Brown v. Social Security Administration

Filing 13

REPORT AND RECOMMENDATIONS: (1) The Commissioner's non-disability finding be AFFIRMED; and (2) The case be terminated on the docket of this Court. Objections to R&R due by 2/19/2016. Signed by Chief Magistrate Judge Sharon L. Ovington on 2/1/2016. (cvf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
ANITA BROWN,
Plaintiff,
vs.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

: Case No. 3:14-cv-451
:
: District Judge Thomas M. Rose
:
: Chief Magistrate Judge Sharon L. Ovington
:
:
:
:
:

REPORT AND RECOMMENDATION 1
This Social Security disability benefits appeal is before the Court on Plaintiff’s
statement of errors (Doc. 8), the Commissioner’s memorandum in opposition (Doc. 11),
the Plaintiff’s reply (Doc. 12), the administrative record (Doc. 7), and the record as a
whole. At issue is whether the Administrative Law Judge (“ALJ”) erred in finding
Plaintiff “not disabled” and therefore not entitled to a period of disability and disability
insurance benefits (“DIB”), nor Supplemental Security Income (“SSI”). (See Doc. 7,
PageID ## 71-90 (the “ALJ’s decision”)).
I. INTRODUCTION
On October 1, 2012, Plaintiff Anita Brown protectively filed applications for a
period of disability and DIB, as well as SSI, alleging disability beginning April 13, 2011.
(Doc. 7, PageID ## 299-300). Plaintiff alleged she was unable to work due to the
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Attached is a NOTICE to the parties regarding objections to this Report and Recommendation.

following impairments: cervical radiculopathy, carpal tunnel, epicondylitis, low blood
pressure, severe headaches, depression, anxiety, and tachychardia. (Id. at 303). Her
claims were denied initially and on reconsideration. (Id. at 71).
Plaintiff requested a hearing before an ALJ, which was held on April 30, 2014.
(Doc. 7, PageID # 64, 71). Plaintiff and a vocational expert (“VE”) testified, with
Plaintiff’s counsel in attendance. (Id.)
On July 23, 2014, ALJ Emily Ruth Statum issued an unfavorable decision, finding
that Plaintiff had not been under a disability as defined in the Social Security Act, and
was therefore not entitled to a period of disability, DIB, or SSI. (Id. at 90). Although
finding that Plaintiff was not capable of performing her past relevant work, the ALJ
found that Plaintiff had the residual functional capacity (“RFC”) 2 to perform a reduced
range of light, unskilled work. (Id. at 78). Based on Plaintiff’s age, education, work
experience, and RFC, the ALJ found that there were a significant number of jobs in the
national and regional economy that Plaintiff could perform. (Id. at 88-90). Therefore,
the ALJ concluded that Plaintiff was not disabled. (Id. at 90).
The decision became final and appealable on November 13, 2014, when the
Appeals Council denied Plaintiff’s request for review. (Id. at 56-59). Plaintiff then
properly commenced this action for judicial review of the Commissioner’s decision
pursuant to 42 U.S.C. §§ 405(g).

2

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).
2

At the time of the hearing, Plaintiff was 48 years old. (Doc. 7, PageID # 88). She
completed high school in 1984 and had some job training in the food service industry
shortly thereafter. (Id. at 304). Plaintiff had no other specialized job training, and had
not attended any trade or vocational schools. (Id.) The ALJ determined that Plaintiff had
past relevant work as a production helper, lead worker, shipping and receiving clerk,
stock clerk, and machine operator. (Id. at 88). However, based on the VE’s testimony,
the ALJ found that Plaintiff’s exertional limitations precluded her from returning to her
past relevant work. (Id.)
The ALJ’s “Findings,” which represent the rationale of her decision, are as
follows:
1. The claimant meets the insured status requirements of the Social
Security Act through December 31, 2016.
2. The claimant has not engaged in substantial gainful activity since
April 13, 2011, the alleged disability onset date (20 CFR 404.1571 et
seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: moderate central
canal stenosis at C4-C5, C5-C6 and C6-C7 with flattening of the right
hemicord from protruding osteophytes at C5-C6 and C6-C7; a broad
based central disc protrusion at C2-C3; status-post anterior cervical
discectomy and cervical fusion from C4-C5 to C6-C7 in November
2011; cervical myofascial pain syndrome; osteoarthritis of the left
acromioclavicular join; left shoulder rotator cuff tendinitis with partial
tear on the left; ulnar neuropathy at the right elbow; epicondylitis on
the left requiring surgery in January 2008; obesity, asthma, anxiety;
and depression (20 CFR 404.1520(c) and 416.920(c)).
4. The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20
CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and
416.926).
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5. After careful consideration of the entire record … the claimant has the
residual functional capacity to perform a reduced range of light work
as defined at 20 CFR 404.1567(b) and 416.967(b), which would
require lifting and/or carrying 20 pounds occasionally and 10 pounds
frequently, sitting about 6 hours in an 8 hour workday, standing and/or
walking about 6 hours in an 8 hour workday, with no limitations for
pushing and/or pulling, except that the individual cannot climb
ladders, ropes or scaffolds, can occasionally stoop, kneel, crouch or
crawl, can occasionally reach overhead bilaterally, with the need to
avoid dusts, fumes, or environmental contaminants, and is limited to
performing unskilled work that is simple and routine.
6. The claimant is unable to perform any past relevant work (20 CFR
404.1565 and 416.965).
7. The claimant was born on August 31, 1965 and was 45 years old,
which is defined as a younger individual age 18-49, on the alleged
disability onset date (20 CFR 404.1563 and 416.963).
8. The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a framework
supports a finding that the claimant is “not disabled,” whether or not
the claimant has transferable job skills (See SSR 82-41 and 20 CFR
Part 404, Subpart P, Appendix 2).
10. Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform (20
CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
11. The claimant has not been under a disability, as defined in the Social
Security Act, from April 13, 2011, through the date of this decision
(20 CFR 404.1520(g) and 416.920(g)).
(Doc. 7, PageID ## 73-90). In sum, the ALJ concluded that Plaintiff was not under a
disability as defined by the Social Security Act and was therefore not entitled to a period
of disability, DIB, or SSI. (Id. at 90).
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On appeal, Plaintiff argues that: (1) the ALJ failed to follow the Social Security
Administration’s own regulatory requirements in weighing the medical source opinions
which therefore denotes a lack of substantial evidence and an error as a matter of law; (2)
the ALJ failed to properly evaluate Plaintiff’s credibility, pain, and symptoms, pursuant
to the Social Security Administration’s own rulings and regulations and Sixth Circuit
case law; and (3) the Commissioner failed to carry her Step Five burden. (Doc. 8).
II. STANDARD OF REVIEW
The Court’s inquiry on appeal is limited to whether the ALJ’s non-disability
finding is supported by substantial evidence and whether the correct legal standard was
applied. 42 U.S.C. § 405(g); Kyle v. Comm’r of Soc. Sec., 609 F.3d 847, 854 (6th Cir.
2010). Substantial evidence is more than a “mere scintilla” but less than a preponderance
of the evidence. Richardson v. Perales, 402 U.S. 389, 401 (1971) (substantial evidence is
“such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion”). In reviewing the ALJ’s decision, the district court must look to the record
as a whole and may not base its decision on one piece of evidence while disregarding all
other relevant evidence. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). Even
if the district court “might have reached a contrary conclusion of fact, the [ALJ’s]
decision must be affirmed so long as it is supported by substantial evidence.” Kyle, 609
F.3d at 854-855 (citing Lindsley v. Comm’r of Soc. Sec., 560 F.3d 601, 604-05 (6th Cir.
2009)).
The claimant bears the ultimate burden to prove by sufficient evidence that he is
entitled to disability benefits. 20 C.F.R. § 404.1512(a). That is, he must present
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sufficient evidence to show that, during the relevant time period, he was unable to engage
in substantial gainful activity by reason of any medically determinable physical or mental
impairment, or combination of impairments, which has lasted or is expected to last for a
continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A).
III. BACKGROUND
The relevant facts, as reflected in the record, are as follow: 3
A. Relevant Medical Evidence
1. Physical Impairments
a. Phillip Edwards, D.O.
On January 29, 2008, prior to the alleged onset date, Phillip Edwards, D.O.
performed an excision of the fascia of Plaintiff’s left lateral elbow, and ultimately
diagnosed chronic left lateral epicondylitis (i.e., tennis elbow). 4 (Doc. 7, PageID ## 76869). According to Plaintiff, Dr. Edwards instructed her not to lift or pull anything
following surgery, which restriction was lifted after four years. (Id. at 581).
b. Rabindra Kitchener, M.D.
On May 15, 2011, Rabindra Kitchener, M.D., began treating Plaintiff. (Doc. 7,
PageID # 581). Plaintiff told Dr. Kitchener that she had reinjured her upper left
extremity two months after Dr. Edwards’ restrictions were lifted. (Id.) As a result of the
3

