# Beard v. Commissioner of Social Security Administration

> District Court, N.D. Ohio · November 1, 2019

URL: https://www.frixlaw.com/law-library/cases/10367718

## Case

- **Court:** District Court, N.D. Ohio
- **Decided:** November 1, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10367718

## How later opinions describe it (automated extraction)

- finding error where the ALJ was “selective in parsing the various medical reports”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
GLORIA BEARD, ) CASE NO. 1:18cv02500
)
Plaintiff, )
)
v. ) MAGISTRATE JUDGE
) JONATHAN D. GREENBERG
ANDREW SAUL, )
Commissioner of Social Security, )
) MEMORANDUM OF OPINION
Defendant. ) AND ORDER
)
Plaintiff, Gloria Beard (“Plaintiff” or “Beard”), challenges the final decision of Defendant,
Andrew Saul,1 Commissioner of Social Security (“Commissioner”), denying her applications for a
Period of Disability (“POD”), Disability Insurance Benefits (“DIB”), and Supplemental Security
Income (“SSI”) under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 416(i), 423, and
1381 et seq. (“Act”). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g) and the consent of
the parties, pursuant to 28 U.S.C. § 636(c)(2). For the reasons set forth below, the Commissioner’s
final decision is AFFIRMED.
I. PROCEDURAL HISTORY
In November 2015, Beard filed applications for POD, DIB, and SSI, alleging a disability
onset date of January 1, 2015 and claiming she was disabled due to hepatitis C, back problems,
1 On June 17, 2019, Andrew Saul became the Commissioner of Social Security.
1
bronchitis, liver problems, heart problems, thyroid problems, kidney problems, high blood pressure,
depression, and mental health issues. (Transcript (“Tr.”) at 348.) The applications were denied
initially and upon reconsideration, and Beard requested a hearing before an administrative law judge
(“ALJ”). (Id. at 20.)

On October 5, 2017, an ALJ held a hearing, during which Beard, represented by counsel, and
an impartial vocational expert (“VE”) testified. (Id. at 20.) On February 14, 2018, the ALJ issued
a written decision finding Plaintiff was not disabled. (Id. at 20-42.) The ALJ’ s decision became
final on August 28, 2018, when the Appeals Council declined further review. (Id. at 1-4.)
On October 30, 2018, Beard filed her Complaint to challenge the Commissioner’s final
decision. (Doc. No. 1.) The parties have completed briefing in this case. (Doc. Nos. 13 & 16.)
Beard asserts the following assignments of error:

(1) The ALJ did not properly evaluate and assign appropriate weight to the
findings and opinions of Nurse Alaimo, Beard’s mental healthcare provider.
(2) The ALJ’s finding that Beard does not require an opportunity to alternate
positions between sitting and standing is not supported by substantial
evidence.
(Doc. No. 13 at 1).
II. EVIDENCE
A. Personal and Vocational Evidence
Beard was born in November 1968 and was 49 years old at the time of her hearing, making
her a “younger” individual under Social Security regulations. (Tr. 41.) See 20 C.F.R. §§ 404.1563
& 416.963. She has a limited education and is able to communicate in English. (Tr. 41.) She has
past relevant work as a Nurse Assistant, Child Attendant, and Server. (Id. at 40.)
2
B. Relevant Medical Evidence2
1. Mental Impairments
On February 10, 2014, Beard met with Ellen Alaimo,3 an advanced practice nurse at Murtis
Taylor Human Services. (Tr. 518.) Nurse Alaimo’s notes show Beard had previously been

diagnosed with post-traumatic stress disorder (“PTSD”) and major depressive disorder, recurrent.
(Id.) She presented at that visit with some delusional ideas, and she complained of nightmares
related to the recent deaths of two family members. (Id.)
On April 10, 2014, Beard met with Nurse Alaimo again. (Id. at 520.) Treatment notes
describe her as presenting with bipolar disorder, being “[s]ometimes paranoid and reluctant to leave
the house,” and startling easily. (Id.)
On September 24, 2014, Beard had a medication management appointment with Nurse

Alaimo, who noted she was “always anxious about day to day problems.” (Id. at 522.)
On November 19, 2014, Nurse Alaimo noted that Beard was kept up at night thinking about
her brother, who had died two weeks earlier, and imagining her own death. (Id. at 526.) Beard
reported hearing voices “off and on,” but stated, “it’s not bad.” (Id.)
On January 14, 2015, Nurse Alaimo noted that Beard presented with “recurrent depression
and probable schizotypal disorder.” (Id. at 545.) She described Beard’s mood as “brighter today,”
and noted she had a new boyfriend. (Id.) She noted that, in the past, Beard had “complained of

2 The Court’s recitation of the medical evidence is not intended to be exhaustive and is
limited to the evidence cited in the parties’ Briefs.
3Plaintiff’s Brief identifies this provider as “Elaine Alaimo,” but the treatment notes
record her name as “Ellen Alaimo.” (Doc. No 13 at 4; Tr. 518-26.)
3
voices and felt she was clairvoyant,” and that she “still has frequent depression and is very sensitive
to insults and stress.” (Id. at 546.)
Beard did not return to Murtis Taylor until August 21, 2015, and Nurse Alaimo noted that
she had been noncompliant with appointments during the intervening time. (Id. at 529.) Beard’s

medical records show a new diagnosis of schizotypal personality disorder. (Id.) Treatment notes
describe Beard as presenting with “recurrent depression and schizotypal traits,” not sleeping, and
feeling overwhelmed and depressed, with no energy or motivation. (Id.)
On December 8, 2015, Nurse Alaimo noted Beard’s major depressive disorder was in
remission. (Id. at 551.) She noted that Beard had again been noncompliant with follow-up
appointments, and as a result, she had run out of medication. (Id. at 552.) Beard reported “intense
frequent nightmares,” as well as panic, depression, and “thoughts of worthlessness and guilt.” (Id.

at 553.) She also reported hallucinations of dogs chasing her, and was rejecting visits from her
family. (Id.)
On February 17, 2016, Michael Faust, Ph.D., a clinical psychologist, evaluated Beard at the
request of Social Security. (Id. at 1034.) In preparing his opinion, he also reviewed her treatment
records from Murtis Taylor and MetroHealth. (Id.) He noted that she was punctual for her
appointment and presented a “good appearance.” (Id. at 1034, 1307.) She was cooperative with all
his questioning, but “showed some difficulty in tracking the conversation and was anxious and
agitated throughout the examination.” (Id. at 1037.) He described her as “rather odd in presentation

with limited social skills.” (Id.) He diagnosed her with bipolar II disorder, PTSD, schizotypal
personality disorder, and alcohol and cocaine use disorder in 30-year remission. (Id. at 1039.) He
described her cognitive skills as “low average range,” and found no limitations “with regard to
4
attention, concentration, persistence or work pace,” but noted “she may exhibit more difficulty with
her attention and persistence as her psychological stress increases.” (Id. at 1040.) He opined that she
would be limited in her ability to respond appropriately to supervision, coworkers, and work
pressures in an employment setting due to symptoms associated with PTSD, schizotypal personality

