Steele v. Commissioner of Social Security
DECISION AND ENTRY - IT IS THEREFORE ORDERED THAT: 1. The ALJs non-disability decision is affirmed; and 2. The case is terminated on the Courts docket. Signed by Magistrate Judge Sharon L. Ovington on 3/29/2017. (srb)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
BOBBI J. STEELE,
NANCY A. BERRYHILL,
Commissioner Of The Social
: Case No. 3:15-cv-00342
: Magistrate Judge Sharon L. Ovington
: (by full consent of the parties)
DECISION AND ENTRY
In 2003, Plaintiff Bobbi J. Steele suffered musculoskeletal injuries when she lifted
luggage weighing seventy pounds while working as an airport security screener. She has
not worked since that time. Her asserted disabilities include pain in her lower back and
shoulder, fibromyalgia, osteoarthritis, irritable bowel syndrome, urinary incontinence, and
bilateral carpal tunnel syndrome.
Plaintiff presently returns to this Court challenging the Social Security
administration’s most recent denial (its third denial) of her 2005 applications for Disability
Insurance Benefits and Supplemental Security Income. The particular determination
Plaintiff challenges—issued by Administrative Law Judge (ALJ) Amelia G. Lombardo—
concluded that she was not under a “disability” as defined by social security law. TR 787803. Plaintiff insists that ALJ Lombardo failed to correctly evaluate the opinions provided
by her medical sources, and she asserts that her treating and examining medical sources’
opinions establish she is under a benefits-qualifying disability. She also contends that ALJ
Lombardo failed to properly evaluate her credibility. Plaintiff seeks an order reversing the
ALJ’s decision and awarding benefits to her. And, she emphasizes, “After 10 years of
disability litigation, the record adequately establishes Plaintiff’s entitlement to benefits.” Id.
ALJ Lombardo observed, “This case has a long procedural history ….” Id. at 787.
Indeed it does. The evidence has been discussed in three decisions by ALJs (including two
by ALJ Lombardo) and in two decisions by this Court. Those discussions are incorporated
herein by reference, most notably the discussions of the medical records and opinions
provided by Dr. John Moore, Dr. Lila Gomaa, Dr. Pietro Seni, Dr. Edward Kinkopf, Dr. Eli
Perencevich, and Dr. Gary Hinzman. Id. at 16-22, 515-27, 530-563, 804-823; see also Doc.
#9, PageID #s 38-56.
The problems discussed by this Court in both its previous decisions concerned the
ALJs’ inadequate reasoning at step two of their sequential evaluations. Tr. 556-61, 819-23.
In the present case, Plaintiff’s contentions point to ALJ Lombardo’s reasoning at step four
of her sequential evaluation. Before discussing more about the ALJ’s sequential evaluation,
see infra, § III, more must be known about Plaintiff and her testimony before ALJ
As she has throughout her cases, Plaintiff asserts that she has been under a disability
starting on September 6, 2003. On that date and continuing through ALJ Lombardo’s most
recent decision, Plaintiff’s age placed her in the category of a "younger person" under social
security regulations. She has at least a high school education, and she can no longer
perform her past relevant work as an airport security screener.
The reasons for Plaintiff’s inability to work either as an airport security screener or in
other jobs were among the topics discussed in her most recent testimony (in December
2013) before ALJ Lombardo. This was the second time Plaintiff testified before ALJ
Lombardo, and the third time she testified before an ALJ.
Plaintiff testified that in 2003, she worked as a security screener at the Dayton
International Airport. She can no longer work because she has pain all over her body,
especially in her shoulder, back, feet, and hands. Id. at 974. She has difficulty sleeping
because she is a lot of pain. Doctors have mentioned to her that she has severe arthritis.
She has been prescribed Naproxen, Flexirel, Trazadone, Cymbalta, and Lidocaine patches.
