# Avery v. Commissioner of Social Security

> District Court, N.D. Ohio · May 14, 2020

URL: https://www.frixlaw.com/law-library/cases/10368412

## Case

- **Court:** District Court, N.D. Ohio
- **Decided:** May 14, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10368412

## How later opinions describe it (automated extraction)

- stating that good reasons include that: “(1) [the] treating physician’s opinion was not bolstered by the evidence; (2) evidence supported a contrary finding; or (3) [the] treating physician’s opinion was conclusory or inconsistent with the doctor’s own medical records.”
- noting that in such instances courts are not required to “convert judicial review of agency action into a ping-pong game”

## Opinion text

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

PATRICE J. AVERY, ) Case No. 1:19-cv-1963
)
Plaintiff, ) MAGISTRATE JUDGE
) THOMAS M. PARKER
v. )
)
COMMISSIONER OF ) MEMORANDUM OF OPINION
SOCIAL SECURITY, ) AND ORDER
)
Defendant. )

I. Introduction
Plaintiff, Patrice J. Avery, seeks judicial review of the final decision of the Commissioner
of Social Security, denying her application for supplemental security income (“SSI”) under Title
XVI of the Social Security Act. This matter is before me pursuant to 42 U.S.C. §§ 405(g) and
the parties consented to my jurisdiction under 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. ECF
Doc. 12. Because the ALJ failed to apply proper legal standards in evaluating the weight to
assign to Dr. Griggs’s treating source opinion, the Commissioner’s final decision denying
Avery’s application for SSI is VACATED and the case is REMANDED for further consideration
consistent with this order.
II. Procedural History
On February 6, 2015, Avery applied for SSI, which was denied at the initial level of
review. (Tr. 119, 282).1 Rather than appealing the decision, Avery filed a new application for
SSI on October 23, 2015. (Tr. 291). Avery alleged that she became disabled on February 2,
20022 due to asthma, fibromyalgia, bursitis, bronchitis, tendonitis and depression. (Tr. 291,
318). The Social Security Administration denied her application initially and upon
reconsideration. (Tr. 204, 210). Avery requested an administrative hearing. (Tr. 215). ALJ
Amy Budney heard Avery’s case on October 25, 2017, and denied the claim in a June 25, 2018,

decision. (Tr. 15-26). On June 27, 2019, the Appeals Council denied further review, rendering
the ALJ’s decision the final decision of the Commissioner. (Tr. 1-5). On August 27, 2019,
Avery filed a complaint challenging the Commissioner’s decision. ECF Doc. 1.
III. Evidence
A. Personal, Educational and Vocational Evidence
Avery was born in 1971 and was 44 years old when she filed her application. (Tr. 291).
She graduated from high school and earned an associate degree. She had worked as a hair stylist
and as a receptionist in the 1990s. (Tr. 39-40, 319).
B. Relevant Medical Evidence3
1. Physical Impairments
On January 15, 2013, Avery treated with Jessica Griggs, D.O., who noted that Avery
suffered from chronic joint and muscle pain. (Tr. 596). Physical examination showed that
Avery was 5’3” tall and weighed 213 pounds. Dr. Griggs observed slight edema in the lower
extremities, left worse than right. She diagnosed mild intermittent asthma; pure
hypercholesterolemia; myalgias and mastitis; esophageal reflux; obesity; acute sinusitis;
constipation and dermatitis. (Tr. 597).
Avery went to the emergency room on February 15, 2013 for fibromyalgia pain in her
back. She reported a 20 year history of pain. She said she was out of one of her medications and

2 Avery was previously awarded SSI benefits in 2002, but payments ended in July 2014 because, in April
2012, her resources exceeded $2,000 due to receiving money from her uncle when he died. (Tr. 163-
165).
3 Avery’s record includes medical evidence dating back earlier than 2013. Because those records are
the pain had gotten markedly worse over the past two days with increased stiffness. Examination
showed tenderness throughout her back and both right and left sides with multiple trigger points.
She was unable to tolerate any other examination of her back. She was discharged after
receiving a 60 mg Toradol intramuscular injection and prescription for Flexeril. Her diagnosis

was exacerbation of fibromyalgia pain. (Tr. 431-433).
On July 31, 2013, Dr. Griggs treated Avery for follow-up and medication refills. Avery
reported her psychiatrist had left the practice and she needed psychiatric and pain medication
refills. Dr. Griggs’s diagnoses were similar to those assessed in January 2013. (Tr. 594).
Avery also treated with Dr. Dan Shamir for pain management and monthly medication
refills. (Tr. 466, 463, 461-462, 460, 459, 457, 455, 453, 452, 486, 450-451, 446-448, 444, 429-
431, 434-443). On October 10, 2013, Avery requested a right trochanteric bursial injection,
which had helped her in the past. (Tr. 426-427). X-rays of her pelvis and right hip were normal.
(Tr. 483). The injection scheduled for November 8, 2013 was cancelled because Avery had
bronchitis. (Tr. 427).

Avery followed-up with Dr. Griggs on October 21, 2013 for medication refills. She
complained of dizziness and body aches. She rated her fibromyalgia pain as an 8/10 all the time
and her pain with medication as 6/10. Recent blood work showed an elevated white blood count.
Avery appeared fatigued; her strength was 4/5 in her upper extremities due to pain. (Tr. 588).
Dr. Griggs thought Avery’s dizzy spells may be related to an infection or neurologic cause. She
ordered more blood work and referred her to neurology. (Tr. 590-591).
Avery followed-up with Dr. Shamir on January 16, 2014. She reported that right
trochanteric pain had retruned and she requested another injection. (Tr. 424). Her lumbar range
of motion was reduced to 60° forward flexion, 10° extension, and lateral bending of 10°

bilaterally. (Tr. 425). An x-ray of her right hip was taken, and Dr. Shamir administered an
injection to her right hip. Her pain improved after the injection, and she was ambulating with
markedly reduced pain. (Tr. 426).
Avery saw Dr. Griggs on March 25, 2014 for follow-up and medication refills. Dr.
Griggs referred Avery to an eye doctor for vision changes and to a dermatologist for dermatitis.

