Moore v. Commissioner of Social Security

Filing 21

REPORT AND RECOMMENDATIONS: It is RECOMMENDED that the Court OVERRULE Plaintiff's Statement of Errors and AFFIRM the Commissioner of Social Security's decision re 3 Complaint filed by Gidget E. Moore. Objections to R&R due by 12/12/2017. Signed by Magistrate Judge Elizabeth Preston Deavers on November 28, 2017. (jlk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

GIDGET E. MOORE,
Plaintiff,
Civil Action 2:16-cv-1087
Judge Algenon L. Marbley
Chief Magistrate Judge Elizabeth P. Deavers

vs.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

REPORT AND RECOMMENDATION
Plaintiff, Gidget E. Moore, brings this action under 42 U.S.C. §§ 405(g) and 1383(c)(3)
for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying
her applications for social security disability insurance benefits and supplemental security
income. This matter is before the Court for consideration of Plaintiff’s Statement of Errors (ECF
No. 13), the Commissioner’s Memorandum in Opposition (ECF No. 19), Plaintiff’s Reply (ECF
No. 20), and the administrative record (ECF Nos. 9 and 10). For the reasons that follow, it is
RECOMMENDED that the Court OVERRULE Plaintiff’s Statement of Errors and AFFIRM
the Commissioner’s decision.
I.

BACKGROUND

Plaintiff protectively applied for security disability insurance benefits and supplemental
security income in December 2010, asserting disability caused by Post Traumatic Stress Disorder
(“PTSD”), Bipolar disorder, neck and back pain, migraines and deafness in her left ear, with an

onset date of June 16, 2010. (R. at 279.) An Administrative Law Judge (ALJ) denied Plaintiff’s
application in 2013. (R. at 19-35.) She appealed the ALJ’s decision, which was reversed in this
Court, and remanded for reconsideration. Moore v. Commissioner of Social Security, Case
number 2:14-cv-00455. On remand, the Appeals Council vacated the ALJ’s January 24, 2013
decision. (R. at 1421-25.) Following remand by the Appeals Council on February 9, 2016,
Plaintiff appeared and testified at the June 21, 2016, hearing, represented by counsel. (R. at
1387-1404, 1407.) A vocational expert also appeared and testified at the hearing. (R. at 140517.) On July 13, 2016, ALJ Benjamin Chaykin issued a decision finding that Plaintiff was not
disabled within the meaning of the Social Security Act. (R. at 1351-72.) On July 25, 2016,
Plaintiff filed a Request for Review of Hearing Decision Order. (R. at 1346-47.) On September
16, 2016, the Appeals Council denied Plaintiff’s request for review and adopted the ALJ’s
decision as the Commissioner’s final decision. (R. at 1340-45.) Plaintiff then timely
commenced the instant action.
II. HEARING TESTIMONY
A.

Plaintiff’s Testimony
Plaintiff testified at the June 21, 2016, administrative hearing that her mother lived with

her and that they help each other in performing household chores such as vacuuming, sweeping
and mopping. (R. at 1388-89.) According to Plaintiff, she has to take breaks after 10 minutes
because her neck, shoulders and lower back start hurting and she finds it hard to breathe. (R. at
1390.) She testified that she had tendonitis in her elbows and has had relief surgeries on both
elbows. (R. at 1395.) At the time of the hearing, Plaintiff was not taking pain medication, and
she noted she is trying to enter pain management treatment. (R. at 1396.)

2

Plaintiff testified that she goes to the store with her mother once or twice a monthly. She
finds it hard to go anywhere by herself because she fears that someone is after her. (R. at 139091.) Plaintiff attends church weekly. (R. at 1391.) According to Plaintiff, she had difficulty
attending at first, but is now familiar with the other people who attend, which makes it easier for
her. (R. at 1391-92.) She has one friend who visits her occasionally. (R. at 1392.) Plaintiff has
a driver’s license, but no vehicle. (Id.)
Plaintiff stated that she worked a few months in 2014 at a pizza shop with a friend she
knew from church. (R. at 1393-94.) Plaintiff testified that her memory makes it difficult to work
because she cannot remember what to do. (R. at 1397.) Plaintiff testified that she suffers from
anxiety and panic attacks because she fears others are watching her or after her. (R. at 1399.)
According to Plaintiff, she experiences daily anxiety attacks, fearing that someone can get in her
house. (R. at 1400.) She also testified that depression usually keeps her in bed 1-2 days per
week and she cries at least three times per week. (R. at 1401-02.)
Plaintiff testified that, during a typical day, watches television with her mom. (R. at
1402.) Sometimes her daughter visits and brings her grandson to play. (Id.) She gets dressed
on a daily basis but showers only every couple of days. (Id.) She cooks and does laundry,
although she stated that the laundry basket is too heavy for her to lift. (Id.) She reported that she
could not sit or stand for long periods of time due to back pain. Plaintiff stated that she has no
difficulty using her hands or arms, but she cannot do “a lot of repetitive or heavy stuff.” (R. at
1402-03.) Plaintiff testified that after about 5 minutes of repetitive activities, such as folding
clothes, or doing dishes, her hands go numb. (R. at 1403.)

