Lane v. Commissioner of Social Security

Filing 18

REPORT AND RECOMMENDATION re 3 Complaint filed by Lorie J. Lane. It is RECOMMENDED that Plaintiff's Statement of Errors be OVERRULED and that the Commissioner's decision be AFFIRMED. Objections to R&R due by 1/22/2019. Signed by Magistrate Judge Chelsey M. Vascura on 1/8/2019. (daf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

LORIE J. LANE,
Plaintiff,
Civil Action 2:18-cv-297
Judge James L. Graham
Magistrate Judge Chelsey M. Vascura

v.

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

REPORT AND RECOMMENDATION
Plaintiff, Lorie J. Lane (“Plaintiff”), 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 social security disability insurance benefits. This matter is before the Court on
Plaintiff’s Statement of Errors (ECF No. 12), the Commissioner’s Memorandum in Opposition
(ECF No. 16), Plaintiff’s Reply Memorandum (ECF No. 17), and the administrative record (ECF
No. 9). For the reasons that follow, it is RECOMMENDED that Plaintiff’s Statement of Errors
be OVERRULED and that the Commissioner’s decision be AFFIRMED.
I.

PROCEDURAL HISTORY

On April 6, 2007, Plaintiff was awarded Period of Disability and Disability Insurance
Benefits beginning April 26, 2004. (R. 339.) On May 14, 2012, it was determined that Plaintiff
was no longer disabled as of May 1, 2012. This determination was upheld upon reconsideration
after a disability hearing by a State Agency Disability Hearing Officer. Thereafter, Plaintiff filed
timely written request for a hearing before an Administrative Law Judge. Plaintiff appeared and

testified at a hearing held on August 6, 2013 before Administrative Law Judge Timothy G.
Keller (the “ALJ”). (R. 386–411.) Plaintiff received an unfavorable decision by the ALJ on
September 11, 2013. (R. 19–27.) Plaintiff pursued appeals of that decision through the Appeals
Council and eventually this Court. (See Civil Action No. 2:15-cv-87.) Before the Court
undertook any substantive analysis of Plaintiff’s appeal, the Court granted the parties’ joint
motion to remand the case for further administrative proceedings. (See Civil Action No. 2:15cv-87, ECF No. 17; R. 435–38.) The Appeals Council vacated the final decision of the
Commissioner of Social Security and remanded the case to an Administrative Law Judge for
further resolution of issues. (R. 439–43.)
Plaintiff, represented by counsel, appeared and testified at a second hearing before ALJ
Keller on December 17, 2015. (R. 365–385.) Vocational expert Carl Hartung (the “VE”) also
appeared and testified at the hearing. On January 19, 2016, the ALJ issued a decision finding
that Plaintiff’s disability under §§ 216(i) and 223(f) of the Social Security Act ended as of May
1, 2012. (R. 339–359.) On January 30, 2017, the Appeals Council denied Plaintiff’s request for
review and adopted the ALJ’s decision as the Commissioner’s final decision. (R. 239–34.)
Plaintiff then timely commenced the instant action.
II.

THE ALJ’S DECISION

On January 19, 2016, the ALJ issued a decision finding that Plaintiff was no longer
disabled within the meaning of the Social Security Act as of May 1, 2012. (R. 339–59.) The
ALJ noted that the most recent decision finding Plaintiff disabled was dated April 6, 2007 (the
“comparison point decision” or “CPD”). (R. 341.) At the time of the CPD, Plaintiff had
medically determinable impairments of vertigo and migraine headaches, which were found to
medically equal Listing 11.03 of 20 C.F.R. Part 404, Subpart P, Appendix 1. At step one of the