The patches and Naproxen do not really help her pain. She noted, “Nothing really helps the
pain. Nothing really helps me sleep.” Id. at 976. At one point, a physician (Dr. Moore)
placed her on “serious” narcotic medications to treat her back pain. Plaintiff explained,
“The medicine wasn’t helping my pain, so I wanted to stop taking the medicine. And the
doctor wouldn’t stop, so I stopped on my own.” Id. at 991. Yet, withdrawal symptoms led
her to go the hospital. Id. Plaintiff also sees a chiropractor for treatment.
Plaintiff reported that she can walk about ten minutes at a time, stand about ten
minutes at a time, sit about thirty minutes at a time. Id. at 978. She has trouble using her
arms, hands, or fingers. Referring to her left shoulder, she explained, “The shoulder limits
me with the reaching and grabbing. And then my arm will go, the whole left arm will go
numb. And the grabbing is from carpal tunnel and just, I drop stuff all the time and can’t
keep repetitive use.” Id. She can lift a gallon of milk. She is right-handed. She cannot
reach overhead with her left arm due to shoulder pain. Id. at 988.
It hurts Plaintiff’s feet when she puts them on the floor. Id. at 986. She wears splints
at night on both her feet. Id. at 989. Her hands are very stiff. She explained, “It feels like a
rubber band, and then it stretches and it hurts to grab stuff.” Id. at 986. She has carpel
tunnel syndrome in both hands, causing her to drop things she picks up (like a plate). This
occurs throughout the day, every day. Id. at 990.
It takes her about an hour to wake up and get going in the morning. Id. at 986.
Plaintiff’s back pain feels like “burning, stabbing, tightness, stiffness, just pain.” Id. at 987.
She set her pain level at ten, on a scale of zero to ten (no pain to maximum possible pain).
Nothing she does provides relief from her back pain. She “just keeps going until exhaustion
takes … over.” Id.
Plaintiff also experiences about seven accidents per week from irritable bowel
syndrome. Id. at 989. She has daily urinary incontinence. She takes several medications—
Pepto Bismol, Tums, Imodium—for irritable bowel syndrome. These help sometimes. She
also testified, “Of course, I have severe acid reflux, that’s why I can’t hardly talk.” Id. at
979. She takes the “highest” (presumably the “strongest”) medication she can for severe
acid reflux. Id.
As to her activities, she sometimes cooks for her husband and daughter (then, nine
years old). Her husband usually loads and unloads the dishwasher. Her husband or older
daughters help her by doing the sweeping or mopping, the laundry, vacuuming. Plaintiff
does not have hobbies and does not do yard work. During a typical day, she tries to do what
she can. She tries to get up when her daughter does, but she succeeds only sometimes.
After her daughter catches the bus for school, Plaintiff sits in a chair, watches TV, or lies in
bed. She tries to walk, but she has trouble walking in the morning because of pain in her
feet, back, and hips. She goes to bed around 8:30 or 9:00 p.m., and tosses and turns due to
pain in her feet, hips, left shoulder, and lower back. Id. at 984-85. If she is lucky, she will
get one solid hour of sleep per night. She ends up napping for about fifteen minutes once a
day. Id. at 985.
The ALJ’s Decision
Plaintiff’s eligibility to receive Disability Insurance Benefit and Supplemental
Security hinged on whether she was under a “disability” as defined by social security law.
See 42 U.S.C. §§ 423(d)(1)(A)-(d)(2)(A), 1381a; see also Bowen v. City of New York, 476
U.S. 467, 470 (1986). To determine if she was under such a disability, ALJ Lombardo
evaluated the evidence under the Social Security Administration’s five-step evaluation
procedure. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).1 Moving through step one, the ALJ
found at steps two and three that Plaintiff’s impairments—including her severe impairments
of “mild lumbar degenerative disc disease and osteoarthritis; left shoulder impingement and
residuals of surgery; mild bursitis and degenerative joint disease of the left upper extremity;
mild degenerative disc disease of the bilateral ankles; and mild bursitis of the left hip—did
not automatically entitle her to benefits. (Doc. #8, PageID #s 790-92). At step 4, ALJ
The remaining citations to the Regulations will identify Disability Insurance Benefits Regulations
with full knowledge of the corresponding Supplement Security Income Regulations.