3

B.

Vocational Expert Testimony
The vocational expert (“VE”) testified at the administrative hearing that Plaintiff’s past

jobs include a test driver, auto research; a fast food worker, light in exertion and unskilled; and a
housekeeper, also light in exertion, but performed at the medium exertional level, and unskilled.
(R. at 1406-10.)
The ALJ proposed a series of hypotheticals regarding Plaintiff’s residual functional
capacity (“RFC”) to the VE. (R. at 1411-13.) Based on Plaintiff’s age, education, and work
experience and the RFC ultimately determined by the ALJ, the VE testified that Plaintiff could
not perform her past relevant work, but could perform approximately 383,000 unskilled, light
exertional jobs in the national economy such as a sorter, marking clerk, and routing clerk. (R. at
1413.) The VE also testified that if the hypothetical individual were off task over 10% of the
work day, it would be work preclusive. (R. at 1414.)
III.

MEDICAL RECORDS

A. Mental Impairments
1. Consolidated Care
Plaintiff sought mental health treatment from Consolidated Care beginning in December
2009. (R.at 986-97.) At that time, Plaintiff reported she was recently released from prison for
helping her husband escape from prison. While in prison, Plaintiff claimed she was diagnosed
with bi-polar disorder and had previously been diagnosed with major depressive disorder and
PTSD for physical and sexual abuse. Now that she was no longer on parole, Plaintiff stated that
she wants to continue her treatment for her “mood disorder.” (R. at 986.) The intake social
worker, Robert Crook, MA, LSW found upon mental status examination that Plaintiff was

4

agitated, depressed and anxious, but with full affect. (R. at 997.) Mr. Crook diagnosed Plaintiff
with major depressive disorder, rule out bi-polar disorder and PTSD. (R. at 995.)
Plaintiff underwent her initial psychiatric evaluation with Angela Wallenbrock, M.D. on
December 18, 2009. (R. at 980-83.) Dr. Wallenbrock discussed her prior medications and her
onset of mood problems. Plaintiff reported that she gets anxious around groups of people
especially if they’re “rowdy.” She also admitted to anger issues. Dr. Wallenbrock assessed
dysthymia and PTSD. (R. at 982.)
According to Mr. Crook’s treatment notes, Plaintiff suffers from depression, stress,
anxiety, and difficulty tolerating others. Plaintiff reports being frustrated, angry, depressed, and
anxious, especially when she does not take her medication or when she experiences a traumatic
life event. (R. at 963, 967, 1021, 1024, 1027, 1077, 1082, 1235, 1245, 1250, 1255.) During
mental status examinations, Mr. Crook found Plaintiff exhibited some depression and anger, but
also found that she had logical and clear thought processes, was calm, and had normal behavior
and functioning. (R. at 949, 951, 952, 955, 958, 961, 966, 969, 971, 978, 1031, 1075-76, 1080,
1091, 1092, 1094, 1234-37, 1236, 1239, 1240, 1244, 1247, 1253, 1259.)
On May 14, 2010, Dr. Wallenbrock completed a mental status questionnaire in which she
listed Plaintiff’s diagnoses as dysthymia and PTSD and noted that Plaintiff had articulate speech,
no loose associations, appropriate mood and affect, average intelligence, and good memory. Dr.
Wallenbrock did note that Plaintiff has complaints of anxiety attacks, but she also noted that
Plaintiff was recently assaulted by a woman under the influence of drugs. Dr. Wallenbrock
further opined that Plaintiff “may become moody” from work pressure, but that she had a good
ability to remember, understand, and follow directions; maintain attention; and sustain
concentration, persist at tasks, and complete tasks in a timely fashion. (R. at 965-67.)
5