Dr. Griggs diagnosed fibromyalgia, hypercholesterolemia; mild intermittent asthma; and
esophageal reflux. (Tr. 522-525).
Avery treated with Dr. Shamir on April 17, 2014. She reported that the trochanteric
bursal injection had helped, but that she still had pain in her back. Neurontin had helped in the
past but was no longer helpful. Physical examination revealed tenderness to palpation in
lumbosacral paraspinal muscles, buttocks and trochanters. She had 80° forward flexion in her
lumbar spine. Dr. Shamir recommended CoQ10 for Avery’s fibromyalgia. He noted that Avery
had not tolerated Cymbalta or Savella. (Tr. 422-423).
On June 5, 2014, Avery followed up with Dr. Griggs for medication refills. She
requested screening for diabetes mellitus due to family history. Avery’s listed medications were

Flonase, Restoril, Benadryl, Topamax, Prilosec, Mevacor, Soma and Ultram. (Tr. 512-516).
Avery went to the emergency room on September 6, 2014 with body pain, mainly in her
lower back. She described her pain as achy and constant with no radiation and gradually
increasing since September 2010. She had full range of motion and 5/5 motor strength. An
EKG revealed normal sinus rhythm with 1st degree AV block, septal myocardial infarction – age
undetermined. The diagnoses were urinary tract infection and fibromyalgia muscle pain.
Avery followed-up with Dr. Griggs on September 23, 2014 following her emergency
room visit for a urinary tract infection. She reported she had experienced intermittent chest pain
and needed further work-up for her abnormal EKG. Examination showed normal heart sounds
with regular rate and rhythm. Dr. Griggs diagnosed AV block, 1st degree and unspecified chest
pain. (Tr. 507-511).
Avery saw Dr. Shamir on November 6, 2014. Her blood pressure was 144/84 and she
complained of diffuse pain due to fibromyalgia. Physical examination showed patella reflexes

1+ bilaterally, and Achilles reflexes 1- bilaterally. Avery had 5/5 strength in both ankles
dorsiflexion, knees and hips. Her sensation was intact in both lower extremities. Her lumbar
forward range of motion was 70°. She had 5/5 strength in her hands, wrists, elbows and
shoulders. Her reflexes and sensation were intact. She had positive Finkelstein sign on the right
and tenderness to palpation of both lateral condyles. Resisted wrist and finger extension
reproduced epicondylar pain and tenderness to palpation over DeQuervain’s area on the right.
Dr. Shamir diagnosed fibromyalgia with no focal neurological deficits. (Tr. 417-419).
On November 10, 2014, Avery met with cardiologist, Dr. Aleksandr Rovner, for an
evaluation of her abnormal EKG. Dr. Rovner reviewed Avery’s EKG and opined that her
atypical chest discomfort was likely airway related. He recommended a stronger statin to control

her lipids. (Tr. 501-506). Avery also saw Dr. Griggs for follow-up and medication refills on
November 10, 2014. Avery reported migraine headaches. (Tr. 496-497).
Avery saw Dr. Griggs on March 19, 2015. Avery reported fever, chills and night sweats.
She also reported that her back pain was 10/10 and that she had not had any medications for the
past two weeks. She reported difficulty with activities of daily living such as cooking and
cleaning. She also said she had urinary hesitancy and suspected another urinary tract infection.
She also complained of sinus and pressure. Her weight was 221 pounds and the range of motion
in her back had decreased. Dr. Griggs diagnosed fibromyalgia, allergic rhinitis and urinary
frequency. (Tr. 564-569). Dr. Griggs refilled Avery’s prescription for Ultram on April 6, 2015

and referred her for a colonoscopy on May 8, 2015. (Tr. 563-564).
On June 4, 2015, Avery followed-up with Dr. Griggs for refills. She requested a referral
to psychiatry for sleep disturbance, anxiety and depression. Dr. Griggs diagnosed major
depression, recurrent, not otherwise specified, and referred Avery to psychiatry. (Tr. 559-561).
Avery saw Dr. Griggs several more times during 2015. (Tr. 556-559).

On February 8, 2016, Avery say Dr. Griggs for sinus pressure and congestion. She was
under a lot of stress because her father was in hospice and her mother was in a nursing home.
She reported sleep disturbance, anxiety, and depression. On May 9, 2016, Avery saw Dr. Griggs
for pain in both knees. X-rays showed mild narrowing of the left and right knee medial
compartment joint spaces. X-rays of her abdomen showed nonspecific, likely nonobstructive
bowel gas pattern. (Tr. 927-929).
On July 27, 2016, Avery treated with Dr. Shamir for fibromyalgia and diffuse body pain
– worse on the right. Physical examination showed tenderness to palpation over the De
Quervain’s area on the right. She had 4/5 strength in both ankle dorsiflexion, knee extension, hip
flexion, hip abduction, and hip adduction. Her reflexes were 1+ in both Achilles. Her range of

motion was to 60° flexion, 10° extension, and 10° lateral bending bilaterally. She displayed
diffuse tenderness to palpation in the cervical, thoracic and lumbosacral spinal muscles, right
greater than left. She was also tender over the buttocks and trochanters bilaterally, right greater
than left. Dr. Shamir diagnosed fibromyalgia, right De Quervain’s syndrome and lateral
epicondylitis, and trochanteric bursitis bilaterally. He prescribed Voltaren gel and splinting and
scheduled an injection for two months. (Tr. 970-973).
Avery returned to see Dr. Shamir on December 28, 2016. She continued to have pain in
her back, buttock and trochanteric bursal area. She requested a trochanteric bursal injection,
which was scheduled in two weeks. (Tr. 1037-1038).
Avery went to the emergency room on April 19, 2017. She reported generalized body
aches after moving several boxes yesterday. She had a severe muscle spasm in her back during
triage despite taking Soma/Tramadol. She was tearful on examination. The diagnosis was
fibromyalgia and chronic pain. She was prescribed Toradol and Valium. (Tr. 996-997).

C. Relevant Opinion Evidence
1. Treating Physician – Jessica Griggs, D.O. – November 9, 2017
On November 9, 2017, Dr. Griggs completed an Off-Task/Absenteeism Questionnaire.
(Tr. 1082). Dr. Griggs listed Avery’s impairments as: depression and anxiety, diabetes mellitus,
type 2, fibromyalgia and migraines. She opined that Avery would have difficulty concentrating
and staying on task. She stated that Avery had pain in her head and extremities. She opined that
Avery would be drowsy and need to lie down and rest every four to six hours. She opined that,
on average, Avery’s impairments would cause her to be absent from work about four times a
month and off-task at least 20% of the work day. She also marked a box stating that Avery’s
severity of limitations had existed since at least January 5, 2015. (Tr. 1082).
2. Consultative Examiners – Jorethia Chuck, Ph.D., and Michael Faust,
Ph.D. – January and April 2015

