# Nichol v. Commissioner of Social Security

> District Court, N.D. Ohio · September 11, 2019

URL: https://www.frixlaw.com/law-library/cases/10367514

## Case

- **Court:** District Court, N.D. Ohio
- **Decided:** September 11, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

KAREN MARLENE NICHOL, Case No. 5:18 CV 1795

Plaintiff,

v. Magistrate Judge James R. Knepp II

COMMISSIONER OF SOCIAL SECURITY,

Defendant. MEMORANDUM OPINION AND ORDER

INTRODUCTION
Plaintiff Karen Marlene Nichol (“Plaintiff”) filed a Complaint against the Commissioner
of Social Security (“Commissioner”) seeking judicial review of the Commissioner’s decision to
deny disability insurance benefits (“DIB”). (Doc. 1). The district court has jurisdiction under 42
U.S.C. §§ 1383(c) and 405(g). The parties consented to the undersigned’s exercise of jurisdiction
in accordance with 28 U.S.C. § 636(c) and Civil Rule 73. (Doc. 14). For the reasons stated below,
the undersigned affirms the decision of the Commissioner.
PROCEDURAL BACKGROUND
Plaintiff filed for DIB in July 2015, alleging a disability onset date of November 25, 2011.
(Tr. 200-01). Her claims were denied initially and upon reconsideration. (Tr. 80, 99). Plaintiff then
requested a hearing before an administrative law judge (“ALJ”). (Tr. 135-36). Plaintiff
(represented by counsel), and a vocational expert (“VE”) testified at a hearing before the ALJ on
September 6, 2017. (Tr. 38-79). On December 28, 2017, the ALJ found Plaintiff not disabled in a
written decision. (Tr. 19-30). The Appeals Council denied Plaintiff’s request for review, making
the hearing decision the final decision of the Commissioner. (Tr. 1-6); see 20 C.F.R. §§ 404.955,
404.981. Plaintiff timely filed the instant action on August 3, 2018. (Doc. 1).
FACTUAL BACKGROUND
Personal Background & Testimony
Born in 1969, Plaintiff was 47 years old on her date last insured. See Tr. 29, 44, 200. She

had a college education (Tr. 46) and past work as an office clerk (Tr. 73). She stopped working
due to her medical conditions (pain, stomach issues, and frequent doctor’s appointments). (Tr. 47-
48).
In August 2015, Plaintiff reported she could “walk a couple of miles for exercise” and
although she was “always uncomfortable” could “stand for awhile.” (Tr. 87). Plaintiff was “active
in her church, visits members and teaches little children”; she also “baby[sat] for friends.” Id.
At the time of the September 2017 hearing, Plaintiff lived in a multi-story house with her
adult children. (Tr. 45). Plaintiff drove frequently, but her father drove her to the hearing because
she had difficulty driving in cities. (Tr. 46). Plaintiff stated that her primary source of pain was

lupus (which caused joint pain) and fibromyalgia (which caused back, neck, shoulder, and hip
pain, as well as pelvic floor dysfunction). (Tr. 51). Physical therapy and injections helped
somewhat with her pelvic floor pain. (Tr. 52).
Plaintiff described a typical day as lying in bed, stretching, taking medication, taking care
of her animals, starting laundry or dishes, showering, and resting. (Tr. 53). Plaintiff’s son had
ADHD and borderline Asperger’s and she was trying to help him find a job. (Tr. 54). Plaintiff had
two dogs and two cats; she walked the dogs “on occasion”. (Tr. 55). Plaintiff’s daughter vacuumed,
and her son helped with carrying heavier loads of laundry and the yardwork, though Plaintiff could
do a little; Plaintiff cooked, grocery shopped, washed dishes, and handled lighter loads of laundry
(Tr. 56). She attended a morning gentle yoga class for three months, but stopped for financial
reasons. (Tr. 56). She went to church on Wednesday evenings (teaching a thirty-minute children’s
class) and Sundays. (Tr. 57).
Plaintiff had good days and bad days, depending on flares. Id. On average, she had two bad
days per week. Id.

Plaintiff testified she could lift a gallon of milk, and reach overhead, but lifting heavier
items caused pain. (Tr. 58-59). She estimated she could stand for 30 minutes to an hour before
having to sit down. (Tr. 63). In 2015, she did a two mile walk for lupus, but at the time of the
hearing estimated she could walk a half mile without stopping, but not a mile (Tr. 64). Plaintiff
also estimated she could sit for an hour before having to stand up. Id.
After physical activity, Plaintiff had increased pain and stiffness in her neck and shoulders,
or hips if she walked too much. (Tr. 65). Plaintiff also testified to difficulty hearing when there
was background noise. (Tr. 69-70).
Plaintiff testified she was diagnosed with memory loss by Dr. Obrockee. (Tr. 60). She

forgot appointments, names, and tasks. (Tr. 60-61). Plaintiff used alerts on her smart phone to
remember to take medication. (Tr. 70).
Relevant Medical Evidence
Physical Health
Prior to her alleged onset date, Plaintiff was diagnosed with, and began treatment for, lupus.
See, e.g., Tr. 689. At a follow up appointment in December 2010, Plaintiff reported her medication
seemed to be working with decreased pain, swelling, stiffness, and fatigue. Id. Marie Kuchynski,
M.D., noted Plaintiff’s lupus was “improving”. Id. In March and June 2011, Plaintiff had no
worsened stiffness, swelling, or pain (Tr. 685-86); in June, she reported right arm and hand
numbness. (Tr. 685). In September 2011, Plaintiff experienced a lupus flare with “[l]ots of muscle
and joint pain” as well as oral ulcers, rashes, and mental symptoms (confusion, memory loss, and
insomnia). (Tr. 684). Plaintiff went to the emergency room later that month, reporting a lupus
exacerbation including chest wall pain, back pain, and generalized weakness. (Tr. 314). Plaintiff
was given medication and discharged with instructions to follow up with her rheumatologist. (Tr.

