Hatfield v. Commissioner of Social Security
REPORT AND RECOMMENDATIONS: It is RECOMMENDED that Plaintiffs Statement of Errors be OVERRULED, and the Commissioner of Social Securitys decision be AFFIRMED regarding 3 Complaint filed by Robin Hatfield. Objections to R&R due by 2/5/2018. Signed by Magistrate Judge Elizabeth Preston Deavers on January 22, 2018. (jlk) (This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
Case No. 2:17-cv-76
Chief Judge Edmund A. Sargus, Jr.
Chief Magistrate Judge Elizabeth P. Deavers
REPORT AND RECOMMENDATION
Plaintiff, Robin Hatfield, who is proceeding without the assistance of counsel, 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 security income (“SSI”).
This matter is before the United States Magistrate Judge for a Report and Recommendation on
Plaintiff’s Statement of Errors (ECF No. 15) (“SOE”), the Commissioner’s Memorandum in
Opposition (ECF No. 21) (“Opposition”), and the administrative record (ECF No. 9). No reply
has been filed. For the reasons that follow, it is RECOMMENDED that the Court
OVERRULE Plaintiff’s Statement of Errors and AFFIRM the Commissioner’s decision.
Plaintiff filed her application for benefits on June 14, 2013, alleging that she has been
disabled since January 1, 2001, due to mental problems, neuropathy, and weight problems. (R.
at 81–92, 167–72.) Plaintiff’s application was denied initially and upon reconsideration. (R. at
81–108.) Plaintiff sought a de novo hearing before an administrative law judge. Administrative
Law Judge Rita S. Eppler (“ALJ”) held a hearing on May 21, 2015, at which Plaintiff,
represented by counsel (Gregory Klima), appeared and testified. (R. at 2–35.)1 Carl Hartung, a
vocational expert, also appeared and testified at the hearing. (R. at 29–35.) On September 14,
2015, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the
Social Security Act. (R. at 60–76.) On January 7, 2016, the Appeals Council denied Plaintiff’s
request for review and adopted the ALJ’s decision as the Commissioner’s final decision. (R. at
51–54.) Plaintiff then timely commenced the instant action.
Plaintiff testified at the administrative hearing that she was born on June 10, 1974. (R. at
9.) She is 5’7” tall and weighs 360 pounds. (R. at 11.) Plaintiff is not married, but has a
boyfriend. (Id.) She has one child who is twenty-three or twenty-four years old. (R. at 9–10.)
Plaintiff completed ninth grade and took special education classes in school. (R. at 9,
13.) Plaintiff testified that her reading skills are “[n]ot good.” (R. at 12.) However, she is able
to follow instructions on a package to cook an item. (Id.)
Plaintiff does not currently have a driver’s license, but had one in the past. (R. at 11.)
She has two friends who take her places and one of them brought her to the administrative
hearing. (R. at 11–12.)
Plaintiff testified that she started drinking at age seventeen until approximately age
twenty-six or twenty-seven. (R. at 14–15.) Plaintiff admitted that she “used to be a bad
Plaintiff also attended a hearing on March 19, 2015, at which time the administrative law judge
continued the hearing so that the records could be updated and so that her counsel, Mr. Klima,
could enter an appearance. (R. 37–50.)
The Undersigned limits the analysis of the evidence and the administrative decision to the
issues apparently raised in the SOE.
alcoholic” and would drink between five and eight forty-ounce drinks a day. (R. at 13–14.) She
was convicted three times for drinking and driving. (R. at 15–16.) She also acquired an
extensive misdemeanor record while drinking, including domestic violence, drug abuse, and
attempted theft. (R. at 27.) She last drank a wine cooler about three months ago. (R. at 13.)
Plaintiff receives food stamps and has a medical card. (R. at 16.) Plaintiff takes
prescribed medication and testified that she becomes depressed if she does not take her medicine.
(R. at 17.)
Plaintiff testified that she can stand and walk for five or ten minutes before she needs to
sit down and take a break. (R. at 18.) Plaintiff can sit all day without a problem as long as she
can sometimes stand up and rub her legs in grain alcohol. (R. at 18–19.) Plaintiff can lift
between ten and fifteen pounds. (R. at 19.)
Plaintiff could not recall when she last worked, but remembered that her last job was as a
janitor with Goodwill Industries. (Id.) She worked there for six months or less. (R. at 19–20.)
Plaintiff currently receives mental health treatment. (R. at 20.) She has been receiving
such treatment for the last four or five years since she had a nervous breakdown. (Id.) She
testified that she has been hospitalized two or three times for mental health issues. (Id.)
Plaintiff described a typical day. (R. at 21–22.) She would get out of bed no later than
11:00 a.m., get her medicine, and walk with her cane into the kitchen. (R. at 21.) She would
prepare breakfast, such as an egg and fried bologna. (Id.) After she eats, she goes to her lazy
boy chair and elevates her legs, and watches a little bit of television. (Id.) She also colors. (R.
at 21–22.) Usually, a friend visits her in the afternoon. (R. at 22.) Sometimes she becomes
hungry and eats a cold-cut sandwich and then takes her medicine. (Id.) Sometimes she takes a
bath and sometimes her friend assists her into the bath tub. (Id.) After her bath, Plaintiff returns
to her chair. (Id.) A friend usually makes a dinner for her, which she reheats later. (Id.)