On March 2, 2011, Dr. Wallenbrock noted Plaintiff’s diagnoses of dysthymia and PTSD
and found that Plaintiff’s speech was clear and fluent, that she was fully oriented, had no
thinking disorders, had average intelligence, and that her memory was intact. (R. at 1066.) Dr.
Wallenbrock also reported that Plaintiff was tearful at times and that her mind raced, but that she
had adequate insight. (Id.) Dr. Wallenbrock noted that loud noises trigger anxiety and Plaintiff
becomes anxious in crowds; and “snaps for no reason.” (R. at 1067.) Dr. Wallenbrock opined
that Plaintiff may become anxious in a work setting. (Id.) She also opined that Plaintiff’s ability
to remember, understand, and follow directions; maintain attention; and sustain concentration,
persist at tasks, and complete tasks in a timely fashion were good. (Id.)
On March 25, 2011, Plaintiff began seeing a new psychiatrist at Consolidated Care,
Naomi Bloom, M.D. (R. at 1070, 1096-97.) On September 23, 2011, Dr. Bloom reported that
Plaintiff had intermittent depressed mood with crying spells, and avoided people because of her
depression. Dr. Bloom also found that Plaintiff becomes overstimulated easily, but is still able to
focus well on one thing at a time. Plaintiff’s stress tolerance was somewhat lower than average.
(R. at 1070-72.)
In June 2012, Mr. Crook opined that Plaintiff had marked to extreme limitations in her
ability to perform all of the social interaction, concentration, and persistence, and adaptation
activities. He found Plaintiff moderately impaired in maintaining personal appearance and
hygiene. He further opined that Plaintiff’s anxiety level, depression, and anger outbursts would
be exacerbated by the stress of a job. (R. at 1161-63.)
The records from Consolidated Care reveal that Plaintiff continued to receive counseling
with Mr. Crook, met with a Community Psychiatric Supportive Treatment member for housing
support and help with her SSA application, and Dr. Wallenbrock or Dr. Bloom followed her for
6

medication evaluation through at least February 2016. (R. at 1229-79, 2301-16.) When seen by
a therapist in November 2015, Plaintiff reported that her medication is helpful and her depression
stable. (R. at 2311.) By February 2016, she denied feeling anxious and reported a stable mood.
She admitted to feelings of depression but no more so than she believes the situation would cause
in someone else. (R. at 2314.)
2. Consultative Evaluations
In November 2011, George Schultz, Ph.D., examined Plaintiff for disability purposes.
(R. at 1106-14.) Plaintiff reported that she suffered from PTSD and depression and that her case
manager told her to apply for Social Security Disability benefits. (R. at 1107.) She stated that
she spent a typical day reading and watching television and that she enjoyed drawing and
crocheting as hobbies. She reported cooking, cleaning her apartment, and doing laundry on a
regular basis, grocery shopping, attending appointments, using a computer, and getting along
well with neighbors, store clerks, and public officials. (R. at 1109-10.) On mental status
examination, Dr. Schultz found that Plaintiff was cooperative, her speech was clear and well
organized, her affect was appropriate, and her mood was euthymic. (R. at 1110.) Plaintiff
reported feeling depressed, but denied anxiety. (R. at 1111.) She could recall six digits forward
and four digits in reverse, carry out three-step tasks, and recall three of three objects after five
minutes. Plaintiff was alert and oriented in all spheres and exhibited no signs of confusion or
lack of awareness. (Id.) Dr. Schulz diagnosed depressive and anxiety disorders. (R. at 1113.)
Dr. Schultz opined that Plaintiff was capable of understanding and applying instructions in the
work setting within the low average range of intellectual functioning; was capable of completing
routine or repetitive tasks; could respond appropriately to coworkers and supervisors in a work

7

setting; and would have some difficulty responding appropriately to work pressure. (R. at 111314.)
Plaintiff was again evaluated for disability purposes by Regina McKinney, Psy.D., in
March 2016. (R. at 2127-36.) When asked why she felt she was disabled, Plaintiff reported
depression and anxiety and physical problems. (R. at 2128.) Plaintiff told Dr. McKinney that
she got along well with coworkers and supervisors in the past but is anxious around crowds of
people. (R. at 2129.) Dr. McKinney reported that that although Plaintiff was cooperative during
the evaluation, she appeared anxious and depressed, and at times, had a downcast facial
expression and at other times had an apprehensive facial expression. (R. at 2130.) Dr.
McKinney opined that Plaintiff may have difficulty retaining information to complete multi-step
instructions and recommended limiting her to simple, routine, and repetitive work. (R. at 2132.)
According to Dr. McKinney, Plaintiff’s anxiety could result in increased worry and decreased
attention and concentration skills, and Plaintiff’s depressive symptomatology may contribute to a
slowed work pace by limiting her to work that was not at a production pace or work with strict
quotas. (Id.) Dr. McKinney completed a separate statement in which she opined that Plaintiff
had marked impairment interacting appropriately with others and responding appropriately to
usual work stresses and changes in the work setting. (R. at 2135.)
3. State agency review
Vicki Warren, Ph.D. reviewed Plaintiff’s file in July 2010. (R. at 926-43.) According to
Dr. Warren, Plaintiff was mildly restricted in her activities of daily living; had moderate
difficulties in maintaining social functioning and in maintaining concentration, persistence and
pace. (R. at 940.) Dr. Warren gave weight to Dr. Wallenbrock’s May 2010 opinion, finding it
supported by the totality of the evidence in the file. Dr. Warren also found that Plaintiff’s
8