Having thoroughly reviewed the administrative record, the Court finds that a complete
recitation of all facts in this case is unnecessary and, therefore, restricts its statement of the facts
to those relevant to Plaintiff’s alleged errors.
4

Lateral Epicondylitis (commonly referred to as ‘tennis elbow’), “is an inflammation of the
tendons that join the forearm muscles on the outside of the elbow,” caused by overuse, such as
with repetitive motion. OrthoInfo, available at: orthoinfo.aaos.org/topic.cfm?topic=a00068.
6

new injury, Plaintiff complained of bilateral numbness in her hands, weakness in upper
extremities, and pain in her left elbow and shoulder. (Id.) Following an examination,
Dr. Kitchener noted that some of Plaintiff’s symptoms were suggestive of cervical strain,
epicondylitis, and possibly carpal tunnel. (Id. at 581-582).
Dr. Kitchener ordered an EMG and nerve conduction study of the bilateral upper
extremities, as well as an MRI of the cervical spine, which were completed on May 23,
2011 and May 27, 2011, respectively. (Id. at 575). The EMG and nerve conduction
study showed evidence of a right cervical nerve root injury involving the C5-6 cervical
nerve roots, but no evidence of cervical radiculopathy, peripheral neuropathy, myopathy,
or any other entrapment neuropathy. (Id.) The MRI revealed only mild disc space
narrowing at C5-6 and C6-7. (Id. at 572). As EMG and MRI results failed to explain
her symptoms, Plaintiff was referred to a spinal surgeon. (Id. at 571-72, 575).
c. William Tobler, M.D.
Plaintiff was seen by spinal surgeon, William Tobler, M.D., who performed an
anterior cervical discectomy and fusion at C4-5, C5-6, and C6-7 on November 28, 2011.
(Id. at 385-389, 816-823). During a post-operative appointment two weeks after her
surgery, Plaintiff reported resolution of her left arm radiculopathy and paresthesias, and
was said to be “doing well.” (Id. at 393). During a follow-up in March 2012, Plaintiff
stated that her range of motion had improved since starting physical therapy, and that her
left-sided radiculopathy had “nearly completely resolved.” (Id. at 403). At her one-year
post-operative follow-up in November 2012, Dr. Tobler noted that Plaintiff’s left-sided
radiculopathy had “completely resolved,” and Plaintiff complained only of soreness and
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tenderness in the right upper paracervical muscles, which was attributed to muscle strain.
(Id. at 923).
d. Stephen Duritsch, M.D.
In March 2012, Plaintiff began treatment for neck and arm pain with Stephen
Duritsch, M.D., at RehabMed Associates. (Doc. 7, PageID # 415). Dr. Duritsch’s notes
indicate that, according to Plaintiff, the pain “makes it hard for her to flex her neck[,]
extend[] neck or rotate to the right,” however, “she denied any weakness in the upper
limbs.” (Id.) Dr. Duritsch noted that Plaintiff was “negative” for fatigue, back pain, joint
swelling, gait problems, weakness, numbness, and psychiatric/behavioral issues. (Id. at
417).
Dr. Duritsch wrote that Plaintiff showed only localized tenderness on her right
side and mild tenderness on the left, that Plaintiff’s strength was “5/5 in the bilateral
upper limbs … [s]houlder impingement signs [were] negative … [and there was] no
evidence of localized shoulder pathology.” (Id. at 418). He opined that Plaintiff “has
localized myofascial findings as her primary pain generator,” and that he concurs with
Dr. Tobler’s impression that “[Plaintiff] needs continuous appropriate physical therapy
for myofascial release and massage.” 5 (Id.) Dr. Duritsch further opined that Plaintiff’s
“disability management is going to be difficult,” because she would not see her
5

Myofascial pain syndrome is a condition in which, “pressure on sensitive points in [the]
muscles (trigger points) causes pain in seemingly unrelated parts of [the] body … Myofascial
pain syndrome typically occurs after a muscle has been contracted repetitively … [which] can be
caused by repetitive motions used in jobs or hobbies or by stress-related muscle tension.”
Myofascial Pain Syndrome, Mayo Clinic, available at: http://www.mayoclinic.org/diseasesconditions/myofascial-pain-syndrome/basics/definition/con-20033195.
8

neurosurgeon until June 5, 2012, but would lose her job and benefits on April 16, 2012.
(Id.) He concluded that, “[i]n the long run, she’ll likely still maximize[] out at a
sedentary type job as she will not return to her job where she is lifting 25 pound[]
bearings.” (Id.)
During a follow-up appointment on August 8, 2012, Dr. Duritsch noted that
Plaintiff denied weakness in her arms, and but for “a bit of tenderness of the dorsum of
the wrist … upper limb range of motion is normal.” (Id. at 420-21). He stated that unless
Plaintiff considered attending physical therapy, she did not need to return for a follow-up
appointment, as he had nothing further to offer her. (Id. at 421). Notably, Dr. Duritsch
provided the following “Assessment Discussion”:
I have rewritten her restrictions. Restrictions are in all likelihood
permanent. Hopefully she can find a job with her previous employer within
[these] restrictions. Otherwise we [can] look elsewhere. It may be helpful
[to] her from a psychological standpoint to return to gainful employment as
she has a strong work ethic in the past but has been off work for so long
[due] to her surgery. I encouraged her [to] return to restricted work as soon
as possible.
(Id.) (Emphasis added).
On August 18, 2012, Dr. Duritsch completed a “Return to Work
Recommendations” form detailing Plaintiff’s physical restrictions, which he opined to
include: only occasional lifting, carrying, pushing, and pulling no more than ten pounds;
no repetitive neck extending or twisting; no climbing, but occasional use of stairs; only
occasional reaching above with shoulders; only occasional pinching, pressing, fine