Plaintiff is learning to sew. (Id.) Her friends from church take her to church services once or
twice a month. (R. at 23.) She goes to the park twice a week if it is nice outside. (R. at 24.) She
goes to bed around 9:00 or 10:00 p.m. (Id.)
Plaintiff does perform household chores, including cleaning her bathroom, grocery
shopping, and sometimes doing the dishes. (R. at 22–23.) A friend does her laundry. (R. at 23.)
A person from church assists with sweeping, dusting, mopping, and vacuuming. (Id.)
Plaintiff uses a cane. (R. at 24.) She believed that “Hathaway” prescribed the four-poster
cane approximately one and a half to two years ago. (R. at 24–25, 27.) She has consistently
used a cane since a total right knee replacement in May of 2014. (R. at 25.) Plaintiff complains
of numbness and pain in her knees. (R. at 26–28.) Her left knee presently bothers her the most
and there is constant pain. (R. at 28–29.) Plaintiff sees Dr. Hatheway once a month to receive
steroid shots in her knees. (R. at 29.)
Vocational Expert Testimony
Carl Hartung testified as a vocational expert (“VE”) at the May 21, 2015, administrative
hearing. (R. at 29–35.) The VE testified that Plaintiff had not engaged in any work that reaches
the level of substantial gainful activity. (R. at 31–32.) The ALJ proposed a hypothetical that
presumed an individual with Plaintiff’s age, education, and no work experience, having the
ability to lift twenty pounds occasionally, ten pounds frequently, can sit approximately six or
more hours in an eight-hour day, can stand and walk combined for a total of four hours in an
eight-hour day, can occasionally climb stairs, stoop, kneel, crouch and crawl, and can frequently
balance and is precluded from performing work that requires ladders, ropes or scaffoldings, and
can understand, remember and follow simple, routine type of tasks, is limited to only superficial
interaction with supervisors, coworkers and occasional interaction with the public, and is limited
to low stress work defined as no strict production quotas or time pressures. (R. at 31.) The VE
testified that the hypothetical individual could perform work as an eyeglass frame polisher,
document preparer, inspector, pari-mutuel ticket checker, all of which were unskilled, sedentary
positions and all of which were available nationally and regionally. (R. at 31–34.)
The ALJ next asked the VE to presume the same individual as before with mental
limitations to permit understanding, remembering, and following simple, routine tasks,
concentration, persistence and pace is not limited for those same type of simple, repetitive tasks
and interaction is limited superficial for both supervisors, coworkers, as well as the public, and
the same limitations for stress in the workplace, no strict production quotas or time pressures.
(R. at 34.) The VE testified that these limitations would not impact the hypothetical individual’s
ability to perform the sedentary work previously identified. (Id.) The ALJ asked the VE
whether this individual can perform past work or any other work if the ALJ finds Plaintiff’s
testimony to be credible and supported by the medical evidence. (Id.) The VE testified that with
the restrictions and limitations Plaintiff identified, specifically elevating her lower extremities,
pain in her lower extremities, as well as anxiety and depression, he would not be able to identify
jobs that would tolerate such limitations and restrictions in the workplace. (R. at 34–35.)
J. Mark Hatheway, M.D.
Plaintiff presented to J. Mark Hatheway, M.D. for evaluation of knee problems on March
25, 2014. (R. at 617–18, 932–33.) Dr. Hatheway opined that Plaintiff “is severely disabled
For the sake of brevity, the Undersigned provides a brief outline of the medical history and will
discuss additional record evidence as necessary to address Plaintiff’s contentions of error within
the Analysis Section.
because of the pain, stiffness and crepitation in the knees” and that she “is severely disabled and
has severe osteoarthritis of both knees.” (R. at 617, 932.) He discussed the risks of a total right
knee replacement, but Plaintiff wanted to proceed with the procedure. (R. at 617–18, 932–33.)
On May 7, 2014, Dr. Hatheway performed a total right knee replacement. (R. at 625–
27.) Following the surgery, Dr. Hatheway reported that the right knee “excellent overall
alignment” and “excellent stability throughout a complete range of motion of the knee[.]” (R. at
626.) Plaintiff tolerated the procedure well. (Id.)
On February 26, 2015, Plaintiff presented to Dr. Hatheway for follow up of her knee
problems. (R. at 624.) Plaintiff reported that “she is pleased with the results” of replacement
surgery on her right knee and Dr. Hatheway noted that the right knee healed nicely and that she
had full extension and flexion to 135 degrees. (Id.) He also noted that her right knee continues
to do well. (Id.) Dr. Hatheway reported that x-rays of Plaintiff’s left knee were taken and that
she has medial and patellofemoral arthritic changes in her left knee. (Id.) Dr. Hatheway
reported that he was scheduling Plaintiff for left total knee replacement in the near future. (Id.)
James C. Tanley, PhD.