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sequential evaluation process,1 the ALJ determined that Plaintiff had not engaged in substantial
gainful activity through May 1, 2012. (Id. at 342.) Although Plaintiff had, as of May 1, 2012,
the medically determinable impairments of vertigo, migraine headaches, degenerative disc
disease of the spine, an anxiety disorder, and a depressive disorder, the ALJ determined at step
two that her impairments did not meet or equal the severity of Listing 11.03 or any other
impairment listed in 20 CFR Part 404, Subpart P, Appendix 1. (Id.) At step three, the ALJ
found that medical improvement had occurred as of May 1, 2012, and that the medical
improvement was related to Plaintiff’s ability to work because she no longer met or equaled the

Social Security Regulations require ALJs to determine whether a claimant continues to be
disabled through an eight-step evaluation of the evidence. See 20 C.F.R. § 404.1594(f). If fully
considered, the sequential evaluation considers and answers eight questions:
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1. Is the claimant engaged in substantial gainful activity? If so, the claimant’s disability
will be found to have ended.
2. If not, does the claimant have an impairment alone or in combination, meet or equal the
severity of an impairment set forth in the Commissioner’s Listing of Impairments, 20
C.F.R. Subpart P, Appendix 1? If so, the claimant’s disability will be found to continue.
3. If not, has there been medical improvement as shown by a decrease in medical severity?
If not, the evaluation proceeds to step 5.
4. If there has been medical improvement, is it related to the ability of the claimant to do
work? If not, the evaluation proceeds to step 5; if so, the evaluation proceeds to step 6.
5. This step contains the exceptions to continuing disability even when no medical
improvement is found in step 3 or the improvement is not related to ability to do work in
step 4. If no exceptions apply, the claimant’s disability will be found to continue. If one
of the first group of exceptions to medical improvement applies, the evaluation proceeds
to step 6. If an exception from the second group applies, the claimant’s disability will be
found to have ended.
6. If medical improvement is shown, is the claimant’s current impairment nonetheless
severe? If not, the claimant’s disability will be found to have ended.
7. If the claimant’s current impairment is severe, does the claimant nonetheless have the
residual functional capacity to perform the claimant’s past work? If so, the claimant’s
disability will be found to have ended.
8. If the claimant is not able to perform his or her past work, can the claimant perform other
work? If so, the claimant’s disability will be found to have ended. If not, the claimant’s
disability will be found to continue.
Johnson v. Sec’y of Health & Human Servs., 948 F.2d 989, 991 (6th Cir. 1991).
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same listing that was satisfied at the time of the CPD. (Id. at 345.) Although Plaintiff continued
to have a severe impairment as of May 1, 2012, the ALJ determined that she nonetheless had the
following residual functional capacity (“RFC”):2
Based on the impairments present as of May 1, 2012, the claimant had the residual
functional capacity to perform medium work as defined in 20 CFR 404.1567(c)
except the claimant could lift, carry, push, and pull up to 50 pounds occasionally
and 25 pounds frequently. She could sit, stand, and walk up to 6 hours each out of
an 8-hour workday. The claimant would be precluded from climbing ladders,
ropes, and scaffolds. She should avoid moving machinery and unprotected heights.
The claimant would be precluded from commercial driving. She could understand,
remember, and carry out simple, repetitive tasks and maintain concentration and
attention for 2-hour segments over an 8-hour work period. The claimant could
respond appropriately to supervisors and coworkers in a task-oriented setting where
contact with others is casual and infrequent. Further, the claimant could adapt to
simple changes and avoid hazards in a setting without strict production
requirements.
(R. 346.) Using this RFC, the ALJ determined that Plaintiff was capable of performing past
relevant work as a housekeeper as of May 1, 2012, and could also perform other jobs existing in
the national economy. (R. 357–58.) Accordingly, the ALJ concluded that Plaintiff’s disability
ended as of May 1, 2012. (R. 359.)
III.

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

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A claimant’s RFC is an assessment of “the most [she] can still do despite [her] limitations.” 20
C.F.R. § 404.1545(a)(1).
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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.” Bowen v. Comm’r of Soc. Sec., 478 F.3d 742,
746 (6th Cir. 2007).
IV.

