-cv-11, 2017
WL 1055152, at *5 (S.D. Ohio March 21, 2017) (finding the ALJ properly evaluated plaintiff’s
daily activities in assessing credibility). Plaintiff initially bears the burden of proving that she is
disabled. 20 C.F.R. §404.1512(c) (“In general, you have to prove to use you are . . . disabled . . .
. You must inform us about or submit all evidence known to you that related to whether or not
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you are . . .disabled,” including evidence related to “(5) [y]our daily activities both before and
after the date you say that you became disabled.”). The ALJ properly considered Plaintiff’s
inconsistent statements regarding her limitations and her daily activities when he assessed her
RFC. See Walters, 127 F.3d at 532.
The ALJ further determined that Plaintiff’s daily activities, such as her personal care,
driving, socializing, household chores, and shopping, were not restricted to the extent that she
would be precluded from the range of work assessed in the RFC. (R. at 21.) He further found
that Plaintiff exaggerated her subjective complaints based on her use of a cane, which “is not
medically necessary,” and her testimony that she has to lie down a majority of the day, although
“[l]ying down is also not medically necessary.” 3 (Id.)
Because the ALJ made a reasoned and reasonable decision supported by substantial
evidence in evaluating Plaintiff’s subjective complaints, the ALJ’s assessment of credibility is
entitled to “great weight and deference.” Infantado, 263 F. App’x at 475. Accordingly, the
Undersigned finds that the ALJ offered good reasons for finding the Plaintiff not entirely
credible and that substantial evidence supports those reasons.
D. Closed Period
Finally, Plaintiff argues that the ALJ erred by not considering a closed period of
disability because “[e]ven assuming that Plaintiff was capable of performing light work on the
date of the hearing, the ALJ should have considered whether claimant was disabled from . . .the
alleged onset date . . .until she was able to obtain and heal from her bilateral knee replacements.”
The Undersigned disagrees. To prove disability, a claimant must show that his or her
3

The ALJ’s assessment is consistent with the opinions of state agency consultative examiners
such as Dr. Lewis. Dr. Lewis for example found Plaintiff only “partially credible.” (R. at 431.)
He reasoned that she is not fully credible because she “brought a cane with her but it was not
medically necessary.” (Id.)
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impairment or impairments “can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months.” 20 C.F.R. § 404.1505.
Plaintiff does not offer evidence reflecting that she was disabled over a twelve-month period
from June 12, 2012, her alleged onset date, until her knee surgeries. The ALJ’s decision,
moreover, did not merely reflect that Plaintiff was not disabled at the hearing, but also that
according to Plaintiff’s medical records, there was no twelve-month period where Plaintiff was
disabled.
For example, Dr. Mathew’s notes from her December 9, 2012 examination of Plaintiff
reflect that Plaintiff had no assistive device and was “able to move about without any
difficulties.” (R. at 294.) Plaintiff’s ability to walk without assistance, was again reported In
November 2013, when Dr. Lewis examined Plaintiff and noted that Plaintiff “was able to walk in
the room [without] difficulty, squatting, doing heel/toe walk.” (R. at 428.) Plaintiff, therefore,
did not provide evidence at the administrative level, and has failed to do here that she suffered
from a disability for a consecutive twelve-month period. Accordingly, the ALJ properly
considered and assessed Plaintiff’s medical evidence.
VII.

CONCLUSION

In sum, from a review of the record as a whole, the Undersigned concludes that
substantial evidence supports the ALJ’s decision denying benefits. Accordingly, it is
RECCOMENDED that the Court OVERRULE Plaintiff’s Statement of Errors and AFFIRM
the Commissioner of Social Security’s decision.
VIII.

PROCEDURE ON OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, he or
she may, within fourteen (14) days, file and serve on all parties objections to the Report and

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Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District Judge and
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation). Even when timely objections are filed,
appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d
981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to
specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation
omitted)).
IT IS SO ORDERED.

Date: August 17, 2017

/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE

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