Lombardo found that the most Plaintiff could do despite her impairments—her residual
functional capacity, see Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 239 (6th Cir.
2002)—was light work2 tempered by the following limitations: “occasional stooping,
crouching, kneeling, and crawling; no overhead reaching (above shoulder level) with left
non-dominant upper extremity; and the ability to change position for one to two minutes
every 30 minutes.” AR at 792-93.
Given these abilities and limitations, the ALJ found (step four) that Plaintiff could
not perform her past relevant work. And, given these abilities and limits plus Plaintiff’s
younger age, her high-school education, and her work experience, the ALJ determined (step
five) that she could perform a significant number of jobs in the regional and national
economies. These doable jobs, according to the ALJ, included housekeeping cleaner,
folder, and ticket seller. Id. at 802. The ALJ’s step-five finding dictated that her final
determination that Plaintiff was not under a disability and not eligible for benefits. Id. at 7576.
Standard of Review
Judicial review of an ALJ’s decision proceeds along two lines: “whether the ALJ
applied the correct legal standards and whether the findings of the ALJ are supported by
substantial evidence.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see
Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 745-46 (6th Cir. 2007). Review for substantial
evidence is not driven by whether the Court agrees or disagrees with the ALJ’s factual
“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of
objects weighing up to 10 pounds....” 20 C.F.R. § 404.1567(b).
findings or by whether the administrative record contains evidence contrary to those findings.
Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007); see Her v. Comm’r of Soc.
Sec., 203 F.3d 388, 389-90 (6th Cir. 1999). Instead, the ALJ’s factual findings are upheld if
the substantial-evidence standard is met—that is, “if a ‘reasonable mind might accept the
relevant evidence as adequate to support a conclusion.’” Blakley, 581 F.3d at 407 (quoting
Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004). Substantial evidence
consists of “more than a scintilla of evidence but less than a preponderance ....” Rogers, 486
F.3d at 241.
The second line of judicial inquiry, resolving whether the ALJ applied the correct legal
criteria, may result in reversal even if the record contains substantial evidence supporting the
ALJ’s factual findings. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009);
see Bowen, 478 F.3d at 746. “(E)ven if supported by substantial evidence, ‘a decision of the
Commissioner will not be upheld where the SSA fails to follow its own regulations and where
that error prejudices a claimant on the merits or deprives the claimant of a substantial right.’”
Rabbers, 582 F.3d at 651 (quoting in part Bowen, 478 F.3d at 746 and citing Wilson v.
Comm’r of Soc. Sec., 378 F.3d 541, 546-47 (6th Cir. 2004)).
Treating and Examining Medical Sources’ Opinions
Plaintiff contends that the ALJ did not consider the opinions of her treating and
examining physicians—Dr. Moore, Dr. Gomaa, Dr. Seni, and Dr. Kinkopf—as required by,
or consistent with, the Commissioner’s Rules. (Doc. #9, PageID # 59).
Social security regulations require ALJs to give the opinion provided by a treating
physician controlling weight if it is “well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence
in [the claimant’s] case record.” 20 C.F.R. § 404.1527(c)(2); see also Gayheart v. Comm’r
of Soc. Sec., 710 F.3d 365, 375 (6th Cir. 2013). “Even if [a] treating physician’s opinion is
not given controlling weight, there remains a presumption, albeit a rebuttable one, that the
opinion…is entitled to great deference.” Hensley v. Astrue, 573 F.3d 263, 266 (6th Cir.
2009) (internal quotations and citations omitted). This rebuttable presumption requires
ALJs to continue weighing treating source opinions under certain factors: the length of the
treatment relationship, frequency of examination, specialization of the treating source,
supportability of the opinion, and consistency of the opinion with the record as a whole. 20
C.F.R. §§ 404.927(c)(1)-(6); see Bowen, 478 F.3d at 747.