disorder, and bipolar II disorder. (Id. at 1040-41.)
On April 15, 2016, Beard returned to Murtis Taylor and was seen by Nurse Christian Okoko
and Nurse Alaimo. (Id. at 1286.) They reported Beard’s “mood has been up and down but that her
medication has been helping her calm down and focus.” (Id. at 1288.) They observed that her mood
was “bright when she came in but [she] started crying as the interview progressed.” (Id.)
On June 24, 2016, Nurse Alaimo reported Beard was anxious due to economic hardship and
stress because “everybody depends on me.” (Id. at 1282.) She reported being “paranoid when she

goes out,” hearing “some voices infrequently (reports about 4 times a month),” and having thoughts
of suicide by taking pills. (Id.)
On September 22, 2016, Courtney Preto, a therapist at Murtis Taylor, conducted a psycho-
social assessment of Beard. (Id. at 1300-06.) She opined that Beard demonstrated “moderate”
mental stability, thought content, and perception, but in the past had reported delusional thinking,
paranoia, and auditory hallucinations. (Id. at 1302, 1304-05.) Her diagnosis was adjusted to major
depressive disorder, recurrent, severe with psychotic features, and her services were unchanged. (Id.
at 1303.)

On October 20, 2016, Nurse Alaimo reported Beard had been off her medication about a
month and “wasn’t sure it worked very well.” (Id. at 1354.) She was reporting more hallucinations
than before - besides hearing voices, she now smelled cologne in her house - and her dreams were
5
vivid enough to wake her, shaking and anxious. (Id. at 1353.) She reported feeling depressed and
angry, and said she had thought about suicide by overdose “a month ago.” (Id.) Nurse Alaimo
prescribed a new medication, Rexulti. (Id. at 1354.)
On the same day, Nurse Alaimo completed an assessment of Beard’s mental capacity for use

in her Social Security application. (Id. at 1348-49.) She opined that Beard could rarely:4
• deal with work stress;
• complete a normal workday and workweek without interruption from
psychologically-based symptoms; and
• perform at a consistent pace without an unreasonable number and length of rest
periods.
(Id. at 1348.) She opined that Beard could occasionally:5
• follow work rules;
• use judgment;
• maintain attention and concentration for extended periods of 2-hour segments;
• respond appropriately to changes in routine settings;
• deal with the public;
• relate to co-workers;
• interact with supervisor(s);
• function independently without redirection;
• work in coordination or proximity to others without being distracted;

4 On this form, “rare” is defined as “cannot be performed for any appreciable time.”
(Tr. at 1348.)
5 On this form, “occasional” is defined as “ability for activity exists for up to 1/3 of work
day.” (Id.)
6
• work in coordination or proximity to others without being distracting;
• understand, remember, and carry out complex job instructions;
• understand, remember, and carry out detailed, but not complex, job instructions;
• socialize;

• behave in an emotionally stable manner; and
• relate predictably in social situations.
(Id. at 1348-49.) She based this assessment on Beard’s history of major depressive disorder and
PTSD, and her consistent reports of hearing voices, having premonitions and concrete thinking. (Id.
at 1349.)
On February 8, 2018, Nurse Alaimo noted that Beard had not come for her scheduled visits
since October 2017, and her medication had again run out. (Id. at 1373.) She reported “more mood

swings ranging from irritability, arguing, depression, and normal moods during the day,” fear of
sleeping in her own room, auditory and visual hallucinations, and “a lot of thoughts about death and
premonitions.” (Id.) Nurse Alaimo restarted her on Rexulti. (Id.)
On March 31, 2017, Nurse Alaimo noted that Beard reported no hallucinations, delusions or
suicidal ideation, but did report “a dissociative like feeling when she is with people or doing
something,” and feeling “out of balance.” (Id. at 1363.) Nurse Alaimo suggested increasing her
dosage of Rexulti. (Id. at 1364.)
2. Physical Impairments

On February 20, 2014, Beard went to Metro Health for physical therapy to treat her low back
pain. (Id. at 823.) She reported intermittent pain as high as 8 on a 10-point pain scale, but told the
physical therapist her pain dropped to 0 on the scale with rest and medication. (Id. at 826.) She had
7
previously been getting monthly injections for her pain, but had not gotten one for the past four
months. (Id.) The physical therapist noted Beard had decreased trunk range of motion with pain at
end ranges, decreased bilateral lower extremity strength, decreased overall endurance, poor body
mechanics, and increased pain. (Id. at 827.)

On April 23, 2014, Beard went to MetroHealth with worsening pain in her back and left foot.
(Id. at 638.) She reported that she had stopped going to her physical therapy appointments because
her pain was worse after therapy. (Id.) She was given an injection in her left heel to treat pain from
plantar fascitis, and asked to resume injections to treat her back pain. (Id.) The notes state she
would “be scheduled for a L3-5 [medical branch block] in the near future” to further treat her back
pain. (Id.)
On July 14, 2014, a CT scan of Beard’s abdomen and pelvis was performed at Lutheran

Hospital. (Id. at 583.) It showed lower lumbar discogenic disease and acquired spinal canal
narrowing. (Id.)
On November 20, 2014, Beard visited the MetroHealth Department of Rheumatology for
treatment of left thigh pain and numbness. (Id. at 771.) She also reported low back pain. (Id.) Dr.
Sherilyn Diomampo believed the pain was caused by retrolisthesis of the lumbar spine and
osteoarthritis, and she increased Beard’s dosage of Gabapentin, recommended exercise, and referred
her for pain management. (Id. at 775.)
On September 8, 2015, Beard went to the Lutheran Hospital Emergency Department for

treatment of sharp, achy, tingly low back pain and numbness and pain in her left leg. (Id. at 507.)
The doctor observed she had decreased range of motion and tenderness in her lower back and left
hip, and discharged her with medication. (Id. at 509.)
8
Om September 23, 2015, Beard was seen at MetroHealth for treatment of a hypothyroidism
which had caused a large, multi-nodular goiter. (Id. at 737.) Pharmaceutical management of her
hypothyroidism was complicated by the fact that Beard “insists that the [medication] makes her
phlegm thick so she skips a pill now and then so that the phlegm will become thin.” (Id.)

