Harabowskie v. Commissioner of Social Security
REPORT AND RECOMMENDATION: It is RECOMMENDED that Plaintiff's Statement of Errors (ECF No. 9 ) be OVERRULED and that the Commissioners decision be AFFIRMED. Objections to R&R due by 9/29/2022. Signed by Magistrate Judge Elizabeth Preston Deavers on 09/15/2022. (tla)
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
Civil Action 2:22-cv-1228
Judge Michael H. Watson
Magistrate Judge Elizabeth P. Deavers
REPORT AND RECOMMENDATION
Plaintiff, Robert H., brings this action under 42 U.S.C. § 405(g) for review of a final
decision of the Commissioner of Social Security (“Commissioner”) denying his application for
social security disability insurance benefits. This matter is before the United States Magistrate
Judge for a Report and Recommendation on Plaintiff’s Statement of Errors (ECF No. 9), the
Commissioner’s Memorandum in Opposition (ECF No. 10), and the administrative record (ECF
No. 8). Plaintiff did not file a Reply. The Undersigned RECOMMENDS that the Court
OVERRULE Plaintiff’s Statement of Errors and AFFIRM the Commissioner’s decision.
Plaintiff protectively filed his application for benefits on June 7, 2017, alleging that he
has been disabled since December 31, 2015, due to pain in his back and side, and gout. (R. at
Pursuant to General Order 22-01, due to significant privacy concerns in social security cases,
any opinion, order, judgment or other disposition in social security cases in the Southern District
of Ohio shall refer to plaintiffs only by their first names and last initials.
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168-74, 199.) Plaintiff’s application was denied initially in September 2017 and upon
reconsideration in December 2017. (R. at 81-108.) Plaintiff sought a de novo hearing before an
administrative law judge (“ALJ”). (R. at 109-24.) ALJ Jeffrey Hartranft held a telephone
hearing on July 31, 2019, at which Plaintiff, who was represented by counsel, appeared and
testified. (R. at 33-58.) A vocational expert (“VE”) also appeared and testified. (Id.) On
August 14, 2019, the ALJ issued a decision finding that Plaintiff was not disabled within the
meaning of the Social Security Act. (R. at 16-32.)
On November 23, 2020, the Appeals
Council denied Plaintiff’s request for review and adopted the ALJ’s decision as the
Commissioner’s final decision. (R. at 5-10.) Following a lengthy extension of time, Plaintiff
filed his Complaint with this Court. (ECF No. 1.)
RELEVANT RECORD EVIDENCE
A. Relevant Hearing Testimony and Statements
The ALJ summarized Plaintiff’s relevant hearing testimony and statements to the agency
[Plaintiff] reported that the conditions that limit his ability to work included pain in
his back and side and gout (Ex. 1E/2). During the hearing, he testified that he was
unable to work, during that period at issue, due to back problems, gout and a heel
spur (Hearing Testimony). However, the record documents that [Plaintiff] is a
capable of performing activities of daily living, as he reported that he prepares
meals, drives short distances, does household chores including helping his wife
with the laundry, does repairs, cuts grass, visits family members and friends, shops
in stores and by computer for food, clothing and necessities, socializes with others
by telephone and in person, can pay bills and handle his finances with the help of
his wife and son, can follow written instructions sometimes, can follow oral
instructions, but it takes a while, and has an average ability to handle stress and
changes in routine (Ex. 10E).
(R. at 23.)
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Relevant Medical Records
The ALJ summarized the relevant medical records as follows:
[T]he record, in most instances, documents generally normal musculoskeletal
examinations, normal range of motion and strength in the lower extremities, a gait
within normal limits, and ambulation without assistance (Exs. 2F/30, 34, 35, 39, 48
& 3F/33, 34, 38-39, 40, 48-49). Moreover, the record fails to document that
[Plaintiff] was prescribed or used an ambulatory aid, during the period from his
alleged onset date of December 31, 2015 through his date last insured of December
31, 2016. ***
During the period from his alleged onset date of December 31, 2015 through his
date last insured of December 31, 2016, the evidence of record documents that
[Plaintiff] was assessed with body mass index (BMI) findings in excess of 30,
consistent with a diagnosis of obesity (See Exs. 2F/29, 33, 37, 41).