ANALYSIS

Plaintiff raises three issues in her Statement of Errors (ECF No. 12):
A. The ALJ failed to properly apply the “medical improvement” standard;
B. The ALJ failed to properly evaluate the opinion of Plaintiff’s treating physician,
Dr. Forrestal; and
C. The ALJ failed to account for Plaintiff’s continued problems with concentration,
persistence, and pace when determining her RFC.
The undersigned will consider each assertion of error in turn.

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A.

Any error by the ALJ in applying the “medical improvement” standard was
harmless.
In 20 C.F.R. § 404.1594, the Regulations outline the process for considering medical

improvement and whether a claimant’s disability period has ended. The United States Court of
Appeals for the Sixth Circuit has described medical improvement as follows:
The implementing regulations define a medical improvement as “any decrease in
the medical severity of your impairment(s) which was present at the time of the
most recent favorable medical decision that you were disabled or continued to be
disabled.” 20 C.F.R. § 404.1594(b)(1). A determination of medical improvement
“must be based on changes (improvement) in the symptoms, signs and/or laboratory
findings associated with your impairment(s).” Id. And a medical improvement is
related to an individual’s ability to work only “if there has been a decrease in the
severity . . . of the impairment(s) present at the time of the most recent favorable
medical decision and an increase in your functional capacity to do basic work
activities . . . .” 20 C.F.R. § 404.1594(b)(3). See also Nierzwick v. Commissioner
of Social Security, 7 Fed. Appx. 358 (6th Cir. 2001).
Kennedy v. Astrue, 247 F. App’x 761, 764–65 (6th Cir. 2007). In other words, medical
improvement “is determined by a comparison of prior and current medical evidence . . . .” 20
C.F.R. § 404.1594(c)(1). The regulations further provide that, “[i]f medical improvement has
occurred and the severity of the prior impairment(s) no longer meets or equals the same listing
section used to make our most recent favorable decision, we will find that the medical
improvement was related to your ability to work.” 20 C.F.R. § 404.1594(c)(3)(i).
The ALJ’s discussion of Plaintiff’s medical improvement was as follows:
The medical evidence supports a finding that, as of May 1, 2012, there had been a
decrease in medical severity of the impairments present at the time of the CPD. The
record shows the claimant reported vertigo, but chemical and medical treatment
improved her symptoms (Exhibit B2F). She reported some intermittent dizziness,
but MRI testing was unremarkable (Exhibit B16F/17F). Further, despite some
intermittent dizziness, the claimant showed no focal deficits and she maintained a
normal gait (Exhibits B17F: B18F). Additionally, her symptoms were relieved by
medications including Antivert (Exhibit B20F). The record supports the claimant’s
migraine headaches were reduced to intermittent and she was satisfied with her
migraine treatment (Exhibits B8F; B16F; B18F). She reported she was okay on her
medication and showed no gait instability (Exhibit B8F/6). When she does report
a headache, she indicates she continues to obtain relief with medication (Exhibit
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B16F). The claimant experienced some degenerative disc disease, but the record
supports she stopped attending physical therapy after her interbody fusion surgery
in February 2015 and continues to engage in normal activities of daily living,
ambulating without a need for an assistive device, showing no reduced strength or
irregular gait (Exhibit B21F). Additionally, her most recent mental health treatment
notes support both her anxiety and depression are controlled with treatment,
specifically medication management. Therefore, the record shows medical
improvement since May 1, 2012.
(R. 345.)
Plaintiff argues that the ALJ did not undertake the necessary comparison between her
impairments at the time of the CPD (April 6, 2007) and her impairments as of the date her
disability allegedly ended (May 1, 2012). (Reply 3–4, ECF No. 17.) Rather, the ALJ evaluated
her symptoms as of May 1, 2012, concluded that she no longer met Listing 11.03, and
“summarily concluded” that “the record shows medical improvement.” (Statement of Errors 7,
ECF No. 12.)
Plaintiff is correct that the ALJ did not undertake a comparison of her symptoms as of
May 1, 2012 and the CPD as required by the regulations. In fact, the undersigned can find no
description of the severity of Plaintiff’s impairments at the time of the CPD anywhere in the
record. The failure to discuss the severity of Plaintiff’s impairments at the time of the CPD, and
compare that to the severity of Plaintiff’s impairments as of May 1, 2012, was error. Kennedy,
247 F. App’x at 765, 768 (reversing ALJ’s decision where no efforts were made to compare the
severity of prior and current impairments).
Plaintiff, however, unlike the plaintiff in Kennedy, was found to have impairments
equaling an impairment listed in 20 CFR Part 404, Subpart P, Appendix 1 at the time of her
CPD. (R. 342.) Specifically, at the time of the CPD, Plaintiff’s impairments were found to equal
Listing 11.03 (non-convulsive epilepsy) due to her vertigo and migraine headaches. (Id.)