On January 5, 2014,4 Plaintiff presented to consultative examiner James C. Tanley, PhD.
upon referral by the Ohio Division of Disability Determination for psychological evaluation
relating to her claim for mental disability benefits. (R. at 608–13.) Plaintiff reported that she is
seeing a psychiatrist and that she has gone to North Central Mental Health for two years. (R. at
608.) Plaintiff reported that she is bipolar, does not like to be around people, and likes to stay
inside in the dark. (Id.) Plaintiff stated that she was voluntarily psychiatrically hospitalized for
The ALJ and Commissioner mistakenly refer to an examination date in June 2014. (R. 72;
Opposition at 2).
about a week before her mother was murdered. (R. at 609.) She takes psychoactive medication,
which helps her. (Id.)
Plaintiff stated that her childhood was not that good because her mother was physically
abusive; her parents divorced when she was thirteen or fourteen years old; and she watched her
father die. (Id.) Plaintiff reported that she is divorced and lives alone and does not know where
her daughter and half-brother are. (Id.) Plaintiff went as far as the ninth or tenth grade in SLD
(special learning disability) classes. (Id.) Her grades were “bad” and she left school when she
became pregnant. (Id.)
Dr. Tanley noted that Plaintiff is morbidly obese (5’7” tall, weighing 350 pounds),
generally cooperative and demonstrating no eccentricities of manner, impulsivity, or
compulsivity. (R. at 610.) Her grooming, posture, and general motor behavior were
unremarkable. (Id.) Dr. Tanley noted that Plaintiff’s velocity and volume of speech were
adequate and that her thoughts were coherent, relevant, and goal-oriented. (Id.) He observed no
articulation errors, reduced intelligibility, or other notable speech anomalies. (Id.) Although the
records he reviewed indicated a diagnosis of Psychotic Depressive Disorder, Dr. Tanley reported
that Plaintiff did not endorse any psychotic symptomology during the appointment. (Id.) Upon
questioning, Plaintiff gave no evidence of preoccupations, religiosity, misinterpretations,
suspiciousness, hostility, aggressivity, ideas of reference, delusions, paranoid ideation,
hallucinations, thoughts of alien control, grandiosity, omnipotence, or any unusual thought
content. (Id.) Dr. Tanley reported that her affect was appropriate to thought content, but her eye
contact was variable. (Id.) While she cried during the examination, Plaintiff did not report any
suicidal/homicidal ideation. (Id.) Her psychomotor activity was unremarkable and there were
no allegations of guilty, hopelessness, helplessness, or worthlessness. (Id.) Dr. Tanley reported
that Plaintiff alleged anhedonia with mood problems, but without inflated self-esteem or
grandiosity. (Id.) Dr. Tanley also reported no motor or autonomic manifestations and that she
did not evidence apprehension, vigilance, scanning, fear, or sense of impending doom. (Id.)
Plaintiff was alert and oriented times four during the examination. (Id.) Dr. Tanley
opined that her recent and remote memory were superficial to poor. (Id.) He estimated that her
current level of intellectual functioning to be in the extremely low range and that is what would
be expected in the work setting. (R. at 610, 612.) However, Dr. Tanley opined that her ability to
maintain attention and concentration, persistence and pace was unimpaired during the interview
portion of the consultative examination. (R. at 612.) Plaintiff had no difficulty understanding
the task requirement of the examination and responded appropriately and in a timely fashion to
his questions. (Id.) Dr. Tanley opined that she would be expected to show increasing and
significant difficulties with tasks of increasing complexity and multistep tasks. (Id.) He further
opined that if her psychological problems were to worsen, they would negatively impact this
area. (Id.) According to Dr. Tanley, Plaintiff would be at serious risk for trying to deal with the
social aspects of work and to deal with workplace pressure. (Id.)
Elizabeth Martinelli, PA-C
On March 3, 2015, Elizabeth Martinelli, PA-C, reported that Plaintiff has “severe
osteoarthritis of her knees which renders her disabled.” (R. at 629, 917.)
On September 14, 2015, the ALJ issued her decision. (R. at 60–76.) At step one of the
sequential evaluation process,5 the ALJ found that Plaintiff had not engaged in substantially
gainful activity since her application date of June 14, 2013. (R. at 62.) The ALJ concluded that
Plaintiff had the severe impairments of morbid obesity, status post right knee replacement in
May 2014 secondary to osteoarthritis of the knee, neuropathy, degenerative disc disease, and
depressive disorder. (Id.) He found that the consultative examiner, Dr. Tanley, estimated
Plaintiff’s current level of intellectual functioning to be in the extremely low range, but no
testing was done to confirm this. (R. at 63.) The ALJ noted that Dr. Tanley diagnosed with
probable intellectual disability, moderate.
The ALJ next concluded that 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.) The ALJ indicated that she had specifically considered
Listings 1.02A, 1.04, 11.14, and 12.00. (R. at 63–66.)
At step four of the sequential process, the ALJ set forth Plaintiff’s RFC as follows:
Social Security Regulations require ALJs to resolve a disability claim through a five-step
sequential evaluation of the evidence. See 20 C.F.R. § 404.1520(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:
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
See 20 C.F.R. § 404.1520(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).
After careful consideration of the entire record, it is found that the claimant has
the residual functional capacity to perform light work as defined in 20 CFR §
416.967(b) as the ability to lift twenty pounds occasionally and ten pounds
frequently, sit approximately six hours in an eight hour day; stand/walk for a total
of four hours in an eight hour day. She can occasionally climb stairs, stoop,
kneel, crouch and crawl; frequently balance; and is precluded from using ladders,
ropes and scaffolding in the workplace. She is capable of understanding,
remembering and following simple routine tasks; interaction with supervisors,
coworkers and the public should be occasional and limited to superficial; and
work should be limited to no strict production quotas or time pressures.