(R. at 22.)
*** The record documents [Plaintiff]’s diagnoses of degenerative disc disease of
the lumbar spine and degenerative joint disease of the lumbar spine (Exs. 2F/5, 39
& 3F/44). Further, the record documents that [Plaintiff] has been regularly assessed
with a BMI of greater than 30, consistent with a diagnosis of obesity (See Exs.
2F/29, 33, 37, 41).
Additionally, during the period at issue, the record documents healthcare visits,
including treating physician visits and emergency department (ED) care, for
various complaints, particularly lower back or right-sided flank pain, but [Plaintiff]
was in no distress or no acute distress on exams, which generally revealed
substantially unremarkable and/or normal findings, including denials of joint pain,
joint swelling, muscle cramps and muscle weakness, except for intermittent,
relatively mild or minimal clinical findings and infrequent findings of back
tenderness and range of motion (ROM) limited by pain (Exs. 2F/30, 34, 35, 37, 39,
48 & 3F/32, 38-39, 48-49). Notably, the record documents episodic and intermittent
exacerbations of [Plaintiff]’s lower back pain. Specifically, during the period at
issue, the evidence establishes that [Plaintiff] sought treatment for back pain after
engaging in strenuous physical activities, including engaging in lawn work,
changing a tire, performing “a lot of mowing and twisting” and heavy lifting (Exs.
2F/ 33, 38, 47 & 3F/48).
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Further, the objective test results and clinical findings in the record support the
above-stated light RFC. Specifically, on June 23, 2016, [Plaintiff] sought
emergency treatment with complaints of lower back pain that radiated into his left
hip and down his left leg (Ex. 3F/47). An x-ray examination of [Plaintiff]’s lumbar
spine indicated degenerative disc disease and degenerative joint disease at L3-4,
L4-5 and L5-S1 (Ex. 2F/5). However, his physical examination was generally
normal, with the exception of left-sided hip tenderness, and he was noted as
ambulatory with a steady gait when he arrived for emergency treatment (Ex. 3F/4849). On the same date, despite [Plaintiff]’s complaints of pain radiating down his
left hip and leg, an x-ray examination of his left hip was normal (Ex. 4F/12).
On July 8, 2016, he complained of left-sided back pain that caused sleep
disturbances (Ex. 2F/ 33). However, while a physical examination performed on
this date revealed a stiff ROM in [Plaintiff]’s back with some mild discomfort,
straight leg raises were negative and normal ROM and strength in his bilateral lower
extremities were noted (Ex. 2F/35). Additionally, although [Plaintiff] was noted to
have a right-sided antalgic gait, during a musculoskeletal examination, performed
on July 29, 2016, the examination noted normal alignment of the spine, ribs and
pelvis and normal ROM in his bilateral upper extremities (Ex. 2F/30).
(R. at 24.)
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On August 14, 2019, the ALJ issued his decision. (R. at 16-32.) The ALJ found that
Plaintiff last met the insured status requirements of the Social Security Act on December 31,
2016. (R. at 21.) At step one of the sequential evaluation process,2 the ALJ found that Plaintiff
did not engage in substantial gainful activity during the period from his alleged onset date of
December 31, 2015 through his date last insured of December 31, 2016. (Id.) The ALJ found
that through the date last insured, Plaintiff had the following severe impairments: degenerative
disc disease of the lumbar spine, degenerative joint disease of the lumbar spine and obesity.
(Id.) The ALJ further found that through the date last insured, Plaintiff did not have an
impairment or combination of impairments that met or medically equaled the severity of one of
the listed impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 22.)
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).
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Before proceeding to Step Four, the ALJ set forth Plaintiff’s residual functional capacity
(“RFC”) as follows:
After careful consideration of the entire record, the [ALJ] find[s] that, through the
date last insured, [Plaintiff] had the residual functional capacity to perform light
work as defined in 20 CFR 404.1567(b) except he could occasionally stoop.
(R. at 23.)
At step four of the sequential process, the ALJ determined that through the date last
insured, Plaintiff was capable of performing his past relevant work as an assembly machine
operator and as a welding machine operator. This work did not require the performance of workrelated activities precluded by his RFC. (R. at 26.) The ALJ therefore concluded that Plaintiff
was not under a disability, as defined in the Social Security Act, at any time from December 31,
2015, the alleged onset date, through December 31, 2016, the date last insured. (R. at 27.)
