Nelson v. Commissioner of Social Security
REPORT AND RECOMMENDATION: Magistrate Judge RECOMMENDS overruling Plaintiff's Statement of Errors and affirming the Commissioner's decision. Objections to R&R due by 11/9/2017. Signed by Magistrate Judge Kimberly A. Jolson on 10/26/2017. (ew)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
MARGARET JEAN NELSON,
Civil Action 2:16-CV-01123
Judge Michael H. Watson
Magistrate Judge Jolson
REPORT AND RECOMMENDATION
Plaintiff, Margaret Jean Nelson, filed this action under 42 U.S.C. § 405(g) seeking review
of a decision of the Commissioner of Social Security (the “Commissioner”) denying her
application for supplemental security income.
For the reasons that follow, it is
RECOMMENDED that the Court OVERRULE Plaintiff’s Statement of Errors and AFFIRM
the Commissioner’s decision.
FACTUAL AND MEDICAL BACKGROUND
Plaintiff filed this case on November 28, 2016 (Doc. 1), and the Commissioner filed the
administrative record on February 3, 2017 (Doc. 10). Plaintiff filed a Statement of Specific
Errors on March 20, 2017 (Doc. 11), and the Commissioner responded on May 4, 2017 (Doc.
12). Plaintiff replied on May 18, 2017. (Doc. 13).
A. Personal Background
Plaintiff was born on September 29, 1968 (Doc. 10-2, Tr. 120, PAGEID #: 157), and
alleges a disability onset date of June 5, 2012 (Doc. 10-2, Tr. 105, PAGEID #: 142). She has at
least a high school education (Doc. 10-2, Tr. 120, PAGEID #: 157), and work experience as a
pottery decorator, cutting vegetables for a produce distributor, and as a retail associate. (Doc.
10-2, Tr. 134–36, PAGEID #: 171–73). Plaintiff’s date last insured was June 30, 2016. (Doc.
10-2, Tr. 105, PAGEID #: 142).
B. Relevant Hearing Testimony
Administrative Law Judge Timothy Keller (the “ALJ”) held a hearing on June 23, 2015.
(Doc. 10-2, Tr. 129, PAGEID #: 166). During the hearing, Plaintiff testified that she suffers pain
in her neck, lower back, and legs, which has worsened since 2012. (Id., Tr. 138, PAGEID #:
175). Plaintiff explained that she has had numerous shots, completed physical therapy, visited
chiropractors, and had trigger injections to treat her lower back and neck pain, but that nothing
seems to work.
Plaintiff also testified that she has taken pain medication for
approximately a year, which “takes the edge off,” but its efficacy has lessened. (Id., Tr. 139,
PAGEID #: 176).
Plaintiff further testified that she suffers from anxiety and bipolar disorder. (Id., Tr. 144,
PAGEID #: 181). She explained that her bipolar disorder causes her to have “good days” and
“bad days.” (Id., Tr. 145, PAGEID #: 182). Plaintiff stated that her good days occur when she is
feeling manic, but that they only occur “maybe once every six months” to a year, whereas her
bad days occur nearly every day and are a result of her depression. (Id.).
In terms of daily activities, Plaintiff stated that she smoked marijuana up until 2009, and
once in 2014 at a party. (Id., Tr. 142, PAGEID #: 179). Plaintiff testified that her bipolar
disorder prevented her from keeping up with her housework, spending time with her family, and
concentrating on tasks such as reading. (Id., Tr. 145, PAGEID #: 182). She stated that she
barely leaves her house. (Id., Tr. 146–47, PAGEID #: 183–84).
C. Relevant Medical Evidence
a. Plaintiff’s Physical Impairments
Since at least 2013, Plaintiff has seen a number of physicians for pain management. On
May 9, 2013, Dr. Mark Weaver performed a physical examination on Plaintiff and observed no
tenderness of Plaintiff’s left knee or of any other joints, but noted crepitus of Plaintiff’s left knee
with “ratchety inconsistency with pain inhibition and giving way in left shoulder muscles and left
knee muscles.” (Doc. 10-7, Tr. 527–28, PAGEID #: 569–70). Dr. Weaver also noted that there
was no impairment of grasp, manipulation, or grip strength of either hand; and straight leg
raising was bilaterally negative. (Id., Tr. 528, PAGEID #: 570). X-rays of Plaintiff’s lumbar
spine showed mild disc space narrowing at L1-2 and L5-S1 but no other abnormalities. (Id., Tr.
517, PAGEID #: 559). X-rays of Plaintiff’s left knee were read as normal except for being
unable to exclude a suprapatellar bursal effusion. (Id., Tr. 516, PAGEID #: 558).