Although he did not specifically compare her impairments between the two time periods, the
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ALJ did conclude that Plaintiff’s impairments as of May 1, 2012, did not meet or equal the
severity of Listing 11.03 (or Listings 1.04 (disorders of the spine), 12.04 (affective disorders), or
12.06 (anxiety-related disorders)).
Importantly, Plaintiff does not directly challenge the ALJ’s finding that her impairments
did not meet or equal the criteria of Listing 11.03 as of May 1, 2012. Even if she had, the Court
finds that Plaintiff has not identified evidence in the record that would support a finding that she
met or equaled Listing 11.03. This listing in effect at the time of the ALJ’s decision reads:
Epilepsy—nonconvulsive epilepsy (petit mal, psychomotor, or focal), documented
by detailed description of a typical seizure pattern, including all associated
phenomena; occurring more frequently than once weekly in spite of at least 3
months of prescribed treatment. With alteration of awareness or loss of
consciousness and transient postictal manifestations of unconventional behavior or
significant interference with activity during the day.
20 C.F.R. Pt. 404, Subpt. P, Appendix 1, § 11.03. No one has suggested that Plaintiff ever “met”
the criteria for Listing 11.03—for one thing, there is nothing in record indicating a diagnosis of
epilepsy—but in 2007, her vertigo and migraine headaches were found to “medically equal”
those criteria. Although there is no listing that specifically addresses migraine headaches, the
Social Security Administration’s Program Operations Manual System (“POMS”) indicates that
Listing 11.03 is the “most closely analogous listed impairment” for migraine headaches. POMS
DI 24505.015(B)(7)(b) (2013). The POMS also provides an example of a severe migraine
condition that could medically equal Listing 11.03:
[A] claimant has chronic migraine headaches for which she sees her treating doctor
on a regular basis. Her symptoms include aura, alteration of awareness, and intense
headache with throbbing and severe pain. She has nausea and photophobia and
must lie down in a dark and quiet room for relief. Her headaches last anywhere
from 4 to 72 hours and occur at least 2 times or more weekly. Due to all of her
symptoms, she has difficulty performing her ADLs [activities of daily living]. The
claimant takes her medication as her doctor prescribes. The findings of the
claimant’s impairments are very similar to those of 11.03, Epilepsy, nonconvulsive. Therefore, 11.03 is the most closely analogous listed impairment. Her
findings are at least of equal medical significance as those of the most closely
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analogous listed impairment. Therefore, the claimant’s impairment medically
equals listing 11.03.
POMS DI 24505.015(B)(7)(b) (2013). Although the POMS does not have the force of law and is
“not [the] product[ ] of formal rulemaking, [it] nevertheless warrant[s] respect” in interpreting
the Listings. Wash. State Dep’t of Soc. & Health Servs. v. Guardianship Estate of Keffeler, 537
U.S. 371, 385-86 (2003).
Under this standard, substantial evidence supports the ALJ’s conclusion that Plaintiff’s
impairments did not meet or medically equal Listing 11.03 as of May 1, 2012. He noted “there
was no consistent objective documentation or treatment showing her dizziness occurred on a
frequent basis or was significant in duration. Further, the record shows, the claimant was again
driving, ambulating without any significant difficulty, and chemical and medical treatments had
improved her symptoms.” (R. 343.) He further noted that Plaintiff “was supplied medication
that was helping her migraine headache condition.” (Id.) Plaintiff’s treating physician, Dr.
Forrestal, stated in his medical questionnaire dated June 17, 2013, that Plaintiff experienced
headaches only “every two weeks.” (R. 283.) And although Dr. Forrestal also stated in the same
medical questionnaire that Plaintiff lost consciousness “once a week,” his treatment notes
indicate only a handful of episodes involving lost consciousness over a several years. (R. 306,
519–23.) The undersigned therefore finds no error with the ALJ’s conclusion that Plaintiff’s
impairments neither met nor medically equaled Listing 11.03.
Given that Plaintiff’s vertigo and migraine headaches were severe enough to equal
Listing 11.03 at the time of the CPD, and given that her vertigo and migraine headaches,
although still present, were not severe enough to equal Listing 11.03 as of May 1, 2012, it
logically follows that Plaintiff’s vertigo and migraine headaches must have medically improved.
See Murphy v. Berryhill, 727 F. App’x 202, 207 (7th Cir. 2018) (finding medical improvement
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based on physician’s assessment that plaintiff no longer met the criteria of a previous listing);
Jones v. Colvin, No. CIV.A. H-13-1221, 2014 WL 3827819, at *10 (S.D. Tex. July 31, 2014)
(same). As a result, even though the ALJ erred by not making the required comparison between
Plaintiff’s symptoms at the two relevant points in time, this error was harmless, and reversal is
not warranted. Rabbers, 582 F.3d at 654–55.
B.