9

manipulation, and gross grasping with either hand; and only occasional typing. (Id. at
532). 6
On November 13, 2012, Plaintiff returned to Dr. Duritsch, complaining of neck
pain. (Id. at 433). Dr. Duritsch noted that it had been almost a year since Plaintiff’s
surgery (performed by Dr. Tobler), but that her condition had not improved in the last six
months. (Id. at 433-34). He commented that Plaintiff kept her neck flexed, that lateral
rotation was absent, and that she was “quite fixed and rigid.” (Id. at 434). Dr. Duritsch
recommended that Plaintiff accelerate her follow-up appointment with Dr. Tobler. (Id.)
Plaintiff complied with the recommendation and went to Dr. Tobler before returning to
Dr. Duritsch on November 21, 2012. (Id. at 456-59). Dr. Duritsch’s notes from the
November 21 visit indicate that Plaintiff’s EMG showed no evidence of a myopathy,
radiculopathy, plexopathy, or motor sensory polyneuropathy, and only mild right ulnar
nerve injury in the elbow but no evidence of other isolated nerve injury. (Id. at 457).
On March 21, 2013, Plaintiff returned to Dr. Duritsch with ongoing neck pain and
tingling. (Id. at 464). Dr. Duritsch noted that strength in Plaintiff’s bilateral upper limbs
was “5/5,” and opined, as he had in the past, that Plaintiff “has ongoing myofascial
tenderness and tightness for which she could benefit from physical therapy.” (Id. at 46566). Further, he wrote that Plaintiff had not yet found a job but that she “regularly does
jobs at home” to keep herself active, though “[s]he is limited due to her neck pain and

6

In an effort to clarify any inconsistencies regarding the dates of Dr. Duritsch’s opinions, the
Court would note that Dr. Duritsch’s handwritten assessments, including the two “Return to
Work Recommendation” forms, appear to be dated in a day/month/year format.
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tingling [from] being continuously active at home.” (Id. at 465). However, Dr. Duritsch
also noted that Plaintiff had been found ineligible for DIB and SSI, and opined that
“[b]ased on her current level of activity and her exam today … [s]he is capable of
sedentary activity, but cannot perform this activity for an 8 hour day.” (Id. at 466).
On August 5, 2013, Dr. Duritsch noted that Plaintiff exhibits decreased range of
motion and tenderness in her cervical back. (Id. at 760). However, he wrote that she was
negative for back pain, joint swelling and gait problems. (Id.) Further, Plaintiff showed
impingement signs on the left side only, but still had normal range of motion in her left
shoulder; no swelling in the upper limbs; and normal strength and reflexes. (Id.)
Additionally, Plaintiff had rotator cuff tendinopathy with a partial tear. (Id. at 761).
However, Dr. Duritsch noted no rotator cuff weakness and, since the tear was partial
rather than complete, he recommended only physical therapy. (Id. at 760-61).
With little variation, all subsequent notes from Dr. Duritsch, until the last recorded
in June 2014, state that Plaintiff shows some tenderness and decreased range of motion of
the cervical spine and left shoulder, positive impingement signs on the left, and some
decreased sensation of the hands. (Id. at 961-87; 1072-83; 1111-14). However, the notes
also consistently state that Plaintiff has no back pain, joint swelling, or gait problems; no
weakness or atrophy; normal strength and reflexes; no swelling in upper bilateral
extremities; and no issues with pain or limited range of motion on the right side. (Id.)
In June 2014, Dr. Duritsch completed a second “Return to Work
Recommendations” form on Plaintiff’s behalf. (Id. at 767). The June 2014 form
reflected opinions nearly identical to those expressed in the August 2012 form, except
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that in June 2014 Dr. Duritsch did not respond to whether Plaintiff could use the stairs,
but he checked “none” for “Shoulder – Reach Above” (previously, he indicated
“occasionally” for both). (Id.)
e. Robert McCarthy, M.D.
Treating physician Robert McCarthy, M.D., saw Plaintiff on no less than eight
occasions from March 2010 through November 2011. (Doc. 7, PageID ## 702-43).
During this time, Dr. McCarthy’s treatment notes consistently indicate that Plaintiff has
“normal strength and tone” in her left and right, upper and lower extremities. (Id. at 705,
710, 713, 716, 719, 722, 739, 742). In March 2010, April 2011, and May 2011, Dr.
McCarthy noted that Plaintiff is experiencing joint pain in her left elbow. (Id. at 712,
715, 741). Regardless, Dr. McCarthy’s notes from all of Plaintiff’s appointments indicate
under ‘musculoskeletal system review’: “Not Present – Decreased Range of Motion,
Joint Redness, Joint Stiffness, and Muscle Weakness.” (Id. at 704, 709, 712, 715, 718,
721, 738, 741) (emphasis added).
On May 12, 2010, prior to Plaintiff’s alleged onset date, Dr. McCarthy completed
a healthcare provider’s certification form for Plaintiff’s leave request under the Family
and Medical Leave Act, in which he opined that Plaintiff’s unspecified condition
rendered her “incapacitated” from April 22, 2010 through April 30, 2010. (Id. at 645). 7
Again on February 23, 2011, prior to the alleged onset date, Dr. McCarthy completed a
7

Erroneously included in the record is a “Disability Verification” form, in which Dr. McCarthy
opines that another patient, not Plaintiff, was under a disability, as defined in 42 U.S.C. § 423.
(Doc. 7, PageID ## 647-49). As this assessment does not refer to Plaintiff, her reliance on this
opinion is misplaced, and the Court excludes this evidence from consideration.
12

second healthcare provider’s certification form, stating that Plaintiff may be
“incapacitated” for an unknown period of time, due to a fall which injured her right side,
but that the injury would not cause flare-ups preventing the performance of her job
duties. (Id. at 590-93).
Less than three months later, on May 11, 2011, Dr. McCarthy completed a third
healthcare provider’s certification form, stating that Plaintiff was experiencing “left
elbow pain, decreased range of motion, joint redness, stiffness, and muscle weakness,”
which impairments commenced on February 18, 2011 (prior to the alleged onset date)
and were expected to last only two to three months (until April or May 2011), during
which time, Plaintiff may experience flare-ups, which could prevent her from performing
her job duties approximately once per month. (Id. at 583-586) (emphasis added). In
contrast, however, Dr. McCarthy’s treatment notes from that same timeframe (i.e., April
26, 2011 and May 19, 2011) indicate only left elbow pain, and otherwise indicate normal
strength and tone, and specifically state that “decreased range of motion, joint redness,
joint stiffness, and muscle weakness,” (i.e., the precise impairments he listed in the May
11, 2011 healthcare certification form) were “not present.” (Id. at 712-717) (emphasis
added).
On May 17, 2011, Dr. McCarthy completed a “Statement of Functionality” form
at the request of The Hartford (presumably related to disability insurance), in which he
opined that Plaintiff is able to frequently, and without restrictions, bend at the waist,
kneel, crouch, drive, reach at any level (bilaterally), and finger/handle (bilaterally). (Id.
at 580). The only limitation indicated was that Plaintiff could not lift/carry more than ten
13