On July 8, 2013, Plaintiff visited her treating physician, Dr. Paul Mumma with
complaints of pain in her thoracic and cervical spine.
(Id., Tr. 545, PAGEID #: 587).
Throughout the examination, Plaintiff was alert and cooperative. (Id., Tr. 546, PAGEID #: 588).
Dr. Mumma opined that Plaintiff’s gait and station were normal, and neurological testing was
intact. (Id., Tr. 547, PAGEID #: 589). Dr. Mumma further noted that Plaintiff had normal range
of motion in all areas of the spine but numerous tender points. (Id.). X-rays of Plaintiff’s lumbar
spine revealed minimal degenerative changes at L5-S1 and L3-4, but X-rays of Plaintiff’s
thoracic spine were unremarkable and demonstrated no significant degenerative changes. (Doc.
10-8, Tr. 698–99, PAGEID #: 741–42). Plaintiff was diagnosed with anxiety, depression, and
spinal arthritis. (Id.).
Plaintiff visited additional physicians, as well as the emergency room, several times from
July 2013 to April 2014, with complaints of back pain that radiated into her neck, legs, and arms.
(Doc. 10-7, Tr. 579–581, PAGEID #: 621–23; Doc. 10-8, Tr. 702–18, PAGEID #: 745–61).
Throughout these visits, Plaintiff consistently demonstrated normal range of motion in her neck
(Doc. 10-8, Tr. 703, 705, 716, PAGEID #: 746, 748, 759), and did not demonstrate gross motor
or sensory deficits. (Id., Tr. 770, 775, PAGEID #: 813, 818). Multiple physical examinations
revealed that Plaintiff was in no acute distress, despite her claims of worsening back pain. (Id.,
Tr. 770, 775, PAGEID #: 813, 818). X-rays of Plaintiff’s cervical spine taken in the emergency
room on July 14, 2013, showed mild spondylosis at C3-C4 and mild facet arthropathy at C4-C5.
(Id., Tr. 706, PAGEID #: 749). An examination with Dr. Yahya Bakdaliah on April 29, 2014,
revealed no tenderness to palpation of Plaintiff’s neck and lumbar spine. (Doc. 10-7, Tr. 580,
PAGEID #: 622). Dr. Bakdaliah also noted that the lordotic curvature of Plaintiff’s lumbar spine
appeared “well maintained” and that Plaintiff’s muscle strength in her lower extremities was “5/5
with good active range of motion.” (Id.). Dr. Bakdaliah diagnosed Plaintiff with cervical and
lumbar spondylosis, chronic low back pain, and lumbar degenerative disc disease. (Id.).
From May 2014 to September 2015, Plaintiff received treatment for her symptoms in the
form of cervical blocks to levels C3–C6 (Doc. 10-8, Tr. 733, PAGE ID #: 776), and various joint
steroid injections (id., Tr. 719, 843–44, PAGEID #: 801). On August 21, 2014, Plaintiff reported
almost 100% relief from her neck pain. (Id., Tr. 748, PAGEID #: 791). On September 4, 2014,
Plaintiff reported almost 100% relief from her low back pain. (Doc. 10-7, Tr. 586, PAGEID #:
628). However, almost a year later, on May 5, 2015, Plaintiff was examined by Dr. Courtney
Bonner, due to neck pain. (Doc. 10-8, Tr. 807, PAGEID #: 850). Dr. Bonner noted a gait
problem and neck stiffness, but X-rays of Plaintiff’s spine revealed only mild facet arthritis. (Id.,
Tr. 807, 812, PAGEID #: 850, 855).
On June 22, 2015, Tami Mohan, a physician assistant (“PA”) at Genesis Healthcare
System Center for Occupational and Outpatient Rehabilitation, completed a physical capacity
evaluation (the “PA assessment”) of Plaintiff that was co-signed by Dr. Kocoloski, who
performed Plaintiff’s spinal injections, and by Plaintiff’s physical therapist. (Doc. 10-8, Tr. 804–
06, PAGEID #: 847–49). Ms. Mohan concluded that, in an eight-hour workday, Plaintiff could
stand one hour total and five minutes at a time, walk one hour total and fifteen minutes at a time,
and sit two hours total and fifteen minutes at a time. (Id., Tr. 805, PAGEID #: 848). The PA
assessment further stated that Plaintiff could not use her hands for simple grasping, pushing and
pulling, or fine manipulation; and that Plaintiff could rarely lift up to ten pounds. (Id.). Finally,
Ms. Mohan opined that Plaintiff could bend, squat, and climb steps on occasion, but was
completely unable to crawl or climb ladders. (Id., Tr. 806, PAGEID #: 949). The only remark
Ms. Mohan provided regarding her findings was a note that stated Plaintiff had complained of
cervical, thoracic, and lumbar pain. (Id.).
b. Plaintiff’s Mental Impairments
Plaintiff also sought professional attention for her various mental disorders since at least
2013. On May 21, 2013, Plaintiff attended a psychological consultative examination with Dr.
Sudhir Dubey. (Doc. 10-7, Tr. 535, PAGEID #: 577). At the examination, Plaintiff appeared
depressed, although her speech was coherent and her thought processes were logical. (Id., Tr.