The ALJ did not err in his evaluation of Plaintiff’s treating physician.
Plaintiff’s second contention of error is that the ALJ failed to properly evaluate the

opinion of her treating physician, Dr. Forrestal. 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). Where a treating
source’s opinion is submitted, the ALJ generally gives deference to it “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
weight:
[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.
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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 Fed. 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),”

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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 explained he afford Dr. Forrestal’s opinions “little weight” and “some weight”
because his recommended limitations are not supported by his treatment notes or other evidence
of record:
The undersigned gives little weight to the assessment evidenced at Exhibit B12F
completed by Dr. Forrestal, M.D., the claimant’s treating physician. Dr. Forrestal
opined the claimant had dizzy spells all of the time, blackouts and loss of
consciousness once per week, headaches every two weeks, and indicated that her
complaints are consistent with the objective findings and other medical evidence in
the record. First, the form is a checkbox form and Dr. Forrestal offers no functional
explanation as to how the claimant is limited by any of her alleged conditions or
symptoms. Second, he asserts the claimant’s allegations are supported by and
consistent with the objective evidence in the record; however, he does not cite to or
provide examples from the record showing objective testing or documentation
supporting his statements showing dizziness all of the time, blackouts once per
week, and headaches every two weeks. In fact, the record supports the claimant
experience one isolated episode of syncope (Exhibit B 16F). This episode was
related to her anxiety and not to vertigo or headaches (Exhibit B18F/2). The record
does not show continuous episodes of blackouts or emergency treatment for
blackouts. Further, the claimant was driving, an activity she would not be doing if
she were having routine blackout spells. Dizziness was not something reported
consistently in the record. During 2013, MRI brain testing was unremarkable
(Exhibit B16F/17). The claimant’s coordination remained intact and she ambulated
with a normal gait with no ataxia even when she was dizzy (Exhibit B16F). She
showed no weakness and there were no exacerbations of her dizziness with bending
or head movement (Exhibit B16F). The record supported only intermittent
headaches in 2013 (Exhibits B15F; B16F). The record supports medication
relieved her symptoms (Exhibit B16F). Therefore, while her treating doctor noted
the record via objective documentation supported her complaints, the record shows
during the time the assessment was made in June 2013, the record does not support
his assessment. As such, the undersigned finds the claimant was responding to
treatment and that she was not as limited as Dr. Forrestal indicated.
The undersigned provides some weight to the functional assessment provided by
Dr. Forrestal, M.D., evidenced at Exhibit B13F. Dr. Forrestal opined the claimant
was limited to standing and walking 30 minutes at a time for 4 hours each and
sitting for 20 minutes at a time for 4 hours. He indicated the claimant could lift up
to 10 pounds rarely, would be precluded from grasping, pulling, or engaging in fine
manipulation, could not use her feet for movements, could occasionally bend, squat,
crawl, and climb stairs, and would be precluded from climbing ladders, ropes, and
scaffolds. He further noted the claimant had constant dizziness with activity and at
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rest, low back and right buttock pain, and occasional blackouts that increased with
stress. The undersigned affords some weight to the postural limitations indicating
the claimant would be precluded from climbing ladders, ropes, and scaffolds as
such a limitation is consistent with the evidence of record, which shows the
claimant has intermittent problems with vertigo and headaches. The undersigned
gives less weight to the remaining limitations, as the record does not support such
restrictive exertional limitations, postural limitations, or manipulative limitations.
Treatment records documented the claimant continued to show normal strength and
functioning in both her upper and lower extremities, with no focal deficits, showing
the claimant could toe walk, heel walk, and engage in deep knee bending without
difficulty (Exhibit B21F/65). The claimant ambulated with a steady normal gait
and did not require the use of any assistive device (Exhibit B8F; B5F; B18F: B21F).
She showed no impairment of fine or gross manipulation (Exhibit B7F). As such
the record shows no reason to limit the claimant’s use of her hands for engaging in
fine and gross manipulative activities. Further, the notations regarding dizziness,
back pain, and blackouts appear to be based on the claimant’s subjecting reporting,
which for reasons noted above appear to be unreliable. Therefore, overall, the
undersigned provides Dr. Forrestal no more than some weight.
(R. 356–57.)
The undersigned finds no error with the ALJ’s consideration and weighing of Dr.
Forrestal’s opinion. The ALJ articulated the weight he afforded the opinion and properly
declined to afford it controlling weight on the grounds it was unsupported by objective evidence.
The first assessment, comprised of Dr. Forrestal’s answers to interrogatories dated June 17,
2013, was a checkbox form with no explanations or supporting citations to the record. (R. 283–
84.) As the Sixth Circuit has held, an ALJ may properly assign little weight to opinions from
treating sources “where the physician provided no explanation for the restrictions . . . and cited
no supporting objective medical evidence.” Ellars v. Comm’r of Soc. Sec., 647 F. App’x 563,
567 (6th Cir. 2016). Moreover, Dr. Forrestal’s assertions that Plaintiff suffers from dizziness “all
the time” and loses consciousness “once a week” are not supported by Dr. Forrestal’s own
treatment notes. Rather, his treatment notes indicate only a handful of episodes involving lost
consciousness over several years (R. 306, 519–23), and his assessment of constant dizziness
appears to be based on Plaintiff’s subjective complaints. Cf. Poe v. Comm’r of Soc. Sec., 342 F.
13