(R. at 66.) In reaching this determination, the ALJ assigned “some weight” to Dr. Tanley’s
opinions, concluding that the overall evidence does not support more severe limitations. (R. at
72.) The ALJ rejected Dr. Hatheway’s March 2014 statement that Plaintiff was “‘severely
disabled’ because of pain, stiffness and crepitation in the knees” and Ms. Martinelli’s opinion
dated March 3, 2015, that Plaintiff had severe osteoarthritis of the knees that rendered her
disabled, concluding that the treatment notes did not support these opinions. (R. at 72–73.)
Relying on the VE’s testimony, the ALJ determined that Plaintiff can perform jobs that
exist in significant numbers in the national economy. (R. at 75–76.) She therefore concluded
that Plaintiff was not disabled under the Social Security Act. (R. at 76.)
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. 2009)
(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 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 & Hum. 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)).
Plaintiff, who is proceeding without the assistance of counsel, appears to assert
contentions of error based on her legal representation and dissatisfaction with the type of work
the VE identified Plaintiff capable of performing. (SOE at PAGEID ## 1025–27.) Plaintiff also
apparently contends that the ALJ did not properly weigh the opinion evidence. (SOE at
PAGEID ## 1025–45.) Finally, Plaintiff appears to assert that her subjective complaints warrant
remand. (Id.) The Undersigned considers each contention of error in turn and finds each to be
Plaintiff’s Prior Legal Representation and Additional Medical Records
Plaintiff contends that her former counsel, Ronald Plymale, “dropped the ball” and “did
not file all of the paper work for my case” and, in a letter provided by Plaintiff, Mr. Plymale
states that Plaintiff “would have been better represented by someone who regularly did Social
Security work[.]” (SOE at PAGEID ## 1025–27.) Neither Mr. Plymale’s alleged inadequacies
nor the alleged failure to supplement the record are grounds for remand. Sentence six of 42
U.S.C. § 405(g) provides in relevant part as follows:
The Court may, on motion of the Secretary made for good cause shown before he
files his answer, remand the case to the Secretary for further action by the
Secretary, and it may at any time order additional evidence to be taken before the
Secretary, but only upon a showing that there is new evidence which is material
and that there is good cause for the failure to incorporate such evidence into the
record in a prior proceeding . . . .
42. U.S.C. § 405(g). “Sentence-six remands may be ordered in only two situations: where the
Secretary requests a remand before answering the complaint, or where new, material evidence is
adduced that was for good cause not presented before the agency.” Shalala v. Schaefer, 509 U.S.
292, 297 n.2 (1993) (citations omitted). The requirements that the evidence be “new” and
“material,” and that “good cause” be shown for the failure to present the evidence to the ALJ
have been defined by the United States Court of Appeals for the Sixth Circuit as follows:
“For the purposes of a 42 U.S.C. § 405(g) remand, evidence is new only if it was
‘not in existence or available to the claimant at the time of the administrative
proceeding.’ . . . Such evidence is ‘material’ only if there is ‘a reasonable
probability that the Secretary would have reached a different disposition of the
disability claim if presented with the new evidence.’ . . . A claimant shows ‘good
cause’ by demonstrating a reasonable justification for the failure to acquire and
present the evidence for inclusion in the hearing before the ALJ . . . . [T]he
burden of showing that a remand is appropriate is on the claimant.”
Ferguson v. Comm’r of Soc. Sec., 628 F.3d 269, 276 (6th Cir. 2010) (quoting Foster v. Halter,
279 F.3d 348, 357 (6th Cir. 2001)).
In the instant case, while Mr. Plymale was appointed as Plaintiff’s attorney in March
2015 (R. at 166), Plaintiff’s more recent counsel, Gregory Klima, undertook her representation
sometime before the hearing on March 19, 2015. (R. at 6, 42–43.) While Plaintiff appeared
without counsel at this hearing, she advised that she had secured new counsel, Mr. Klima. (R. at
42–43.)6 The ALJ instructed Plaintiff at the hearing on March 19, 2015, that her new attorney
should advise if he thinks there is a need for additional records. (R. at 46, 48–49.) Mr. Klima
appeared and represented Plaintiff at the hearing on May 21, 2015. (R. at 2–7.) The ALJ again
provided Mr. Klima another opportunity to present any additional relevant records and Mr.
Klima agreed that he would communicate with the Court about such records. (R. at 7.) Based
on this record where Plaintiff was represented by Mr. Klima prior to the hearings, Plaintiff has
not shown that Mr. Plymale’s alleged inadequacies or alleged mistakes had any bearing on her
Plaintiff also attaches copies of medical records to her SOE, apparently constituting the
records that she believes that Mr. Plymale should have included in the administrative record. As
a preliminary matter, at least some of those records are already contained in the administrative
record. (Compare SOE at PAGEID ## 1033, 1044–45, with R. at 624, 629–30, 917.) To the
extent that the remaining three pages of what appear to be medical records may not already be
included in the administrative record (SOE at PAGEID ## 1029, 1036, 1043), Plaintiff has not
shown, or even argued, that these records are new or were otherwise unavailable to her prior to
the hearing on May 21, 2015, or at any time to supplement the administrative record.7 Moreover,
Plaintiff mistakenly referred to her new counsel as “Ron Klima.” (Id.)