316). With medication, Plaintiff began to feel better in October, but was not sleeping well and had
joint aches. (Tr. 683). In November, Plaintiff reported hypersensitivity to bright lights and loud
noises, but had “[n]o other lupus symptoms.”; Dr. Kuchynski noted Plaintiff’s lupus was
“otherwise stable”. (Tr. 682).
Plaintiff continued to treat with Dr. Kuchynski in 2012. In January, she reported no
worsening, and that her medications controlled her symptoms. (Tr. 676). The same was true in
April, and Plaintiff noted her neuropathy pain was “lessening somewhat with Elavil”. (Tr. 674).
Dr. Kuchynski found nodules on Plaintiff’s feet and referred her to podiatry. Id. Her impression
was that Plaintiff’s lupus was “stable on therapy”. Id. Dr. Kuchynski noted similar findings in July,

that Plaintiff’s neuropathy was “slowly improving” and she “no longer ha[d] intense burning.”;
her lupus was “stabilizing on therapy” (Tr. 445). Dr. Kuchynski made similar notes in October.
(Tr. 444) (“no worsening stiffness or swelling”; “[p]ain has not worsened”; “[m]edications are
working to keep [symptoms] under control”; “[s]till has neuropathy pain but it has lessened”).
In May 2012, Plaintiff underwent a brain MRI due to her history of lupus and facial
paresthesias. (Tr. 1626). The impression was: “[n]onspecific bihemispheric white matter changes
not significantly changed compared to prior examination dated 12/15/2011.” Id.
Plaintiff also saw Dr. Kuchynski three times in 2013. See Tr. 437-38, 668. In March,
Plaintiff continued to report that her medications kept her symptoms under control. (Tr. 438). The
same was true in July, but Plaintiff “[s]till ha[d] a lot of neuropathic pain” and was “unable to work
due to the fact of the pain and also with memory problems and needs lots of reminders.” (Tr. 437).
In November, Plaintiff continued to report no worsening, though she thought she had a flare two
months prior. (Tr. 668). Examination findings at these visits were normal, and Dr. Kuchynski noted
Plaintiff’s lupus was “stable on therapy”. (Tr. 437-38, 668).

Plaintiff returned to Dr. Kuchynski in March 2014. (Tr. 1170-73). She reported worsened
memory loss, but stable joint pain, malaise, and skin conditions. (Tr. 1170). Her physical
examination was unremarkable and Dr. Kuchynski continued Plaintiff’s medications. (Tr. 1171-
73). Dr. Kuchynski noted Plaintiff’s lupus was stable but she “[h]a[d] memory loss which causes
inability to be gainfully employed.” (Tr. 1172). In May, Plaintiff was “having a lot of lupus
complaints”. (Tr. 882). She had a “marked” increase in neuropathic pain, and it was “unrelenting”.
Id. Plaintiff also had bladder pain and unexplained hives. Id. Examination revealed paresthesia.
(Tr. 883). In July, Plaintiff presented with an allergic reaction. (Tr. 650). Her examination again
revealed paresthesia. (Tr. 651). Dr. Kuchynski referred her to an allergist. (Tr. 654). In September,

Plaintiff was feeling better (Tr. 643), and Dr. Kuchynski diagnosed stable lupus (Tr. 648).
In May 2014, Plaintiff underwent MRIs of her lumbar and thoracic spines (Tr. 843-45).
The lumbar spine MRI revealed: partial sacralization of the L5 vertebral body, left paracentral disc
herniation at the L5-S1 level, and mild degenerative changes at the L4-L5 level. (Tr. 843). The
thoracic spine MRI revealed a Schmorl’s node involving the superior and plate of T11 but was
otherwise unremarkable. (Tr. 845).
In August 2014, Plaintiff went to the emergency room with chest pain. (Tr. 399). The pain
lasted approximately one hour and resolved with nitroglycerin. Id. She was discharged the
following day with diagnoses of chest pain syndrome, lupus, and unspecified insomnia. (Tr. 414).
When Plaintiff returned to Dr. Kuchynski in January 2015, she reported doing well, but
that her nerve pain was worse, and her bladder pain continued. (Tr. 864). On examination, Dr.
Kuchynski noted hyperesthesia. (Tr. 868). She observed Plaintiff’s lupus was stable “but
neuropathy pain is much worse and [patient] has persistent peripheral edema.” (Tr. 869). A note
in Plaintiff’s lab results from this month states: “labs are all stable without signs of severe active

flare.” (Tr. 921). In May, Dr. Kuchynski noted Plaintiff’s lupus was stable and her neuropathic
pain was “starting to respond to gabapentin” (Tr. 636); Plaintiff’s labs were stable (Tr. 920). At a
September 2015 appointment, Plaintiff was “doing fairly well”, and had not “increased the
gabapentin yet but knows that may further help her pain.” (Tr. 1114). Dr. Kuchynski continued to
note hyperesthesia in May and September. (Tr. 635, 1118).
In January 2016, Plaintiff told Dr. Kuchynski she was doing well; gabapentin was partially
helping and she requested a higher dose. (Tr. 1108). However, she had developed severe
degeneration in her jaw for which she had an upcoming surgery, and she hurt her shoulder. Id.
Examination continued to reveal hyperesthesia. (Tr. 1112).