On October 7, 2015, Beard was treated at MetroHealth for worsening lumbar back pain,
which she described as “dull, intermittent and chronic.” (Id. at 605.) Treatment notes indicate she
was given a Left L3, L4, and L5 lumbar medial branch block at her last visit in May 2015, but only
experienced symptom relief for two weeks. (Id.) Her pain assessment noted that she was positive
for depression, and currently experiencing pain ranging from 6 to 10 on a 10-point scale. (Id.)
On November 19, 2015, she was treated at MetroHealth’s Liver Clinic for hepatitis C. (Id.
at 720.) Treatment records document a 2001 liver biopsy had shown her to be at stage 1, grade 2,

with minimal portal fibrosis. (Id. at 724.) A 2012 ultrasound of her liver showed normal findings.
(Id.)
On December 21, 2015, Beard was evaluated for physical therapy to treat her low back pain.
(Id. at 556.) The therapist noted Beard had poor posture and moderate limitations in her lumbar
range of motion. (Id. at 558.) Beard described “intermittent, unchanging low back pain,” and was
not experiencing leg pain at that visit. (Id. at 559.) She expressed eagerness to learn new exercises,
but stated “she never kept up with aquatic exercises which had made her feel better.” (Id.)
On January 11, 2016, doctors at MetroHealth’s Liver Clinic sought to treat her hepatitis C

with 12 weeks of DAA therapy with Harvoni. (Id. at 868.)6

6 Notes from September 13, 2016, state that this treatment was denied by insurance. (Tr.
1330.)
9
Treatment notes from February and September 2016 show Beard was clinically stable on
thyroid medication. (Id. at 1260, 1338.)
On October 4, 2016, Beard received treatment for her osteoarthritis at the MetroHealth
Department of Rheumatology. (Id. at 1315.) Stanley Ballou, M.D., noted that she reported

increased back pain, urinary incontinence, and “some symptoms that could be consistent with lumbar
spine stenosis.” (Id. at 1315.) He adjusted her medication and recommended she resume water
exercise. (Id.) X-rays ordered by Dr. Ballou showed thoracolumbar dextroscoliosis with a rotary
component; degenerative changes of the lumbar spine; disc space narrowing between the L3, L4, L5
and S1 vertebrae with marginal osteophytes; and some retrolisthesis of L3 and L4. (Id. at 1326.)
On November 3, 2016, Beard went to the MetroHealth Pain Management Clinic for a
disability examination conducted by Nurse Ann Harrington. (Id. at 1381.) Her physical examination

showed a mildly limited range of motion in Beard’s hip and trunk. (Id. at 1387.) Nurse Harrington
opined that Beard could easily lift 11 pounds and could lift a maximum of 21 pounds. (Id.) Beard
reported that she could sit for 20 minutes and stand or walk for 30 minutes. (Id.) Nurse Harrington’s
Medical Source Statement stated Beard’s ability to lift, carry, stand, walk, and sit were not affected
by her impairment, but she needed to be able to alternate positions at will. (Id. at 1618-19.) She
opined that Beard could occasionally climb, balance, stoop, crouch, kneel, or crawl. (Id. at 1618.)
She noted that Beard experienced pain, but the intensity of this pain was “subjective.” (Id. at 1619.)
On November 30, 2016, Beard returned to the MetroHealth Pain Management Clinic for

treatment of her “dull and intermittent” back pain. (Id. at 1411.) She reported that the pain
worsened with sitting, walking, and movement, but that her medications improved her ability to
perform activities of daily living and reduced her pain, without adverse side effects. (Id.)
10
On January 5, 2017, Beard’s plantar fascitis was again treated at MetroHealth. (Id. at 1460.)
Angela Grady, M.D., noted that when Beard stood after sitting, she limped because it was too painful
for her to put weight on her heels. (Id.) Beard received treatment of her thick, painful toenails and
was given heel injections. (Id. at 1463.)

On January 12, 2017, Beard cancelled a scheduled MRI due to fear, but promised to
reschedule it.7 (Id. at 1477.)
On April 24, 2017, Beard saw Kathleen Quealy, M.D., a MetroHealth cardiologist. (Id. at
1541.) Dr. Qualy noted that she was not taking her medication as prescribed and advised her that
she was “NOT disabled from a heart standpoint.” (Id. at 1543, emphasis in original.)
On April 26, 2017, Beard had a follow-up appointment with the MetroHealth Pain
Management Clinic. (Id. at 1548.) She described her pain as “sharp and continuous,” but controlled

by her medication. (Id.) Her medication was refilled and she was referred for physical therapy. (Id.
at 1552.)
On May 4, 2017, Beard restarted physical therapy. (Id. at 1548.) The physical therapist
noted Beard had a “poor slouched sitting posture” and also poor standing posture. (Id. at 1562.) On
examination, she had pain with all lumbar movement, and shortened hip flexors and quads. (Id. at
1563.) She showed improved movement patterns after attending three physical therapy sessions in
May and June 2017. (Id. at 1569.)

7 When Beard tried to reschedule the MRI, it needed to be reordered. (Tr. 1493.) Next, it
was delayed because insurance required she do physical therapy first. (Id. at 1548.) It
was reordered on March 14, 2017. (Id. at 1526.)
11
On May 5, 2017, Beard returned to her cardiologist, Dr. Quealy. (Id. at 1569.) Dr. Quealy
opined she had hypertensive heart disease with atrial arrhythmia, likely related to obstructive sleep
apnea, but was not disabled from a heart standpoint. (Id. at 1570.)
C. State Agency Reports

1. Mental Impairments
On May 7, 2016, Kathleen Malloy, Ph.D., a State Agency reviewing psychologist, opined that
Beard was limited to simple, routine four-to-five step tasks; her concentration would be limited if
she experienced stress that exacerbated her emotional symptoms; and she was markedly limited in
interacting with the general public, but capable of limited, superficial social interactions. (Id. at 261-
62.) She opined that Beard should avoid crowds and required a setting in which her duties were
routine and predictable, and where changes could be explained and introduced slowly. (Id.)

On May 12, 2016, State Agency reviewing psychologist Carl Tishler, Ph.D., concurred with
Dr. Malloy’s opinion. (Id. at 295-98.)
2. Physical Impairments
On May 7, 2016, State Agency reviewing physician Gerald Klyop, M.D., opined that Beard
could lift, carry, or pull 20 pounds occasionally and 10 pounds frequently; could stand and/or walk
and sit with normal breaks about 6 hours in an 8-hour workday; had a limited ability to push and pull
in both her upper and lower extremities; could climb ramps and stairs frequently and climb ladders,