538, PAGEID #: 580). Plaintiff did not need simple or multi-part questions repeated and did not
appear to have difficulty with comprehension, nor did she exhibit difficulty concentrating. (Id.,
Tr. 538–39, PAGEID #: 580–81). Plaintiff was diagnosed with cannabis abuse in remission,
post-traumatic stress disorder (“PTSD”), and depressive disorder not otherwise specified. (Id.,
Tr. 540, PAGEID #: 582). Dr. Dubey opined that, in a work setting, Plaintiff would be able to
maintain persistence and pace to remember and carry out simple instructions independently. (Id.,
Tr. 542, PAGEID #: 584).
He further opined that Plaintiff would be able to understand,
remember, and carry out multi-step instructions independently, but she would be unable to
maintain persistence and pace to remember and carry out multi-step instructions due to attention,
concentration, and memory problems. (Id., Tr. 541–42, PAGEID #: 583–84). However, Dr.
Dubey stated that Plaintiff would be able to perform multi-step tasks with supervision. (Id., Tr.
542, PAGEID #: 584). Finally, Dr. Dubey opined that Plaintiff would only have mild issues
dealing with co-workers, supervisors, and work pressure. (Id., Tr. 542–43, PAGEID #: 584–85).
On August 28, 2013, Plaintiff underwent a psychological consultative examination with
Dr. Steven Meyer. (Id., Tr. 550, PAGEID #: 592). Dr. Meyer noted that Plaintiff’s grooming
was unkempt, and that Plaintiff appeared flushed, irritable, and on the verge of tears. (Id., Tr.
552, PAGEID #: 594). Plaintiff showed symptoms of depression and anxiety, and exhibited
symptoms of PTSD. (Id., Tr. 552–54, PAGEID #: 594–96). Dr. Meyer opined that Plaintiff had
no difficulty understanding simple or moderately complex instructions, and that her abstract
reasoning, long-term memory, and general information were average. (Id., Tr. 553, PAGEID #:
595). He further noted that Plaintiff’s concentration and persistence were good, and that she
worked on tasks “somewhat fast.” (Id.). Dr. Meyer diagnosed Plaintiff with depressive disorder,
PTSD, and personality disorder not otherwise specified. (Id.). Dr. Meyer stated that, in a work
setting, Plaintiff would be able to perform simple as well as “some complex routine tasks.” (Id.,
Tr. 554, PAGEID #: 596). Dr. Meyer also opined that Plaintiff could perform in a setting
without strict production quotas, with assistance as needed when performing new tasks. (Id.).
Additionally, Dr. Meyer opined that Plaintiff would be able to perform in a nonpublic work
setting with occasional interactions with coworkers and supervisors, and could withstand the
stress and pressures of a low-stress work setting, with assistance as needed to adjust to changes
in routine. (Id., Tr. 555, PAGEID #: 597).
From June to September 2013, Plaintiff met with state agency psychologists, including
Dr. Zeune and Dr. Johnston, for her disability determination and then reconsideration of her
disability determination. (Doc. 10-3, Tr. 151–82, PAGEID #: 189–220). Dr. Johnston found
that Plaintiff could perform simple repetitive tasks in settings where the pace is not fast, and she
was not significantly limited in her ability to work in coordination with or proximity to others
without being distracted by them. (Id., Tr. 160, PAGEID #: 198). Dr. Zeune determined that
Plaintiff could maintain attention sufficiently to complete simple tasks, as well as “some more
detailed 3-4 step tasks in settings where the pace is not fast.” (Doc. 10-3, Tr. 177, PAGEID #:
Dr. Zeune also opined that Plaintiff would benefit from a flexible work schedule
depending on the severity of her symptoms. (Id.).
On April 7, 2014, Plaintiff began counseling at Six County Medical Health Center. (Doc.