App’x 149, 156 (6th Cir. 2009) (“[S]ubstantial evidence supports the ALJ’s determination that
the opinion of Dr. Boyd, [the claimant’s] treating physician, was not entitled to deference
because it was based on [the claimant’s] subjective complaints, rather than objective medical
data.”).
Dr. Forrestal’s physical capacity evaluation, also dated June 17, 2013, was also properly
discounted by the ALJ. Here, Dr. Forrestal opined that Plaintiff could stand for four hours total
and 30 minutes at one time; could walk for four hours total and 30 minutes at one time; could sit
for four hours total and 30 minutes at one time; could rarely lift up to 10 pounds; could not use
her hands for simple grasping, pushing, pulling, or fine manipulation; could not use her feet for
repetitive movements; could occasionally bend, squat, crawl, and climb steps; and could not
climb ladders. (R. 286–87.) The ALJ agreed with Dr. Forrestal’s postural limitations due to her
ongoing complaints of dizziness and precluded Plaintiff from climbing ladders, ropes, and
scaffolds in the RFC. (R. 346, 356.) However, the ALJ afforded less weight to Dr. Forrestal’s
other recommended limitations as to walking, standing, sitting, lifting, and hand or foot
movements as being unsupported by the record. (R. 356.) As the ALJ noted, treatment records
reflect that Plaintiff demonstrated normal strength and functioning in her upper and lower
extremities; showed no focal deficits; exhibited a normal gait without the need for an assistive
device; was able to toe walk, heel walk, and engage in deep knee bending without difficulty; and
showed no impairment of fine or gross manipulation. (R. 357.) The undersigned therefore
concludes that substantial evidence supports the ALJ’s decision to discount Dr. Forrestal’s
opinions.

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C.

The ALJ did not err in determining Plaintiff’s RFC.
Plaintiff next argues that the RFC, as determined by the ALJ, fails to account for issues

with concentration, persistence, pace, and potential time off task. (Statement of Errors 16, ECF
No. 12.) For the reasons that follow, the undersigned finds this error lacks merit.
The ALJ is charged with the final responsibility for determining a claimant’s residual
functional capacity. See 20 C.F.R. § 404.1527(d)(2) (the final responsibility for deciding the
residual functional capacity “is reserved to the Commissioner”). Moreover, the Social Security
Act and agency regulations require an ALJ to determine a claimant’s residual functional capacity
based on the evidence as a whole. 42 U.S.C. §§ 423(d)(5)(B), 1382c(a)(3)(H)(i) (incorporating
§ 423(d) for Title XVI); 20 C.F.R. § 404.1545(a) (“the ALJ . . . is responsible for assessing your
residual functional capacity”). As the court recognized in Henderson v. Comm’r of Soc. Sec.,
No. 1:08-cv-2080, 2010 WL 750222 (N.D. Ohio March 2, 2010), the ALJ is charged with
evaluating several factors in determining the residual functional capacity, including the medical
evidence (not limited to medical opinion testimony) and the claimant’s testimony. Id. at *2