In February 2016, Plaintiff had a left shoulder MRI which revealed partial undersurface
tearing of the supraspinatus tendon without evidence of full thickness tear, intact remaining rotator
cuff tendons, and mild acromioclavicular arthrosis. (Tr. 1158-59).
A May 2016 note states that Plaintiff’s “labs [were] all stable without signs of increased
activity or signs of a flare.” (Tr. 1301).
A July 2016 brain MRI revealed small scattered nonspecific white matter changes within
the cerebral hemispheres bilaterally which were similar in appearance to the May 2012 MRI. (Tr.
1256). The interpreting physician noted that “[w]hile nonspecific, white matter changes can be
seen with small vessel ischemic change or demyelinating processes among others.” Id.
In September 2016, Plaintiff received a trigger point injection to treat chronic pelvic pain.
(Tr. 1470). That same month, Dr. Kuchynski again noted Plaintiff’s labs were stable. (Tr. 1314).
In September and October 2016, at physical therapy visits for pelvic pain, right hip pain,
and sacroiliitis, Plaintiff reported an occupation of “volunteer at church and caregiver” (which the
records note to be “full time”) and that she drove two to three hours per day. (Tr. 1524, 1526).

After her date last insured of December 30, 2016, Plaintiff continued to treat with Dr.
Kuchynski. In January 2017, she reported a burning sensation. (Tr. 1557). On examination, Dr.
Kuchynski noted hyperesthesia and “some jerking movements”. (Tr. 1561). Plaintiff also had
limited shoulder range of motion due to pain. Id. Dr. Kuchynski noted similar physical findings at
a May 2017 visit. See Tr. 1549-54.
In March 2017, Plaintiff presented for a follow-up of fibromyalgia and neuropathy. (Tr.
1418). Deborah Ewing-Wilson, D.O., noted Plaintiff was “[e]ating right, exercising and doing
yoga”, but generally had pain in her shoulders and trunk. Id. Dr. Ewing-Wilson diagnosed small
fiber neuropathy and fibromyalgia. (Tr. 1423). She noted Plaintiff was “[o]verall stable” and

instructed her to follow up in three months. Id. In May, Dr. Kuchynski noted Plaintiff had “some
degeneration of TMJ and planned for surgery.” (Tr. 1549). Dr. Kuchynski noted similar physical
findings to her January 2017 examination. (Tr. 1553-54). At a July 2017 physical therapy
appointment, Plaintiff reported being “very physically active” since her prior appointment
(“hauling wood”), and had been stretching and walking, but not doing yoga. (Tr. 1694).
Physical Health Opinion Evidence
In May 2012, Dr. Kuchynski completed an autoimmune disease questionnaire for the State
agency. See Tr. 361-63. Dr. Kuchynski noted physical findings of irregular heart rate, abdominal
pain, nausea, rashes, sun sensitivity, joint pain, back pain, neuropathy, memory loss, dry eye, dry
mouth, fatigue, and oral ulcers. (Tr. 362). She referred to her records to explain Plaintiff’s history
laboratory results and studies, and restrictions of daily activities. See id. She noted Plaintiff had
difficulty with activities of daily living, no difficulty with social interactions, and that it “takes
longer [for her] to work”. (Tr. 363).
In November 2015, State agency physician Michael Lehv, M.D., reviewed Plaintiff’s

records and offered an opinion about her functional abilities. (Tr. 94-96). He opined Plaintiff could
lift or carry up to twenty pounds occasionally, and ten pounds frequently; she could stand or walk
about six hours in an eight-hour workday, and sit for more than six. (Tr. 94). He opined Plaintiff
could frequently climb ladders, ropes, and scaffolds, and had no limitation climbing ramps or
stairs. (Tr. 94-95). She could frequently kneel, and occasionally stoop, crouch, or crawl. (Tr. 95).
He opined Plaintiff should avoid concentrated exposure to noise, and all exposure to hazards. (Tr.
96).
In March 2016, Dr. Kuchynski opined Plaintiff could not bend, stoop, walk long distances,
or perform heavy lifting. (Tr. 1106).

In April 2016, State agency physician Maureen Gallagher, D.O., M.P.H., reviewed
Plaintiff’s records and affirmed Dr. Lehv’s opinion of Plaintiff’s functional abilities. (Tr. 111-13).
In June 2017, Dr. Kuchynski completed a residual functional capacity questionnaire. (Tr.
1576-78). Therein, she noted she had treated Plaintiff every four months since August 2010 for
lupus. (Tr. 1576). She opined Plaintiff could walk one to two city blocks, sit for twenty minutes at
one time, and stand for ten minutes at one time. Id. She opined Plaintiff could sit, stand, and walk
for a total of less than two hours in an eight-hour workday. Id. She also opined Plaintiff would
need to lie down or rest three to four times per day for twenty to thirty minutes before returning to
work. (Tr. 1577). She opined Plaintiff could frequently lift less than ten pounds, occasionally lift
ten pounds, but never lift twenty pounds or more. Id. She opined Plaintiff could stoop or crouch
for five percent of the workday. Id. Plaintiff would miss work more than four times per month. Id.
Mental Health
In 2009, Plaintiff underwent an evaluation for suspected attention deficit disorder
(“ADD”). (Tr. 281-84). Plaintiff reported “longstanding difficulties” with disorganization, time

management, procrastination, and not completing tasks. (Tr. 281). Psychologist Michael
Romaniuk, Ph.D., diagnosed attention deficit hyperactivity disorder – inattentive type and
dysthymia with anxiety. (Tr. 284). He recommended medication, therapy, and a support group.
(Tr. 284-85).
In June 2012, Plaintiff underwent a psychological evaluation with neuropsychologist
Joshua Magleby, Ph.D. (Tr. 384-89). Dr. Magleby noted Plaintiff showed the ability to follow
questions and directions and her ability to follow or carry out more complex tasks “appear[ed] to
be average, as was short-term recall on mental status exam.” (Tr. 389). He also noted Plaintiff’s
ability to maintain attention, concentration, persistence and pace appeared “fairly average”. Id.