10-8, Tr. 610, PAGEID #: 653). Plaintiff’s speech was noted as loud, and eye contact was poor
at times; however, she appeared oriented to the time, place, and her person, and both her
intellectual functioning and perceptions were noted as unremarkable. (Id., Tr. 616–17, PAGEID
#: 659–60). She was diagnosed with adjustment disorder with mixed anxiety and depressed
mood. (Id., Tr. 621, PAGEID #: 664). In July 2014, however, Plaintiff reported relief from her
symptoms of depression after she began taking medicine. (Id., Tr. 631–32, PAGEID #: 674–75).
She reiterated that her medication was helping again in September 2014. (Id., Tr. 634, PAGEID
From July 2014 to April 2015, Plaintiff was examined by Dr. Roger Balogh, a
neurologist with a secondary specialty in psychiatry, for pharmacological management. (Id., Tr.
641–96, PAGEID #: 684–739). Dr. Balogh frequently observed that Plaintiff’s speech was
regular with no abnormal associations (Id., Tr. 644–92, PAGEID #: 687–735); Plaintiff’s thought
processes were clear and linear (id., Tr. 652–92, PAGEID #: 695–735); Plaintiff was under no
overt delusions (id., Tr. 644–92, PAGEID #: 687–735); Plaintiff was oriented to time, place, and
person (id., Tr. 644–92, 793, PAGEID #: 687–735, 836); Plaintiff’s judgment and insight were
intact (id.); Plaintiff suffered no apparent impairment to recent and remote memory (id., Tr. 645–
92, 793, PAGEID #: 688–735, 836); and her mood and affect were appropriate to the situation
(id., Tr. 653–85, PAGEID #: 696–728). However, Dr. Balogh also took note of Plaintiff’s
impaired attention span and concentration, and that she was easily distracted. (Id., Tr. 645–77,
793, PAGEID #: 688–720, 836).
On April 23, 2015, Dr. Balogh completed an evaluation form regarding Plaintiff’s ability
to perform work-related activities. (Doc. 10-7, Tr. 577–78, PAGEID #: 619–20). Dr. Balogh
opined that Plaintiff would be “unable to meet competitive standards” in the following
categories: maintaining attention for two-hour segments; working in coordination with proximity
to others without being unduly distracted; and completing a normal workday and workweek
without interruptions from psychologically-based symptoms. (Id.). Dr. Balogh further opined
that Plaintiff would be “seriously limited” in the following categories: performing at a consistent
pace without an unreasonable number and length of rest periods; accepting instructions and
responding appropriately to criticism from supervisors; getting along with peers without unduly
distracting them or exhibiting behavioral extremes; responding appropriately to changes in a
routine work setting; dealing with normal work stress; understanding and remembering detailed
instructions; carrying out detailed instructions; and dealing with the stress of semiskilled and
skilled work. (Id.). Dr. Balogh explained that his restrictive findings were based on Plaintiff’s
anxiety, poor concentration, mood swings, and complaints of significant pain. (Id., Tr. 578,
PAGEID #: 620). He further offered that Plaintiff would be absent more than four days per
Plaintiff saw Dr. Balogh again on June 18, 2015. (Doc. 10-8, Tr. 796, PAGEID #: 840).
During this visit, Dr. Balogh noted that Plaintiff’s speech was rapid and her associations were
loose. (Id., Tr. 799, PAGEID #: 842). Although Plaintiff’s thought processes were clear and she
was described as “oriented to time/place/person,” Plaintiff reported visual and auditory
hallucinations. (Id., Tr. 799–800, PAGEID #: 842–43). Further, Plaintiff’s mood and affect
were labile, and her attention span was impaired. (Id., Tr. 800, PAGEID #: 843).
D. Relevant Portions of the ALJ’s Decision
The ALJ found that Plaintiff last met the insured status requirements of the Social
Security Act on June 30, 2016, and she had not engaged in substantial gainful activity during the
period from her alleged onset date of June 5, 2012 through her date of last insured of June 30,
2016. (Doc. 10-2, Tr. 107, PAGEID #: 144). The ALJ concluded that Plaintiff had numerous
severe impairments, consisting of degenerative disc disease of the lumbar spine, obesity, mood
disorder, and PTSD.
Despite these findings, the ALJ held that none of Plaintiff’s
impairments or combination of impairments met or equaled the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1. (Id., Tr. 111, PAGEID #: 148).
As to Plaintiff’s residual functional capacity (“RFC”), the ALJ found Plaintiff could
perform light work as defined in 20 CFR § 404.1567(b), with the following limitations:
[U]nderstanding, remembering, and carrying out simple repetitive tasks, maintaining
concentration and attention for two hour segments during an eight hour workday, able to
respond appropriately to supervisors and co-workers in a task oriented setting, have
casual and infrequent contact with others, and able to adapt to simple changes and avoid
hazards in a setting without strict production quotas.
(Id., Tr. 114, PAGEID #: 151).