The regulations also require ALJs to provide “good reasons” for the weight placed
upon a treating source’s opinions by stating “specific reasons for the weight placed on a
treating source’s medical opinions ….” Wilson v. Comm'r of Soc. Sec, 378 F.3d 541, 544
(6th Cir. 2004) (quoting Soc. Sec. R. 96-2p, 1996 WL 374188 at *5 (1996)). The ALJ’s
reasons must be “supported by the evidence in the case record ….” Id. The goals are to
assist the claimant in understanding the disposition of his or her case and to make clear to
any subsequent reviewer the weight given and the reasons for that weight. Id.
Beginning with Dr. Moore’s opinion, Plaintiff contends that the ALJ “simply does
not understand pain physicians,” and that Dr. Moore based his opinions on two years of
continuous care and Plaintiff’s “consistent complaints of pain and spasms verified by
physical examination.” (Doc. #9, PageID #59).
In February 2006, Dr. Moore reported that Plaintiff has chronic moderately severe
low back pain and weakness/atrophy. Id. at 178. He estimated that the most she could lift
was five to ten pounds. Given this and the other exertional limitations Dr. Moore identified,
he essentially indicated that Plaintiff could not work an eight-hour workday. Id. at 178-79.
The ALJ declined to place controlling weight on Dr. Moore’s opinion and instead placed
little weight his opinion because “the record contains no medical basis for his limitations.”
Id. at 798. As the ALJ noted, the record did not support Dr. Moore’s finding that Plaintiff’s
lumbar-spine impairments caused her to have even moderate functional limitations. Dr.
Moore repeatedly documented mild abnormalities and negative findings when he examined
Plaintiff. See id. at 181, 189, 193, 197-98, 204. Dr. Moore also suggested that he had also
not ruled out the possibility of “malingering,” id. at 183, even though it appears that he
accepted Plaintiff’s reports about her level of pain. Dr. Moore provided for several reasons
for requesting a test known as “Selective Tissue Conductance.” Id. at 183, 206. And, he
noted (in part), “This test also roots out malingers.” Id. Although this does not mean that
Plaintiff actually was malingering, Dr. Moore’s desire to rule out malingering is not fully
consistent with his decision to accept Plaintiff’s subjective statements. Dr. Moore also
noted in December 2005, “MRI doesn’t show significant pathology, other than some mild
facet arthropathy….” Id. at 182. Such findings provide reasonable support for the ALJ’s
view of the record concerning Dr. Moore’s opinions. Cf. Smith v. Comm’r of Soc. Sec., 482
F.3d 873, 877 (6th Cir. 2007) (ALJ’s decision within his discretion by rejecting treating
source opinions as inconsistent with other evidence in the record); Jones v. Comm’r of Soc.
Sec., 336 F.3d 469, 477 (6th Cir. 2003) (“There was no objective medical evidence
supporting Dr. Kriauciunias’s assessment that Ms. Jones was limited in her ability to
maintain regular attendance ….”); Tyra v. Sec’y of HHS, 896 F.2d 1024, 1030 (6th Cir.
1990) (“Though claimant’s physicians consistently reported Tyra’s subjective complaints of
pain, he had no underlying neurological abnormalities, atrophy or proportionate loss of
sensory and reflex reactions.”).
In addition, as the ALJ noted, Plaintiff stopped seeing Dr. Moore shortly after he
completed his February 2006 assessment; this suggests a somewhat shorter, or curtailed,
treating relationship. (Tr. 177-183, 790-791). The ALJ can reasonably give less weight to
an assessment based on a shorter or curtailed treatment relationship. See 20 C.F.R. §
404.1527(c)(2)(i) (first factors for weighing medical opinions are “length of the treatment
relationship and the frequency of examination”).