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)).
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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 (6th Cir. 2009) (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 ;’ 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 raises one contention of error: the ALJ failed to consider the exertional
limitations set forth in the physical capacity evaluation completed by Katrina Timson, M.D.,
Plaintiff’s primary care physician. (ECF No. 9 at PageID 724-26.) The Commissioner asserts
that Dr. Timson’s medical opinion is confined to the time period after Plaintiff’s date last insured
and therefore was properly rejected by the ALJ. (ECF No. 10 at 4.) The Undersigned agrees
with the Commissioner and finds that the ALJ’s decision is supported by substantial evidence.
As a preliminary matter, a claimant’s RFC is an assessment of “the most [a claimant] can
still do despite [his] imitations.” 20 C.F.R. § 404.1545(a)(1) (2012). An ALJ must assess a
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claimant’s RFC based on all the relevant evidence in a claimant’s case file. Id. The governing
regulations3 describe five different categories of evidence: (1) objective medical evidence, (2)
medical opinions, (3) other medical evidence, (4) evidence from nonmedical sources, and (5)
prior administrative medical findings. 20 C.F.R. § 404.1513(a)(1)–(5). Objective medical
evidence is defined as “medical signs, laboratory findings, or both.” 20 C.F.R. § 404.1513(a)(1).
“Other medical evidence is evidence from a medical source that is not objective medical
evidence or a medical opinion, including judgments about the nature and severity of your
impairments, your medical history, clinical findings, diagnosis, treatment prescribed with
response, or prognosis.” 20 C.F.R. § 404.1513(a)(3). “Evidence from nonmedical sources is any
information or statement(s) from a nonmedical source (including you) about any issue in your
claim.” 20 C.F.R. § 404.1513(a)(4).
“Medical opinion” and “prior administrative medical finding” are defined as follows:
(2) Medical opinion. A medical opinion is a statement from a medical source
about what you can still do despite your impairment(s) and whether you have one
or more impairment-related limitations or restrictions . . . .
(A) Your ability to perform physical demands of work activities, such as
sitting, standing, walking, lifting, carrying, pushing, pulling, or other
physical functions (including manipulative or postural functions, such as
reaching, handling, stooping, or crouching);
(B) Your ability to perform mental demands of work activities, such as
understanding; remembering; maintaining concentration, persistence, or
pace; carrying out instructions; or responding appropriately to supervision,
co-workers, or work pressures in a work setting;
(C) Your ability to perform other demands of work, such as seeing,
Plaintiff’s application was filed after March 27, 2017. Therefore, it is governed by revised
regulations redefining how evidence is categorized and evaluated when an RFC is assessed. See
20 C.F.R. §§ 404.1513(a), 404.1520c (2017).
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hearing, or using other senses; and
(D) Your ability to adapt to environmental conditions, such as temperature
extremes or fumes . . . .
(5) Prior administrative medical finding. A prior administrative medical finding is
a finding, other than the ultimate determination about whether you are disabled,
about a medical issue made by our Federal and State agency medical and
psychological consultants at a prior level of review (see § 416.1400) in your current
claim based on their review of the evidence in your case record, such as:
(i) The existence and severity of your impairment(s);
(ii) The existence and severity of your symptoms;
(iii) Statements about whether your impairment(s) meets or medically
equals any listing in the Listing of Impairments in Part 404, Subpart P,
Appendix 1; . . . .
(v) . . . your residual functional capacity;
(vi) Whether your impairment(s) meets the duration requirement; and
(vii) How failure to follow prescribed treatment (see § 416.930) and drug
addiction and alcoholism (see § 416.935) relate to your claim.