In December 2015, Plaintiff underwent a mental disability evaluation with Cheryl Benson-
Blankenship, Ph.D. (Tr. 1099-1103). Plaintiff reported waking at 5:30 to 6:00 a.m. to exercise.
(Tr. 1102). She did laundry, and took her children to work “because neither one drives at the
present time”. Id. She grocery shopped, made meals for her family, and attended church three
times per week, working as a teacher’s assistant on Sunday mornings. Id. Plaintiff also reported
babysitting a three-year-old child “several times a week”. (Tr. 1100). Dr. Benson-Blankenship
opined Plaintiff would be able to follow instruction in a work setting, did not show distractibility,
and would be able to respond appropriately to work pressures. (Tr. 1103).
VE Testimony
A VE appeared and testified at the hearing before the ALJ. (Tr. 71- 78) The ALJ asked the
VE to consider a hypothetical individual with Plaintiff’s age, education, work experience, and
residual functional capacity (“RFC”) as ultimately determined by the ALJ. See Tr. 73-76. The VE
responded that such an individual could perform jobs such as ticket checker, document preparer,

and polisher. (Tr. 76-77). The VE also testified that if a person needed to lie down and rest at
unpredictable intervals throughout a workday or had to be reminded of her work tasks every two
to three hours, there would be no jobs available. (Tr. 77-78).
ALJ Decision
In his December 2017 written decision, the ALJ found Plaintiff last met the insured status
requirements for DIB on December 31, 2016 and had not engaged in substantial gainful activity
from her alleged onset date of November 25, 2011 through her date last insured. (Tr. 21). He then
found that Plaintiff had severe impairments of systemic lupus erythematosus, fibromyalgia, small
fiber neuropathy, peripheral neuropathy, peripheral edema, degenerative disc disease of lumbar

spine, pelvic floor dysfunction with urgency and frequency of urination, bilateral sensorineural
hearing loss, and hyperacusis, but that none of these impairments – singly or in combination – met
or medically equaled the severity of a listed impairment. (Tr. 21-24). The ALJ then set forth
Plaintiff’s RFC through the date last insured:
[T]he claimant had the residual functional capacity to perform sedentary work as
defined in 20 CFR 404.1567(a) with certain restrictions. Specifically, the claimant
can never climb ladders, ropes or scaffolds but can occasionally climb ramps and
stairs. She can frequently balance and occasionally stoop, kneel, crouch and crawl.
She must avoid concentrated exposure to loud and very loud noise. She must avoid
all exposure to hazards such as unprotected heights, moving mechanical parts and
commercial driving.
(Tr. 24). The ALJ then found that through the date last insured, Plaintiff was unable to perform
any past relevant work (Tr. 28), but given her age, education, and RFC, there were other jobs that
existed in significant numbers in the national economy that she could have performed (Tr. 29).
Therefore, the ALJ found Plaintiff was not disabled from her alleged onset date (November 25,
2011) through her date last insured (December 31, 2016). (Tr. 30).

STANDARD OF REVIEW
In reviewing the denial of Social Security benefits, the Court “must affirm the
Commissioner’s conclusions absent a determination that the Commissioner has failed to apply the
correct legal standards or has made findings of fact unsupported by substantial evidence in the
record.” Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). “Substantial evidence
is more than a scintilla of evidence but less than a preponderance and is such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.” Besaw v. Sec’y of Health &
Human Servs., 966 F.2d 1028, 1030 (6th Cir. 1992). The Commissioner’s findings “as to any fact
if supported by substantial evidence shall be conclusive.” McClanahan v. Comm’r of Soc. Sec.,

474 F.3d 830, 833 (6th Cir. 2006) (citing 42 U.S.C. § 405(g)). Even if substantial evidence or
indeed a preponderance of the evidence supports a claimant’s position, the court cannot overturn
“so long as substantial evidence also supports the conclusion reached by the ALJ.” Jones v.
Comm’r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003).
STANDARD FOR DISABILITY
Eligibility for benefits is predicated on the existence of a disability. 42 U.S.C. §§ 423(a),
1382(a). “Disability” is defined as the “inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a continuous period of not less
than 12 months.” 20 C.F.R. § 404.1505(a); see also 42 U.S.C. § 1382c(a)(3)(A). The
Commissioner follows a five-step evaluation process—found at 20 C.F.R. § 404.1520—to
determine if a claimant is disabled:
1. Was claimant engaged in a substantial gainful activity?

2. Did claimant have a medically determinable impairment, or a combination
of impairments, that is “severe,” which is defined as one which substantially
limits an individual’s ability to perform basic work activities?