pounds with her left hand. (Id.) However, this restriction was limited in duration and
ended on April 27, 2011. (Id.) Dr. McCarthy also opined that Plaintiff had no
psychiatric or cognitive impairments. (Id.)
Subsequent notes from July 27, 2011 and November 22, 2011, indicate normal
bilateral strength, tone, and range of motion and, further, make no mention of pain
evident upon examination. (Id. at 709-10).
f. Brenda Wills, C.N.P.
Brenda Wills, a certified nurse practitioner at Dr. McCarthy’s office, completed a
physical capacities assessment on March 14, 2014. (Doc. 7, PageID ## 1038-1042). Ms.
Wills opined that Plaintiff could lift/carry no more than ten to fifteen pounds occasionally
or ten pounds frequently; could stand/walk for a total of less than one hour at a time
without interruption, for a total of approximately two hours in an eight-hour workday;
and could sit no more than one hour at a time and only for two hours per day. (Id. at
1039). Ms. Wills further opined that Plaintiff could never climb, balance, stoop, crouch,
kneel, or crawl, and that Plaintiff’s ability to see, speak, reach, handle, finger, feel, push,
and pull, were also affected. (Id. at 1040). She also indicated that Plaintiff cannot be
exposed to heights, moving machinery, chemicals, temperature extremes, vibration, dust,
fumes, and humidity. (Id. at 1041). Ms. Wills concluded that Plaintiff lacked the
physical and emotional ability to perform light or even sedentary work. (Id. at 1041-42).
Ms. Wills also prescribed a handicapped placard on March 14, 2014, which indicated that
Plaintiff was unable to walk more than 200 feet. (Id. at 1036).

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However, office notes from Ms. Wills dated immediately prior to her completing
the March 2014 physical capacities form (i.e., from November 12, 2013, January 29,
2014, March 14, 2014) indicate tightness in Plaintiff’s trapezius; no myalgias; significant
improvement in back pain since breast reduction surgery; some unspecified limitations in
movement but able to move all extremities equally and symmetrically; ability to flex
elbows, wrists, and fingers; slow but steady gait; bilateral paresthesia (i.e., ‘pins and
needles’ sensation); no difficulty with speaking or articulating logical thoughts;
occasional blurry vision; occasional difficulty breathing with exertion; depression;
anxiety; no panic attacks; and insomnia. (Id. at 1022-35).
g. Abraham Mikalov, M.D. and Dimitri Teague, M.D.
On May 13, 2013, Abraham Mikalov, M.D., completed a physical RFC
assessment at the time of initial review, opining that Plaintiff was capable of lifting
and/or carrying (including upward pulling) up to twenty pounds occasionally and ten
pounds frequently; could stand and/or walk (with normal breaks) for a total of six hours
during an eight hour workday; could sit (with normal breaks) for a total of six hours
during an eight hour workday; and could otherwise push and/or pull (including operation
of hand and/or foot controls) without limitation. (Doc. 7, PageID # 147). Further, Dr.
Mikalov opined that Plaintiff could never climb ladders, ropes, or scaffolds; could
frequently stoop, kneel, crouch, and crawl; and could balance, and climb ramps and stairs
without limitation. (Id. at 147-48). Additionally, Dr. Mikalov noted that Plaintiff had no
manipulative, visual, communicative, or environmental limitations. (Id. at 148).

15

On September 11, 2013, Dimitri Teague, M.D., completed a physical RFC
assessment on reconsideration. (Id. at 175-77). Dr. Teague concurred with Dr.
Mikalov’s opinion in all respects, except that he imposed an additional limitation of only
occasional left and right overhead reaching.
2. Mental Impairments
a. Alan R. Boerger, Ph.D.
On May 1, 2013, at the request of the Ohio Division of Disability Determination
(“DDD”), Alan Boerger, Ph.D., examined Plaintiff and prepared a psychological
evaluation regarding the presence or absence of a mental disorder and any resulting
limitations in mental activities required for work. (Doc. 7, PageID ## 678-684). Dr.
Boerger summarized Plaintiff’s personal, educational, medical, behavioral health, and
work histories. (Id. at 678-79). Plaintiff claimed that she was a “hyperactive child” and
was placed on Ritalin and Mellaril until the age of twelve. (Id. at 680). She stated that
she has experienced problems with anxiety since her childhood, but that she “has not had
any panic attacks in a while and they only ever occurred just once in a while.” (Id. at
681).
Plaintiff stated that the last time she was in therapy was in 2000, following the
sudden loss of six family members within a six month span, including her husband,
mother, father, uncle, grandfather, and stepmother. (Id. at 679-80). She stated that, at
that time, she was employed at the Bob Evans plant, but the loss of her family members
affected her concentration and led her to quit the job. (Id. at 680). Other than that,
Plaintiff “said she did not believe her mental health problems were an issue at work.”
16

(Id.) Plaintiff claimed she has never been fired and that she does “pretty good” in terms
of getting along with others at work. (Id.)
In terms of activities of daily living, Plaintiff stated that she wakes up by 7:30 a.m.
and has coffee in the kitchen, although her mind tends to race. (Id.) She stated that she
tries to clean the house and that she does laundry. (Id.) Further, Plaintiff claimed that
she does not drive very much because she “can’t turn [her] neck and [her] arms get
numb.” (Id.)
With regard to public interactions and dealing with others (e.g., while shopping at
the store), Plaintiff stated that she can “zone into what [she is] doing.” (Id.) Further,
Plaintiff stated that while she was working, she used to “go to stores and do all the things
she wanted to at home,” and that “she was very independent then.” (Id.) However, she
claims that her activity level has decreased since her alleged onset date. (Id.) Regardless,
Plaintiff told Dr. Boerger, “I have notebooks of everything I need to do and my
calendar.” (Id. at 682).
Dr. Boerger noted that Plaintiff’s “[s]peech and thought processes were
appropriate, relevant and coherent.” (Id. at 681). Further, he wrote that Plaintiff “was
alert and oriented to time, place and person,” but that she claims to “have some problems
with her memory.” (Id. at 682). Dr. Boerger stated that Plaintiff was aware of her health
and emotional difficulties. (Id.) Ultimately, Dr. Boerger diagnosed Plaintiff with
Anxiety Disorder (not otherwise specified) and Major Depressive Disorder, Single

17

Episode, Moderate. (Id.) He also assigned Plaintiff a Global Assessment of Functioning
(“GAF”) score of 53 (current). 8
Dr. Boerger provided the following “Summary & Conclusion”:
[Plaintiff] appears to have longstanding problems with anxiety which
appear to date back to childhood which involved a very dysfunctional
family life, placement in group homes and being a victim of abuse. There
also appear to be problems with chronic depression dating back to a period
of time around 2000-2001 when she experienced the deaths of 6 close
family members.
(Id. at 683). Further, Dr. Boerger opined that due to “the longstanding nature of
[Plaintiff’s] emotional difficulties along with the presence of ongoing situational
stressors, symptoms are likely to continue for the indefinite future.” (Id.)
Dr. Boerger’s evaluation concluded with a functional assessment which stated that
Plaintiff reports problems with forgetfulness in day-to-day activities and therefore she
keeps a calendar and notebooks to remind herself to complete daily tasks. (Id.) Plaintiff
was able to recall two of four objects after five minutes and could recall six digits
forward and three backward. (Id.) Further, Plaintiff reported problems with
concentration in the form of racing thoughts and doing multiple projects at once, and Dr.
Boerger observed that “[i]n performing Serial 7’s she used her fingers and made 6
subtraction errors.” (Id.)
8

A GAF score is used to report a clinician’s judgment as to a patient’s overall level of
psychological, social, and occupational functioning. DSM-IV-TR Classification Appendix,
available at: http://wps.prenhall.com/wps/media/objects/219/225111/CD_DSMIV.pdf. The
GAF scale ranges from 0 to 100, divided into ten-point increments, with a lower score indicating
greater symptom severity and difficulty functioning. Id. A GAF score between 50 and 60
reflects: “Moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic
attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends,
conflicts with peers or co-workers).” Id.
18