Plaintiff next contends that the ALJ improperly cherry picked parts of Dr. Gomaa’s
opinions and reached unwarranted conclusions, particularly about her need for breaks during
Dr. Gomaa’s opinion provided a written report in which she opined that Plaintiff
would not be able to return to her former employment. Dr. Gomaa placed a list of
restrictions on Plaintiff that included no lifting over twenty pounds, no repetitive lifting,
frequent changes in postural activities as needed, and no overhead work. (Tr. 409). Dr.
Gomaa also indicated her opinions about Plaintiff’s restrictions by checking various lines on
a work-capacity-evaluation form. Id. at 410. Doing so, Dr. Gomaa opined that Plaintiff
needed fifteen-minute breaks every two hours during the workday. This need for such
frequent breaks would preclude full-time employment. See id. at 151-53.
The ALJ declined to place controlling weight on Dr. Gomaa’s opinions but instead
placed some weight on her opinion that Plaintiff could lift and carry no more than twenty
pounds. (Tr. 406-410, 799-800). The ALJ viewed this lifting limitation as “consistent with
the minimal objective findings and account for the claimant’s history of left shoulder
surgeries.” Id. at 799. The ALJ reasonably viewed the objective findings in the record as
minimal. Dr. Gomaa’s examination, of Plaintiff showed only intact cranial nerves, no use of
an ambulatory device, negative straight leg raise, normal joints, normal sensation, normal
motor functioning and normal deep tendon reflexes. Id. at 406-410. While the ALJ
acknowledged that Plaintiff’s gait was slow and stiff, she had reduced lumbar range of
motion, and some muscle spasm, it was also documented that her MRIs showed only mild
abnormalities and no significant degenerative disease. Id. at 406-410, 799-800. Moreover,
Dr. Gomaa indicated that Plaintiff responded well to medications and that she reported
experiencing “good” pain relief. Id. at 408, 800. She also experienced an increase in her
daily activities after receiving treatment from Dr. Gomaa. Id. at 408. This reasonably
suggests Dr. Gomaa’s treatment was effective. Id. at 406-410; cf. Berry v. Comm’r of Soc.
Sec., 289 F. App’x 54, 56 (6th Cir. 2008) (“Berry’s ability to live independently and
perform regular household activities belies her claim that she is totally disabled.”).
Moreover, Dr. Gomaa thought that Plaintiff had not yet reached maximum medical
improvement, an opinion that implies Dr. Gomaa expected Plaintiff to be able to improve
and do more with continued treatment. (Tr. 410, 800); see Eddy v. Comm’r of Soc. Sec, 506
F. App’x 508, 509 (6th Cir. 2012) (ALJ reasonably gave little weight to medical source
opinion because records show that treatment had stabilized or improved a claimant’s
The ALJ declined to credit Dr. Gomaa’s opinion that Plaintiff needed fifteen-minute
breaks every two hours. The ALJ found this opinion speculative and unsupported by
objective medical evidence. Substantial evidence supports these reasons. Dr. Gomaa
reported that Plaintiff’s lumbar MRI in 2006 “demonstrated no facal [sic] disc pathology or
significant degenerative disc disease”; and her lumbar MRI in 2005 showed, “At least mild
facet arthropathy with no significant central or foraminal encroachment seen. No serve root
compression.” Id. at 497. In addition, there are unexplained differences between the
restrictions Dr. Gomaa listed in her written report and the more severe restrictions she
identified in the one-page, line-checked work-capacity-evaluation form. See id. at 409-10.
Dr. Gomaa, moreover, did not explain why she thought Plaintiff needed fifteen-minute
breaks every two hours. See id. at 406-410. This omission was an appropriate reason to
discount Dr. Gomaa’s opinion. See Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001)
(ALJ “is not bound by conclusory statements of doctors, particularly where they are
unsupported by detailed objective criteria and documentation.”)