On January 8, 2015, Avery underwent a psychological evaluation by Jorethia Chuck,
Ph.D. (Tr. 534-540), and on April 22, 2015, she underwent a psychological evaluation by
Michael Faust, Ph.D. (Tr. 542-549). The consulting examiners assessed mild to moderate
limitations related to Avery’s depression and anxiety.
3. State Agency Consultants
On March 28, 2015, state agency consultant, Leon D. Hughes4, reviewed Avery’s
medical records and opined that she could lift/carry up to 20 pounds occasionally and 10 pounds
frequently; stand and/or walk for up to 6 hours in an 8-hour workday; and sit for up to 6 hours in
an 8-hour workday. (Tr. 112). He opined that Avery was unlimited in her ability to push and/or
pull other than the limitations for lifting and carrying. He opined that she could occasionally
climb ramps and stairs; could never climb ladders/ropes/scaffolds or crawl; could occasionally

balance, stoop, kneel, or crouch; and must avoid concentrated exposure to hazards such as
machinery, heights, etc. (Tr. 112-113).
On November 10, 2015, Dr. Elaine M. Lewis reviewed Avery’s records and opined that
she could lift/carry 50 pounds occasionally, 25 pounds frequently; stand and/or walk 6 hours in
an 8 hour workday; sit (with normal breaks) for a total of 6 hours; frequently climb ramps/stairs;
never climb ladders/ropes/scaffolds; was unlimited in her ability to balance and kneel; could
frequently stoop, crouch and crawl; but needed to avoid concentrated exposure to extreme cold,
humidity, fumes, odors, dusts, gases, poor ventilation, etc., and hazards, such as machinery,
heights, etc. (Tr. 128-130). On May 27, 2016, Dr. Gerald Klyop reviewed Avery’s records and

concurred with Dr. Lewis’s opinions of Avery’s physical limitations. (Tr. 142-144).
On May 20, 2015, Kristen Haskins, Psy.D., reviewed Avery’s records and found that she
had the severe impairments of fibromyalgia, obesity and affective disorders. She opined that
Avery had a moderate degree of restriction in activities of daily living; moderate difficulties in
maintaining social functioning, and moderate difficulties in maintaining concentration
persistence or pace. Avery’s records did not show any repeated episodes of decompensation.

4 Dr. Hughes and Dr. Haskins reviewed Avery’s records in early 2015 when she first re-applied for SSI
after exhausting the inheritance money from her uncle. When her first application was denied at the
(Tr. 108-111). Avery was found to have the ability to complete simple, repetitive tasks, but may
have difficulty completing moderately complex 3-4 step tasks due to lapses in concentration and
attention related to depression. Dr. Haskins opined that Avery had the ability to attend and
concentrate for periods of two hours in a setting with simple to moderately complex, short cycle

tasks, not more than moderate pace demand, and where she could work away from others.
Avery had an irritable demeanor but managed to be pleasant and cooperative during the
psychiatric exam. She had the ability to interact appropriately with others in a setting with
expectations for occasional, superficial interactions. She had the ability to adapt to routine
workplace changes in a setting with at most moderate time and production demands. (Tr. 114-
116).
On January 18, 2016, Paul Tangeman, Ph.D., reviewed Avery’s records and assessed a
mild degree of restriction in activities of daily living, mild difficulties and maintaining social
functioning; moderate difficulties in maintaining concentration, persistence or pace; and no
episodes of decompensation. (Tr. 126-127). He found that Avery only had limitations in

adaptation, specifically the ability to perform routine tasks in a static work setting. (Tr. 130-
131).
On May 25, 2016, Patricia Kirwin, Ph.D., reviewed Avery’s records and opined that she
could maintain attention and concentrate for 1-4 step tasks consistently and 5-6 step tasks
occasionally; and that changes should be infrequent and explained in advance. (Tr. 144-145).
D. Relevant Testimonial Evidence
Avery testified at the administrative hearing on October 25, 2017. (Tr. 38-75). She
resided in an apartment with her mother. (Tr. 38). She had a driver’s license, but did not drive
because she did not have a vehicle. She had an associate of arts degree and formerly worked as a
hair stylist. (Tr. 39).
Avery was unable to work due to pain in her right shoulder, both hips, both knees and
both ankles. (Tr. 40). To alleviate pain, Avery took hot showers, medication and slept. (Tr. 41).
Her medications caused sleepiness and dizziness. (Tr. 41-42). She formerly received injections
for pain, but the doctor who administered them no longer accepted her insurance. (Tr. 66-67).

She also had migraines lasting three to four days, twice a year. She took Topamax for the
migraines. (Tr. 52). Avery also suffered from depression. (Tr. 54-56). Avery slept during the
days and had insomnia at night. (Tr. 42-43). It was difficult for her to get out of bed due to pain.
(Tr. 43).
Avery was able to do chores by spreading them out and taking breaks. (Tr. 44-46). She
was no longer able to do laundry; her nephew did that for her, but she was able to fold the
clothes after they were washed. She was no longer able to mop the floors due to pain in her
wrist. She was no longer able to crochet. (Tr. 46). She no longer enjoyed reading due to
depression. (Tr. 59-60). She was able to go grocery shopping, but her nephew helped her put
the groceries away. She required rest the day after she vacuumed or went shopping. (Tr. 47).

Avery prepared food for herself and her mother. (Tr. 87). Before her father died, she also paid
his bills. (Tr. 87). She went to a social event once or twice per year. (Tr. 61-62).
Avery was able to sit for about 20 minutes before she needed to change positions. She
was able to walk for 20 minutes. (Tr. 53). However, after walking, her knee would swell and
she would need to elevate it and ice it for the rest of the day and the next. (Tr. 53-54). She was
able to lift 10 pounds. Her concentration and memory were poor. (Tr. 58).
Vocational Expert Eric David Dennison (“VE”) also testified at the hearing. (Tr. 75-84).
The ALJ asked the VE to consider an individual who could perform medium exertional work,
but could frequently climb ramps and stairs, stoop, crouch and crawl; could never climb ladders,

ropes or scaffolds; could never be exposed to unprotected heights, dangerous moving mechanical
parts, or operate a motor vehicle; should avoid concentrated exposure to extreme cold, humidity,
wetness, as well as dust, odors, fumes and pulmonary irritants; could understand remember, and
carry out simple, routine tasks; could occasionally tolerate changes in a routine work setting that
were well explained and introduced slowly. (Tr. 77).

The VE opined that this individual would be able to work as a linen room attendant, a
caretaker, and as a marker. (Tr. 77-78). If the individual could frequently interact with the
public, coworkers and supervisors; and frequently use foot controls bilaterally; and frequently
handle on the right, she would still be able to perform those jobs. (Tr. 78). However, if she was
limited to occasional handling on the right and occasional foot controls bilaterally, her ability to
do those jobs would be limited by 40%. (Tr. 79). Similarly, if she could only occasionally
reach, the VE opined that her ability to do the jobs would be reduced by 40%.
If the first hypothetical individual was limited to light jobs, she would still be able to
perform the job of marker and would also be able to perform the jobs of checker and garment
sorter. (Tr. 79-80). If the individual was limited to light jobs and occasional handling on the

right, she would only be able to perform the jobs of ironer and usher. (Tr. 81). The VE opined
that employers do not permit lying down during the workday. (Tr. 82). They will tolerate up to
10% of off-task time and up to one absence per month. (Tr. 83-84).
IV. The ALJ’s Decision
The ALJ made the following findings relevant to this appeal:
2. Avery had the following severe impairments: asthma, mild narrow right and
left knee, right De Quervain syndrome, right wrist volar flexion carpal
instability, history of migraines, bi trochanteric bursitis, mild degenerative
joint disease of the hips, chronic pain syndrome, myofascial pain,
fibromyalgia, personality disorder, mood disorder, and major depressive
disorder. (Tr. 17).