Dr. Boerger stated that Plaintiff “related [to him] in an appropriate manner.” (Id.)
Plaintiff “d[id] report some problems with buildup of anger and temper outbursts.” (Id.)
However, she also stated that “[s]he did not think she had difficulty relating to others in
work situations.” (Id.) Dr. Boerger opined that Plaintiff’s “longstanding problems with
anxiety and depression are likely to limit her ability to tolerate work pressures in the
work situation.” (Id. at 684).
b. Irma Johnston, Psy.D.
On May 10, 2013, State agency psychologist Irma Johnston, Psy.D., conducted an
initial review of the medical evidence and opined that Plaintiff has no limitation in terms
of: understanding or memory; ability to sustain an ordinary routine without special
supervision; ability to make simple work-related decisions; ability to ask simple
questions or request assistance; ability to get along with coworkers or peers without
distracting them or exhibiting behavioral extremes; ability to maintain socially
appropriate behavior and to adhere to basic standards of neatness and cleanliness; ability
to be aware of normal hazards and take appropriate precautions; and ability to set realistic
goals or make plans independently of others. (Doc. 7, PageID ## 148-50).
Dr. Johnston further opined that Plaintiff is not significantly limited in her ability
to: carry out both very short and simple instructions, as well as detailed instructions;
work in coordination with or in proximity to others without being distracted by them;
interact appropriately with the general public; accept instructions and respond
appropriately to criticism from supervisors; and travel to unfamiliar places or use public
transportation. (Id. at 149-50).
19

Finally, Dr. Johnston opined that Plaintiff is only moderately limited in her ability
to: maintain attention and concentration for extended periods; perform activities within a
schedule, maintain regular attendance and be punctual within customary tolerance;
complete a normal workday and workweek without interruptions from psychologically
based symptoms and to perform at a consistent pace without an unreasonable number and
length of rest periods; and respond appropriately to changes in the work setting. (Id.)
Dr. Johnston summarized that Plaintiff is “limited to 1-2 step tasks … [and] would
do best in positions without strict production standards or fast pace.” (Id. at 149).
Additionally, she stated that Plaintiff is “capable of interactions with the general public,
supervisors and coworkers.” (Id.) Finally, Dr. Johnston indicated that Plaintiff “would
work best in a static, low stress job environment, with few changes.” (Id. at 150).
c. Todd Finnerty, Psy.D.
On September 11, 2013, State agency psychologist Todd Finnerty, Psy.D.
reviewed the medical evidence on reconsideration. (Doc. 7, PageID ## 178-79). Dr.
Finnerty’s opinion differed slightly from Dr. Johnston’s, in that he found Plaintiff’s
impairments to be more limiting in certain areas. Specifically, Dr. Finnerty found that
Plaintiff was not significantly limited in her ability to: sustain an ordinary routine without
special supervision; make simple work-related decisions; ask simple questions or request
assistance; maintain socially appropriate behavior and to adhere to basic standards of
neatness and cleanliness; be aware of normal hazards and take appropriate precautions;
and set realistic goals or make plans independently of others. (Id.) Further, Dr. Finnerty
found that Plaintiff was moderately limited in her ability to: interact appropriately with
20

the general public; accept instructions and respond appropriately to criticism from
supervisors; and get along with coworkers or peers without distracting them or exhibiting
behavioral extremes. (Id.) Dr. Finnerty summarized that Plaintiff can “sustain a static set
of tasks without fast pace[,] … interact with others superficially[, and] … adapt to a static
setting without frequent changes.” (Id.)
B. The Administrative Hearing
1. Plaintiff’s Testimony
Plaintiff testified that she has a driver’s license, but is unable to drive because of
pain in her left arm and also due to her heart medication. (Doc. 7, PageID # 101).
Plaintiff testified that she held several jobs over the years until she injured her upper left
extremity. (Id. at 102-107). As a result of the injuries, she had surgery, shots, physical
therapy, and uses a TENS unit. (Id.) However, she testified that she is “not getting any
better at all.” (Id. at 108).
Plaintiff testified that she experiences symptoms of pain all over her upper body,
including the shoulders and neck, and that she was prescribed pain medication, including
Neurontin and Meloxicam. (Id. at 107-12). (Id.) She claims that she is in constant pain,
which she rates at a four out of ten on good days, and an eight out of ten on bad days.
(Id. at 109, 115). Plaintiff estimated that she could lift five pounds, but stated that she
could not lift a gallon of milk. (Id.) She has trouble handling zippers and buttoning
blouses or shirts with either hand. (Id. at 110). Plaintiff also stated that she has limited
range of motion in her neck. (Id. at 117). Further, she stated that she cannot get out of
bed three or four days a week. (Id. at 116).
21

Additionally, Plaintiff testified that she has heart problems. (Id. at 136-137). She
stated that, as a result of too much blood flow in her legs, she has low blood pressure and
a rise in heart rate, which causes fatigue, fluttering, and chest pains. (Id. at 137). She
was also prescribed medication for this condition, which she claims is not working. (Id.)
Plaintiff is also on medication for her asthma, and states that she has asthma attacks once
in a while, particularly in the summer. (Id. at 119).
Plaintiff also testified that she suffers from anxiety and depression. (Id.) She was
prescribed Zoloft and Protriptyline; however, the medications cause fatigue. (Id. at 111).
With regard to her daily activities, Plaintiff testified that she wakes up in the
morning, has coffee, and sits at the kitchen table for approximately two hours before she
is motivated to do anything. (Id. at 113). Once she gets up, she typically does dishes,
prepares simple meals, and does laundry, although she has trouble bending down to get
clothes out of the dryer. (Id.) Further, Plaintiff stated that her only hobby is playing
computer games, and that she is able to sit at the computer for an hour at a time before
having to get up to stretch her back. (Id.)
2. The VE’s Testimony
Vocational expert Karen L. Schneider testified at the hearing, responding to
several hypotheticals posed by both the ALJ and Plaintiff’s counsel. (Doc. 7, PageID ##
119-36). The most restrictive of the ALJ’s hypotheticals involved an individual limited
to the following: light, unskilled work that is simple and routine; lifting and carrying no
more than ten to fifteen pounds; standing or walking two hours during the day but for less
than one hour without interruption; sitting six hours during the day but no more than four
22

hours at a time; need to alternate positions between sitting and standing at intervals of
two hours; cannot balance, climb, crouch, kneel, or crawl; can only turn the neck to either
side to about twenty degrees; fingering only occasionally; and needs to avoid dust, fumes,
or environmental contaminants. (Id. at 127-28). The VE testified that there were jobs in
the national and regional economy that could be performed by an individual restricted to
the ALJ’s hypothetical. (Id. at 128).
In response to Plaintiff’s counsel’s hypothetical, the VE testified that an individual
who had no use of her non-dominant arm, and could use her dominant hand for
occasional fingering and handling only, would not be able to perform any of the light or
sedentary jobs available in the regional or national economy. (Id. at 129-31). The VE
also responded that an individual who, due to chronic pain, would be off-task as much as
one-third of the workday would not be able to sustain competitive employment at any
exertional level. (Id. at 136).
C. The ALJ’s Decision
The ALJ provided a complete recitation of the medical evidence, including a
detailed summary of the findings from Plaintiff’s treating, examining, and non-examining
sources. (Doc. 7, PageID ## 78-87). Ultimately, the ALJ gave significant weight to the
opinions of the DDD reviewing physicians, Drs. Mikalov and Teague, in terms of
Plaintiff’s physical impairments. (Id. at 84). With regard to Plaintiff’s mental
impairments, the ALJ gave partial weight to Drs. Boerger and Finnerty, and great weight
to Dr. Johnston. (Id. at 87). All other sources were given little weight, both in terms of
physical and mental impairments. (Id. at 85-87).
23