(citing Webb v. Comm’r of Soc. Sec., 368 F.3d 629, 633 (6th Cir. 2004); Social Security Ruling
96-5p; Social Security Ruling 96-8p).
An ALJ’s residual functional capacity assessment is based upon consideration of all
relevant evidence in the case record, including medical evidence and relevant non-medical
evidence regarding what work a claimant is capable of performing. Social Security Ruling 965p. Social Security Ruling 96-8p instructs that the ALJ’s residual functional capacity assessment
must be based on all of the relevant evidence in the case record, including factors such as
medical history, medical signs and laboratory findings, the effects of treatment, daily activities,
lay evidence, recorded observations, medical source statements, effects of symptoms, and
evidence from attempts to work. Social Security Ruling 96-8p.
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The applicable regulation, 20 C.F.R. § 404.1527(d)(2), also explains that “[a]lthough we
consider opinions from medical sources on issues such as . . . your residual functional capacity,
. . . the final responsibility for deciding these issues is reserved to the Commissioner.” The
regulations do not require an ALJ to rely solely upon medical opinions when formulating a
residual functional capacity, but instead explicitly require an ALJ to evaluate medical opinions
based on their consistency with and support from “medically acceptable clinical and laboratory
diagnostic techniques.” 20 C.F.R. § 404.1527(c)(2), (3), (4). Indeed, as the Sixth Circuit has
held, physician opinions “are only accorded great weight when they are supported by sufficient
clinical findings and are consistent with the evidence.” Cutlip v. Sec’y of Health & Human
Servs., 25 F.3d 284, 287 (6th Cir. 1994).
The ALJ included several non-exertional limitations related to Plaintiff’s ability to
maintain concentration in the RFC. Specifically, he stated that Plaintiff
could understand, remember, and carry out simple, repetitive tasks and maintain
concentration and attention for 2-hour segments over an 8-hour work period . . . in
a task-oriented setting . . . [and] could adapt to simple changes . . . in a setting
without strict production requirements.
(R. 346.) According to Plaintiff, these limitations do not sufficiently account for her difficulties
with concentration, persistence, pace, and potential time off task. (Statement of Errors 16, ECF
No. 12.) Plaintiff’s argument relies heavily on the opinion of Bill Anderson, MSW, LISW,
Plaintiff’s treating therapist. (R. 289–91.) Mr. Anderson opined that Plaintiff had numerous
“marked” and “severe” limitations as to her ability to maintain concentration, adapt to changes in
the work setting, and tolerate customary work pressures. (Id.) However, as the ALJ and the
Commissioner point out, Mr. Anderson is not an acceptable medical source and the ALJ did not
err by not adopting his recommendations. 20 C.F.R. § 404.1513; Miller v. Comm’r of Soc. Sec.,
811 F.3d 825, 838 n.9 (6th Cir. 2016) (licensed social worker is not an acceptable medical source
16