4. Avery had the residual functional capacity to perform a reduced range of
medium work. She could frequently use bilateral foot controls, and could
frequently handle on the right. She could frequently climb ramps and stairs,
stoop, crouch and crawl; but she could never climb ladders, ropes or scaffolds.
She could never be exposed to unprotected heights, dangerous moving
mechanical parts, or operate a motor vehicle. She needed to avoid
concentrated exposure to extreme cold, humidity, wetness, as well as dust,
odors, fumes, and pulmonary irritants. She could understand, remember and
carry out simple, routine tasks; and could occasionally tolerate changes in a
routine work setting. Any changes must be well explained and introduced
slowly. Finally, she could frequently interact with supervisors, coworkers and
the public. (Tr. 20-21).

Based on all her findings, the ALJ determined that Avery had not been under a disability from
July 13, 2015, the date her application was filed (presumably through the date of the ALJ’s
decision). (Tr. 26).
V. Law & Analysis
A. Standard of Review
The court reviews the Commissioner’s final decision to determine whether it was
supported by substantial evidence and whether proper legal standards were applied. 42 U.S.C.
§§ 405(g), 1383(c)(3); Elam v. Comm’r of Soc. Sec., 348 F.3d 124, 125 (6th Cir. 2003).
Substantial evidence is any relevant evidence, greater than a scintilla, that a reasonable person
would accept as adequate to support a conclusion. Rogers v. Comm’r of Soc. Sec., 486 F.3d 234,
241 (6th Cir. 2007).
Under this standard, the court cannot decide the facts anew, evaluate credibility, or
reweigh the evidence. Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003). If
supported by substantial evidence and reasonably drawn from the record, the Commissioner’s
factual findings are conclusive – even if this court might reach a different conclusion or if the
evidence could have supported a different conclusion. 42 U.S.C. §§ 405(g), 1383(c)(3); see also
Elam, 348 F.3d at 125 (“The decision must be affirmed if . . . supported by substantial evidence,
even if that evidence could support a contrary decision.”); Rogers, 486 F.3d at 241 (“[I]t is not
necessary that this court agree with the Commissioner’s finding, as long as it is substantially
within which to decide cases without being second-guessed by a court. Mullen v. Bowen, 800
F.2d 535, 545 (6th Cir. 1986).
Even if supported by substantial evidence, however, the court will not uphold the
Commissioner’s decision when the Commissioner failed to apply proper legal standards, unless

the error was harmless. Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2006) (“[A]
decision . . . will not be upheld [when] the SSA fails to follow its own regulations and [when]
that error prejudices a claimant on the merits or deprives the claimant of a substantial right.”);
Rabbers v. Comm’r Soc. Sec. Admin., 582 F.3d 647, 654 (6th Cir. 2009) (“Generally, . . . we
review decisions of administrative agencies for harmless error.”). Furthermore, the court will not
uphold a decision, when the Commissioner’s reasoning does “not build an 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. Charter, 78 F.3d 305, 307 (7th Cir. 1996)); accord Shrader v.
Astrue, No. 11-13000, 2012 U.S. Dist. LEXIS 157595 (E.D. Mich. Nov. 1, 2012) (“If relevant
evidence is not mentioned, the court cannot determine if it was discounted or merely

overlooked.”); McHugh v. Astrue, No. 1:10-CV-734, 2011 U.S. Dist. LEXIS 141342 (S.D. Ohio
Nov. 15, 2011); Gilliams v. Astrue, No. 2:10 CV 017, 2010 U.S. Dist. LEXIS 72346 (E.D. Tenn.
July 19, 2010); Hook v. Astrue, No. 1:09-CV-19822010, 2010 U.S. Dist. LEXIS 75321 (N.D.
Ohio July 9, 2010). Requiring an accurate and logical bridge ensures that a claimant will
understand the ALJ’s reasoning.
The Social Security regulations outline a five-step process the ALJ must use to determine
whether a claimant is entitled to benefits: (1) whether the claimant is engaged in substantial
gainful activity; (2) if not, whether the claimant has a severe impairment or combination of
impairments; (3) if so, whether that impairment, or combination of impairments, meets or equals

any of the listings in 20 C.F.R. § 404, Subpart P, Appendix 1; (4) if not, whether the claimant
can perform her past relevant work in light of her RFC; and (5) if not, whether, based on the
claimant’s age, education, and work experience, she can perform other work found in the
national economy. 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v); Combs v. Comm’r
of Soc. Sec., 459 F.3d 640, 642-43 (6th Cir. 2006). Although it is the Commissioner’s obligation

to produce evidence at Step Five, the claimant bears the ultimate burden to produce sufficient
evidence to prove that she is disabled and, thus, entitled to benefits. 20 C.F.R. §§ 404.1512(a),
416.912(a).
B. Consulting Physicians’ Opinions
Avery first argues that the ALJ’s RFC finding is not supported by substantial evidence
because she did not consider the medical opinions of the state agency consultants, Leon Hughes,
M.D., and Kristen Haskins, Psy.D., two opinions from her prior claim file in 2015. ECF Doc. 6
at 6-7.
At Step Four, an ALJ must weigh every medical opinion that the Social Security
Administration receives. 20 C.F.R. §§ 404.1527(c), 416.927(c).5 An ALJ must give a treating
physician’s opinion controlling weight, unless the ALJ articulates good reasons for discrediting
that opinion. Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013). Avery’s first

argument is not related to a treating source. Rather, she argues that the ALJ erred in how she
assessed the state-agency reviewing physicians’ opinions.
“[O]pinions from nontreating and nonexamining sources are never assessed for
‘controlling weight.’” Gayheart, 710 F.3d at 376. Instead, an ALJ must weigh such opinions
based on: (1) the examining relationship; (2) the degree to which supporting explanations
consider pertinent evidence; (3) the opinion’s consistency with the record as a whole; (4) the

5 20 C.F.R. §§ 404.1527, 416.927 applies to Avery’s claims because she filed them before March 27,
physician’s specialization related to the medical issues discussed; and (5) any other factors that
tend to support or contradict the medical opinion. Id.; 20 C.F.R. §§ 404.1527(c), 416.927(c).
Generally, an examining physician’s opinion is due more weight than a nonexamining
physician’s opinion. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); Gayheart, 710 F.3d at 375.

An ALJ does not need to articulate good reasons for the weight assigned to a nontreating or
nonexamining opinion. See Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 876 (6th Cir. 2007)
(declining to address whether an ALJ erred in failing to give good reasons for not accepting non-
treating physicians’ opinions). An ALJ may rely on a state agency consultant’s opinion and may
give it greater weight than other nontreating physician’s opinions if it is supported by the
evidence. Reeves v. Comm’r of Soc. Sec., 618 F. App’x 267, 274 (6th Cir. 2015).
Regarding the opinions of the state agency reviewing physicians, the ALJ stated:
As for the opinion evidence, the undersigned gives the opinions of the State
agency medical consultants, Elaine Lewis, M.D., and Gerald Klyop, M.D., partial
weight. The consultants opined that the claimant was capable of medium exertion
work, with no manipulative limitations. (Ex. C4A and C5A). Great weight is
given to the finding that the claimant is capable of medium exertional work.
However, based on additional evidence received at the hearing level, the
undersigned finds that het claimant has more limitations than those assessed by
the consultants. (Hearing Testimony). As such, less weight is given to their
postural and manipulative limitations.