statements are considered mostly credible because, at the time of the filing, Plaintiff was under a
great deal of stress due to her living arrangements. Since that time her life circumstances have
improved and she is no longer in the same situation. She reports looking for work and doing
well in her apartment. Dr. Warren concluded that Plaintiff “retains the ability to do complex
routine work in a predictable environment where expectations are clear and consistent. Contact
[with] others is not restricted. No production or quota requirements.” (R. at 928.)
State agency psychologist, Caroline Lewin, Ph.D., reviewed the file in April 2011 and
found that the record documents medical determinable impairments of affective disorder and
anxiety disorder. (R. at 77.) According to Dr. Lewin, Plaintiff had moderate restrictions in her
activities of daily living; and mild difficulties in maintaining social functioning and in
maintaining concentration, persistence and pace. (Id.) Dr. Lewin found Plaintiff is capable of
performing simple to moderately complex tasks where strict production quotas are not required.
(R. at 79-80.)
State agency psychologist, David Dietz, Ph.D., reviewed the file at the reconsideration
level in November 2011 and determined that Plaintiff had mild restrictions in her activities of
daily living and in maintaining social functioning; and moderate difficulties in maintaining
concentration, persistence and pace. (R. at 118.) Dr. Deitz considered Dr. Bloom’s September
2011 opinion and gave the opinion weight, except in the area of attention and concentration. Dr.
Deitz noted that even though Dr. Bloom opined that Plaintiff can focus on only one thing at a
time, she displayed a more moderate impairment at the consultative examination with Dr.
Schultz, which she also demonstrated by her ability to perform various chores and care for
herself on a daily basis. (R. at 120.)

9

B. Physical Impairments
1. Treatment
Plaintiff treated with Mohamed H. Hamaza, M.D., and Winfred Stoltzfus, M.D., at Mad
River Internal Medicine for depression, anxiety, back and joint pain, headaches, and asthma.
The record contains treatment notes beginning in January 2010 through at least March 2016. (R.
at 845-53, 1044-65, 1280-1339, 1797-2089, 2143-2299.) Plaintiff also treated with Rhonda
Thompson, CNP, from Mary Rutan Physician Practice who found back pain, decreased mobility,
joint pain, joint swelling, and joint tenderness in September 2012. (R. at 1217.)
On October 29, 2015, Plaintiff treated at the emergency room at Mary Rutan Hospital for
left lower lumbar back pain radiating into the left lower extremity. Lumbar spine x-rays
demonstrated L4-L5 degenerative disk disease but no fracture. (R. at 2038-43.)
She was seen again on November 6, 2015, and given a brief course of oxycodone. (R. at 203236.) On November 9, 2015, she underwent CT scan of the lumbar spine , which showed L5-S1
degenerative disk disease with a mild herniation approaching the nerve root, but, otherwise, no
acute findings. As treatment, she received a course of corticosteroids. (R. at 2018-27.) Plaintiff
returned on November 21, 2015, due to continued discomfort, identical in nature and character,
and she received additional medication. (R. at 2006-11.)
She returned to the ER on December 15, 2015, with back pain, noting her primary care
physician would not prescribe any more pain mediation and that she had an appointment with a
pain physician in April. (R. at 1966.)
Plaintiff underwent a cervical spine x-ray taken on May 1, 2012, which showed mild disc
space narrowing at the C7-T1 level. (R. at 337.) An MRI of the cervical spine taken on May 28,

10

2012, showed no abnormalities. (R. at 336.) A left lower EMG study taken in January 20, 2016,
was normal. (R. at 2096-97.)
2. Consultative Examination
Plaintiff was examined on November 17, 2011 by Rohn Kennington, M.D. for disability
purposes. (R. at 1117-23.) Plaintiff’s chief complaints were mental health issues, chronic neck
and back pain, migraine headaches, and deafness in her left ear. (R. at 1117.) Plaintiff reported
that if she is on her feet a lot or does a lot of heavy lifting or work, she experiences pain in her
neck and lower back, as well as her left shoulder. (Id.) At the time of this examination, she was
receiving physical therapy for her left shoulder. She also took Gabapentin and Vicodin on an as
needed basis. (Id.) On examination, Plaintiff exhibited a normal gait, sensation, reflexes, and
muscle strength. (R. at 1118.) Her grip strength was diminished; however, Dr. Kennington
reported that Plaintiff did not appear to give full effort on that testing. (R. at 1120.) Straight leg
raise testing was negative to 45 degrees and motor function was normal. Dr. Kennington found
tenderness to palpation over the left shoulder and a painful range of motion. (R. at 1118, 112023.) Plaintiff’s cranial nerves were intact, except for the deafness in her left ear. (R. at 1119.)
Dr. Kennington diagnosed Plaintiff with deafness in the ear, chronic neck and lower back pain,
migraine headaches, and various mental health issues. (Id.) Dr. Kennington concluded that,
based on his examination, Plaintiff’s “[s]itting, standing, and walking would need to be limited
to brief periods of time of no more than 1 hour at a time with adequate periods allowed for rest
and change of position in light of her chronic back and shoulder issues.” (Id.)
3. State Agency Review
Myung Cho, M.D., reviewed Plaintiff’s medical record on June 1, 2010, and determined
Plaintiff was capable of medium exertional work. (R. at 919.) Dr. Cho found Plaintiff would
11