Plaintiff, turning to Dr. Seni’s opinions, argues that the reasons are weak and that the
ALJ failed to recognize that Dr. Seni’s opinions were supported by an underlying theory
(seropositive arthrosis). (Doc. #9, PageID # 61). Yet, even assuming in Plaintiff’s favor
that Dr. Seni’s opinions were supported by this diagnosis/theory, substantial evidence
supports that ALJ’s evaluation of Dr. Seni’s opinions. See Her, 203 F.3d at, 389-90
(“Even if the evidence could also support another conclusion, the decision of the
Administrative Law Judge must stand if the evidence could reasonably support the
The ALJ declined to credit one-time examining physician Dr. Seni’s opinions that
Plaintiff was limited to sedentary work that involved minimal bending and lifting no more
than twenty-five to thirty pounds. Id. at 799; see id., 958-67. The ALJ correctly recognized
that Dr. Seni was not a treating physician but was a one-time examining physician. The
ALJ also correctly applied, in Plaintiff’s favor, the specialization factor by recognizing that
Dr. Seni was an orthopedist “with knowledge of spine conditions.” Id. at 799. The ALJ
then considered this specialization but also considered whether Dr. Seni’s opinions were
supported by objective signs and findings in the record. This constituted a weighing of
factors—specialization versus lack of treating relationship, lack of objective support, and
lack of consistency—as required by the regulations. See 20 C.F.R. §§ 404.1527(c)(2)-(5).
The ALJ also noted that there was an internal inconsistency between Dr. Seni’s assessment
that Plaintiff could perform only sedentary work but could also lift twenty-five to thirty
pounds. Although this was a reasonable basis for discounting Dr. Seni’s opinion under the
consistency factor, it also revealed Dr. Seni’s misunderstanding of social security law,
which limits sedentary work to individuals who can lift “no more than 10 pounds at a time
….” 20 C.F.R. § 404.1567(a). Consequently, Dr. Seni’s opinion was reasonably subject to
less weight under the final factor permitted by the regulations. 20 C.F.R. § 404.1527(c)(6)
(weight attributable to medical opinion may be influenced by “the amount of understanding
of our disability programs and their evidentiary requirements that an acceptable medical
source has ….”)
Plaintiff argues that the record tells a far different story than the one ALJ’s told in his
evaluation of Dr. Kinkopf’s opinions, particularly regarding the long-term care Plaintiff has
undergone. (Doc. #9, PageID #s 61-62).
The ALJ declined to place controlling weight, but instead place little weight, on Dr.
Kinkopf’s opinions. Dr. Kinkopf completed a functional-capacity-evaluation form. Id. at
950-56. He reported that Plaintiff had been his patient since 1994. He diagnosed her with
low-back and left-shoulder pain, foot pain in 2009, “reflux and hoarseness in 2003,
lumbago, left-shoulder recurrent dislocation, [and] plantar fasciitis.” Id. at 950. He noted
that Plaintiff had significantly reduced range of motion in her lumbar and left shoulder; he
checked a line indicating that Plaintiff’s pain was severe; he indicated that her impairments
lasted or could be expected to last more than twelve months and her prognosis was fair. Id.
at 950-52. Plaintiff correctly recognizes that Dr. Kinkopf’s assessment of Plaintiff’s work
limitations places her in the sedentary range of work abilities. Id. at 953.
Substantial evidence supports the ALJ’s evaluation of Dr. Kinkopf’s opinions. The
ALJ correctly observed that although Dr. Kinkopf had been treating Plaintiff since 1994, he
had not seen Plaintiff “in quite some time.” Id. at 800. The regulations allowed the ALJ to
discount Dr. Kinkopf’s opinion for this reason. See 20 C.F.R. § 404.1527(c)(2). The ALJ
also correctly recognized that the Dr. Kinkopf was not a specialist, a proper consideration
under the regulations. See id. at § 404.1527(c)(5).