The ALJ also determined that Plaintiff was capable of
performing past relevant work as a pottery spray gun striper, which would not require the
performance of work-related activities precluded by Plaintiff’s RFC. (Id., Tr. 119, PAGEID #:
156). Ultimately, the ALJ determined that, “considering the claimant’s age, education, work
experience, and residual functional capacity, there are other jobs that exist in significant numbers
in the national economy that the claimant can also perform.” (Id.). Thus, he found that Plaintiff
was not under a disability as defined in the Social Security act at any time from the alleged onset
date of June 5, 2012 through August 29, 2015. (Id., Tr. 121, PAGEID #: 158).
In making this determination, specifically with respect to Plaintiff’s mental functioning,
the ALJ declined to give controlling weight to the opinion of Dr. Balogh, Plaintiff’s treating
physician, and provided several reasons for doing so. (Id., Tr. 116, PAGEID #: 153). First, the
ALJ found that Dr. Balogh’s check marks were conclusory and accompanied by only two
sentences, which stated Plaintiff’s symptoms. (Id.). Second, the ALJ found that Dr. Balogh’s
opinion was unsupported by the record, including Dr. Balogh’s own examinations, which
revealed clear thought processes, regular speech, and no delusions. (Id.). Moreover, while Dr.
Balogh stated that immediate recall and attention span were impaired, he did not note to what
extent. (Id.). Finally, the ALJ found that Dr. Balogh appeared to have based his opinions “in
large part” on Plaintiff’s symptoms, and that Plaintiff’s assertions regarding her physical
symptoms were “not entirely credible.” (Id.).
Similarly, with regard to Plaintiff’s physical impairments, the ALJ declined to give
controlling weight to the report prepared by PA Tami Mohan that was signed by Dr. Kocoloski
and Plaintiff’s physical therapist. The ALJ first explained that Plaintiff’s X-rays showed, at
most, “mild degenerative changes and few abnormal neurological examinations.” (Id., Tr. 115,
PAGEID #: 152). Additionally, the PA assessment noted that Plaintiff had complained of
cervical, thoracic, and lumbar pain, causing the ALJ to believe that the assessment was based, at
least partially, on Plaintiff’s subjective complaints. (Id.). The ALJ also considered the fact that
neither a PA nor a physical therapist are considered medical sources under 20 CFR § 404.1513,
and noted that it was unclear whether Dr. Kocoloski “reviewed the claimant’s chart to agree with
other sources limitations, or . . . just rubber stamp[ed] the assessment.” (Id.).
Under 42 U.S.C. § 405(g), “[t]he findings of the [Commissioner] as to any fact, if
supported by substantial evidence, shall be conclusive. . . .” “[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 HHS, 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 that 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).
In her Statement of Specific Errors, Plaintiff alleges that (1) the ALJ erred in failing to
give controlling weight to the opinion of Dr. Balogh, a treating physician, and (2) substantial
evidence does not support the ALJ’s RFC determination. (See generally Doc. 11).
A. Substantial Evidence Supports the ALJ’s Decision Not to Defer to Plaintiff’s
Treating Source Opinions
Two related rules govern how an ALJ is required to analyze a treating physician’s
opinion. Dixon v. Comm’r of Soc. Sec., No. 3:14-cv-478, 2016 WL 860695, at *4 (S.D. Ohio
Mar. 7, 2016). The first is the “treating physician rule.” Id. The rule requires an ALJ to “give
controlling weight to a treating source’s opinion on the issue(s) of the nature and severity of the
claimant’s impairment(s) if the opinion is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the
case record.” LaRiccia v. Comm’r of Soc. Sec., 549 F. App’x 377, 384 (6th Cir. 2013) (quoting
20 C.F.R. § 404.1527(c)(2)) (internal quotation marks omitted). Closely associated is “the good
reasons rule,” which requires an ALJ always to give “good reasons . . . for the weight given to
the claimant’s treating source opinion.” Dixon, 2016 WL 860695, at *4 (quoting Blakely, 581
F.3d at 406 (alterations in original)); 20 C.F.R. § 404.1527(c)(2). The treating physician rule and
the good reasons rule together create what has been referred to as the “two-step analysis created
by the Sixth Circuit.” Allums v. Comm’r of Soc. Sec., 975 F. Supp. 2d 823, 832 (N.D. Ohio
Here, the ALJ declined to give controlling weight to Dr. Balogh because his opinion
failed to provide any additional analysis beyond two sentences that merely restated Plaintiff’s
symptoms. An ALJ “is not bound by conclusory statements of doctors, particularly where they
are unsupported by detailed objective criteria and documentation.” Cohen v. Sec’y of HHS, 964
F.2d 524, 528 (6th Cir. 1992) (citing King v. Heckler, 742 F.2d 968, 972–73 (6th Cir. 1984)).