20 C.F.R. §§ 404.1513(a)(2), (5).
The governing regulations include a section entitled “[h]ow we consider and articulate
medical opinions and prior administrative medical findings for claims filed on or after March 27,
2017.” 20 C.F.R. § 404.1520c (2017). These regulations provide that an ALJ “will
not defer or give any specific evidentiary weight, including controlling weight, to any medical
opinion(s) or prior administrative medical finding(s), including those from your medical
sources.” 20 C.F.R. § 404.1520c(a). Instead, they provide that an ALJ will consider medical
source opinions and prior administrative findings using five factors: supportability, consistency,
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relationship of source to claimant, specialization, and other factors tending to support or
contradict a medical opinion or prior administrative medical finding. 20 C.F.R. §
The regulations explicitly indicate that the “most important factors” to consider are
supportability and consistency. 20 C.F.R. § 404.1520c(b)(2). Indeed, the regulations require an
ALJ to “explain how [they] considered the supportability and consistency factors for a medical
source’s medical opinions or prior administrative medical findings” in a benefits determination
or decision and allows that the ALJ “may, but [is] not required to, explain how [they]
considered” the other factors. 20 C.F.R. § 404.1520c(b)(2). If, however, two or more medical
opinions or prior administrative medical findings are equal in supportability and consistency “but
are not exactly the same,” an ALJ must also articulate the other most persuasive factors. 20
C.F.R. § 404.1520c(b)(3). In addition, when medical sources provide multiple opinions or
multiple prior administrative findings, an ALJ is not required to articulate how he evaluated each
opinion or finding individually but must instead articulate how he considered the opinions or
findings from that source in a single analysis using the five factors described above. 20 C.F.R. §
404.1520c(b)(1). Finally, the regulations explain that the SSA is not required to articulate how it
considered evidence from non-medical sources. 20 C.F.R. § 404.1520c(d).
The applicable regulations provide the following guidance for how ALJs should evaluate
the “supportability” and “consistency” of medical source opinions and prior administrative
(1) Supportability. The more relevant the objective medical evidence and
supporting explanations presented by a medical source are to support his or her
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medical opinion(s) or prior administrative medical finding(s), the more persuasive
the medical opinions or prior administrative medical finding(s) will be.
(2) Consistency. The more consistent a medical opinion(s) or prior administrative
medical finding(s) is with the evidence from other medical sources and nonmedical
sources in the claim, the more persuasive the medical opinion(s) or prior
administrative medical finding(s) will be.
20 C.F.R. § 404.1520c(c)(1)-(2). In practice, this means that the “supportability” factor
“concerns an opinion’s reference to diagnostic techniques, data collection procedures/analysis,
and other objective medical evidence.” Reusel v. Comm'r of Soc. Sec., No. 5:20-CV-1291, 2021
WL 1697919, at *7 n.6 (N.D. Ohio Apr. 29, 2021) (citing SSR 96-2p, 1996 SSR LEXIS 9 (July
2, 1996) (explaining supportability and inconsistency); 20 C.F.R. § 404.1527(c)(3), (4)
(differentiating “supportability” and “consistency”); 20 C.F.R. § 404.1520c(c)(1), (2) (further
clarifying the difference between “supportability” and “consistency” for purposes of the postMarch 27, 2017 regulations)).
The ALJ had this to say about Dr. Timson’s opinion:
First, I acknowledge that the record contains a July 16, 2019 treating source
statement from Dr. Katrina Timson, [Plaintiff]’s primary physician (Ex. 15F).
However, I did not determine the persuasiveness of said statement, as the form was
completed more than 2 years after the claimant’s date last insured (DLI), December
31, 2016, and Dr. Timson related her opined limitations back to January of 2017,
again after the DLI. Additionally, I note that the opined limitations are internally
inconsistent and inconsistent with the treatment notes from the period at issue,
December 31, 2015, the alleged onset date, through December 31, 2016, the date
(R. at 26.)
After review, the Undersigned concludes that the ALJ’s decision reflects the proper
consideration of Dr. Timson’s medical opinion. First, as the ALJ noted, Dr. Timson’s opinion
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was rendered on July 16, 2019, more than two years after Plaintiff’s date last insured. (R. at 26,
663-664.) The Sixth Circuit has consistently held that an ALJ may discount a treating source's
opinion on the basis that “the opinion was provided after the date last insured.” Emard v. Comm'r
of Soc. Sec., 953 F.3d 844, 850 (6th Cir. 2020) (citing cases). This is particularly true here
because, as the ALJ also observed, Dr. Timson specifically confined her opined limitations to
post-date the relevant time period.4 (R. at 664.) Nevertheless, the ALJ evaluated Dr. Timson’s
opinion for consistency. In doing so, he found it to be both “internally inconsistent and
inconsistent with the treatment notes from the period at issue, December 31, 2015, the alleged
onset date, through December 31, 2016, the date last insured.” (R. at 26.) Substantial evidence
supports the ALJ’s consideration of Dr. Timson’s opinion.