3. Does the severe impairment meet one of the listed impairments?

4. What is claimant’s residual functional capacity and can claimant perform
past relevant work?

5. Can claimant do any other work considering her residual functional
capacity, age, education, and work experience?

Under this five-step sequential analysis, the claimant has the burden of proof in Steps One
through Four. Walters, 127 F.3d at 529. The burden shifts to the Commissioner at Step Five to
establish whether the claimant has the residual functional capacity to perform available work in
the national economy. Id. The ALJ considers the claimant’s residual functional capacity, age,
education, and past work experience to determine if the claimant could perform other work. Id.
Only if a claimant satisfies each element of the analysis, including inability to do other work, and
meets the duration requirements, is she determined to be disabled. 20 C.F.R. §§ 404.1520(b)-(f);
see also Walters, 127 F.3d at 529.
DISCUSSION
Plaintiff argues the ALJ’s RFC determination is not supported by substantial evidence
because he: 1) failed to follow the treating physician rule; and 2) failed to apply the appropriate
analysis in evaluating opinion evidence, specifically by given the greatest weight to non-treating,
non-examining physicians. For the reasons discussed below, the undersigned finds no error.
Plaintiff first argues that the ALJ erred in not giving greater weight to the June 2017 opinion
of Dr. Kuchynski. This argument implicates the well-known treating physician rule.
Treating Physician Rule
Generally, the medical opinions of treating physicians are afforded greater deference than
those of non-treating physicians. Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007);

see also SSR 96-2p, 1996 WL 374188.1 A treating physician’s opinion is given “controlling
weight” if it is supported by (1) medically acceptable clinical and laboratory diagnostic techniques;
and (2) is not inconsistent with other substantial evidence in the case record. Wilson v. Comm’r of
Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). The requirement to give controlling weight to a
treating source is presumptive; if the ALJ decides not to do so, she must provide evidentiary
support for such a finding. Id. at 546; Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376-77 (6th
Cir. 2013). When the physician’s medical opinion is not granted controlling weight, the ALJ must
give “good reasons” for the weight given to the opinion. Rogers, 486 F.3d at 242 (quoting 20
C.F.R. § 416.927(d)(2)).

“Good reasons” are reasons “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.” Rogers, 486 F.3d at 242 (quoting SSR 96-2p, 1996 WL 374188, at *4). When
determining weight and articulating good reasons, the ALJ “must apply certain factors” to the
opinion. Rabbers v. Comm’r Soc. Sec. Admin., 582 F.3d 647, 660 (6th Cir. 2009) (citing 20 C.F.R.
§ 404.1527(d)(2)). These factors include the length of treatment relationship, the frequency of

1. Although recent revisions to the CFR have changed the rules regarding evaluation of treating
physician opinions, such changes apply to claims filed after March 27, 2017, and do not apply to
claims filed prior to that date. See Social Sec. Admin., Revisions to Rules Regarding the Evaluation
of Medical Evidence, 82 Fed. Reg. 5852-53, 2017 WL 168819. Plaintiff filed her claim in July
2015 and thus the previous regulations apply.
examination, the nature and extent of the treatment relationship, the supportability of the opinion,
the consistency of the opinion with the record as a whole, and the specialization of the treating
source. Id. While an ALJ is required to delineate good reasons, he is not required to enter into an
“exhaustive factor-by-factor analysis” to satisfy the requirement. See Francis v. Comm’r of Soc.
Sec. Admin., 414 F. App’x 802, 804-05 (6th Cir. 2011).

The ALJ summarized and addressed Dr. Kuchynski’s May 2012 and June 2017 opinion
statements together, explaining:
Dr. Kuchynski submitted an assessment of the claimant’s functional capabilities
dated June 2017 (Ex 46F). The doctor opined that the claimant would be able to lift
and carry up to 10 pounds and walk up to two city blocks, however, further opined
that the claimant would be able to sit, stand and/or walk for less than two hours, in
total, during an eight-hour workday. Dr. Kuchynski went on to opine that the
claimant would likely miss more than four workdays per month and also require
three to four breaks throughout the workday to lie down for about 20 to 30 minutes.
In addition, Dr. Kuchynski completed another form in May 2012 stating that the
claimant carried a lupus diagnosis and indicated numerous symptoms that the
claimant experienced including abdominal pain, rashes, joint pain, fatigue,
neuropathy and memory loss (Ex 6F). The doctor noted that the claimant had
difficulty performing her activities of daily living and that it took her longer to
complete tasks due to deficiencies in concentration, persistence or pace.

I give little weight to both opinion statements forwarded by Dr. Kuchynski as the
opined restrictions generally overstate the claimant’s limitations as supported by
the overall record. The doctor limits the claimant’s ability to walk but the record
indicates that she walks further for exercise. The claimant manages her own
household chores, including laundry, driving, grocery shopping, and cooking,
indicating that she is not as limited as opined by Dr. Kuchynski’s opinion
statements. Furthermore, the doctor’s own notes consistently note that the
claimant’s condition is stable. For these reasons I give little weight to [the] opinions
despite her being a treating source whose opinion is potentially entitled to
controlling weight. However, based on the discussion above, Dr. Kuchynski’s
opinions are inconsistent with the record and not supported by her own treatment
notes, and thus, not entitled to controlling weight.