The first record is an intake record from North Central Mental Health Services regarding a
service date of February 17, 2012, which predates the relevant period that began in June 2013,
when Plaintiff protectively filed for SSI. (SOE at PAGEID # 1029.) The second record is a
handwritten note dated June 14, 2014, from the Ohio Health Center and signed by Ms. Martinelli
although Plaintiff failed to argue materiality, review of the additional evidence she attached to
her SOE reveals that she could not have shown a “reasonable probability” that the Secretary
would have reached a different conclusion on the issue of disability if presented with the
additional evidence. See Ferguson, 628 F.3d at 276. As previously noted, one of the records
pre-dates the relevant period and another record simply identifies dates for surgery and
appointments. (SOE at PAGEID ##1029, 1043.) The remaining record opines that Plaintiff has
significant difficulty climbing stairs (id. at PAGEID # 1036), but as discussed below, a similar
record from Ms. Marinelli is part of the administrative record and the ALJ appropriately
accounted for such difficulty by limiting Plaintiff to occasionally climbing stairs. (R. at 66.)
Finally, as set forth above, Mr. Klima represented Plaintiff during the hearing on May 21,
2015, and was given an opportunity to supplement the administrative record. To the extent that
Mr. Klima may not have submitted certain records that Plaintiff believed material, “there is
absolutely no statutory or decisional authority . . . that the alleged incompetence of [claimant’s]
first attorney constitutes ‘good cause’” for a sentence six remand. Taylor v. Comm’r of Soc.
Sec., 43 F. App’x 941, 943 (6th Cir. 2002); see also Firth v. Comm’r of Soc. Sec., No. 2:16-cv14165, 2017 WL 4169632, at *8 (E.D. Mich. July 27, 2017), adopted by 2017 WL 4163684
(E.D. Mich. Sept. 20, 2017) (stating that the claimant “may not now capitalize on his counsel’s
past failure to supplement the record”); McClimans v. Comm’r of Soc. Sec., No. 4:14-cv-2751,
2016 WL 1031110, at *11 (N.D. Ohio Mar. 15, 2016) (“[A]ny implication that Plaintiff’s failure
to obtain the medical source statements prior to the hearing was due to attorney incompetence
or by Ralph W. Newman, D.O., opining that Plaintiff has “significant difficulty climbing stairs
due to her bilateral knee degenerative joint disease and neuropathy.” (PAGEID # 1036.) The
last record is an undated page of handwritten notes reflecting that Plaintiff has pre-testing
scheduled, surgery scheduled for May 13, 2015, and a follow-up appointment scheduled for May
28, 2015. (PAGEID # 1043.)
has no bearing on the good cause requirement.”); Hardwick v. Colvin, 3:13-cv-125, 2014 WL
1092178, at *11 (E.D. Tenn. Mar. 18, 2014) (stating that where the claimant was represented by
counsel who appeared at the administrative hearing, “[c]ounsel could have assisted Plaintiff in
submitting this information to the ALJ. Accordingly, remand pursuant to sentence six of 42
U.S.C. § 405(g) is not warranted”).
For all of these reasons, it is RECOMMENDED that any contention of error based on
Mr. Plymale’s alleged inadequacies or alleged failure to supplement the record be
Plaintiff’s Objection to the Type of Work Identified By the VE
Plaintiff next appears to challenge the ALJ’s decision because the work the VE identified
her as capable of performing “depresses me, a lot.” (SOE at PAGEID # 1025.) However, as the
Commissioner points out (Opposition at 6), absent a showing that Plaintiff is unable to perform
the work identified by the VE, her objection to this work will not serve as a basis for remand.
See 20 C.F.R. § 416.966(c)(8) (“We will determine that you are not disabled if your residual
functional capacity and vocational abilities make it possible for you to do work which exists in
the national economy, but you remain unemployed because of . . . [y]ou do not wish to do a
particular type of work.”); see also Whitsett v. Comm’r of Soc. Sec., No. 16–0813, 2017 WL
1362023, at *6 (D. N.J. Apr. 10, 2017) (“[A] claimant will not be found disabled due to lack of
motivation or lack of interest in working or performing a particular job.”); Durgin v. Astrue, No.
07-0063, 2008 WL 4181162, at *12 (N.D. Iowa May 8, 2008) (“Social Security benefits are not
awarded for individuals who are unemployed because they do not wish to work.”). Accordingly,
it is RECOMMENDED that any contention of error based on Plaintiff’s objection to the type of
work identified by the VE be OVERRULED.
ALJ’s Consideration of the Medical Opinion Evidence
Plaintiff also appears to challenge the ALJ’s assessment of the opinions of Dr. Tanley,
Dr. Hatheway, Ms. Martinelli, and “Dr. Dan Bridger, PhD.” (SOE at PAGEID ## 1025–26.)