More significantly, the ALJ correctly recognized that Dr. Kinkopf did not rely on
objective test results or examination findings in support of his opinions. See id. at 800, 9556. And, Dr. Kinkopf provided little by way of explanation for his opinions. These reasons
constitute a valid basis for not placing greater weight on Dr. Kinkopf’s opinions. See 20
C.F.R. §404.1527(c)(3) (“The more a medical source presents relevant evidence to support
an opinion, particularly medical signs and laboratory findings, the more weight we will give
that opinion. The better an explanation a source provides for an opinion, the more weight
we will give that opinion….”). Further, the ALJ reasonably found that Dr. Kinkopf’s own
treatment records do not support the functional limitations he set. See id. at 318-376, 599605, 642-655. This was another reasonable basis for discounting his opinions. See Walters
v. Comm’r of Soc. Sec., 127 F.3d 525, 530 (6th Cir. 1997) (recognizing that the lack of
support “by detailed, clinical, diagnostic evidence in his reports” constituted “a valid reason
not to credit the opinions of a treating medical doctor.”). Dr. Kinkopf’s examination notes
show only some decreased range of motion in the shoulder. Yet, the ALJ incorporated these
problems into Plaintiff’s residual functional capacity by way of the lifting limitations and a
restriction to no overhead reaching on the left included. The ALJ also noted that the
assessment form Dr. Kinkopf completed was brought by Plaintiff during a visit where Dr.
Kinkopf documented only subjective complaints. (Tr. 800, 941-57). Without reference to
some concomitant objective findings (based, for example, on objective testing or
examination findings), the ALJ was permitted to discount Dr. Kinkopf’s opinions. See
Driggs v. Astrue, No. 2:11-cv-00229, 2011 WL 5999036 at *6 (S.D. Ohio Nov. 29, 2011)
(Kemp, MJ) (“[A]n ALJ may reject the opinion of a treating source ‘where the treating
physician’s opinion is inconsistent with [that source’s] own medical records.’”) (internal
citation omitted) (R&R adopted, 2012 WL 204044 (Jan. 24, 2012) (Graham, D.J.)
Accordingly, Plaintiff’s challenges to the ALJ’s evaluation of the medical source
opinions lack merit.
Plaintiff contends that the ALJ erred in her adverse assessment of Plaintiff’s
credibility because she voluntarily stopped taking prescription opiate medications due to
another developing medical condition. Plaintiff further argues that the ALJ erred by relying
on her daily activities, notably in re-marrying, living independently, and raising her
children. The Commissioner maintains that the record is replete with support for the ALJ’s
To be clear at the outset, there is no doubt in the record that Plaintiff experiences
daily pain. As in many social security cases, the record in this case posed difficult questions
to the ALJ: What did the evidence reveal about Plaintiff’s pain levels? How credible was
Plaintiff when she reported her pain to medical sources and described her pain to the ALJ.
Such questions can be vexing, all the more so here where Plaintiff has attempted for years to
convince the Social Security Administration that her pain is real, serious—often extreme,
and disabling. Because such vexing questions fall first to the ALJ, rather than this Court,
the ALJ “has a unique opportunity to observe the claimant and judge her subjective
complaints.” Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001). And, because of this, “an
ALJ’s findings based on the credibility of the applicant are to be accorded great weight and
deference ….” Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997) (citing
Villarreal v. Sec'y of Health & Human Servs., 818 F.2d 461, 463 (6th Cir. 1987)); see Cruse
v. Comm'r of Soc. Sec., 502 F.3d 532, 542 (6th Cir. 2007); Buxton, 246 F.3d at 773.
However, an ALJ’s assessment of credibility must be supported by substantial evidence.
Cruse, 502 F.3d at 542 (citing Walters, 127 F.3d at 531).
Congress has mandated that a social security applicant’s subjective complaints of
“pain or other symptoms shall not alone be conclusive evidence of disability….” 42 U.S.C.
§ 423(d)(5)(A). As a result, Plaintiff’s testimony and reports about her pain levels and other
symptoms, while relevant to determining whether she is under a disability, cannot by
themselves establish that she is under a disability. See Buxton v. Halter, 246 F.3d 762, 773
(6th Cir. 2001). Credibility assessments are conducted under a two-part analysis:
First, the ALJ will ask whether there is an underlying medically
determinable physical [or mental] impairment that could reasonably be
expected to produce the claimant’s symptoms. 20 C.F.R. § 416.929(a).