(Tr. 23). The ALJ never mentioned the medical opinion evidence from the prior claim file
including the opinions of Dr. Hughes and Haskins.
Avery correctly points out that the ALJ’s RFC determination conflicts with Dr. Hughes’s
opinion that she was limited to light work (rather than medium) and Dr. Haskin’s opinion that
Avery was limited to working with others on an occasional, superficial basis, in a setting with
moderate time and production demands. It certainly would have been better if the ALJ had
expressly addressed these opinions. From Avery’s perspective, it would be difficult to
understand how the more recent medical consultants opined that she could do more physically-
demanding work when she testified that her condition was worsening and that she was able to do
less. These first medical consultants to review her file determined that she was able to do less
than those who later reviewed it and were, therefore, more consistent with Avery’s own
statements regarding her limitations.

There are a couple of problems with Avery’s argument related to the reviewing medical
opinions. First, the regulations do not require the ALJ to provide good reasons for rejecting a
non-examining source’s opinion. See Smith., 482 F.3d at 876. As argued by the Commissioner,
the ALJ likely credited the more recent reviewing physicians’ assessments of Avery’s RFC. The
ALJ was not required to expressly state this in her decision. Moreover, the record indicates that
the ALJ did consider the opinions of Dr. Hughes and Dr. Haskins; the ALJ decision stated that
she gave “careful consideration [to] the entire record.” (Tr. 20).
Second, and more significant here, adopting the opinions of Dr. Hughes and Dr. Haskins
would not have changed the outcome of the ALJ’s decision, because the VE testified that there
were a significant number of jobs Avery could perform if she were limited to light work (Tr. 79-

80) and those jobs required only occasional interaction with the public, coworkers and
supervisors. (Tr. 80). In other words, even if the ALJ had adopted the limitations opined by Dr.
Hughes and Dr. Haskins, substantial evidence would have still shown that a significant number
of jobs existed that Avery could perform. At worst, the ALJ’s failure to expressly address the
opinions of Drs. Hughes and Haskins was harmless error. “No principle of administrative law or
common sense requires [a reviewing court] to remand a case in quest of a perfect opinion unless
there is reason to believe that the remand might lead to a different result.” Kornecky v. Comm'r
of Soc. Sec., 167 F. App’x 496, 507 (6th Cir. 2006) (quoting Fisher v. Bowen, 869 F.2d 1055,
1057 (7th Cir. 1989)); see also Kobetic v. Comm'r of Soc. Sec., 114 F. App’x 171, 173 (6th Cir.

2004) (noting that in such instances courts are not required to “convert judicial review of agency
action into a ping-pong game”) (citation omitted). Because the ALJ’s ultimate conclusion at
Step 4 would not have changed, Avery’s claim of error relating to the ALJ’s alleged failure to
consider the opinions of Dr. Hughes and Dr. Haskins must be denied. The ALJ applied proper
legal standards in evaluating the opinions of the current-claim state agency reviewing physicians

and, even if she had adopted the limitations opined by the state agency consultants who reviewed
Avery’s earlier claim, the ALJ would still have found that Avery was not disabled. For this
reason, the court would not remand the case on this basis alone. However, because the court is
remanding the case for further consideration of the treating source’s opinion, the ALJ should
discuss all of the medical source opinions and other relevant evidence in determining Avery’s
RFC at Step Four.
C. Treating Physician Rule
Avery next argues that the ALJ failed to provide good reasons for assigning partial
weight to the opinion of her treating primary care physician, Jessica Griggs, D.O. ECF Doc. 11
at 8-11. The court agrees. An ALJ must give a treating physician’s opinion controlling weight,
unless the ALJ articulates good reasons for discrediting that opinion. Gayheart v. Comm’r of
Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013). Good reasons for giving a treating source’s opinion

less-than-controlling weight include: (1) a lack of support by medically acceptable clinical and
laboratory diagnostic techniques; (2) inconsistency with or contradictory findings in the treating
source’s own records; and (3) inconsistency with other substantial evidence in the case record.
See Biestek, 880 F.3d at 786 (“An ALJ is required to give controlling weight to a treating
physician’s opinion, so long as that opinion is supported by clinical and laboratory diagnostic
evidence [and] not inconsistent with other substantial evidence in the record.” (citing 20 C.F.R.
§ 404.1527(c)(2)); Gayheart, 710 F.3d 365, 376; Winschel v. Comm’r of Soc. Sec., 631 F.3d
1176, 1179 (11th Cir. 2011) (stating that good reasons include that: “(1) [the] treating
physician’s opinion was not bolstered by the evidence; (2) evidence supported a contrary
finding; or (3) [the] treating physician’s opinion was conclusory or inconsistent with the doctor’s
own medical records.”). But inconsistency with nontreating or nonexamining physicians’
opinions alone is not a good reason for rejecting a treating physician’s opinion. See Gayheart,

710 F.3d at 377 (stating that the treating physician rule would have no practical force if
nontreating or nonexamining physicians’ opinions were sufficient to reject a treating physician’s
opinion).
If an ALJ does not give a treating physician’s opinion controlling weight, the ALJ must
assign weight to the opinion based on: the length and frequency of treatment, the supportability
of the opinion, the consistency of the opinion with the record as a whole, whether the treating
physician is a specialist, the physician’s understanding of the disability program and its
evidentiary requirements, the physician’s familiarity with other information in the record, and
other factors that might be brought to the ALJ’s attention. See Gayheart, 710 F.3d at 376; 20
C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6). Nothing in the regulations requires the ALJ to

explain how he considered each of the factors. See 20 C.F.R. §§ 404.1527(c), 416.927(c);
Biestek, 880 F.3d at 786 (“The ALJ need not perform an exhaustive, step-by-step analysis of
each factor.”). However, the ALJ must at least provide good reasons for the ultimate weight
assigned to the opinion. Cole v. Astrue, 661 F.3d 931, 938 (6th Cir. 2011) (acknowledging that,
to safeguard a claimant’s procedural rights and permit meaningful review, 20 C.F.R. §§
404.1527(c) and 416.927(c) require the ALJ to articulate good reasons for the ultimate weight
given to a medical opinion). When the ALJ fails to adequately explain the weight given to a
treating physician’s opinion, or otherwise fails to provide good reasons for the weight given to a
treating physician’s opinion, remand is appropriate. Cole, 661 F.3d at 939; see also Blakely v.