have the environmental limitations of avoiding concentrated exposure to fumes, odors, dusts, and
gases, and avoiding even moderate exposure to noise. (R. at 922.)
Leanne M. Bertani, M.D., reviewed Plaintiff’s medical record in April 2011 and
determined that Plaintiff’s current combination of physical impairments is not expected to limit
functioning more than a mild degree. (R. at 76-77.)
Nick Albert, M.D., reviewed Plaintiff’s medical record upon reconsideration in
November 2011 and affirmed Dr. Bertani’s assessment. (R. at 124.)
IV. THE ADMINISTRATIVE DECISION
On July 13, 2016, the ALJ issued his decision. (R. at 1351-72.) Plaintiff met the insured
status requirements through June 30, 2013. At step one of the sequential evaluation process,1 the
ALJ found that Plaintiff had not engaged in substantially gainful activity since June 16, 2010, the
alleged onset date. (R. at 1353.) The ALJ found that Plaintiff had the severe impairments of
lumbar spine degenerative disc disease, chronic neck pain, migraines, asthma, and anxiety and

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).
12

affective disorders. (Id.) The ALJ determined that Plaintiff’s hearing loss and bilateral lateral
epicondylitis are not severe impairments. (R. at 1355.) 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. (R. at 1356.) At
step four of the sequential process, the ALJ set forth Plaintiff’s RFC as follows:
After careful consideration of the entire record, the [ALJ] finds that the
claimant has the residual functional capacity to perform light work, as defined in
20 CFR 404.1567(b) and 416.967(b), subject to the following limitations: (1) no
climbing of ropes, scaffolds or ladders; (2) occasional climbing of ramps or stairs;
(3) occasional stooping, crouching, balancing, kneeling, crawling; (4) no
overhead reaching and frequent reaching in all other directions; (5) exposure to no
more than moderate noise; (6) no concentrated exposure to dusts, odors, fumes or
other pulmonary irritants; (7) no exposure to dangerous hazards such as
unprotected heights or dangerous machinery; (8) limited to performing simple,
routine and repetitive tasks but not at a production rate pace or strict quota; (9)
limited to simple instructions and simple work related decisions; (10) occasional
interaction with supervisors and coworkers and no interaction with the public;
(11) limited to a static work environment, with few changes in the work setting
and no teamwork or tandem tasks.
(R. at 1363.) In reaching this determination, the ALJ assigned “significant adjudicative weight”
to the opinions of the state agency reviewing psychologists, Drs. Warren, Lewin and Deitz,
noting “[t]his claim was remanded because the prior Decision accorded significant weight to
those opinions, but did not include any limitations related to decreased stress tolerance, which
were included in those opinions. However, as set forth above, additional restrictions consistent
with those opinions are supported . . . .” (R. at 1369.) The ALJ found the opinions of Drs.
Wallenbrock and Bloom generally entitled to significant weight. (Id.) The ALJ assigned Mr.
Crook’s opinion “minimal weight” noting that he is not an acceptable medical source whose
opinion is entitled to any special deference. (R. at 1370 (citing SSR 06-3p).) The ALJ
considered Mr. Crook’s opinion of extreme limitations inconsistent with the weight of the
13

clinical evidence of record and other medical source opinions. (Id.) The ALJ explained that Mr.
Crook’s assessment is more consistent with a person requiring inpatient hospitalization for
stabilization of symptoms. (R. at 1370.) In addition, the ALJ found Mr. Crook’s assessment
appeared to exceed even Plaintiff’s allegations. (Id.)
The ALJ assigned “some weight” to Dr. Schulz’s opinion as Plaintiff is somewhat more
limited from a mental standpoint than he set forth. (R. at 1370.) The ALJ assigned “moderate
weight” to Dr. McKinney’s assessment and stated that her opined limitations are accounted for in
the RFC to the extent that they are otherwise supported in the record. (R. at 1370-71.)
With respect to Dr. Kennington’s opinion, the ALJ found that objective and clinical
findings did not support his exertional limitations given that he only noted minimal abnormalities
on examination, which suggests Dr. Kennington’s findings are based solely on Plaintiff’s
subjective claims. (R. at 1369-70.) The ALJ rejected the state agency review of Drs. Cho,
Bertani, and Albert because they indicate that Plaintiff does not suffer from a severe physical
impairment, even though the record confirms that she has several physical impairments that are
severe and require functional restrictions. (R. at 1369.)
Relying on the VE’s testimony, the ALJ found that Plaintiff can perform jobs that exist in
significant numbers in the national economy. (R. at 1371-72.) He, therefore, concluded that
Plaintiff is not disabled under the Social Security Act. (R at 1372.)
VII. 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)