Additionally, the ALJ determined that the Plaintiff’s assertions of her symptoms lacked
credibility. Because the ALJ determined that Plaintiff’s “assertions regarding her pain and
physical symptoms are not entirely credible,” the ALJ examined the record to find support for
Dr. Balogh’s restrictive opinion beyond Plaintiff’s symptoms. (Doc. 10-2, Tr. 116, PAGEID #:
153). Upon finding a plethora of contradictory opinions and inconsistent medical records—
including Dr. Balogh’s own examination notes—the ALJ determined that Dr. Balogh’s April
2015 opinion was not entitled to controlling weight. See, e.g., Payne v. Comm’r of Soc. Sec., 402
F. App’x 109, 112–13 (6th Cir. 2010) (affirming an ALJ’s decision to give less than controlling
weight to a treating physician where the physician’s opinions were inconsistent with substantial
evidence in the record, including the physician’s own treatment notes).
For example, although Dr. Balogh opined that Plaintiff would be “unable to meet
competitive standards” in completing a normal workday and workweek without interruption
from psychologically based symptoms, his examinations consistently revealed clear thought
processes, regular speech, no delusions, intact judgment, no impairment to memory, and
appropriate moods. (Doc. 10-8, Tr. 641–96, PAGEID #: 684–739). Additionally, Dr. Dubey’s
May 2013 examination, to which the ALJ gave some weight, indicated that Plaintiff’s speech
was coherent, her thought processes were logical, she did not need simple or multi-part questions
repeated, and she did not appear to have difficulty with comprehension. (Doc. 10-7, Tr. 535–40,
PAGEID #: 577–82; Doc. 10-8, Tr. 115–16, PAGEID #: 152–53). Dr. Meyer’s August 2013
assessment, to which the ALJ gave substantial weight, noted that Plaintiff’s thought processes
were well-organized, she displayed no signs or symptoms of a formal thought disorder, and her
concentration and persistence were good.
(Doc. 10-7, Tr. 550–53, PAGEID #: 592–95).
Similarly, the state agency psychologists found that Plaintiff could perform some work, and was
capable of carrying out simple tasks in addition to more detailed, three-to-four-step instructions
where the pace was not fast. (Doc. 10-3, Tr. 151–82, PAGEID #: 189–220). The ALJ based the
mental limitations in Plaintiff’s RFC “in large part” on the opinions of the state agency
psychologists. (Doc. 10-8, Tr. 115, PAGEID #: 152).
Plaintiff nevertheless argues that Dr. Balogh’s opinions are well-supported by the
evidence of the record, including the opinions of Plaintiff’s other examining and non-examining
professionals. (Doc. 11, Tr. 9, PAGEID #: 991). Specifically, Plaintiff relies on her medical
records documenting her bipolar disorder, personality disorder, adjustment disorder, depression,
anxiety, PTSD, and mood disorder. (Id.). She also maintains that “[a]ll of the limitations set
forth by the consultative and state agency psychologists support the findings of” Dr. Balogh.
(Id., Tr. 10, PAGEID #: 992).
The Commissioner contends that “other opinion evidence
supports the ALJ’s rejection of Dr. Balogh’s April 2015 opinion.” (Doc. 12, Tr. 6, PAGEID #:
1007). The undersigned agrees with the Commissioner.
Here, the ALJ acknowledged that Plaintiff suffered from such conditions as mood
disorder, depression, and PTSD. (Doc. 10-2, Tr. 107, 118, PAGEID #: 144, 155). Even so,
under the substantial evidence standard, the ALJ’s findings are “not subject to reversal merely
because substantial evidence exists in the record to support a different conclusion.” Mixon v.
Colvin, 12 F. Supp. 3d 1052, 1064 (S.D. Ohio 2013) (citing Felisky v. Bowen, 35 F.3d 1027,
1035 (6th Cir. 1996)).
Rather, it is the ALJ’s “function to resolve conflicts in the
evidence, see Hardaway v. Sec’y of H.H.S., 823 F.2d 922, 928 (6th Cir. 1987),” as the ALJ did
Moreover, it is for the ALJ, and not the reviewing court, to evaluate the credibility of
witnesses, including that of the claimant. Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th
Cir. 2007) (citing references omitted). However, such credibility determinations must find
support in the record.