The ALJ must consider all medical opinions that he or she receives in evaluating a
claimant’s case. 20 C.F.R. § 416.927(c). The applicable regulations define medical opinions as
“statements from physicians and psychologists or other acceptable medical sources that reflect
judgments about the nature and severity of your impairment(s), including your symptoms,
diagnosis and prognosis, what you can still do despite impairment(s), and your physical or
mental restrictions.” 20 C.F.R. § 416.927(a)(2).
The ALJ generally gives deference to the opinions of a treating source “since these
sources are likely to be the medical professionals most able to provide a detailed, longitudinal
picture of [a patient’s] medical impairment(s) and may bring a unique perspective to the medical
evidence that cannot be obtained from the objective medical filings alone . . .” 20 C.F.R. §
416.927(c)(2); Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 408 (6th Cir. 2009). If the treating
physician’s opinion is “well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in [the claimant’s] case
record, [the ALJ] will give it controlling weight.” 20 C.F.R. § 404.1527(c)(2).
If the ALJ does not afford controlling weight to a treating physician’s opinion, the ALJ
must meet certain procedural requirements. Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544
(6th Cir. 2004). Specifically, if an ALJ does not give a treating source’s opinion controlling
[A]n ALJ must apply certain factors—namely, the length of the treatment
relationship and the frequency of examination, the nature and extent of the
treatment relationship, supportability of the opinion, consistency of the opinion
with the record as a whole, and the specialization of the treating source—in
determining what weight to give the opinion.
Id. Furthermore, an ALJ must “always give good reasons in [the ALJ’s] notice of determination
or decision for the weight [the ALJ] give[s] your treating source’s opinion.” 20 C.F.R. §
416.927(c)(2). Accordingly, the ALJ’s reasoning “must be sufficiently specific to make clear to
any subsequent reviewers the weight the adjudicator gave to the treating source’s medical
opinion and the reasons for that weight.” Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 550
(6th Cir. 2010) (internal quotation omitted). The United States Court of Appeals for the Sixth
Circuit has stressed the importance of the good-reason requirement:
“The requirement of reason-giving exists, in part, to let claimants understand the
disposition of their cases,” particularly in situations where a claimant knows that
his physician has deemed him disabled and therefore “might be especially
bewildered when told by an administrative bureaucracy that she is not, unless
some reason for the agency’s decision is supplied.” Snell v. Apfel, 177 F.3d 128,
134 (2d Cir. 1999). The requirement also ensures that the ALJ applies the treating
physician rule and permits meaningful review of the ALJ’s application of the rule.
See Halloran v. Barnhart, 362 F.3d 28, 32–33 (2d Cir. 2004).
Wilson, 378 F.3d at 544–45. Thus, the reason-giving requirement is “particularly important
when the treating physician has diagnosed the claimant as disabled.” Germany-Johnson v.
Comm’r of Soc. Sec., 313 F. App’x 771, 777 (6th Cir. 2008) (citing Rogers, 486 F.3d at 242).
There is no requirement, however, that the ALJ “expressly” consider each of the Wilson factors
within the written decision. See Tilley v. Comm’r of Soc. Sec., 394 F. App’x 216, 222 (6th Cir.
2010) (indicating that, under Blakley and the good reason rule, an ALJ is not required to
explicitly address all of the six factors within 20 C.F.R. § 404.1527(c)(2) for weighing medical
opinion evidence within the written decision).
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).
The ALJ considered the opinion of Dr. Tanley, a consultative examiner, and assigned it
“some weight[,]” reasoning as follows:
The claimant participated in a consultative examination in June 2014 with James
C. Tanley, PhD. (Exhibit 5F). She reported that she was in pain and that she had
a bipolar disorder. She does not like to be around people, likes to stay in and keep
it dark. (Exhibit 5F/1). She reported attending a local mental health center and
was being treated for depression. (Exhibit 5F/ 4). She made variable eye contact
and was tearful, noting a sleep and appetite disturbance with mood problems and
anhedonia. She takes medications that are helpful. (Exhibit 5F/4). She had no
difficulty understanding the task requirements of the consultative examination.
Her intellect was estimated to be in the extremely low range and that is what
would be expected in the work setting. Maintaining concentration, pace or
persistence was unimpaired. She responded appropriately and in a timely fashion
to all of the examiner’s questions. She would be expected to show increasing and
significant difficulties with tasks of increasing complexity and multistep tasks and
if her psychological problems worsened, they would negatively impact this area.
She would be at serious risk for trying to deal with the social aspects of work as
well as dealing with workplace pressures at that time. (Exhibit 5F/5). Some
limitations have been included, which are consistent with the opinion of Dr.
Tanley, and his opinion is given some weight though the overall evidence does
not support more severe limitations.
(R. at 72.)
The ALJ therefore provided good reasons for according partial weight to Dr. Tanley’s
opinion and reasonably concluded that the severity of the assessed limitations is not supported by
overall evidence from the record. See 20 C.F.R. § 404.1527(c)(3) (identifying “supportability”
as a relevant consideration). For example, Dr. Tanley noted that Plaintiff appeared tearful during
the examination and that she reported that she would shut her door and not talk to people,
opining that Plaintiff “would be at serious risk for trying to deal with the social aspects of work
at this time.” (R. at 612.) However, the record also reflects that Plaintiff admitted to Dr. Tanley,
and she conceded on other occasions, that she attends church, interacts with friends, and has a
boyfriend. (R. at 11–12, 22–23, 205, 609, 897.) The ALJ therefore imposed a limitation of
occasional and limited to superficial interaction with supervisors, coworkers, and the public. (R.