(Tr. 28).
The ALJ thus gave two reasons for discounting Dr. Kuchynski’s opinion: 1) inconsistency
with the record as a whole (specifically, Plaintiff’s own reported activities), and 2) inconsistency
with the physician’s own statements that Plaintiff’s condition is “stable.” See id.
First, the ALJ cited Plaintiff’s ability to perform various daily activities as inconsistent
with Dr. Kuchynski’s opinion. Plaintiff correctly contends that such “[b]rief or intermittent

activities of daily living do not equal the ability to perform work activities during an eight-hour
workday”. (Doc. 15, at 14). But the ALJ did not so find. Rather, he cited Dr. Kuchynski’s opinion
that Plaintiff would be able to sit, stand and/or walk for less than two hours total in an eight-hour
workday (Tr. 27), and then cited Plaintiff’s daily activity abilities as “indicating she is not as
limited as opined by Dr. Kuchynski’s opinion statements” (Tr. 28) (noting, inter alia, that Dr.
Kuchynski’s opinion “limits the claimant’s ability to walk but the record indicates that she walks
further for exercise” and that Plaintiff “manages her own household chores, including laundry,
driving, grocery shopping, and cooking, indicating that she is not as limited as opined by Dr.
Kuchynski’s opinion statements.”). That is, the ALJ did not find that Plaintiff’s ability to perform

these activities – in and of themselves – indicated she could perform full time work, but rather
(accurately) cited them as inconsistent with Dr. Kuchynski’s opinion. Such an inconsistency is a
valid reason to discount opinion evidence.
Plaintiff further contends that the activities cited by the ALJ do not conflict with Dr.
Kuchynski’s opinion that Plaintiff required frequent breaks, the ability to switch positions, or
would miss work. (Doc. 15, at 14-15). However, the ALJ elaborated about Plaintiff’s activities
two paragraphs later, explaining:
The claimant reports that [she] has volunteered at her church during the relevant
period and has also acted as a caregiver on a fulltime basis (see Ex 44F). The record
does not contain many specifics about such volunteer activities, however, the
claimant did state that she drives about two to three hours each day and the
indication is that it was on a fulltime basis. She also reported in late 2015 that she
babysits a three-year old toddler several times a week. (see Ex. 20F:2). In addition,
the claimant manages the majority of her own household chores independently,
including grocery shopping. While these factors are not determinative of the issue
of disability, they do indicate that the claimant has a greater capacity than alleged.

(Tr. 28). This discussion is supported by the record (see Tr. 53-56, 87, 1100, 1524, 1526), and
lends further support to the ALJ’s statement that Plaintiff’s daily activities are inconsistent with
Dr. Kuchynski’s opinion. That is, the undersigned finds ALJ reasonably concluded that Dr.
Kuchynski’s opinion was disproportionate to Plaintiff’s overall record of activities. Moreover, to
the extent the ALJ did not specifically discuss the limitations noted by Plaintiff, the undersigned
notes this was not the only reason the ALJ provided.
Second, the ALJ discounted Dr. Kuchynski’s opinion because she repeatedly described to
Plaintiff’s condition as “stable”. (Tr. 28). She explained “based on the discussion above, Dr.
Kuchynski’s opinion are inconsistent with the record and not supported by her own treatment
notes[.]”) Id. (emphasis added). Plaintiff contends that “the ALJ’s assumption that ‘stable’
systemic lupus erythematosus contradicted Dr. Kuchynski’s opinion is unsupported and
mischaracterizing.” (Doc. 15, at 15). However, contrary to Plaintiff’s assertion that “[t]here is no
further explanation by the ALJ”, three pages prior, the ALJ explained his consideration of Dr.
Kuchynski’s underlying treatment notes in greater detail:
Throughout the course of the relevant period, the claimant’s condition has been
generally sta[b]le. Dr. Kuchynski has generally noted this as well, reported that the
lupus is, in fact, stable, and that the claimant had reported no worsening stiffness,
swelling, or new joint pain. In addition, throughout her follow up visits, the
claimant has generally reported only morning stiffness and localized joint pain with
swelling, but no back pain, no muscle weakness and no arthralgias and the
examinations showed pitting edema of the bilateral ankles and knees, but no joint
swelling and she was noted to have a normal gait (see Ex 16F).

Although the claimant’s condition is generally stable, she does experience
exacerbations at times as well; however, based on the record, such exacerbations
are not frequent. As stated, Dr. Kuchynski generally notes the lupus as stable. The
claimant’s lupus related symptoms include joint pain and nerve pain.

(Tr. 25-26). An ALJ may properly reference earlier-discussed inconsistencies without repeating
the prior analysis. See, e.g., Crum v. Comm’r of Soc. Sec., 660 F. App’x 449, 457 (6th Cir. 2016)
(“No doubt, the ALJ did not reproduce the list of these treatment records a second time when she
explained why Dr. Bell’s opinion was inconsistent with this record. But it suffices that she listed
them elsewhere in her opinion.”) (citing Forrest v. Comm’r of Soc. Sec., 591 F. App’x 359, 366
(6th Cir. 2014)); Hernandez v. Comm’r of Soc. Sec., 644 F. App’x 468, 474 (6th Cir. 2016) (ALJ’s
decision to reject medical opinion, determining it was not supported by the objective medical
evidence in the record “as discussed above”, was not error). And the ALJ’s analysis of Dr.
Kuchynski’s records is supported by substantial evidence as Dr. Kuchynski repeatedly noted
normal findings on examination and noted Plaintiff’s lupus to be stable. See Tr. 682 (lupus stable
but for sensitivity to bright lights and loud noises); Tr. 438, 444, 674, 676 (medications working
to keep symptoms under control), Tr. 437-38, 668 (lupus “stable on therapy”); Tr. 647-48, 1171-
73 (normal physical examination and lupus stable), Tr. 636 (lupus stable and neuropathic pain
starting to respond to gabapentin).
The ALJ also recognized that although Plaintiff’s lupus was “generally stable, she does
experience exacerbations at times as well.” (Tr. 26). He correctly noted, however, that “based on
the record such exacerbations are not frequent.” Id.; see Tr. 674 (neuropathy pain lessening on
medication); Tr. 445 (neuropathy pain “slowly improving”); Tr. 444 (neuropathy pain lessened);