ropes, or scaffolds occasionally; could stoop, kneel, crouch, and crawl occasionally; and should
avoid concentrated exposure to fumes, odors, dusts, gases, and poor ventilation. (Id. at 259-261.)
On May 13, 2016, State Agency reviewing physician EsberdadoVillanueva, M.D. concurred
with Dr. Klyop’s opinion. (Id. at 294-95.)
12
D. Hearing Testimony
During the October 5, 2017 hearing, Beard testified to the following:
• She is 49 years old, 5 feet 10 inches tall, and weighs roughly 258 pounds. (Tr. 61.)
• She drove to the hearing. She was 25 minutes late because she had been unaware
that it was happening on that day. She was dropping someone off and got a call
from her lawyer asking whether she would attend. She then rushed over to the
hearing. (Id. at 60-61.)
• She could not recall ever having spoken to her lawyer before. (Id. at 62.)
• Since the onset of her disability, she has made no more than $25 a week driving
people to places like doctors’ appointments and stores. She does not get this work
through a company, and does it “probably like once a month.” (Id. at 63.)
• She believes she is disabled because “when my anxiety kick [sic] in, it makes me
like nervous and scared of being in a crowd or around people, and from me being
under a lot of medication and different things . . . my body reacts . . . sometimes I
just feel overwhelmed, I guess, then my back . . . I have like a like my spine is .
. . crooked and then I have arthritis up in there and then it’s a lot of swelling up in
my back, so . . . I can sit for so long and then I have to stand . . . most jobs you have
to do a lot of standing and that it irritates my back to the point where I can barely
walk.” (Id. at 64.)
• Her bipolar condition sometimes makes her lash out at people, get angry at people,
or fear someone will hurt her, so she becomes scared to leave her house. (Id.)
• She is “not sure what is going to happen” to her because of her bipolar condition
and other health problems, including heart disease, a kidney blockage, bronchitis,
thyroid disorder, liver disorder, stomach problems, and her mental problems. (Id.
at 64-65.)
• Side effects from her medications include: “I get shakes and some of them make me
nervous.” (Id. at 66.)
• She has had an MRI on her back and will have another one. The doctor told her she
can treat her back pain with either steroid injections into her spine or surgery. She
is worried that the needle used to inject the steroids might paralyze her, so she
“might do the surgery.” (Id.)
13
• Over the past couple of years, her back has gotten a lot worse. She hurts more, and
her left leg is numb to the touch. She went to the Emergency Department at
Lutheran Hospital “a couple of times” because of her leg, but they “kept sending me
home and telling me that it’s part of the back issue.” She has also gone to the
Emergency Department frequently for “real bad” pain in her back. They give her
more pain medication. (Id. at 66-68.)
• She gets treatment for her medical problems at MetroHealth on West 150th Street.
(Id. at 69.)
• She is still taking Tramadol and Meloxicam. (Id. at 70.)
• She can sit about 15 or 20 minutes before she needs to stand up or change position,
and stand for about 15 or 20 minutes before she needs to sit down. (Id. at 71.)
• When she walks, it hurts. She hasn’t timed how long she can walk, but when she
grocery shops she needs to lean on a cart to get through the store. (Id. at 71-72.)
• Around the house, she washes dishes and cleans up, straightening the beds, for
example, but doesn’t push furniture or do any lifting. She has 17-year-old and 11-
year-old children living with her who help with those tasks. (Id. at 72.)
• She can lift a gallon of milk, but would have one of her children lift a 10-pound
sack of potatoes, because it would hurt. (Id. at 72-73.)
• Her behavioral health doctor gave her pills to help her sleep at night because she
doesn’t sleep. Sometimes the pills help, and other times she has too much on her
mind. (Id. at 73.)
• She feels helpless and worthless because of “all the medications I’m on and all the
health problems I have . . . with the kids and then just with the bills.” She feels
overwhelmed. (Id.)
• Leaving the house and being around people makes her anxious. She feels like
someone is out to get her, but her behavioral health doctor tells her she is over-
thinking things. (Id. at 74.)
• When she gets anxious, her heart starts racing and to calm herself down she will
call a family member to talk. (Id.)
• When her bipolar symptoms kick in, she “want[s] to cry and . . . punch things or hit
stuff or . . . do bad things to people but I know I can’t.” (Id.)
14
• She struggles with anxiety and bipolar symptoms “on a daily basis,” but she is
learning to control them by finding someone to talk to or waiting for them to pass.
Sometimes she goes to the Emergency Department because she thinks she is having
a heart attack, but it is just her anxiety. (Id. at 75.)
• She has been seeing Nurse Alaimo for six, seven, or eight years. She usually sees
her once every three months, but when she’s feeling overwhelmed, she goes once
a month. (Id.)
• She is seeing her more often right now because her previous medication was
making her sweat and “it was still making me hear things and stuff,” so she was
switched back to her previous medication, Latuda, which seems to be working. (Id.
at 75-76.)
• She last had physical therapy for her back about a month ago. She finds physical
therapy “hurts me better than it helps me.” (Id. at 76.)
• She sometimes skips physical therapy appointments and does not do the prescribed
exercises because they cause her so much pain. (Id. at 77.)
• She feels it is unfair that other people receive disability benefits easily, and she has
to keep fighting to get benefits for her ongoing problems. (Id. at 78.)
The VE testified Beard had past work as a Nurse Assistant, Child Attendant, and Server.
(Id. at 55-56.) The ALJ then posed the following hypothetical question:
Imagine a person having Beard’s age, education and vocational background. The
person is able to perform work at the light exertional level; frequently push or pull
and operate foot pedals; frequently climb ramps and stairs; occasionally climb
ladders, ropes or scaffolds; constantly balance; occasionally stoop, kneel, crouch or
crawl. The person must avoid concentrated exposure to smoke, fumes, dusts, gases,
and poor ventilation. The person can occasionally be around dangerous machinery
and unprotective [sic] heights. The person is able to perform simple, routine four-to-
five step tasks; and is limited to superficial social interactions with others, meaning
the job cannot require arbitration, negotiation, conflict resolution, management or
supervision of others, or being responsible for the health, welfare or safety of others.
She’d work best in an environment that allows her to avoid crowds. That person can
adapt to a setting where duties are routine and predictable and where changes are
explained and introduced slowly. The person has the ability to concentrate and
persist to complete those tasks. Could that hypothetical person perform any of
beard’s past work or any other work in the national economy?

15
The VE testified the hypothetical individual would not be able to perform Beard’s past work
as a nurse assistant, child attendant, or server. (Id. at 57.) He further explained the hypothetical
individual would be able to perform other representative jobs in the economy, such as marker
labeler, assembler, or laundry bagger, light. (Id.)

The ALJ asked whether it would be problematic to sustaining the jobs the VE mentioned if
the hypothetical person was going to be off-task for any reason. (Id. at 57-58.) The VE replied that,
in his professional experience, most jobs permitted employees to be off-task up to and including
10% of their workday, but anything more than that would preclude work. (Id. at 58.)
III. STANDARD FOR DISABILITY
In order to establish entitlement to DIB under the Act, a claimant must be insured at the time
of disability and must prove an inability to engage “in substantial gainful activity by reason of any

medically determinable physical or mental impairment,” or combination of impairments, that 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. §§ 404.130, 404.315, and 404.1505(a).
A claimant is entitled to a POD only if: (1) she had a disability; (2) she was insured when she
became disabled; and (3) she filed while she was disabled or within twelve months of the date the
disability ended. 42 U.S.C. § 416(i)(2)(E); 20 C.F.R. § 404.320.
A disabled claimant may also be entitled to receive SSI benefits. 20 C.F.R. § 416.905; Kirk
v. Sec’y of Health & Human Servs., 667 F.2d 524 (6th Cir. 1981). To receive SSI benefits, a