whose opinion is owed deferential weight in determining a claimant’s RFC). Moreover, the ALJ
noted that Mr. Anderson’s opinion that Plaintiff was likely to have 5 or more unscheduled
absences a month was inconsistent with her recent work experience, where she worked part-time
without missing days, and eventually stopped working due to her back pain and not any
difficulties with concentration. (R. 291, 355, 369.)
Additionally, Mr. Anderson’s more extreme recommended limitations are inconsistent
with other evidence in the record from medically acceptable sources. In May 2012 and
November 2012, Plaintiff’s medical evidence was reviewed by psychologists Bonnie Katz,
Ph.D., and Carl Tischler, Ph.D., respectively. Drs. Katz and Tischler determined that Plaintiff
was “moderately” limited in her ability to carry out detailed instructions, maintain attention and
concentration for extended periods, to complete a normal workday and workweek without
interruptions from psychologically-based symptoms; to perform at a consistent pace without an
unreasonable number and length of rest periods; to interact appropriately with the general public;
and to respond appropriately to changes in the work setting. (R. 227–28, 270–71.)
In December 2012, Psychologist Kent Rowland, Ph.D., a state agency examiner,
observed that Plaintiff demonstrated average reasoning with only mild difficulties in
concentration and short-term memory. (R. 224.) Dr. Rowland opined that Plaintiff “may have
some difficulty periodically performing multi-step tasks with normal persistence due to her
depression.” (R. 225.) Finally, Plaintiff began seeing Avneet Hira, M.D., for medication
management in 2013. Dr. Hira noted in 2013 and 2015 that Plaintiff’s concentration, attention,
and recent and remote memory were intact. (R. 293, 539.)
Plaintiff does not explain what specific limitations are required that are not already
incorporated in the RFC; nor does she respond on reply to the Commissioner’s argument that Mr.

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Anderson’s more extreme recommended limitations are not entitled to deference. The
undersigned therefore concludes that substantial evidence supports the RFC set forth in the
ALJ’s decision (limiting Plaintiff to simple, repetitive tasks; adapting to only simple changes;
and to a setting without strict production requirements).
V.

DISPOSITION

In sum, from a review of the record as a whole, the Court concludes that substantial
evidence supports the ALJ’s decision denying benefits. For the foregoing reasons, it is
RECOMMENDED that the Court OVERRULE Plaintiff’s Statement of Errors and AFFIRM
the Commissioner of Social Security’s decision.
VI.

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).
The parties are specifically advised that 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
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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/s/ Chelsey M. Vascura
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE

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