IV. ANALYSIS
A. The ALJ Did Not Err in Weighing Medical Source Opinions
First, Plaintiff argues that the ALJ failed to adhere to the Social Security
Administration’s (“SSA”) regulatory requirements for weighing medical opinions and
therefore erroneously concluded that Plaintiff’s treating sources’ opinions were not due
controlling weight. (Doc. 8 at 10-17). Specifically, Plaintiff alleges that the ALJ
“applied rigorous scrutiny to the treating source opinions while applying none to the nonexamining State agency opinions,” in contravention of the SSA’s rules and regulations.
(Id.) Plaintiff claims that, as a result, the ALJ erroneously concluded that the opinions of
Plaintiff’s treating physicians were “speculative” and “unsupported,” while giving
significant weight to the opinions of non-examining physicians, whose reviews of the
record pre-dated significant events in Plaintiff’s medical history. (Id.) In response, the
Commissioner states that the ALJ’s finding that Plaintiff’s treating sources were entitled
little weight was based upon a sound and thorough analysis of the record, and was
appropriately articulated in her decision. (Doc. 11 at 4-5). This Court agrees.
“Regardless of its source, [the ALJ must] evaluate every medical opinion [she]
receive[s],” in order to determine whether a claimant is disabled. 20 C.F.R. § 1527(b),
(c). However, “not all medical sources need be treated equally.” Brooks v. Comm’r of
Soc. Sec., 531 F. App’x 636, 642 (6th Cir. 2013) (internal quotation marks and citations
omitted). The Regulations require that a treating doctor’s opinion be given “controlling
weight” as long as it is “well-supported” by objective evidence and is “not inconsistent
with the other substantial evidence.” 20 C.F.R. § 1527(d)(2). Greater weight is generally
24

given to the opinions of treating sources because treating physicians can provide a
detailed, longitudinal picture of a claimant’s medical impairments and may bring a
unique perspective to the medical evidence that cannot be obtained from reports of
individual examinations (e.g., consultative examinations) or from objective findings
alone. Id. Accordingly, less weight is given to non-treating and, certainly, nonexamining sources. Id.
However, ‘[i]t is an error to give an opinion controlling weight simply because it
is the opinion of a treating source if it is not well-supported by medically acceptable
clinical and laboratory diagnostic techniques or if it is inconsistent with the other
substantial evidence in the case record.’” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399,
406 (6th Cir. 2009) (quoting Soc. Sec. Rul. 96-2p, 1996 WL 374188, at *2 (July 2,
1996)). “If the opinion of a treating source is not accorded controlling weight, an 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, the
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.” Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004) (discussing
20 C.F.R. § 1527(d)(2)).
If, upon consideration of the § 1527 factors, the ALJ rejects the opinion of a
treating physician, she must articulate “good reasons” for doing so. Wilson, 378 F.3d at
544. “The requirement of reason-giving exists, in part, to let claimants understand the
disposition of their cases … [but] also ensures that the ALJ applies the treating physician
25

rule and permits meaningful review of the ALJ's application of the rule.” Id. at 544-45
(internal quotation marks and citations omitted). In particular, the ALJ’s decision must
articulate the “specific reasons for the weight given to the treating source's medical
opinion, supported by the evidence in the case record, and 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.” Soc. Sec. Rul. 96-2p, 1996
WL 374188, at *5 (July 2, 1996). Notably, the ALJ’s duty to properly articulate ‘good
reasons’ is so significant that, “failure to follow the procedural requirement of identifying
the reasons for discounting the opinions and for explaining precisely how those reasons
affected the weight accorded the opinions denotes a lack of substantial evidence, even
where the conclusion of the ALJ may be justified based upon the record.” Rogers v.
Comm’r of Soc. Sec., 486 F.3d 234, 243 (6th Cir. 2007).
Here, the ALJ found that the opinions of Drs. Duritsch and McCarthy were not
entitled to controlling or deferential weight under the Regulations. (Doc. 7, PageID #
86). 9 The ALJ stated that “[a]lthough Dr. Duritsch is a rehabilitation physician and Dr.
McCarthy has been [Plaintiff’s] primary care physician for several years, [she] gives little
weight to their assessments as they are speculative, unsupported, and conclusory.” (Id.)
Specifically, having previously detailed the treating source opinions, the ALJ explained

9

The ALJ stated that her reasoning was equally applicable to the opinion of Brenda Wills,
C.N.P., even though Ms. Wills is not an “acceptable medical source” pursuant to 20 C.F.R. §§
404.1513 and 416.913, as Ms. Wills’ opinion was entitled to consideration under the criteria set
forth in SSR 06-03p, which parallels the criteria for weighing medical source opinions. (Doc. 7,
PageID # 86).
26

in sum that the “findings documented in the treating notes … generally included only
limited range of motion, tenderness, and some decreased sensations,” and that Plaintiff’s
“[g]ait was relatively normal, and strength in the extremities was almost consistently
normal.” (Id.) Thus, the ALJ found that the treating sources’ opinions, essentially
limiting Plaintiff to sedentary work, “seem[ed] based on subjective complaints,” as they
were “unsupported by the preponderance of the observable clinical signs and objective
findings of the record.” (Id.)
In support of her determination that the treating source opinions were not entitled
to controlling or deferential weight, the ALJ provided a detailed and comprehensive
recitation of Plaintiff’s medical history. (Id. at 78-86). In doing so, the ALJ drew
attention to inconsistencies in the examination notes of Plaintiff’s treating and examining
physicians. Significantly, the ALJ’s decision shows that the opinions are not only
inconsistent with each other, but are also internally inconsistent. (Id. at 86-87). In other
words, the treating physicians’ own notes over the years undermine the level of severity
that the physicians ultimately expressed when completing Plaintiff’s disability
assessment forms. The ALJ found that the treatment notes indicate historically that
Plaintiff responded well to surgery and, most significantly, that Plaintiff herself told her
physicians repeatedly that she was improving and experiencing less pain. Accordingly,
the ALJ determined that Plaintiff’s treating physicians’ opinions were not due controlling
or deferential weight, as they were not well-supported and were inconsistent with other
substantial evidence.