claimant must meet certain income and resource limitations. 20 C.F.R. §§ 416.1100 and 416.1201.
The Commissioner reaches a determination as to whether a claimant is disabled by way of
a five-stage process. 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4). See also Ealy v. Comm’r of
16
Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010); Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990).
First, the claimant must demonstrate that he is not currently engaged in “substantial gainful activity”
at the time of the disability application. 20 C.F.R. §§ 404.1520(b) and 416.920(b). Second, the
claimant must show that he suffers from a “severe impairment” in order to warrant a finding of

disability. 20 C.F.R. §§ 404.1520(c) and 416.920(c). A “severe impairment” is one that
“significantly limits . . . physical or mental ability to do basic work activities.” Abbot, 905 F.2d at
923. Third, if the claimant is not performing substantial gainful activity, has a severe impairment
that is expected to last for at least twelve months, and the impairment, or combination of
impairments, meets or medically equals a required listing under 20 CFR Part 404, Subpart P,
Appendix 1, the claimant is presumed to be disabled regardless of age, education or work experience.
See 20 C.F.R. §§ 404.1520(d) and 416.920(d). Fourth, if the claimant’s impairment or combination

of impairments does not prevent him from doing his past relevant work, the claimant is not disabled.
20 C.F.R. §§ 404.1520(e)-(f) and 416.920(e)-(f). For the fifth and final step, even if the claimant’s
impairment does prevent him from doing his past relevant work, if other work exists in the national
economy that the claimant can perform, the claimant is not disabled. 20 C.F.R. §§ 404.1520(g),
404.1560(c), and 416.920(g).
Here, Beard was insured on her alleged disability onset date, January 1, 2015, and remains
insured through December 31, 2019, her date last insured (“DLI.”) (Tr. 23.) Therefore, in order to

be entitled to POD and DIB, Beard must establish a continuous twelve-month period of disability
commencing between these dates. Any discontinuity in the twelve-month period precludes an
entitlement to benefits. See Mullis v. Bowen, 861 F.2d 991, 994 (6th Cir. 1988); Henry v. Gardner,
381 F.2d 191, 195 (6th Cir. 1967).
17
IV. SUMMARY OF COMMISSIONER’S DECISION
The ALJ made the following findings of fact and conclusions of law:
1. The claimant meets the insured status requirements of the Social Security Act
through December 31, 2019.
2. The claimant has not engaged in substantial gainful activity since January 1,
2015, the alleged onset date (20 CFR 404.1571 et seq., and 416.917 et seq.)
3. The claimant has the following severe impairments: disc displacement of the
lumbar spine, retrolisthesis, lumbar facet arthropathy, lumbar radiculopathy,
degenerative disc disease of the lumbar spine, thyroid disorder, status post
thyroidectomy, chronic hepatitis C, major depressive disorder/bipolar II
disorder, anxiety disorder, posttraumatic stress disorder (PTSD), and
schizotypal personality disorder. (20 CFR 404.15209(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).
5. After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work as defined
in 20 CFR 404.1567(b) and 416.967(b), except she can frequently push or
pull, and frequently operate foot pedals. She can frequently climb ramps and
stairs and occasionally climb ladders, ropes or scaffolds. The claimant can
constantly balance, but only occasionally stoop, kneel, crouch, and crawl.
She must avoid concentrated exposure to smoke, fumes, dusts, gases and
poor ventilation. She can occasionally be around dangerous machinery and
unprotected heights. The claimant is able to perform simple, routine 4-5 step
tasks. The claimant is limited to superficial social interactions with others,
with superficial meaning the job cannot require arbitration, negotiation,
conflict resolutions, management or supervision of others, or being
responsible for the health, safety or welfare of others. The claimant would
work best in an environment that allows her to avoid crowds. The claimant
can adapt to a setting where duties and routines are predictable, and where
changes are explained and introduced slowly. She has the ability to
concentrate and persist to complete those tasks.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565
and 416.965).
18
7. The claimant was born on November **, 1968 and was 46 years old, which
is defined as a younger individual age 18-49, on the alleged disability date
(20 CFR 404.963).
8. The claimant has a limited 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
transferrable 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 January 1, 2015, through the date of this decision (20 CFR
404.1520(g) and 416.920(g)).
(Tr. 20-42.)
V. STANDARD OF REVIEW
“The Social Security Act authorizes narrow judicial review of the final decision of the Social
Security Administration (SSA).” Reynolds v. Comm’r of Soc. Sec., 424 F. App’x 411, 414 (6th Cir.
2011). Specifically, this Court’s review is limited to determining whether the Commissioner’s
decision is supported by substantial evidence and was made pursuant to proper legal standards. See
Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010); White v. Comm’r of Soc. Sec., 572
F.3d 272, 281 (6th Cir. 2009). Substantial evidence has been defined as “‘more than a scintilla of
evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th
Cir. 2007) (quoting Cutlip v. Sec’y of Health and Human Servs., 25 F.3d 284, 286 (6th Cir. 1994)).
19
In determining whether an ALJ’s findings are supported by substantial evidence, the Court does not
review the evidence de novo, make credibility determinations, or weigh the evidence. Brainard v.
Sec’y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989).
Review of the Commissioner’s decision must be based on the record as a whole. Heston v.

Comm’r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). The findings of the Commissioner are not
subject to reversal, however, merely because there exists in the record substantial evidence to support
a different conclusion. Buxton v. Halter, 246 F.3d 762, 772-3 (6th Cir. 2001) (citing Mullen v.
Bowen, 800 F.2d 535, 545 (6th Cir. 1986)); see also Her v. Comm’r of Soc. Sec., 203 F.3d 388,
389-90 (6th Cir. 1999) (“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 conclusion
reached.”) This is so because there is a “zone of choice” within which the Commissioner can act,

without the fear of court interference. Mullen, 800 F.2d at 545 (citing Baker v. Heckler, 730 F.2d
1147, 1150 (8th Cir. 1984)).
In addition to considering whether the Commissioner’s decision was supported by substantial
evidence, the Court must determine whether proper legal standards were applied. Failure of the
Commissioner to apply the correct legal standards as promulgated by the regulations is grounds for
reversal. See, e.g.,White v. Comm’r of Soc. Sec., 572 F.3d at 281; Bowen v. Comm’r of Soc. Sec.,
478 F.3d 742, 746 (6th Cir. 2006) (“Even if supported by substantial evidence, however, 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.”).
Finally, a district court cannot uphold an ALJ’s decision, even if there “is enough evidence
in the record to support the decision, [where] the reasons given by the trier of fact do not build an
20
accurate and logical bridge between the evidence and the result.” Fleischer v. Astrue, 774 F. Supp.
2d 875, 877 (N.D. Ohio 2011) (quoting Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996); accord
Shrader v. Astrue, No. 11 13000, 2012 WL 5383120, at *6 (E.D. Mich. Nov. 1, 2012) (“If □□□□□□□□
evidence is not mentioned, the Court cannot determine if it was discounted or merely overlooked.”’);
McHugh vy. Astrue, No. 1:10 cv 734, 2011 WL 6130824 (S.D. Ohio Nov. 15, 2011); Gilliam v.
Astrue, No. 2:10 CV 017, 2010 WL 2837260 (E.D. Tenn. July 19, 2010); Hook v. Astrue, No.
1:09 cv 1982, 2010 WL 2929562 (N.D. Ohio July 9, 2010).
VI. ANALYSIS
A. First assignment of error: The findings and opinions of Nurse Alaimo, Beard’s mental
healthcare provider
Beard first argues that the ALJ did not use appropriate standards to adequately evaluate the
opinion of Nurse Ellen Alaimo, Beard’s treating psychiatric nurse practitioner, and, as a result,
adopted a determination of residual functional capacity that is both premised on legal error and not
based on substantial evidence. (Doc. No. 13 at 13-14.) Beard asserts the ALJ violated Social
Security Ruling 6-03p by giving Nurse Alaimo’s opinion only “some weight” because she is not a
psychiatrist or psychologist. (id. at 15.) She also argues the ALJ was factually incorrect in finding
that Nurse Alaimo’s opinion that Beard could rarely deal with work stress or complete a normal
work-day or work-week lacked sufficient objective support in the record. (/d. at 16.)*