Tr. 668 (Plaintiff reported she thought she had a flare two months prior); Tr. 864 (increased nerve
pain); Tr. 636 (neuropathic pain “starting to respond to gabapentin”). Moreover, there are multiple
notations in the record to stable lab results. See Tr. 920-21, 1301, 1314.
In her brief, Plaintiff asserts the ALJ erred because “Plaintiff’s ‘stable’ lupus still causes
memory deficits and pain; as it is unchanged, not without issues.” (Doc. 15, at 16) (footnotes
omitted). However, with regard to Plaintiff’s assertion regarding memory deficits, the ALJ
addressed Plaintiff’s asserted mental limitations, noting, inter alia:
She does mention memory loss to her treating providers throughout the course of
the relevant period, however, is not treated for this condition/symptom and is not
referred for further evaluation or specialized care. In fact, other than merely noting
the claimant’s complaint regarding memory loss, there is no significant attention
given to this issue.

(Tr. 22). The ALJ then summarized the June 2012 consultative examination with Dr. Magleby and
December 2015 consultative examination with Dr. Benson-Blankenship, assigning both great
weight and finding that Plaintiff had no more than mild limitation in any work-related area of
mental functioning. (Tr. 22-23). Plaintiff does not present any developed argument to contest this
determination, or argue that the ALJ should have included mental limitations in the RFC, but rather
argues that the ALJ somehow erred in failing to recognize that her “stable” lupus could still cause
memory deficits. The Sixth Circuit has held that “[t]he mere diagnosis of [an impairment], of
course, says nothing about the severity of the condition.” Higgs v. Bowen, 880 F.2d 860, 863 (6th
Cir. 1988). And Plaintiff fails to point to anything not considered by the ALJ support her statement
that her lupus caused memory difficulties. To the extent she argues her “stable” lupus also
continued to cause pain, this was recognized, and accommodated by the ALJ’s restrictive RFC.
See Tr. 24.
Although the ALJ discounted Dr. Kuchynski’s opinion, his decision to do so was based on
the degree of limitation opined, not on a finding that Plaintiff’s lupus caused no limitations. See
Tr. 28 (“the opined restrictions generally overstate the claimant’s limitations as supported by the
overall record”) (emphasis added). And, as noted above, the Sixth Circuit has held that “[t]he mere
diagnosis of [an impairment], of course, says nothing about the severity of the condition.” Higgs,
880 F.2d at 863.The ALJ’s analysis speaks to the consistency of Dr. Kuchynski’s very limiting
opinion with the record as a whole, including the doctor’s own treatment notes. 20 C.F.R. §
404.1527(c)(4) (“Generally, the more consistent a medical opinion is with the record as a whole,
the more weight we will give to that medical opinion.”). This is a good reason to discount a treating

physician’s opinion. See, e.g., Lunsford v. Comm’r of Soc. Sec. Admin, 2018 WL 4145014, at *7
(N.D. Ohio) (“The ALJ gave “good reasons” when she remarked that Dr. Wilson’s opinion is
inconsistent with and unsupported by his own treatment notes. . . . In other words, nothing that Dr.
Wilson observed or recommended during his treatment of [the claimant] matched how severely
limited Dr. Wilson opined Lunsford to be in the sheet he filled out for [the claimant’s] disability
application.”); Grear v. Colvin, 2014 WL 6473282, at *6 (N.D. Ohio) (“The ALJ’s finding, that
[the physician’s] own treatment notes did not support the functional limitations she assessed, is an
accurate description of the treatment notes and constitutes a good reason for rejecting [the
physician’s] unsupported opinions.”), reported and recommendation adopted sub nom., Grear v.

Comm’r of Soc. Sec., 2014 WL 6473279.
Taken together, the Court finds the ALJ’s discussion of Plaintiff’s daily activities, and
(more importantly) the inconsistency of Dr. Kuchynski’s treatment notes with the severity of her
opinion provided the required “good reasons” for discounting that opinion. That is, the provided
reasons, particularly taken in context of the surrounding text, are “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.” SSR 96-2p, 1996 WL 374188, at *4.
Plaintiff’s Other Arguments
Plaintiff also argues the ALJ erred by giving more weight to the non-treating state agency
physicians who did not review a complete record. Further, she alleges the ALJ “played doctor” by
limiting Plaintiff further in the RFC than these physicians opined without a medical basis.
“The responsibility for determining a claimant’s residual functional capacity rests with the

ALJ, not a physician.” Poe v. Comm’r of Soc. Sec., 342 F. App’x 149, 157 (6th Cir. 2009) (citing
20 C.F.R. § 416.946(c)). An ALJ’s RFC determination must be supported by evidence of record,
but it need not correspond to, or even be based on, any specific medical opinion. See Brown v.
Comm’r of Soc. Sec., 602 F. App’x 328, 331 (6th Cir. 2015). Instead, it is the ALJ’s duty to
formulate a claimant’s RFC based on all the relevant, credible evidence of record, medical and
otherwise. Justice v. Comm’r of Soc. Sec., 515 F. App’x 583, 587 (6th Cir. 2013); see also Poe,
342 F. App’x at 157 (“Moreover, an ALJ does not improperly assume the role of a medical expert
by assessing the medical and non-medical evidence before rendering a residual functional capacity
finding.”). Additionally, an ALJ may rely on medical opinions from physicians who have not