Second, if the ALJ finds that such an impairment exists, then he must
evaluate the intensity, persistence, and limiting effects of the symptoms
on the individual’s ability to do basic work activities. Id.
Rogers, 486 F.3d at 247; see also 20 C.F.R. § 404.1529. When evaluating the intensity,
persistence, and limiting effects of a plaintiff’s symptoms, the ALJ considers the following
factors: daily activities; location, duration, frequency, and intensity of the pain or other
symptoms; precipitating and aggravating factors; the type, dosage, effectiveness, and side
effects of any medication the plaintiff takes or has taken to alleviate symptoms; treatment,
other than medication, the plaintiff receives or has received for relief of symptoms; any
measures the plaintiff uses or has used to relieve symptoms; and other factors concerning
the plaintiff’s functional limitations and restrictions due to pain or other symptoms. 20
C.F.R. § 404.1529(c)(3).
Plaintiff’s reading of the ALJ’s credibility analysis is mistakenly limited to the
paragraphs the ALJ wrote about Plaintiff’s daily activities and her supposed opiate
dependence and hospitalization for withdrawal. See Doc. #64, PageID #s 64-66. Before
discussing Plaintiff’s daily activities, the ALJ evaluated Plaintiff’s credibility and found it
unsupported by objective medical evidence and by signs and findings documented by
Plaintiff’s treating and examining physicians. The ALJ correctly observed that Plaintiff has
reported symptoms that are more severe than the pathology shown in a whole body scan she
underwent on January 5, 2007; an MRI of her hip on July 23, 2011; an MRI of her lumbar
spine in April 2004 (“totally unremarkable); lumbar spine imaging in on May 3, 2005 (slight
disc space narrowing at L5-S1); a lumbar spine MRI on May 18, 205 (mild facet arthropathy
with no central or foraminal stenosis and no nerve root compromise)l and a repeat lumbar
spine MRI on May 22, 2007. See TR 794 (and evidence cited therein). Substantial
evidence also supported the ALJ observation that most of the examinations before Plaintiff’s
left shoulder surgery were fairly normal and even her “left shoulder pathology in the record
shows only minimal findings.” Id. The ALJ provided an accurate review in support of this
conclusion, discussing her shoulder orthopedist’s (Dr. Vitols’) records and a normal leftshoulder MRI on June 14, 2005. Id. The ALJ also relied on records of Plaintiff’s treatment
with Dr. Moore documenting that she reported only back pain and generalized joint pain,
and records documenting an emergency room visit for pelvic pain on January 3, 2006 (full
range of motion in her extremities with no abnormalities). See id. (and evidence cited
therein). The ALJ continued to consider Plaintiff’s credibility in this manner, reviewing
specific evidence and minimal findings. Substantial evidence supports the ALJ’s reading of
this evidence and the conclusions the ALJ drew from it concerning Plaintiff’s credibility.
It is in this context that the ALJ also considered Plaintiff’s daily activities. Plaintiff
is therefore incorrect to focus only on the ALJ’s discussion of her daily activities as a
challenge to the ALJ’s credibility findings. And, although there is much to factually
disagree with, as Plaintiff correctly does, in the ALJ’s view of Plaintiff’s prescription opiate
withdrawal, the ALJ did not err in considering Plaintiff’s daily activities, and the transcript
of the ALJ’s hearing does not conflict with her observation that Plaintiff “provided very
vague testimony about her physical limitations ….” Id. at 797. The latter finding,
moreover, is entitled to great deference because a careful review of her testimony transcript
reveals substantial supporting evidence and because the “ALJ is charged with the duty of
observing a witness’s demeanor and credibility.” Walters, 127 F.3d at 531
Accordingly, Plaintiff’s contentions regarding the ALJ’s evaluation of her credibility
IT IS THEREFORE ORDERED THAT:
The ALJ’s non-disability decision is affirmed; and
The case is terminated on the Court’s docket.
March 29, 2017
slo/Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge
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