While the ALJ noted that Plaintiff’s “medically determinable
impairments could reasonably be expected to cause the alleged symptoms,” the ALJ also found
that Plaintiff’s “statements concerning the intensity, persistence and limiting effects of these
symptoms are not entirely credible,” and cited objective evidence in claimant’s medical records,
as well as a number of “inconsistencies and exaggerations in the record,” in support of that
finding. (Doc. 10-2, Tr. 118–19, PAGEID #: 155–56). 1
In one example, Plaintiff reported 10 out of 10 pain, despite exhibiting no signs of acute
distress and a lack of objective evidence indicating such severe pain. (Doc. 10-8, Tr. 705,
PAGEID #: 748). In another, Dr. Weaver noted that, for manual muscle testing, Plaintiff
displayed “ratchety inconsistency” with “giving way” in the left shoulder muscles and left knee
muscles (Doc. 10-7, Tr. 527, PAGEID #: 569), which the ALJ noted are “indicators of possible
malingering.” (Doc. 10-2, Tr. 118, PAGEID #: 155). The ALJ also noted that Plaintiff’s
medical records—such as X-rays that showed only mild disc disease—did not indicate the
presence of an impairment “capable of producing severe, intractable levels of pain, fatigue, or
other symptoms that would preclude all work activity.” (Id.). Accordingly, substantial evidence
supports the ALJ’s credibility determination.
Without Plaintiff’s subjective complaints, the ALJ reasonably found that Dr. Balogh’s
opinion was not supported by the record. Indeed, as to Plaintiff’s mental abilities, Dr. Dubey
opined that Plaintiff would be able to understand, remember, and carry out simple instructions,
and would only have mild issues dealing with others and work pressures. Dr. Meyer likewise
found that Plaintiff would be able to carry out simple instructions, as well as withstand
occasional interactions with coworkers and the pressures of a low-stress work setting with
Under SSR 16-3p, which was effective on March 28, 2016, an ALJ must focus on consistency
of an individual’s statements about the intensity, persistence and limiting effects of symptoms,
rather than credibility. Compare SSR 96-7p, 1996 SSR LEXIS 4, with SSR 16-3p, 2016 SSR
LEXIS 4. While courts have disagreed as to whether the regulation applies retroactively, the
Court need not resolve the issue because under either lens—credibility or consistency—the Court
finds that the ALJ analyzed the record appropriately. See Barncord v. Comm’r of Soc. Sec., No.
2:16-cv-389, 2017 U.S. Dist. LEXIS 151479, at *10–12. (June 30, 2017) (affirming
recommendation that the Court need not resolve the retroactivity issue).
Finally, Plaintiff argues that even if Dr. Balogh’s opinion was not entitled to controlling
weight, the ALJ was required to evaluate Plaintiff’s treating source opinion by considering the
five factors set forth in Blakely v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) and 20
C.F.R. § 404.1527(c)(2)–(6): the length, nature, and extent of the treatment relationship between
Plaintiff and Dr. Balogh; the frequency of examination; Dr. Balogh’s medical specialty; the
extent to which Dr. Balogh’s opinion is supported by the evidence; and the consistency of Dr.
Balogh’s opinion with the record as a whole. (Doc. 11, Tr. 11, PAGEID #: 993). While an ALJ
must consider the factors set forth in 20 C.F.R. § 404.1527(c)(2)–(6), the regulations only
require that the ALJ’s decision include good reasons for the weight assigned to the treating
source, see 20 C.F.R. § 404.1527(c)(2), “not an exhaustive factor-by-factor analysis.” Francis v.
Comm’r Soc. Sec., 414 F. App’x 802, 804 (6th Cir. 2011).
Here, the ALJ’s findings of fact included an overview of the length, nature, and extent of
the treatment relationship between Plaintiff and Dr. Balogh; the frequency of Dr. Balogh’s
examinations of Plaintiff; and Dr. Balogh’s specialty as a neurologist with a secondary specialty
in psychiatry. (Doc. 10-2, Tr. 109–11, PAGEID #: 146–48). Thus, it is clear the factors were
appropriately considered. Moreover, in assigning little weight to Dr. Balogh’s opinion, the ALJ
cited the opinion’s lack of support by the evidence of record, and inconsistency with Dr.
Balogh’s examination records. “Procedurally, the regulations require no more.” Francis, 414 F.
App’x at 805.
In light of the following, the ALJ’s decision to reject Dr. Balogh’s opinion was supported
by substantial evidence and provided sufficient detail to satisfy the good-reasons requirement.
See Barncord v. Comm’r of Soc. Sec., No. 2:16-CV-389, 2017 U.S. Dist. LEXIS 102081, 2017
WL 2821705, at *6 (S.D. Ohio June 30, 2017).