* At the end of this section of her brief, Beard references the additional argument that the
ALJ’s failure to adequately explain his decision not to rely on the opinion of consultative
examiner Michael Faust, Ph.D., is also reversible error. Since this argument is not
developed in the brief, it will not be discussed here. See McPherson v. Kelsey, 125 F.3d
989, 995 96 (6th Cir. 1997) (“[I]ssues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed waived. It is not
sufficient for a party to mention a possible argument in the most skeletal way, leaving the
court to... put flesh on its bones.”)
21

The Commissioner responds that substantial evidence supports the ALJ’s decision. He
asserts that the ALJ carefully considered all of the record evidence, in a manner consistent with
agency rulings and regulations, in making his determination. (Doc. No. 16 at 7.) He points out that
the ALJ gave “some weight” to Nurse Alaimo’s opinion, but chose not to give it controlling weight

after a careful evaluation that was explained in his opinion. (Id. at 12.)
It is well-established a nurse practitioner is classified as an “other source” under the
Commissioner’s regulations. Noto v. Comm’r of Soc. Sec., 632 F. App’x 243, 248 (6th Cir. 2015)
(“‘Other sources’ is everyone else, including nurse practitioners.”); Cruse v. Comm’r of Soc. Sec.,
502 F.3d 532, 541 (6th Cir. 2007). Therefore, the opinion of a nurse practitioner is not subject to
the “good reasons” requirement of the treating physician rule. See 20 CFR §§ 416.902(a)(1) -(8),
416.927(a)(1), 416.927(f); Noto, 632 F. App’x at 248. Nonetheless, Social Security Ruling 06 03p9

notes that information from “other sources” such as nurse practitioners “are important” and “may
provide insight into the severity of the impairment(s) and how it affects the individual’s ability to
function.” SSR 06 03p, 2006 WL 2329939 at *2 3 (Aug. 9, 2006). See also 20 CFR § 416.927(c).
Under the Sixth Circuit’s interpretation of this SSR, opinions from “other sources” who have seen
the claimant in their professional capacity “should be evaluated using the applicable factors,
including how long the source has known the individual, how consistent the opinion is with other
evidence, and how well the source explains the opinion.” Cruse, 502 F.3d at 541. See also
McKitrick v. Comm’r of Soc. Sec., No. 5:10 CV 2623, 2011 WL 6939330, at *12 13 (N.D. Ohio

9 SSR 06-03p was rescinded on March 27, 2017. This rescission is effective for claims
filed on or after March 27, 2017. See “Rescission of SSRs 96-2p, 96-5p, and 06-3p,”
2017 WL 3928298 at * 2 (SSA March 27, 2017). Here, Beard filed her applications in
November 2015, prior to the rescission of SSR 06-03p.
22
Dec. 30, 2011); Kerlin v. Astrue, No. 3:09cv00173, 2010 WL 3937423, at *7 (S.D. Ohio March 25,
2010). See also 20 CFR § 416.927(c),(f). Yet the ALJ has broad deference in his final
determination; “[t]he opinion of a “non-acceptable medical source” is not entitled to any particular
weight or deference the ALJ has discretion to assign it any weight he feels appropriate based on

the evidence of record.” Noto, 632 F. App’x at 248 49 (citing Walters v. Comm’r of Soc. Sec., 127
F.3d 525, 530 (6th Cir. 1997); Engebrecht v. Comm’r of Soc. Sec., 572 F. App’x 392, 397 98 (6th
Cir. 2014)).
Beard focuses on the ALJ’s assertion that because Nurse Alaimo is not licensed psychiatrist
or psychologist, she is not an “acceptable medical source” as defined by the Social Security Rulings
and therefore, “her opinion cannot be given controlling weight.” (Tr. 38, emphasis added.) She
argues that this is a misstatement of the law, because under SSR 6-03p the ALJ could give

controlling weight to Nurse Alaimo’s opinion if he chose to do so. (Doc. No. 13 at 14-16.)
However, in his opinion, the ALJ made it clear that he does not believe Nurse Alaimo’s
opinion is entitled to more than “some weight,” for reasons having nothing to do with her medical
credentials, so the alleged mistake of law would not change the outcome here.10 The ALJ followed
the analytical framework set forth by the Social Security Rulings. He gave consideration to the fact
that Nurse Alaimo “has an extensive treating relationship with the claimant.” (Tr. 38.) He explained
his reasoning regarding Nurse Alaimo’s opinion in a clear and coherent manner, basing it on a lack

10 The Court need not remand where doing so is futile. N.L.R.B. v. Wyman-Gordon Co.,
394 U.S. 759, 766 n.6 (1969) (“To remand would be an idle and useless formality.
Chenery does not require that we convert judicial review of agency action into a
ping-pong game . . . There is not the slightest uncertainty as to the outcome of a
proceeding before the Board . . . It would be meaningless to remand.”); Wilson v. Comm’r
of Soc. Sec., 378 F.3d 541, 547 (6th Cir. 2004) (citing and quoting Wyman-Gordon Co.,
394 U.S. at 766 n.6).
23
of objective support in the record and citing specific record evidence he found inconsistent with her
opinion. (Id. at 38-39.) Beard implicitly acknowledges that the ALJ identified the evidence he relied
on in her next argument: that the evidence the ALJ relied on is factually incorrect. (Doc. No. 13 at
16.)