27

Further, in accordance with the SSA’s rules and regulations, upon determining that
the treating sources’ opinions were not entitled to controlling weight, the ALJ
appropriately considered the applicable factors to determine what weight, if any, those
opinions were due. (Id. at 85-87). This analysis was thoroughly articulated in the ALJ’s
decision. (Id. at 78-87). Accordingly, the ALJ adhered to the SSA’s regulatory
requirements for determining the weight to be given to treating source opinions, and for
explaining this determination in her decision.
Additionally, Plaintiff’s argument that the ALJ applied rigorous scrutiny to the
treating source opinions while applying no scrutiny to the non-examining source opinions
is not well-taken. The ALJ thoroughly considered all of the record evidence and found
that the treating source opinions were neither well-supported, nor consistent with other
substantial evidence. On the other hand, the ALJ found that the non-examining sources
were due greater weight, “as their assessments [we]re generally supported by objective
signs and findings in the preponderance of the record.” (Id. at 84). In short, the ALJ’s
determination was based upon a thorough review of the medical evidence, and was not
tainted by an improper application of scrutiny.
It also bears noting that Plaintiff largely overstates the severity that her treating
physicians expressed in their opinions. Indeed, while Plaintiff alleges that her treating
physicians opined that she is ‘disabled,’ a careful review of the record, as summarized
supra, reveals that many of those findings were very limited in duration and pre-dated the
alleged onset date. Plaintiff’s arguments also fail to recognize the inconsistencies in the
opinions when read chronologically. Additionally, the fact that the record reflects
28

evidence of severe impairments does not necessitate a finding of disability. Plaintiff’s
medical evidence supports finding certain limitations, to which the ALJ was responsive.
However, having engaged in a thorough and appropriate analysis, the ALJ determined
that the evidence does not support the severity Plaintiff alleges, and this Court finds no
basis to disturb that finding.
Plaintiff also argues that the ALJ erred by deferring to non-examining source
opinions “because there is no indication in the record that the non-examining State
agency reviewers had access to the entire medical record and a chance to observe
[Plaintiff] during the administrative hearing.” (Doc. 8 at 16). However, this argument
misrepresents the relevant case law. Specifically, the ALJ may still rely on nonexamining source opinions even if they pre-date significant medical development, as long
as, in doing so, she indicates that she first considered the subsequent medical evidence.
Brooks, 531 F. App’x at 642 (“[w]hen an ALJ relies on a non-examining source who ‘did
not have the opportunity to review’ later submitted medical evidence, … we generally
require ‘some indication that the ALJ at least considered these [new] facts before giving
greater weight to an opinion that is not based on a review of a complete case record’”
(quoting Blakley, 581 F.3d at 409)).
Here, the ALJ thoroughly considered the entire record, including notes and
opinions developed after the non-examining sources’ reviews. Indeed, the ALJ
specifically states that the non-examining source opinions were due greater weight
because they were, “generally supported by objective signs and findings in the
preponderance of the record, including the records submitted after their assessments.”
29

(Doc. 7, PageID # 84) (emphasis added). And, notably, the ALJ incorporated limitations
in Plaintiff’s RFC based upon subsequent opinions, thus evidencing that she not only
considered those subsequent opinions, but was responsive to their content.
Accordingly, this Court finds no error in the ALJ’s consideration of the medical
evidence and concludes that the ALJ engaged in an appropriate analysis, in line with the
SSA’s rules and regulations.
B. The ALJ Committed No Error in Evaluating Plaintiff’s Credibility, Pain,
and Symptoms
Next, Plaintiff argues that the ALJ’s erred in evaluating her credibility, pain, and
symptoms by relying on improper factors. (Doc. 8 at 17-19).
In making a determination of disability, “an ALJ is not required to accept a
claimant’s subjective complaints and may properly consider [the claimant’s] credibility.”
Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003). 10 The Court must
“accord the ALJ’s determination of credibility great weight and deference particularly
since the ALJ has the opportunity … of observing [the claimant’s] demeanor while
testifying.” Id. However, to appropriately evaluate the credibility of the claimant’s
statements, the ALJ “must consider the entire case record, including the objective
medical evidence, the individual’s own statements about symptoms, statements and other
information provided by treating or examining physicians or psychologists and other
persons about the symptoms and how they affect the individual, and any other relevant

10

Subjective complaints may “support a claim for disability, if there is also objective medical
evidence of an underlying medical condition in the record.” Jones, 336 F.3d at 475-76.
30

evidence in the case record.” Soc. Sec. Rul. 96-7p, 1996 WL 374186, at *1 (July 2,
1996).
The ALJ’s credibility determination “must contain specific reasons for the finding
on credibility, supported by the evidence in the case record, and must be sufficiently
specific to make clear to the individual and to any subsequent reviewers the weight …
[given] to the individual's statements and the reasons for that weight.” Id., at *2. Indeed,
“‘[i]t is more than merely ‘helpful’ for the ALJ to articulate reasons ... for crediting or
rejecting particular sources of evidence. It is absolutely essential for meaningful
appellate review.’” Hurst v. Sec’y of Health & Human Servs., 753 F.2d 517, 519 (6th
Cir. 1985) (quoting Zblewski v. Schweiker, 732 F.2d 75, 78 (7th Cir. 1984)).
“One strong indication of the credibility of an individual's statements is their
consistency, both internally and with other information in the case record.” SSR 96-7p,
at *5. “Discounting credibility to a certain degree is appropriate where an ALJ finds
contradictions among medical reports, claimant’s testimony, and other evidence.”
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997) (citations omitted).
However, “[a]n individual's statements about the intensity and persistence of pain or
other symptoms or about the effect the symptoms have on his or her ability to work may
not be disregarded solely because they are not substantiated by objective medical
evidence.” SSR 96-7p, at *1.
Here, Plaintiff asserts that the ALJ erred by relying on Plaintiff’s failure to pursue
mental health treatment, as a basis for doubting her credibility. (Doc. 8 at 17-18).
Indeed, “it is a questionable practice to chastise one with a mental impairment for the
31

exercise of poor judgment in seeking rehabilitation.” Blankenship v. Bowen, 874 F.2d
1116, 1124 (6th Cir. 1989). However, the ALJ did not rely solely on Plaintiff’s lack of
mental health treatment as a basis to discredit her allegations. Rather, the ALJ began by
citing to specific treatment notes indicating that Plaintiff’s complaints regarding her
mental health were inconsistent. (Doc. 7, PageID ## 83-84). The ALJ stated that
Plaintiff’s “treating and examining physicians documented relatively normal mental
status examinations on several occasions throughout the record.” (Id. at 83-84). In other
words, even without treatment or regular compliance with her prescribed medication,
Plaintiff’s mood and affect were often normal. The ALJ’s comment that Plaintiff’s
“limited mental health treatment casts doubt on [her] allegations about the severity of the
symptoms she experienced,” was not a final or determinative factor in her credibility
assessment, but rather, further evidence of inconsistency. (Id.)
Additionally, Plaintiff alleges that her “ability to perform [] basic daily activities is
not substantial evidence that her symptoms are not disabling.” (Doc. 8 at 17). Plaintiff is
accurate in stating that minimal daily functions (e.g., driving, reading, cleaning, watching
television, etc.) are not comparable to typical work activities. See, e.g., Rogers, 486 F.3d
at 248-49. However, daily activities, while not dispositive, are a proper consideration
and may show that a claimant’s symptoms are not as limiting as alleged. 20 C.F.R. §§
404.1529(c)(3)(i), 416.929(c)(2)(i); see Blacha v. Sec’y of Health & Human Servs., 927
F.2d 228, 231 (6th Cir. 1990) (an ALJ may “consider household and social activities
engaged in by the claimant in evaluating a claimant’s assertions of pain or ailments”).