In addition, Dr. Tanley opined that Plaintiff “could” be at “serious risk for dealing with
workplace pressure at this time” because she is “significantly depressed[.]” (R. at 612.)
However, Dr. Tanley also opined that Plaintiff’s ability to maintain attention and concentration,
persistence and pace was unimpaired during the interview portion of the consultative
examination (id.) and other portions of the record similarly reflect mild or no difficulties in this
regard. (R. at 208, 857, 897).
Dr. Tanley opined that Plaintiff would show “increasing and significant difficulties with
tasks of increasing complexity and multistep tasks” (R. at 612), and the ALJ incorporated this
restriction by limiting Plaintiff to simple routine tasks with no strict production quotas or time
pressures. (R. at 66.)
In short, the ALJ did not err in her consideration and weighing of Dr. Tanley’s opinion.
Dr. Hatheway and Ms. Martinelli
Plaintiff apparently challenges the ALJ’s rejection of Dr. Hatheway’s opinion that she is
“severely disabled” and Ms. Martinelli’s opinion that Plaintiff is “disabled.” (SOE at PAGEID #
1026; R. at 72–73.) Plaintiff’s position is without merit. As a preliminary matter, the
Commissioner reserves the power to decide certain issues, such as whether a claimant is disabled
and unable to work. SSR 96–5p, 1996 WL 374183, at *5 (1996) (“Medical sources often offer
opinions about whether an individual . . . is ‘disabled’ or ‘unable to work[.]’ . . . Because these
are administrative findings that may determine whether an individual is disabled, they are
reserved to the Commissioner.”); 20 C.F.R. § 416.927(d)(1) (providing that a medical source’s
opinion that a claimant is disabled and unable to work is a matter “reserved to the
Commissioner” that is not entitled to “any special significance”); see also Cosma v. Comm’r of
Soc. Sec., 652 F. App’x 310, 311 (6th Cir. 2016) (“The ALJ reasonably gave no weight to Dr.
Dhar’s opinion because her conclusion that Cosma is totally disabled is a determination reserved
to the Commissioner[.]”).
The ALJ also noted that the overall evidence did not support these opinions. (R. at 72–
73.) For example, the ALJ noted that Dr. Hatheway’s treatment notes reflect that following her
right knee replacement surgery, Plaintiff was pleased with the results and wanted a left knee
replacement; that she had full extension and flexion of 135 degrees on her right leg; and that her
right knee continued to do well. (R. at 73.) The ALJ also observed that other treatment notes do
not support Dr. Hatheway’s opinion that she is disabled. (Id.)
The ALJ, however, accounted for Dr. Hatheway’s recommendation that Plaintiff would
need a first floor apartment because she would have significant difficulty climbing stairs by
limiting Plaintiff to occasionally climbing stairs. (R. at 66, 635.)
For these reasons, the ALJ did not err in her consideration and weighing of Dr.
Hatheway’s and Ms. Martinelli’s opinion that Plaintiff is disabled.
“Dr. Dan Bridger, PhD.”
Finally, Plaintiff complains that “no body tried to contact Dr. Dan Bridger, PhD. He is a
Psychiatrist [who] said I am unstable and emotional.” (SOE at PAGEID # 1026.) Plaintiff,
however, did not attach any records from this provider and it is not clear from her SOE who this
source is. Moreover, as previously explained, to the extent Plaintiff believes that certain
evidence should have been included in the administrative record, her counsel, Mr. Klima, had
ample opportunity to do so and his alleged failure to include certain records, including any
records purportedly from Dr. Bridger, does not serve as a basis for remand. See, e.g., Taylor, 43
F. App’x at 943; McClimans, 2016 WL 1031110, at *11.
Accordingly, the ALJ did not err in her failure to consider any opinion from Dr. Bridger.
Evaluation of Subjective Complaints
Finally, Plaintiff appears to challenge the ALJ’s consideration of her subjective
complaints. (SOE at PAGEID ## 1025–26.) The Undersigned finds this contention of error to
The Sixth Circuit has provided the following guidance in considering an ALJ’s credibility
Where the symptoms and not the underlying condition form the basis of the
disability claim, a two-part analysis is used in evaluating complaints of disabling
pain. 20 C.F.R. § 416.929(a); Buxton v. Halter, 246 F.3d 762, 773 (6th Cir.
2001); Felisky v. Bowen, 35 F.3d 1027, 1038-39 (6th Cir. 1994). First, the ALJ
will ask whether the there is an underlying medically determinable physical
impairment that could reasonably be expected to produce the claimant’s
symptoms. 20 C.F.R. § 416.929(a). Second, if the ALJ finds that such an
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. Id.
Rogers, 486 F.3d at 247.
“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 of pain.” Allen v. Comm’r of Soc. Sec., 561 F.3d 646, 652 (6th Cir. 2009)
(quoting Siterlet v. Sec’y of Health & Hum. 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
“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; see also Mason v.
Comm’r of Soc. Sec. Admin., No. 1:06–CV–1566, 2012 WL 669930, at *10 (N.D. Ohio Feb. 29,
2012) (“While the ALJ’s credibility findings ‘must be sufficiently specific’, Rogers, 486 F.3d at
248, the intent behind this standard is to ensure meaningful appellate review.”).