Beard next objects that “[t]he ALJ’s additional finding that Nurse Alaimo’s opinion is not
supported by the objective evidence of record, is also factually incorrect.” (Doc. No. 13 at 16.) This
misstates the ALJ’s ruling, which found only a small portion of Nurse Alaimo’s opinion “a finding
that claimant can rarely deal with work stress or complete a normal workday or workweek” to be
without sufficient objective support in the record. (Tr. 39.) The ALJ based this determination on
the treatment reports showing “evidence of generally cooperative behavior and linear, logical thought
processes on examination,” and on Beard’s activities of daily living, noting that she regularly attends

medical appointments, shops in stores, drives independently, and cares for her daughter and
granddaughter, both of whom have special needs. (Id.) The ALJ cited to specific evidence in the
record to support these findings. (Id.)
In response, Beard cites case law for the undisputed proposition that the ALJ is required to
consider the treatment records of mental health providers. (Doc. No. 13 at 16-17.) As discussed
above, the ALJ considered Nurse Alaimo’s treatment records, gave weight to many parts of her
opinion, and disagreed with one of her conclusions. Beard adds one sentence relating her argument
to the evidence in this case: “Here, the treatment notes and observations by Nurse Alaimo provide

an objectively based mental health diagnosis based off of multiple depressive symptoms reviewed
in clinical interviews and further observed Plaintiff cry and rock back and forth in her chair.” (Doc.
No. 13 at 17-18.) She follows this with a string citation to eight pages of the Transcript of
24
Proceedings before the Social Security Administration. (Id.) The ALJ adopted the diagnosis made
by Nurse Alaimo and Beard’s other mental healthcare providers: major depressive disorder/bipolar
II disorder, anxiety disorder, PTSD and schizotypal personality disorder. (Tr. 23.) What is in
dispute is the ALJ’s assessment of the severity of Beard’s symptoms, and it is not clear how the

treatment records she cited support the “finding that claimant can rarely deal with work stress or
complete a normal workday or workweek.” Beard gives the Court no guidance as to why she thinks
these eight pages are particularly significant.11 The parties agree that Beard has significant mental
health issues. The ALJ discussed many of the records Beard cites in his opinion. He balanced the
evidence in the medical treatment notes with Beard’s ability to control her symptoms under
“relatively conservative mental health treatment,” and to independently manage activities of daily
living, including raising two children with special needs, which is inherently stressful. (Id. at 35,

39.) It is not for the Court to re-weigh that evidence.
Next, Beard asserts that consultative examiner Dr. Michael Faust’s opinion “supports Ms.
Alaimo’s conclusions regarding stress intolerance and an inability to complete a normal workday or
week, in that the consultant determined that Ms. Beard’s significant mood issues and psychological
dysfunction could impair her ability to understand, remember, and carry out tasks, that her ability

11 Once record documents Beard’s diagnosis and the medication prescribed. (Tr. 522.)
As noted infra, the diagnosis is not in dispute. One record shows Beard crying as she
discusses the death of her brother two weeks previously. (Id. at 526.) Another notes that
her mood was “bright when she came in,” but she cried as she discussed feeling
overwhelmed by the responsibility of caring for her granddaughter and her teenager while
also managing her own health problems. (Id. at 1288.) A third recounts that she was
“tearful and had been talking about past trauma.” (Id. at 1290.) Many describe her
appearance as “casual, neat,” or “clean, neat and appropriately dressed,” her affect as
“reasonable,” and her speech as proceeding at a “normal rate and tone.” (Id. at 526, 529 &
1288.) Two records describe “no restless movement,” or zero “abnormal movements,”
while two others describe “mild rocking in chair.” (Id. at 526, 552, 1290 & 1353.)
25
to maintain attention and concentration may decrease as her stress increases, that she would be
limited in responding appropriately to supervisors and coworkers, and that she would have
limitations in her ability to respond appropriately to work pressures.” (Doc. No. 13 at 18.) Yet the
ALJ concluded Beard had “moderate limitation” in most of these areas, including Beard’s ability to

handle stress. (Tr. 25-26.) This is entirely consistent with Dr. Faust’s statement that “Ms. Beard is
viewed to have limitations in her ability to respond appropriately to work pressures in an
employment setting.” (Tr. 1041.) Dr. Faust failed to specify the level of the limitations he
documented in his opinion, and this failure to provide “specific functional limitations” is one of the
reasons the ALJ gave his opinion only “some, but not great weight.” (Tr. 39.)
In sum, none of the issues raised here provide sufficient grounds for remand. The Court
finds the ALJ’s analysis of Nurse Alaimo’s opinion satisfies the regulatory requirements for

considerations of opinions from “other sources,” and is based on substantial evidence. Thus, the
ALJ’s decision to give Nurse Alaimo’s opinion “some weight” is within the zone of choice, and must
be affirmed.
B. Second assignment of error: The ALJ’s finding that Beard does not require an
opportunity to alternate positions between sitting and standing.
Beard asserts that the ALJ’s RFC determination that she can perform light work activity
without requiring a sit/stand option lacks substantial evidence. (Doc. No. 13 at 19.) She accuses the
ALJ of inappropriately “cherry picking,” or selectively reading the evidentiary record and opinion
of nurse practitioner Ann Harrington, in support of this determination. (Id.)
The Commissioner responds that substantial evidence supports the decision to give Nurse
Harrington’s opinion “little weight,” and that the ALJ clearly explained those reasons as required

26
by the Social Security Rulings. (Doc. No. 16 at 15.) The Commissioner argues that the decision was
based on multiple factors, including that Nurse Harrington was not an “acceptable medical source”
under the regulations, was not one of Beard’s treatment providers, and only performed a one-time
disability examination of Beard. (Id.) In addition, the ALJ identified internal inconsistencies in

Nurse Harrington’s opinion. (Id. at 15-16.) He explained that the limitations which she proposed
and he did not adopt were conclusory and contradicted by both those internal inconsistencies and
other medical records. (Id.)
The RFC determination sets out an individual’s work-related abilities despite his or her
limitations. See 20 C.F.R. § 416.945(a). A claimant’s RFC is not a medical opinion, but an
administrative determination reserved to the Commissioner. See 20 C.F.R.§ 416.927(d)(2).12 An
ALJ “will not give any special significance to the source of an opinion on issues reserved to the

Commissioner.” See 20 C.F.R.§ 416.927(d)(3). As such, the ALJ bears the responsibility for
assessing a claimant’s RFC based on all of the relevant evidence, 20 C.F.R. § 416.946(C), and must
consider all of a claimant’s medically determinable impairments, both individually and in
combination. See SSR 96 8p, 1996 WL 374184 (SSA July 2, 1996).
“In rendering his RFC decision, the ALJ must give some indication of the evidence upon
which he is relying, and he may not ignore evidence that does not support his decision, especially
when that evidence, if accepted, would change his analysis.” Fleischer, 774 F. Supp. 2d at 880
(citing Bryan v. Comm'r of Soc. Sec., 383 F. App’x 140, 148 (3d Cir. 2010) (“The ALJ has an

obligation to ‘consider all evidence before him’ when he ‘mak[es] a residual functional capacity
12 This regulation has been superseded for claims filed on or after March 27, 2017. As
Beard’s application was filed in January 2015, this Court applies the rules and
regulations in effect at that time.
27
determination,’ and must also ‘mention or refute [...] contradictory, objective medical evidence’
presented to him.”)). See also SSR 96 8p at *7, 1996 WL 374184 (SSA July 2, 1996) (“The RFC
assessment must always consider and address medical source opinions. If the RFC assessment
conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was

not adopted.”)). While the RFC is for the ALJ to determine, however, it is well established that the
claimant bears the burden of establishing the impairments that determine his RFC. See Her v.
Comm’r of Soc. Sec., 203 F.3d 388, 391 (6th Cir. 1999).
There is no requirement that the ALJ discuss each piece of evidence or limitation
considered. See, e.g., Conner v. Comm’r, 658 F. App'x 248, 254 (6th Cir. 2016) (citing Thacker v.
Comm’r, 99 F. App’x 661, 665 (6th Cir. May 21, 2004) (finding an ALJ need not discuss every piece
of evidence in the record); Arthur v. Colvin, No. 3:16CV765, 2017 WL 784563, at *14 (N.D. Ohio