32

In the instant case, the ALJ did not discredit Plaintiff’s allegations merely because
Plaintiff engaged in minimal activities of daily living. Rather, Plaintiff’s statements
regarding her daily activities directly contradicted and significantly undermined the
medical opinions on which she relied to show the severity of her impairments. For
example, at the administrative hearing, Plaintiff alleged that she is “unable to perform
even sedentary work full-time.” (Doc. 7, PageID ## 99-100). In support of this
assertion, Plaintiff relied on the opinion of treating source, Brenda Wills, C.N.P., who
opined that Plaintiff was only able to sit for less than one hour at a time without
interruption, and for no more than two hours total in one day. (Id. at 99-100, 1049).
However, shortly thereafter, Plaintiff actually testified that she typically wakes up in the
morning and “sit[s] at the kitchen table for a couple of hours.” (Id. at 113) (emphasis
added). Further, she testified that after sitting for a couple of hours to “get [her]self
motivated,” she begins doing dishes, laundry, cooking simple meals for the family, and
playing computer games. (Id. at 113-14). Additionally, with regard to playing on the
computer – which Plaintiff referred to as her only hobby – she stated that she is able to sit
at the computer for an hour at a time before she has to get up and stretch her back, with
no indication that she is physically limited to two hours per day. (Id. at 114-15).
In sum, the ALJ did not rely on Plaintiff’s statements regarding her daily activities
as substantial evidence that Plaintiff is not disabled. Instead, the ALJ considered
Plaintiff’s admitted daily activities in determining the credibility of her allegations of
severity and her physicians’ opinions regarding physical limitations. Such consideration
of daily activities for purposes of evaluating symptoms is appropriate and, accordingly,
33

the ALJ did not err in her assessment. See 20 C.F.R. §§ 404.1529(c)(3)(i) and
416.929(c)(2)(i).
C. The Commissioner Did Not Fail to Carry Her Step Five Burden
Finally, Plaintiff argues that the Commissioner failed to carry her burden at Step
Five of the sequential evaluation. (Doc. 8 at 19-20). Specifically, Plaintiff argues that
the ALJ’s determination that Plaintiff was capable of performing jobs existing in the
national and regional economy was erroneous because the ALJ failed to account for the
limitations imposed by Plaintiff’s mental impairments, as set forth in Dr. Finnerty’s
evaluation. (Id.) Accordingly, Plaintiff alleges that the ALJ’s Step Five determination is
not supported by substantial evidence. (Id. at 20).
The SSA uses a five-step sequential evaluation process in order to determine
whether an individual is disabled. 20 C.F.R. § 404.1520(a). The claimant bears the
burden of proof through the first four steps. Jones, 336 F.3d at 474. However, at step
five, the burden shifts to the Commissioner to show that, given the claimant’s RFC, age,
education, and work experience, she is capable of making an adjustment to other work
that exists in significant numbers in the national or regional economy. Id.; 20 C.F.R. §§
404.1520(a)(4)(v) and 404.1560(c).
To meet the burden at step five, “the Commissioner must make a finding
supported by substantial evidence that [the claimant] has the vocational qualifications to
perform specific jobs.” Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 238 (6th Cir.
2002) (internal quotation marks and citations omitted). “Substantial evidence may be
produced through reliance on the testimony of a vocational expert in response to a
34

‘hypothetical’ question, but only ‘if the question accurately portrays [Plaintiff’s]
individual physical and mental impairments.’” Griffeth v. Comm’r of Soc. Sec., 217 F.
App’x 425, 429 (6th Cir. 2007) (quoting Varley v. Sec’y of Health & Human Servs., 820
F.2d 777, 779 (6th Cir. 1987)).
However, “[t]he rule that a hypothetical question must incorporate all of the
claimant’s physical and mental limitations does not divest the ALJ of his or her
obligation to assess credibility and determine the facts.” Griffeth, 217 F. App’x at 429
(internal quotation marks and citations omitted). “[T]he ALJ can present a hypothetical
to the VE on the basis of [the ALJ’s] own assessment if [s]he reasonably deems the
claimant’s testimony to be inaccurate.” Jones, 336 F.3d at 476. Indeed, “it [is] entirely
proper for the ALJ to present the [VE] with [a] hypothetical [s]he constructed, which
[does] not reflect [the claimant’s] complaints … [if] the hypothetical [is] supported by
substantial evidence in the record.” Id. at 477-78. Regardless of whether “substantial
evidence, or even a preponderance of the evidence, supports the claimant’s position,”
“the Commissioner’s decision cannot be overturned … so long as substantial evidence
also supports the conclusion reached by the ALJ.” Id. at 477. Thus, on review, the Court
must determine only whether the ALJ’s determination was reasonable and supported by
substantial evidence. Id. at 476.
Here, the ALJ gave partial weight to Dr. Finnerty’s opinion, which indicated that
Plaintiff is capable of sustaining a static set of tasks involving no fast pace and no
frequent changes. (Doc. 7, PageID # 87). However, the ALJ found that Dr. Finnerty’s
opinion that Plaintiff was moderately restricted in social functioning and limited to only
35

superficial interactions with others, was not credible. (Id.) In support of her conclusion,
the ALJ stated that “[t]he record does not reveal significant problems with social
functioning,” and that “[Plaintiff] admitted to the consultative examiner that she did not
think that she had difficulty relating to others in work situations, and the consultative
examiner indicated that the claimant related in an appropriate manner.” (Id.)
Moreover, the ALJ had previously noted numerous occasions in which Plaintiff’s
physicians, as well as consultative examiner Alan R. Boerger, Ph.D., and reviewing
psychologist Irma Johnston, Psy.D., noted that Plaintiff had no issues with social
interaction. (Id. at 77-87). Of even greater significance, however, is the thorough
explanation that Plaintiff herself provided regarding her social activities, which the ALJ
took note of in her decision. (Id. at 79). Specifically, in addition to telling Dr. Boerger
that she did not have trouble relating to others, Plaintiff completed the SSA’s Function
Report and wrote that she has friends who take her out, that she socializes with others on
a daily basis, and that she has no problems getting along with family, friends, and
neighbors. (Id. at 315-17). Indeed, in marking the checkboxes correlating to the
limitations imposed by her alleged impairment, the only boxes that Plaintiff did not check
were “Talking,” “Hearing,” and “Getting Along With Others.” (Id. at 317).
In short, the ALJ’s reasons for partially discrediting Dr. Finnerty’s opinion, and
her determination that Plaintiff has no significant difficulty interacting with others,
including the general public, supervisors, and coworkers, is both reasonable and
supported by substantial evidence in the record. (Id. at 87). Accordingly, the ALJ was
entitled to modify her hypothetical so as to reflect her assessment of Plaintiff’s credible
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impairments, and the VE’s testimony in response to the ALJ’s hypotheticals serves as
substantial evidence. Therefore, the Commissioner met her Step Five burden.
V. CONCLUSION
Based upon the foregoing, this Court believes that the ALJ did not err in her
determination and that substantial evidence supports the ALJ’s findings at each step of
the sequential evaluation, including her ultimate decision that Plaintiff was not disabled
under the Act.
IT IS THEREFORE RECOMMENDED THAT:
1. The Commissioner’s non-disability finding be AFFIRMED; and
2. The case be terminated on the docket of this Court.
Date: 2/1/2016

s/ Sharon L. Ovington
Sharon L. Ovington
Chief United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within FOURTEEN days after
being served with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d),
this period is extended to SEVENTEEN days if this Report is being served by one of the
methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F). Such objections
shall specify the portions of the Report objected to and shall be accompanied by a
memorandum of law in support of the objections. If the Report and Recommendation is
based in whole or in part upon matters occurring of record at an oral hearing, the
objecting party shall promptly arrange for the transcription of the record, or such portions
of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party’s
objections within FOURTEEN days after being served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947,
949-50 (6th Cir. 1981).

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