reviewed the entire record so long as the ALJ considers the post-dated evidence in formulating his
opinion. See, e.g., McGrew v. Comm’r of Soc. Sec., 343 F. App’x 26, 32 (6th Cir. 2009) (indicating
that an ALJ’s reliance upon state agency reviewing physicians’ opinions that were outdated was
not error where the ALJ considered the evidence that was developed post-dating those opinions);
Ealy v. Comm’r of Soc. Sec., 594 F3d 504, 513 (6th Cir. 2013) (“Even if [a State agency
physician’s] RFC was completed without knowledge of these issues, however, the record reflects
that the ALJ considered them.”); Patterson v. Comm’r of Soc. Sec., 2017 WL 914272 at *10 (N.D.
Ohio) (“ALJ may rely on a state agency reviewer who did not review the entire record, so . . . long
as the ALJ also considers the evidence post-dating the opinion.”).2
This is precisely what the ALJ did here. The ALJ explained his consideration of the State
agency physician opinions:
I have also considered the opinions of the State Agency medical file consultants
who reviewed the evidence relating to the claimant’s physical complaints. The
consultants opined that the claimant would be capable of a light exertional level
with additional postural and environmental limitations. I give partial weight to such
opinions as they are generally supported and consistent with the evidence available
at that time. However, based on medical evidence of record available at the hearing
level, I find the claimant to be capable of only a sedentary exertional level.

(Tr. 28). The State agency opinions were offered in November 2015 (Tr. 94-96) and April 2016
(Tr. 111-13), respectively. It is worth repeating that Plaintiff’s date last insured was December 31,
2016, just eight months after the second State agency opinion. The ALJ considered subsequent
evidence of record . See Tr. 26 (citing 2016 and 2017 physical therapy records); Tr. 27 (citing
December 2016 and March 2017 neurologist visits). And Plaintiff presents no specific argument
that any later evidence demonstrates she is more restricted than the ALJ found.
Plaintiff is correct that, in addition to being more restrictive than the state agency opinions
by limiting her to sedentary, rather than light work, the ALJ’s RFC contains more restrictive
postural restrictions. To repeat what is stated above, the State agency physicians opined Plaintiff
could frequently climb ladders, ropes, and scaffolds, frequently kneel, and occasionally stoop,

2. The undersigned finds Plaintiff’s citation to Godbey v. Colvin, 2014 WL 4437647 (W.D. Ky.),
distinguishable. There, the court found a “substantial amount of new medical evidence” regarding
Plaintiff’s impairment submitted after an Appeals Council remand, which a State agency physician
did not have the opportunity to review. Id. at *8. By contrast here, there was not a substantial
amount of new medical evidence between Dr. Gallagher’s April 2016 opinion (Tr. 111-13) and
Plaintiff’s December 2016 date last insured. In fact, other than a general objection that the ALJ
must have “played doctor”, Plaintiff does not offer a specific argument as to what post-dated
evidence should have changed the ALJ’s analysis.
crouch, and crawl. (Tr. 94-96, 111-13). They found Plaintiff had no limitations in climbing ramps
or stairs or balancing (Tr. 94-95, 112). By contrast, the ALJ limited Plaintiff to sedentary work
with slightly different postural limitations: never climb ladders, ropes, and scaffolds; occasionally
climb ramps and stairs; frequently balance; and occasionally stoop, kneel, crouch, and crawl. (Tr.
24). And, Plaintiff is correct that the ALJ did not explain these more restrictive limitations beyond

his general statement that “based on medical evidence of record available at the hearing level, I
find the claimant to be capable of only a sedentary exertional level” (Tr. 28). See Doc. 15, at 17
(“The ALJ does not explain why he added restrictions such as never climbing ladders, ropes or
scaffolds, occasionally climbing ramps and stairs; frequently balance; and occasionally kneel[.]”).
However, Plaintiff fails to explain how the ALJ’s decision to adopt a more restrictive RFC
than the Stage agency physicians opined – even without an explanation – is harmful error. If
anything, the ALJ’s RFC (as compared to that of the State agency physicians) made it more likely
that Plaintiff would be deemed disabled. See, e.g., Ferris v. Comm’r of Soc. Sec., 2017 WL
5187796, at *11 n.4 (N.D. Ohio) (“Because his RFC determination was more restrictive than the

opinions expressed by non-examining state agency physicians, the ALJ’s departure from their
opinions was, at most, harmless error.”) (citing Shinseki v. Sanders, 556 U.S. 396, 409 (2009));
Malone v. Comm’r of Soc. Sec., 2017 WL 9485649, at *14 (N.D. Ohio) (“Because the ALJ found
that plaintiff’s RFC was more restricted than had the state-agency reviewing physicians, his
assignment of no weight to their opinions was harmless.”), report and recommendation adopted,
2017 WL 2821449. Moreover, the ALJ’s finding that Plaintiff was limited to sedentary work – as
opposed to light work as opined by the State agency physicians – was more consistent with her
testimony that she had difficulty lifting heavier objects. (Tr. 56, 59); see 20 C.F.R. § 404.1567(a)-
(b) (sedentary work requires “lifting no more than 10 pounds at a time”; light work involves “lifting
no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10
pounds”).
For these reasons, the undersigned finds no error in the ALJ’s decision. The ALJ provided
the regulatory-required “good reasons” for discounting Dr. Kuchynski’s opinion. And the ALJ’s
RFC determination is supported by substantial evidence in the record.

CONCLUSION
Following review of the arguments presented, the record, and the applicable law, the
undersigned finds the Commissioner’s decision denying DIB supported by substantial evidence
and affirms that decision.

s/ James R. Knepp II
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10367514. Public record. Not legal advice.