Significantly, Dr. Timson was Plaintiff’s primary care provider for some time prior to his
date last insured, having first undertaken his care at least as early as March 2014. (See, e.g., R. at
304-307; 310; 312; 317, 330; 338; 352; 364-371; 421; 436; 446; 471-475; 500-513.) In her July
2019 opinion, Dr. Timson diagnosed Plaintiff with degenerative disc disease of the lumbosacral
spine but did not offer any opinion as to exertional limitations on his ability to lift or carry. (R.
at 663.) Further, she found that, in an eight-hour day, Plaintiff had no limitations on his ability
to sit or walk but that he was limited to standing for less than two hours. Despite finding no
limitations on Plaintiff’s ability to sit or walk, she further indicated that Plaintiff would need to
change his position “at will” on an hourly basis. (Id.) Dr. Timson also found that Plaintiff could
twist or crouch occasionally, could climb ladders and stairs frequently, and could never stoop or
To confirm, the relevant time period is from Plaintiff’s alleged onset date of December 31,
2015, through his date last insured, December 31, 2016.
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bend. (Id.) With respect to physical functions, Dr. Timson found that Plaintiff frequently could
handle, finger and feel and occasionally could reach and push/pull. (R. at 664.) Finally, with
respect to environmental restrictions, Dr. Timson opined that Plaintiff would need to avoid
concentrated exposure to extreme heat and cold, wetness, humidity, noise, vibration, fumes,
odors, and dust, and hazards including heights. (Id.) As support for her opined limitations, she
cited, but did not identify with any specificity, an x-ray of Plaintiff’s lumbosacral spine. (R. at
The crux of Plaintiff’s argument is that the ALJ was obligated to determine the
persuasiveness of Dr. Timson’s untimely opinion despite having concluded that it was irrelevant.
Plaintiff’s argument is without merit. Nothing in Dr. Timson’s opinion indicates that it related
back to the time period at issue. In fact, it explicitly indicates just the opposite. And, it does so
not once, but twice. (R. at 664 “has not been able to work since 1/2017;” “The above capacities
and limitations have applied to this individual since 1/2017 (date).”) Accordingly, the ALJ was
not required to consider Dr. Timson’ opinion at all. Lane v. Comm'r of Soc. Sec., No. 3:20-CV1105, 2021 WL 8342836, at *11 (N.D. Ohio May 24, 2021) (citing Grisier v. Comm'r of Soc.
Sec., 721 F. App'x 473, 477 (6th Cir. 2018) (“Post-date-last-insured medical evidence generally
has little probative value unless it illuminates the claimant's health before the insurance cutoff
date.”)); Emard, 953 F.3d at 850-51) (an ALJ is required to consider a medical opinion issued
after the date last insured only to the extent that the limitations provided therein relate back to the
period predating the last-insured date).
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As would be expected, Plaintiff attempts to relate back the limitations described by Dr.
Timson. First, Plaintiff identifies an x-ray report dated June 23, 2016, and suggests that this
report, indicating degenerative disc disease, was the basis for Dr. Timson’s opinion. (ECF No. 9
at 16.) Assuming this to be true, however, the diagnosis of an impairment, however, does not
indicate the severity of a condition or its limitations. Lee v. Comm'r, 529 F. App'x 706, 713 (6th
Cir. 2013) (“The mere diagnosis of [an impairment] . . . says nothing about the severity of the
condition.”); see also Denham v. Comm'r of Soc. Sec., No. 1:14-cv-611, 2015 WL 5471435, at
*11 (S.D. Ohio Sept. 18, 2015) (disability is determined by the functional limitations a condition
imposes, not the mere diagnosis of a condition).