Comm’r of Soc. Sec., 581 F.3d 399, 407 (6th Cir. 2009) (holding that the failure to identify good
reasons affecting the weight given to an opinion “‘denotes a lack of substantial evidence, even
whe[n] the conclusion of the ALJ may be justified based upon the record.’” (citing Rogers, 486
F.3d at 243)).
Regarding Dr. Griggs’s opinion, the ALJ stated:

In late 2017, the claimant’s treating source, Jessica Griggs, D.O., provided a
medical source statement (Ex. C18F). The statement is given partial weight
because Dr. Griggs did not provide much in the way of functional limitations, and
did not provide an explanation or objective findings in support of her assessment.

(Tr. 24). The ALJ was required to assign controlling weight to Dr. Griggs’s opinion unless it
lacked support by medically acceptable clinical and laboratory diagnostic techniques; was
inconsistent with her own records; or was inconsistent with other substantial evidence in the case
record. Biestek, 880 F.3d at 786. Here, the ALJ did not comply with Agency regulations.
Rather than citing evidence showing that Dr. Griggs’s opinion was not supported by other
evidence or contradicted her own treatment notes, the ALJ simply criticized the opinion because
it did not provide more functional limitations or adequate support. The ALJ seems to have
placed the burden on the treating physician to demonstrate that her opinion was worthy of
controlling weight. But the agency’s regulation requires the ALJ to provide good reasons for
assigning less than controlling weight to the opinion. It was the ALJ who had the burden of
citing other evidence in the record that contradicted Dr. Griggs’s opinion, not Dr. Griggs who
was required to state additional functional limitations or further support for her opinions.
Here, the Commissioner appears to concede that the ALJ did not assign controlling
weight to Dr. Griggs’s opinion and did not address the factors necessary for the treating source
analysis. ECF Doc. 13 at fn 12. However, the Commissioner suggests several bases upon which
this court could nevertheless find that the ALJ’s failure to follow the treating physician’s rule
was harmless error. The court recognizes that, sometimes, there is a fine line between a decision
that must be remanded for failing to follow the treating physician rule and those that should be
affirmed because the failure to follow the rule caused no harm.
The Commissioner first argues that Dr. Griggs’s opinion regarding absenteeism is an
issue reserved for the Commissioner, citing Kerns v. Saul, 2019 U.S. Dist. LEXIS 195825 (W.D.

Ky. 2019) for support. Conversely, Avery cites Sixth Circuit precedent stating that there was no
regulatory or case support for an ALJ’s finding that “the issue of disability based on frequent
absenteeism… remains an issue reserved to the Commissioner.” Sharp v. Barnhart, 152 F.
App’x 503, 509 (6th Cir. 2005). Avery’s case law controls. The ALJ could have rejected Dr.
Griggs’s opinion that Avery would miss four or more days per month – but not simply because it
was a matter reserved to the Commissioner. Such a rejection would not have been supported by
the law. Furthermore, the ALJ did not state this as a reason for assigning only partial weight to
Dr. Griggs’s opinion.
The Commissioner also argues that the ALJ could have rejected Dr. Griggs’s opinion on
the basis that it was a “checkbox” opinion. This legal proposition is correct. A check-box

opinion without any accompanying explanation is “weak evidence at best.” Hernandez v.
Comm’r of Soc. Sec., 644 F. App’x 468, 474; see also, Pellegrino v. Comm’r of Soc. Sec., 2020
U.S. Dist. LEXIS 50395 (N.D. Ohio, March 23, 2020). But here, Dr. Griggs did more than
simply check boxes. The form she completed requested “reasons why your patient is likely to be
off-task” and Dr. Griggs supplied written responses. She stated that Avery would have difficulty
staying on task due to her depression and anxiety, her diabetes mellitus type 2, fibromyalgia and
headaches. She also stated that Avery would have difficulty concentrating and staying on task
due to pain in her head and extremities and drowsiness caused by her medications. (Tr. 1082).
These responses were more than simple check-box answers and the ALJ did not state good

reasons for rejecting them.
Moreover, as with the Commissioner’s other argument related to absenteeism, the ALJ
did not point out that Dr. Griggs’s opinion was a check-box form as a basis for assigning less
than controlling weight. These are merely after-the-fact reasons proposed by the Commissioner
to justify the ALJ’s assignment of partial weight to the opinoin of a treating source. But, the

Commissioner’s post-hoc rationalizations do not cure the ALJ’s failure to provide good reasons
for not assigning controlling weight to Dr. Griggs’s opinions. Steckroth v. Comm’r of Soc. Sec.,
2012 U.S. Dist. LEXIS 44895, E.D. Mich. March 30, 2012, quoting Hyatt Corp v. NLRB, 939
F.2d 361, 367 (6th Cir. 1991) (“Courts are not at liberty to speculate on the basis of an
administrative agency’s order. . . . [nor is the court] free to accept ‘appellate counsel’s
rationalization for agency action in lieu of reasons and findings enunciated by the Board.’”)
(citations omitted).
The ALJ failed to comply with the treating physician rule in discounting Dr. Griggs’s
opinion. And there is no way to know if she considered the factors required to be applied to Dr.
Griggs’s opinion because she never mentioned any of them. See Gayheart, 710 F.3d at 376; 20

C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6). As stated above, the Commissioner’s post hoc
rationalizations do not persuade this court that this was harmless error. The Sixth Circuit has
stated that the ALJ’s failure to identify good reasons for discounting the weight given to an
opinion “‘denotes a lack of substantial evidence, even whe[n] the conclusion of the ALJ may be
justified based upon the record.’” Blakely v. Comm’r of Soc. Sec., 581 F.3d 399, 407 (6th Cir.
2009) (citing Rogers, 486 F.3d at 243)). Such is the case here. Because the ALJ failed to follow
the proper legal standards in discounting Dr. Griggs’s opinion, the ALJ’s decision must be
remanded for further consideration consistent with this opinion.
D. Fibromyalgia and Subjective Symptom Complaints
Avery contends that the ALJ’s analysis of Avery’s symptom complaints did not comply
with SSR 16-3P. The ALJ’s assessment of symptoms, formerly referred to as the “credibility”
determination in SSR 96-7p, 1996 SSR LEXIS 4, was clarified in SSR 16-3p, 2016 SSR LEXIS
4 to remove the word “credibility” and refocus the ALJ’s attention on the “extent to which the
symptoms can reasonably be accepted as consistent with the objective medical and other

evidence in the individual’s record.” SSR 16-3p, 2016 SSR LEXIS 4, 2017 WL 5180304 at *2
(October 25, 2017) (emphasis added). The new ruling emphasizes that “our adjudicators will not
assess an individual’s overall character or truthfulness in the manner typically used during an
adversarial court litigation.” See 2016 SSR LEXIS 4,[WL] at *11. Under SSR 16-3p, 2016 SSR
LEXIS 4, an ALJ is to consider all of the evidence in the record in order to evaluate the limiting
effects of a plaintiff’s symptoms, including the following factors:
1. Daily activities;
2. The location, duration, frequency, and intensity of pain or other symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of any medication an
individual takes or has taken to alleviate pain or other symptoms;