B. Substantial Evidence Supports Plaintiff’s RFC
Plaintiff also challenges the ALJ’s RFC determination and argues that it was made in the
face of contradictory evidence from the examining and treating physicians of record. (Doc. 11,
Tr. 14, PAGEID #: 996). Plaintiff also argues that the ALJ’s rationale in discrediting the
assessment completed by PA Tami Mohan and co-signed by Dr. Kocoloski and her physical
therapist is not supported by substantial evidence. (Id.).
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). To assist in
RFC determinations, the Commissioner considers physical exertional requirements and
“classif[ies] jobs as sedentary, light, medium, heavy, and very heavy.”
§§ 404.167, 416.967. The regulations define light work as:
[L]ifting 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. To be considered capable
of performing a full or wide range of light work, you must have the ability to do substantially
all of these activities.
20 C.F.R. §§ 404.167(b), 416.967(b).
The ALJ, not a physician, ultimately determines a
claimant’s RFC. 42 U.S.C. § 423(d)(5)(B).
See also Nejat v. Comm’r of Soc. Sec., 359 F.
App’x 574, 578 (6th Cir. 2009). And it is the ALJ who resolves conflicts in the medical
evidence. King v. Heckler, 742 F.2d 968, 974 (6th Cir. 1984).
In considering Plaintiff’s RFC, the ALJ declined to give controlling weight to Ms.
Mohan’s assessment because it lacked any explanation for its restrictive conclusions other than a
restatement of Plaintiff’s reported symptoms. Because the ALJ properly found that Plaintiff was
not a credible source, as mentioned above, and because both Dr. Kocoloski and Plaintiff’s
physical therapist failed to provide additional insight, the ALJ looked to the record for support.
Noting a “paucity of positive findings” regarding Plaintiff’s physical impairments, the ALJ
declined to give the PA assessment controlling weight. (Doc. 10-2, Tr. 114–15, PAGEID #:
151–52). The ALJ identified several appropriate reasons for assigning minimal weight to the
assessment. For one, the ALJ observed that both Ms. Mohan and Plaintiff’s physical therapist
are not acceptable medical sources as defined in the regulations. See 20 C.F.R § 404.1513. As
such, their opinions are not entitled to controlling weight.
See SSR 06-03p; 20 C.F.R
§ 404.1527(c). Even so, the ALJ considered the assessment in accordance with the guidance in
SSR 06-03p. In particular, he considered the consistency of the PA assessment with other
evidence of record and the extent to which the assessment was explained and supported. See
The ALJ observed that Plaintiff’s X-rays showed, at most, mild degenerative changes and
few abnormal neurological examinations. (Doc. 10-2, Tr. 115, PAGEID #: 152). The ALJ also
stated that the PA assessment appeared based, at least partially, on Plaintiff’s subjective
complaints, and that the Plaintiff’s assertions were not credible. (Id.). The ALJ ultimately
assigned minimal weight to the PA assessment based on a lack of support by the evidence of
Such a conclusion was within the ALJ’s discretion.
See 20 C.F.R.
§ 404.1527(c)(2); see also Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 496, 506–07 (6th Cir.
The ALJ ultimately concluded that Plaintiff was capable of light work with additional
mental limitations, citing 20 C.F.R. § 404.1567(b). (Doc. 10-2, Tr. 114, PAGEID #: 151).
When looking at the record, X-rays of Plaintiff’s spine and joints showed only minimal to mild
degenerative changes, and a recent MRI of her lumbar spine revealed only decreased disc height
with disc bulges, but no stenosis. (Id.). Moreover, other clinical examinations demonstrated no
neurological deficits, no weakness (and thus no need for any ambulatory aid), no significant gait
abnormality, and only intermittent limitation of motion. (Id.). The ALJ also noted that Plaintiff
goes shopping, takes care of her children and pets, drives, sees friends, runs errands, and uses the
computer to keep in touch with her loved ones and to play games. (Id., Tr. 118, PAGEID #:
With this evidence in mind, the Court finds the ALJ did not err in assigning minimal
weight to Ms. Mohan’s assessment, and the ALJ’s ultimate conclusion regarding Plaintiff’s
physical abilities finds support in the record. It is not this Court’s role to sift through the facts
and make a de novo determination of whether a claimant is disabled. Indeed it is the ALJ, not
the Court, that is the finder of fact. Siterlet v. Sec’y of Health & Human Servs., 823 F.2d 918,
920 (6th Cir. 1987). The ALJ reasonably undertook that role here. Id. Because substantial
evidence supports the decision below, it must be affirmed.
For reasons stated, it is RECOMMENDED that the Plaintiff’s statement of errors be
OVERRULED and that judgment be entered in favor of Defendant.
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: October 26, 2017
/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE
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