14

(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
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)).
VIII. ANALYSIS
In her Statement of Errors, Plaintiff asserts that the ALJ failed to follow the instructions
set forth in this Court’s previous Opinion. Specifically, Plaintiff argues that the ALJ’s mental
15

RFC determination inadequately accounts for Plaintiff’s limitations in maintaining concentration,
persistence and pace and fails to address the opinions of state agency psychologist, Dr. Warren.
(ECF No. 13 at 11-13.) Plaintiff also argues that the ALJ failed to account for the limitations
identified by consulting examiner, Dr. Regina McKinney. (Id. at 14-18.) Last, Plaintiff argues
that, in his physical RFC determination, the ALJ erroneously discounted Dr. Kennington’s
opinion and found that Plaintiff is capable of performing the sitting, standing, and walking
associated with light work. (Id. at 18-21.)
Defendant responds that the ALJ, on remand, more than adequately addressed this
Court’s concerns in conveying Plaintiff’s limitations in maintaining concentration, persistence
and pace. (ECF No. 19 at 10.) Defendant also argues that the ALJ directly incorporated Dr.
Warren’s findings, insofar as they are supported by evidence in the record, into his RFC
determination. (Id.) Defendant further argues that the ALJ accounted for the limitations set
forth by Dr. McKinney to the extent they were consistent with other evidence in the record. (Id.
at 11.) Finally, Defendant argues that the record supports the ALJ’s physical RFC and that Dr.
Kennington’s findings are internally inconsistent and conflict with the objective and clinical
findings of other medical sources. (Id. at 17.)
A plaintiff’s RFC “is defined as the most a [plaintiff] can still do despite the physical and
mental limitations resulting from her impairments.” Poe v. Comm’r of Soc. Sec., 342 F. App’x
149, 155 (6th Cir. 2009); see also 20 C.F.R. §§ 404.1545(a), 416.945(a). The determination of
RFC is an issue reserved to the Commissioner. 20 C.F.R. §§ 404.1527(e), 416.927(e).
Nevertheless, substantial evidence must support the Commissioner’s RFC finding. Berry v.
Astrue, No. 1:09CV000411, 2010 WL 3730983, at *8 (S.D. Ohio June 18, 2010). When
considering the medical evidence and calculating the RFC, “‘ALJs must not succumb to the
16

temptation to play doctor and make their own independent medical findings.’” Simpson v.
Comm’r of Soc. Sec., 344 F. App’x 181, 194 (6th Cir. 2009) (quoting Rohan v. Chater, 98 F.3d
966, 970 (7th Cir. 1996)); see also Isaacs v. Astrue, No. 1:08–CV–00828, 2009 WL 3672060, at
*10 (S.D. Ohio Nov. 4, 2009) (holding that an “ALJ may not interpret raw medical data in
functional terms”) (internal quotations omitted).
An ALJ is required to explain how the evidence supports the limitations that he or she set
forth in the claimant’s RFC:
The RFC assessment must include a narrative discussion describing how the
evidence supports each conclusion, citing specific medical facts (e.g., laboratory
findings) and nonmedical evidence (e.g., daily activities, observations).
In
assessing RFC, the adjudicator must discuss the individual’s ability to perform
sustained work activities in an ordinary work setting on a regular and continuing
basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule), and
describe the maximum amount of each work-related activity the individual can
perform based on the evidence available in the case record. The adjudicator must
also explain how any material inconsistencies or ambiguities in the evidence in
the case record were considered and resolved.
S.S.R. 96–8p, 1996 WL 374184, at *6–7 (internal footnote omitted).
A. The ALJ’s Mental RFC Determination is Supported by Substantial Evidence
1. Concentration, persistence, and pace.
Plaintiff maintains that, in determining Plaintiff’s mental RFC, the ALJ failed to heed this
Court’s instructions to account for Plaintiff’s moderate limitations in concentration, persistence,
and pace with more than merely “limiting jobs to simple, repetitive tasks.” Moore, 2015 WL
5675805, at *6 (citing Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 516 (6th Cir. 2010)). Plaintiff
also maintains that the ALJ failed to adequately address Dr. Warren’s opinion testimony as
directed by this Court. See Id. at *7 n. 4.
The ALJ set forth Plaintiff’s mental RFC as follows:
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After careful consideration of the entire record, the [ALJ] finds that the claimant
has the residual functional capacity to perform light work, as defined in 20 CFR
404.1567(b) and 416.967(b), subject to the following limitations: . . . (8) limited
to performing simple, routine and repetitive tasks but not at a production rate pace
or strict quota; (9) limited to simple instructions and simple work related
decisions; (10) occasional interaction with supervisors and coworkers and no
interaction with the public; (11) limited to a static work environment, with few
changes in the work setting and no teamwork or tandem tasks.
(R. at 1363.) Plaintiff’s original mental RFC, which this Court found inadequate, did not include
any of the limitations now found in (9) – (11) and included the ability to perform “productionoriented . . . work.”2 (R. at 27.)
The ALJ specifically cited Dr. McKinney’s assessment as supporting the additional
“restrictions against production rate pace or strict quota work, as well as reduced personal
contact in the work place, including no teamwork or tandem tasks, and the limitations to a static
work environment.” (R. at 1367.) The ALJ further noted that evidence supplied by Plaintiff’s
psychiatrists support the removal of “a significant amount of stressors from the work
environment,” as reflected in the ALJ’s RFC. (Id.) The ALJ’s RFC determination reflects Dr.
Warren’s opinion evidence that Plaintiff “retains the ability to do complex routine work in a
predictable environment where expectations are clear and consistent. . . . No production or quota
requirements.” (R. at 928.) Moreover, the ALJ’s RFC is in some respects more restrictive than
Dr. Warren’s findings, which included no limitations on interaction with others in the workplace.
(Id.) In sum, the ALJ properly considered this Court’s Order and his conclusions regarding
Plaintiff’s limitations for concentration, persistence, and pace are supported by substantial
evidence.