“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 Ewing v. Astrue, No. 1:10–cv–1792, 2011 WL 3843692, at
*9 (N.D. Ohio Aug. 12, 2011) (suggesting that although an ALJ is required to consider such
factors, he or she is not required to discuss every factor within the written decision) (Report and
Recommendation later adopted). The Sixth Circuit has held that “even if an ALJ’s adverse
credibility determination is based partially on invalid reasons, harmless error analysis applies to
the determination, and the ALJ’s decision will be upheld as long as substantial evidence remains
to support it.” Johnson v. Comm’r of Soc. Sec., 535 F. App’x 498, 507 (6th Cir. 2013) (citing
Ulman v. Comm’r of Soc. Sec., 693 F.3d 709, 714 (6th Cir. 2012)).
Here, the ALJ concluded that the limiting effects of Plaintiff’s symptoms were not
credible to the extent that they were inconsistent with the medical evidence:
After careful consideration of the evidence, it is found that the claimant’s
medically determinable impairments could reasonably be expected to cause the
alleged symptoms; however, the claimant’s statements concerning the intensity,
persistence and limiting effects of these symptoms are not credible to the extent
they not consistent with the objective medical evidence and other evidence. (See
20 CFR § 404.1529(c)(4)). This includes her positive response to the surgery for
her knee and her otherwise conservative treatment for her other physical issues
which basically consisted of medications and recommendations for weight loss.
Mental health treatment has also been conservative. Despite this conservative
treatment, she was shown to have normal gait and intact strength sensation. She
was alert, oriented with intact attention and concentration. Non-compliance with
treatment is also noted in that she did not attend physical therapy, frequently left
against medical advice, did not take her psychotropic medications as prescribed
and frequently missed appointments with her providers. Despite all of this, she
remained able to perform many of her daily activities such as shopping, watching
movies, reading, preparing meals, doing arts and crafts and attending to her
personal needs. The undersigned did not include limits due to cane use as the
record does not contain the prescription for a cane as testified to by the claimant.
Further, she reported walking for exercise and a successful surgery. Throughout
the record, physical examinations showed intact strength. The record does not
support the need for use of an assistive device.
(R. at 74.)
The Undersigned finds that the ALJ’s detailed discussion amply supplies substantial
evidence supporting her credibility finding and that she properly considered the requisite factors
in assessing Plaintiff’s allegations of limiting effects of her symptoms. For example, the ALJ
included a lengthy and thorough discussion of the record evidence, including the objective
medical findings. See 20 C.F.R. § 404.1529(c)(2) (objective medical findings are useful in
assessing the intensity and persistence of a claimant’s symptoms). The ALJ also reasonably
considered that Plaintiff required and received only conservative treatment and that at times she
missed appointments and did not comply with treatment recommendations. See SSR 96–7p,
1996 WL 374186 (July 2, 1996) (in assessing credibility, the adjudicator must consider, among
other factors, “[t]he type, dosage, effectiveness, and side effects of any medication the individual
takes or has taken to alleviate pain or other symptoms” and “[t]reatment, other than medication,
the individual receives or has received”); 20 C.F.R. § 404.1529(c)(3) (same); See Rudd v.
Comm’r of Soc. Sec., 531 F. App’x, 719, 727 (6th Cir. 2013) (minimal or lack of treatment is
valid reason to discount severity); Despins v. Comm’r of Soc. Sec., 257 F. App’x 923, 931 (6th
Cir. 2007) (“The ALJ properly considered as relevant the fact that [the claimant’s] medical
records did not indicate that [claimant] received significant treatment . . . during the relevant time
period.”); Sias v. Sec’y of Health & Hum. Servs., 861 F.2d 475, 480 (6th Cir. 1988) (discounting
the claimant’s allegations where he failed to follow prescribed treatment); cf. Lester v. Soc. Sec.
Admin., 596 F. App’x 387, 389 (6th Cir. 2015) (concluding that ALJ reasonably discounted a
doctor’s opined limitations where, among other things, the claimant was receiving conservative
treatment). The ALJ also reasonably considered the record evidence reflecting Plaintiff’s
activities of daily living. See 20 C.F.R. § 404.1529(c)(3)(i) (daily activities may be useful to
assess nature and severity of claimant’s symptoms); Warner v. Comm’r of Soc. Sec., 375 F.3d
387, 392 (6th Cir. 2004) (“The administrative law judge justifiably considered [the claimant’s]
ability to conduct daily life activities in the face of his claim of disabling pain.”).
In sum, the Undersigned finds that the ALJ’s assessment of Plaintiff’s credibility was
based on consideration of the entire record and is supported by substantial evidence.
Accordingly, applying the applicable deferential standard of review, the Court concludes that the
ALJ’s credibility determination was not erroneous. It is therefore RECOMMENDED that
Plaintiff’s contention of error based on the ALJ’s consideration of her subjective complaints be
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
RECOMMENDED that Plaintiff’s Statement of Errors be OVERRULED, and the
Commissioner of Social Security’s decision be AFFIRMED.
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
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
Date: January 22, 2018
s/ Elizabeth A. Preston Deavers _______
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE
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