Feb. 28, 2017) (accord). However, courts have not hesitated to remand where an ALJ selectively
includes only those portions of the medical evidence that places a claimant in a capable light, and
fails to acknowledge evidence that potentially supports a finding of disability. See e.g., Gentry v.
Comm’r of Soc. Sec., 741 F.3d 708, 724 (6th Cir. 2014) (reversing where the ALJ “cherry-picked
select portions of the record” rather than doing a proper analysis); Germany Johnson v. Comm’r of
Soc. Sec., 313 F. App’x 771, 777 (6th Cir. 2008) (finding error where the ALJ was “selective in
parsing the various medical reports”). See also Ackles v. Colvin, 2015 WL 1757474 at * 6 (S.D. Ohio
April 17, 2015) (“The ALJ did not mention this objective evidence and erred by selectively including

only the portions of the medical evidence that placed Plaintiff in a capable light.”); Smith v. Comm’r
of Soc. Sec., 2013 WL 943874 (N.D. Ohio March 11, 2013) (“It is generally recognized that an ALJ
“may not cherry-pick facts to support a finding of non-disability while ignoring evidence that points
28
to a disability finding.”).
In this case, the ALJ’s thorough discussion of why he did not credit the sit/stand limitation
suggested in Nurse Harrington’s opinion shows that the ALJ was not “cherry picking” the record:
he acknowledged and analyzed evidence that would have supported a more restrictive RFC. He

noted her examination found “tenderness to palpation of the lumbar spine and paraspinals and limited
trunk and hip range of motion,” but also noted “normal reflexes, sensation, strength, fine motor
coordination and gate.” (Tr. 37.) In fact, in her examination notes, Nurse Harrington recorded
Beard’s truck and hip range of motion as only “mildly limited.” (Id. at 1387.) The only notes which
clearly support the sit/stand limitation are Beard’s self-reports. (Id.)
It is impossible to determine Nurse Harrington’s rationale, however, because her disputed
opinion is expressed as a check mark in the “yes” box following the question “Does the individual

need to be able to alternate positions between sitting, standing, and walking, at will?” (Tr. 1619.)
As the ALJ noted, Nurse Harrington indicated elsewhere on the same form that sitting, standing, and
walking were not affected by Beard’s impairment, so her opinion had internal inconsistencies. (Tr.
1618.) Further, his other reasons for omitting Nurse Harrington’s recommended sit/stand limitation
are also reasonable. As the Commissioner noted, Nurse Harrington is not an “acceptable medical
source” under the Social Security Rulings, did not treat Beard, and her opinion is not consistent with
treatment records that show Beard’s back conditions caused pain but usually did not impair her range
of motion, strength, sensation or ambulation.13

13 The Commissioner cites to large swaths of the more than 1,100-page medical record in
support of this argument - one more than 200 pages in length. This is not in accordance
with the Court’s Initial Order, which states “a citation to a medical finding contained on a
single page of a 20 page Exhibit must cite to the specific page, not generally to the 20
pages of the Exhibit.” (Doc. No. 4 at 3.) Nonetheless, it is an accurate statement of
29
Beard points to other medical records which she claims the ALJ “failed to consider” that
generally support the undisputed contention that her back problems constitute a severe impairment.14
She argues that “[in] his rejection of the sit/stand opinion, the ALJ does not mention the actual x-ray
results.” (Doc. No. 13 at 22.) However, in step 5 of his analysis, the ALJ addressed the x-ray Beard

accuses him of overlooking,15 “[a]n x-ray of the lumbar spine conducted on October 4, 2016 showed
thoracolumbar dextroscoliosis and degenerative changes of the lumbar spine, with some disc
narrowing at L3-4, L4-5, and L5-S1 with marginal osteophytes at multiple levels, and some
retrolisthesis of L3 with respect to L4 and L4 with respect to L5.” (Tr. 30.) He not only mentioned
the x-ray results, he also considered them. None of the records Beard cites challenge the ALJ’s
conclusion that:
[w]hile examinations have revealed lumbar tenderness and decreased range of
motion and occasionally decreased lower extremity strength, sensation and
reflexes, examinations have generally confirmed normal joints without swelling
or tenderness, normal extremity range of motion, generally full extremity strength,
generally normal sensation, consistently normal straight leg raising, normal fine
motor coordination, normal lungs and abdomen, and a generally normal gait with
consistently independent ambulation.
(Tr. 33.)
It is well-settled that the ALJ may consider the entire record without addressing each of the
more than 1,100 pages of the medical record individually. See, e.g., Conner, 658 F. App'x at 254
contents of the medical record.
14 These include records documenting her need for and participation in physical therapy,
which is undisputed and discussed in the ALJ’s opinion. (Tr. 823, 827, 556-57, 702 -05,
559.)
15 The parties disagree on whether this x-ray was taken October 4, 2016 or October 12,
2016. (Tr. 30, Doc. No. 13 at 21.) However, they describe its findings in nearly identical
terms.
30
(“we do not require an ALJ to discuss every piece of evidence in the record to substantiate the ALJ’s
decision’). Here, the ALJ recognized that Beard’s disc displacement of the lumbar spine,
retrolisthesis, lumbar facet arthropathy, lumbar radiculopathy, and degenerative disc disease of the
lumbar spine” are all “severe impairments,” and “significantly limit” Beard’s ability to perform basic

work activities. (Tr. 23.) He considered the record evidence, and did not ignore or overlook contrary
lines of evidence. The ALJ clearly explained his reasoning, and adopted an RFC determination
which limited Beard to light work with additional limitations. (Tr. 27.) He considered Nurse
Harrington’s conclusion that a sit/stand limitation was also necessary, and did not agree.
Accordingly, substantial evidence supports the ALJ’s rejection of a sit/stand option, it is within the
zone of choice, and it must be affirmed.
VII. CONCLUSION

For the foregoing reasons, the Commissioner’s final decision is AFFIRMED.
IT IS SO ORDERED.

s/Jonathan D. Greenberg
Jonathan D. Greenberg
United States Magistrate Judge
Date: November 1, 2019

31

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10367718. Public record. Not legal advice.