2

The original RFC limited Plaintiff to “no more than occasional interaction with the public; no
more than simple, repetitive tasks performed with the need for only regularly scheduled breaks
and with the ability for either production-oriented or goal-oriented work.” (R. at 27.)
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2. Dr. McKinney’s opinion evidence
Plaintiff posits that, in determining her mental RFC, the ALJ failed to account for the
limitations identified by consulting examiner, Dr. Regina McKinney, and erroneously found that
Plaintiff is capable of performing the sitting, standing, and walking associated with light work.
(Id. at 13-21.)
Plaintiff states that the ALJ failed to account for the significant limitations identified by
Dr. McKinney. (ECF No. 13.) Plaintiff lists several such findings, including Plaintiff’s
“marginally adequate” remote recall skills and weak short-term memory skills, which “suggests
that she may have difficulty retaining information to complete multi-step instructions.” (R. at
2132; see R. at 2134.) Dr. McKinney also noted that Plaintiff’s “[a]nxiety could result in
increased worry and corresponding decreased attention and concentration skills, while depressive
symptomatology may contribute to a slowed work pace.” (R. at 2132.) Plaintiff reported that,
although she felt anxiety around others, she “got along well with co-workers and supervisors.”
(R. at 2132.) Dr. McKinney observed that the everyday stress of work and supervisor criticism
could increase Plaintiff’s anxiety and slow her work performance. (Id.; R. at 2135.)
In his opinion, the ALJ accorded Dr. McKinney’s opinion moderate weight and accepted
some findings, while rejecting others. (R. at 1370-1371.) In so doing, the ALJ clearly stated that
he was rejecting a portion of Dr. McKinney’s opinion because it is not supported by the medical
evidence—which the ALJ set forth in great detail throughout his opinion. The ALJ explained
that he rejected some of Dr. McKinney’s limitations because her findings were “vague” and
couched in probabilistic terms like “may” and “could.” (R. at 1370.) Furthermore, as the ALJ
points out, Dr. McKinney’s observations and conclusions conflict with other evidence in the
record, including prior consultative evaluations and treatment notes from Plaintiff’s treating
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sources at Consolidated Care. (R. at 1371) The record reflects that Dr. Wallenbrock found
Plaintiff to have average intelligence and a good memory, as well as the ability to remember,
understand, and follow directions; maintain attention; and, sustain concentration, persist at tasks,
and complete tasks in a timely fashion. (R. at 965-967; 1066-1068.) The record also reflects that
Plaintiff considered her depression stable and that she experiences no more feelings of
depression than someone else in the same situation would feel. (R. at 2311, 2314.)
It is appropriate to point out that the ALJ in this case confronted no easy task. Presented
with several different, and at times contradictory, opinions from a number of different
professionals with different specialties, the ALJ had to rely on reports from doctors who had
widely varying treating relationships with Plaintiff. In reaching his decision, the ALJ reviewed
the various opinions, reports, and diagnostic results. Based on his review of the record, he chose
to afford less weight to the opinions of Dr. McKinney than others. Given the number of doctors
that examined Plaintiff and the variation in their opinions, almost any decision that the ALJ
could have rendered would have required him to discredit the opinion of at least one medical
source. The ALJ thoroughly discussed his reasons for accepting certain opinions and rejecting a
portion of Dr. McKinney’s. It is not error to do so when, as explained above, the record contains
ample support for the opinions the ALJ accepts. Mullins v. Sect’y of Health & Human Servs.,
836 F.2d 980, 984 (6th Cir. 1987).
For the reasons explained above, the Undersigned finds that, on remand, the ALJ
properly accounted for Plaintiff’s limitations in his mental RFC determination and that
determination is supported by substantial evidence in the record.