5. Treatment, other than medication, an individual receives or has received for
relief of pain or other symptoms;

6. Any measures other than treatment an individual uses or has used to relieve
pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to
20 minutes every hour, or sleeping on a board); and

7. Any other factors concerning an individual's functional limitations and
restrictions due to pain or other symptoms.

Id., 2016 SSR LEXIS 4, 2017 WL 5180304, at *7-8; see also 20 C.F.R. §§ 404.1529(c),
416.929(c) and former SSR 96-7p, 1996 SSR LEXIS 4.
Even after SSR 16-3 clarified the rules concerning subjective symptom evaluation and
removed the term “credibility” from the regulations, the procedures for reviewing an ALJ’s
assessment under SSR 16-3p, 2016 SSR LEXIS 4 are substantially the same as the procedures
under SSR 96-7p, 1996 SSR LEXIS 4. Delong v. Comm’r of Soc. Sec., No. 2:18-cv-368, 2019

U.S. Dist. LEXIS 16167 (S. D. Ohio, Feb. 1, 2019). Therefore, courts agree that the prior case
law remains fully applicable to the renamed “consistency determination” under SSR 16-3p, 2016
SSR LEXIS 4, with few exceptions. Whicker-Smith v. Comm’r of Soc. Sec., No. 1:18-cv-52.
2019 U.S. Dist. LEXIS 29085 at *16; See Duty v. Comm’r of Soc. Sec., 2018 U.S. Dist. LEXIS
159013, 2018 WL 4442595 at *6 (S.D. Ohio Sept. 18, 2018) (“existing case law controls to the
extent it is consistent with the clarification of the rules embodied in SSR 16-3p’s clarification.”).
A claimant’s subjective symptom complaints may support a disability finding only when
objective medical evidence confirms the alleged severity of the symptoms. Blankenship v.
Bowen, 874 F.2d 1116, 1123 (6th Cir. 1989). An ALJ is not required to accept a claimant’s
subjective symptom complaints, however, and may properly discount the claimant’s testimony

about her symptoms when it is inconsistent with objective medical and other evidence. See
Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 475-76 (6th Cir. 2003); SSR 16-3p, 2016 SSR
LEXIS 4 *15 (Oct. 25, 2017) (“We will consider an individual’s statements about the intensity,
persistence, and limiting effects of symptoms, and we will evaluate whether the statements are
consistent with objective medical evidence and the other evidence.”). In evaluating a claimant’s
subjective symptom complaints, an ALJ may consider several factors, including the claimant’s
daily activities, the nature of the claimant’s symptoms, the claimant’s efforts to alleviate her
symptoms, the type and efficacy of any treatment, and any other factors concerning the
claimant’s functional limitations and restrictions. SSR 16-3p, 2016 SSR LEXIS 4 *15-19; 20

C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); see also Temples v. Comm’r of Soc. Sec., 515 F. App’x
460, 462 (6th Cir. 2013) (stating that an ALJ properly considered a claimant’s ability to perform
day-to-day activities in determining whether his testimony regarding his pain was credible).
Subjective symptom complaints relating to fibromyalgia must be handled slightly
differently than those arising from other impairments. Ordinarily, a claimant must substantiate

her pain complaints by citing objective medical evidence that her medical condition: (1) actually
caused severe pain; or (2) is so severe that it would be reasonably expected to cause the alleged
pain. Blankenship, 874 F.2d at 1123 (citing McCormick v. Sec’y of Health & Hum. Servs., 861
F.2d 998, 1003 (6th Cir. 1988), and Duncan v. Sec’y of Health & Hum. Servs., 801 F.2d 847 (6th
Cir. 1986)). However, such objective evidence is often unavailable when fibromyalgia is the
underlying condition. See Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 243 (6th Cir. 2007);
Swain v. Comm’r of Soc. Sec., 297 F. Supp. 2d 986, 990 (N.D. Ohio 2003) (noting that, due to
the “elusive” and “mysterious” nature of fibromyalgia, medical evidence confirming the alleged
severity of the impairment almost never exists). When the severity and limiting effects of
fibromyalgia pain cannot be confirmed by objective medical evidence, the ALJ must:

consider all of the evidence in the case record, including the [claimant’s] daily
activities, medications or other treatments the [claimant] uses, or has used, to
alleviate symptoms; the nature and frequency of the [claimant’s] attempts to
obtain medical treatment for symptoms; and statements by other people about the
[claimant’s] symptoms.

SSR 12-2p, 2012 SSR LEXIS 1 *14 (Jul. 25, 2012). Here, the ALJ did just that.
The ALJ applied proper legal standards and reached a conclusion supported by
substantial evidence in evaluating Avery’s subjective symptom complaints. 42 U.S.C. §§
405(g), 1383(c)(3); Elam, 348 F.3d at 125. The ALJ’s decision demonstrates that she considered
Avery’s subjective complaints of constant pain. However, the ALJ also cited records stating that
Avery had not sought treatment in a year and a half. (Tr. 22, citing Ex. C12F/2). The ALJ noted
normal exams, but she also cited Avery’s activities of daily living and medical records
suggesting that she was not as limited as her statements suggested:
Further, because a claimant’s symptoms can sometimes suggest a greater level of
severity of impairment than can be shown by the objective medical evidence
alone, 20 CFR 416.929(c) and Social Security Ruling 16-3p describe factors that
should be considered when assessing the consistency of the claimant’s symptoms
with the medical evidence. The claimant’s allegations are not fully supported by
the objective medical evidence or the treatment history as detailed herein. The
record reflects that the claimant testified that during the relevant period she was in
constant pain, spent most of the day in bed, elevated her legs, experienced regular
swelling in the knees, could only stand and walk for 20 minutes at a time, and
experienced symptoms related to her mental impairments. Yet, her mental status
and physical examinations of record were largely normal (Ex. C2F/4, 6; C3F/4,
20; C7F/8, 16, 30, 92; C11 F/3, 9, 25; C12F/2-3; C13F/2, 10; C14F/6; C15F/7 and
C16F/4). Further, the record reflects that during this period the claimant was the
sole caretaker of her ill parents (Ex. C8F/3). Moreover, with respect to her mental
impairments, medical personnel noted that they believed the claimant was seeking
support rather than active change (Ex. C11F/19). The medical evidence
concerning her impairments, provides only limited support for the claimant’s
allegations, and tends to suggest that her symptoms are not as severe, persistent or
limiting as he has alleged.

(Tr. 23).