Plaintiff also argues that there is no indication in the record of any exacerbations between
2016 and January 2017 such that the limitations Dr. Timson found to exist as of January 1, 2017,
also would have existed in 2016, prior to his date last insured. Dr. Timson’s chosen confinement
of the applicable date, however, is fatal to both aspects of Plaintiff’s relation back argument.
Indeed, it is all the more so given that Dr. Timson was Plaintiff’s primary care physician
throughout the time period at issue. Thus, Plaintiff is left with nothing more than conjecture to
support his argument that “a distinction between [between 12/31/16 and 1/2017] is not supported
by substantial evidence.” (ECF No. 9 at 16.)
Plaintiff’s reliance on conjecture is further confirmed by his failure to cite any other
record evidence beyond Dr. Timson’s physical capacity evaluation to support his theory that no
distinction can exist. At most, Plaintiff reiterates his treatment history for various physical
complaints – notably from both during and after the relevant time period. The ALJ, however,
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provided his own detailed discussion of Plaintiff’s medical history limited to the relevant time
period and Plaintiff does not challenge this recitation. (R. at 24-25.) For example, the ALJ
acknowledged Plaintiff’s documented healthcare visits for complaints of lower back or rightsided flank pain. (R. at 25.) At the same time, the ALJ noted that Plaintiff was reported as “in
no distress or no acute distress” on exams and that these exams “generally revealed substantially
unremarkable and/or normal findings” “except for intermittent, relatively mild or minimal
clinical findings and infrequent findings of back tenderness and range of motion (ROM) limited
by pain.” (Id.) The ALJ remarked that, during the relevant time period, Plaintiff “sought
treatment for back pain after engaging in strenuous physical activities.” (Id.) The ALJ
summarized Plaintiff’s relevant treatment history as one “of conservative care with medications”
and one without “recurring emergency treatment, the necessity for surgical intervention or
inpatient hospitalizations.” (Id.) The ALJ also reasonably considered Plaintiff’s documented
activities of daily living including Plaintiff’s ability to prepare meals, drive short distances,
perform household chores, socialize, shop and handle his finances. (R. at 23.) In short, the ALJ
appropriately acknowledged Plaintiff’s symptoms and supported his non-disability finding with
substantial evidence from the record.
Finally, Plaintiff argues that the ALJ’s failure to incorporate the proposed limitations was
not harmless error because they would support a finding of disability under the MedicalVocational Guidelines (the “grid”). Alternatively, Plaintiff argues that, even if he were not
found disabled under the “grid,” the ALJ would need to determine Plaintiff’s ability to perform
other work in the national economy. (ECF NO. 9 at 16.) Plaintiff’s harmless error argument is
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not well taken. First, it appears to assume that the ALJ would have found Dr. Timson’s opinion
persuasive in its entirety. This simply is more speculation. Further, even if the ALJ had made a
persuasiveness determination, it is well settled that an ALJ is not required to “adopt every facet
of a particular medical opinion in formulating an RFC, as long as the record as a whole
supported the RFC actually determined by the ALJ, and [he] adequately explains [his] analysis in
a manner sufficient to allow review.” Kincaid v. Comm'r of Soc. Sec., No. 1:16-CV-736, 2017
WL 9515966, at *3 (S.D. Ohio June 12, 2017), report and recommendation adopted, No.
1:16CV736, 2017 WL 4334194 (S.D. Ohio Sept. 30, 2017). As set forth above, the Undersigned
concludes that is precisely what the ALJ did here.
In sum, from a review of the record as a whole, the Undersigned concludes that
substantial evidence supports the ALJ’s decision denying benefits. Based on the foregoing, it is
therefore, RECOMMENDED that Plaintiff’s Statement of Errors be OVERRULED and that
the Commissioner’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 an\d
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).
Case: 2:22-cv-01228-MHW-EPD Doc #: 11 Filed: 09/15/22 Page: 17 of 17 PAGEID #: 751
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a forfeiture of the right to de novo review by the District Judge
and forfeiture of the right to appeal the judgment of the District Court. Even when timely
objections are filed, appellate review of issues not raised in those objections is forfeited. Robert
v. Tesson, 507 F.3d 981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s
report, which fails to specify the issues of contention, does not suffice to preserve an issue for
appeal . . . .”) (citation omitted)).
September 15, 2022
/s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge
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