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B. The ALJ’s Physical RFC Determination is Supported by Substantial Evidence
Plaintiff maintains that, in his physical RFC determination, the ALJ erred by discounting
Dr. Kennington’s findings and determining that Plaintiff is capable of performing the sitting,
standing, and walking associated with light work. (Id. at 18-21.) Specifically, Plaintiff argues
that the ALJ did not properly account for the residual effect of her neck pain and lumbar
degenerative disc disease in formulating her physical RFC. (Id. at 19.) Plaintiff also argues that
the ALJ improperly discounted Dr. Kennington’s opinion of Plaintiff’s ability to sit, stand, or
walk as required by “light work.” (Id.at 20.)
The regulations defining “light work” read, in pertinent part, as follows:
Light work involves lifting no more than 20 pounds at a time with frequent lifting
or carrying of objects weighing up to 10 pounds. Even though the weight lifted
may be very little, a job is in this category when it requires a good deal of walking
or standing, or when it involves sitting most of the time with some pushing and
pulling of arm or leg controls.
20 C.F.R. § 404.1567(b). A job may be considered light work if it includes no more than six
hours of standing or walking in an eight-hour workday. SSR 83-10.
In his opinion, the ALJ noted Dr. Kennington’s findings and accorded them minimal
weight based on their inconsistency with other evidence in the record and with Dr. Kennington’s
own clinical examination. (R. at 1369.) Dr. Kennington observed “tenderness and palpation
over the left should and painful range of motion, otherwise there is normal range of motion.” (R.
at 1118.) Dr. Kennington recorded no other abnormalities related to Plaintiff’s shoulder or back
pain, which he opined would, nevertheless, limit Plaintiff’s ability to sit, stand, or walk “to brief
periods of time no more than 1 hour at a time with adequate periods allowed for rest and change
of position.” (Id.at 20; R. at 1119.)

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As the ALJ points out in his opinion, objective medical tests in the record, including xrays showing only mild disc space narrowing, an MRI showing no abnormalities, and a lower
EMG study that was normal, directly contradict Dr. Kennington’s findings. (R. at 337, 336, &
2092.) Moreover, Dr. Kennington himself observed, “Claimant ambulates without difficulty.”
(R. at 1118.)
In light of the lack of objective evidence supporting the opined limitations, the ALJ
properly concluded that Dr. Kennington’s opinions were based primarily on plaintiff’s subjective
complaints. (R. at 1369.) See Walton v. Comm’r of Soc. Sec., 60 F.App’x 603, 612 (6th Cir.
2003) (magistrate judge reasonably inferred that doctor’s opinion was based on plaintiff’s
subjective complaints where opinion was unsupported by objective medical findings).
Subjective claims of disabling pain must be supported by objective medical evidence in order to
serve as a basis of a finding of disability. McCoy v. Chater, 81 F.3d 44, 47 (6th Cir. 1995).
Because the ALJ concluded that Dr. Kennington’s opinions concerning plaintiff’s physical
limitations are not supported by objective evidence in the record, the ALJ’s decision to give
those opinions minimal weight is supported by substantial evidence. Ferguson v. Comm’r of
Soc. Sec., 628 F.3d 269, 273–74 (6th Cir. 2010) (concluding that the ALJ did not err in rejecting
a medical opinion based on the claimant’s subjective complaints which were not supported by
objective medical evidence); Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 877 (6th Cir. 2007)
(ALJ’s rejection of doctors’ opinions was supported by substantial evidence where doctors
formed their opinions solely from claimant’s reporting of her symptoms and conditions, and the
ALJ found that claimant was not credible); Crofutt v. Comm’r of Soc. Sec., No. 2:13–cv–706,
2015 WL 964113 at *15 (S.D. Ohio March 4, 2015) (ALJ did not err in discounting doctor’s

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opinion based in part on plaintiff’s subjective complaints of pain which were not well-supported
by objective record).
For the reasons explained above, the Undersigned finds that, on remand, the ALJ
accorded Dr. Kennington’s opinion evidence proper weight. The Undersigned also finds that the
ALJ adequately accounted for Plaintiff’s limitations in his physical RFC determination and that
determination is supported by substantial evidence in the record.
IX. CONCLUSION
In sum, from a review of the record as a whole, the Undersigned finds that substantial
evidence supports the ALJ’s decision denying benefits. Accordingly, it is RECOMMENDED
that the Court OVERRULE Plaintiff’s Statement of Errors and AFFIRM the Commissioner of
Social Security’s decision.
X.

PROCEDURE ON OBJECTIONS

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

Date: November 28, 2017

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

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