The ALJ complied with the regulations by: (1) recognizing that Avery’s symptoms may
not be fully supported by objective medical evidence; (2) considering all of her impairments –
including her fibromyalgia – in light of the medical and other evidence in the record; and (3)
clearly explaining that she rejected Avery’s subjective symptom complaints because her
testimony concerning the intensity, persistence, and limiting effects of her symptoms was not
consistent with her daily activities, the intermittent treatment she sought and the medical
evidence. 20 C.F.R. §§ 404.1520(e), 404.1529(c)(3), 416.920(e), 416.929(c)(3); SSR 96-8p,
1996 SSR LEXIS 5; SSR 16-3p, 2016 SSR LEXIS 4; SSR 02-1p, 2002 LESIS 1 at *18; Felisky,
35 F.3d at 1036; (Tr. 17-19).
Avery argues that the ALJ only compared her complaints to the objective findings. But
that is not true. The ALJ considered other evidence in the case record, including Avery’s daily
activities, medications or other treatments Avery sought (or didn’t seek) to alleviate symptoms;
the nature and frequency of Avery’s attempts to obtain medical treatment for symptoms; and
statements by medical providers about Avery’s symptoms.
Avery disagrees with the ALJ’s treatment of her testimony. But the court is not permitted

to reevaluate the facts or reach different conclusions on how those facts should be characterized.
If an ALJ discounts or rejects a claimant’s subjective complaints, she must state clearly her
reasons for doing so. See Felisky v. Bowen, 35 F.3d 1027, 1036 (6th Cir. 1994). But, an ALJ’s
decision need not explicitly discuss each of the factors. See Renstrom v. Astrue, 680 F.3d 1057,
1067 (8th Cir. 2012) (“The ALJ is not required to discuss methodically each [factor], so long as
she acknowledged and examined those [factors] before discounting a claimant’s subjective
complaints.” (quotation omitted)). Although the ALJ must discuss significant evidence
supporting her decision and explain her conclusions with sufficient detail to permit meaningful
review, there is no requirement that the ALJ incorporate all the information upon which she
relied into a single paragraph. See Buckhannon ex rel. J.H. v. Astrue, 368 F. App’x 674, 678–79

(6th Cir. 2010) (noting that the court “read[s] the ALJ’s decision as a whole and with common
sense”).
Reading the ALJ’s decision as a whole, she did not fail to consider evidence, rely only
upon the objective medical evidence, cherry-pick the evidence, or play doctor. Buckhannon, 368
F. App’x at 678-79. Instead, she complied with the regulations and applicable Social Security
Rulings by considering all the evidence in the longitudinal record, including the objective
medical findings, Avery’s testimony regarding her symptoms and daily activities, gaps in her
treatment history, and the medical opinion evidence. 20 C.F.R. §§ 404.1520(e), 404.1529(c)(3),
416.920(e), 416.929(c)(3); SSR 96-8p, 1996 SSR LEXIS 5; SSR 16-3p, 2016 SSR LEXIS 4;

SSR 02-1p, 2002 LESIS 1 at *18; (Tr. 15-21). And, to the extent the ALJ found Avery’s
subjective complaints credible – e.g., the effects of her pain on her ability to concentrate – the
ALJ appropriately restricted Avery’s RFC, limiting her to simple, routine tasks. (Tr. 20, 22).
Substantial evidence supported the ALJ’s conclusion that Avery’s subjective complaints were
not entirely consistent with other evidence in the record.

Moreover, reversal of the Commissioner’s decision based upon error in a
credibility/consistency determination requires a particularly strong showing by a plaintiff.
Whicker-Smith, 2019 U.S. Dist. LEXIS 29085, *16-17 (S.D. Ohio, Feb. 25 ,2019). Like the
ultimate non-disability determination, the assessment of subjective complaints must be supported
by substantial evidence, but “an ALJ’s findings based on the credibility of the applicant are to be
accorded great weight and deference, particularly since an ALJ is charged with the duty of
observing a witness’s demeanor and credibility.” Walters v. Comm’r of Soc. Sec., 127 F.3d 525,
531 (6th Cir. 1997). Further, a credibility/consistency determination cannot be disturbed “absent
a compelling reason.” Smith v. Halter, 307 F.3d 377, 379 (6th Cir. 2001). Thus, it is proper for
an ALJ to discount the claimant’s testimony when there are inconsistencies and contradictions

among the medical records, her testimony, and other evidence. Warner v. Comm’r of Soc. Sec.,
375 F.3d 387, 392 (6th Cir. 2004).
Because the ALJ applied proper legal standards in evaluating Avery’s subjective
symptom complaints and in determining her RFC, and because her conclusions were supported
by substantial evidence, the ALJ’s decision fell within the Commissioner’s “zone of choice.” 42
U.S.C. §§ 405(g), 1383(c)(3); see also Elam, 348 F.3d at 125; Jones, 336 F.3d at 476; Rogers,
486 F.3d at 241; Mullen, 800 F.2d at 545. The court must reject Avery’s complaints about the
ALJ’s handling of her subjective symptom complaints.
E. Avery’s Limitations in Concentration, Persistence or Pace
Finally, Avery argues that the ALJ’s RFC finding is not supported by substantial
evidence because it did not account for her moderate limitations in concentration, persistence and
pace. ECF Doc. 11 at 13-14. At Step Four of the sequential analysis, the ALJ must determine a
claimant’s RFC by considering all relevant medical and other evidence. 20 C.F.R. §§
404.1520(e), 416.920(e). The RFC is an assessment of a claimant’s ability to do work despite

her impairments. Walton v. Astrue, 773 F. Supp. 2d 742, 747 (N.D. Ohio 2011) (citing 20 C.F.R.
§ 404.1545(a)(1) and SSR 96-8p, 1996 SSR LEXIS 5 (July 2, 1996)). “In assessing RFC, the
[ALJ] must consider limitations and restrictions imposed by all of an individual’s impairments,
even those that are not ‘severe.’” SSR 96-8p, 1996 SSR LEXIS 5. Relevant evidence includes a
claimant’s medical history, medical signs, laboratory findings, and statements about how the
symptoms affect the claimant. 20 C.F.R. §§ 404.1529(a), 416.929(a); see also SSR 96-8p, 1996
SSR LEXIS 5.
Avery argues that the ALJ was required to adopt the opinion of Dr. Haskins that she
could sustain tasks so long as they did not involve more than moderate time and production

demands. (Tr. 114-116). ECF Doc. 11 at 14. As already noted, Dr. Haskins was a non-
examining, state agency consultant who examined Avery’s record in 2015, before Avery re-filed
her application for SSI. The ALJ was not required to assign any specific weight to Dr. Haskins’s
opinion or to explain the weight she did assign. Rather, the ALJ was required to consider all the
relevant evidence including the claimant’s medical history, medical signs, laboratory findings,
and statements about how the symptoms affect the claimant. 20 C.F.R. §§ 404.1529(a),
416.929(a).
Avery argues that the holding of Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 516-517 (6th
Cir. 2010) – “that it is reversible error not to include speed and pace-based restrictions in the RFC
for a disability claimant who is found to have such limitations at prior steps of the sequential
evaluation” applies to the ALJ’s RFC determination in this case. However, Ealy does not

necessarily apply here. In Ealy, the ALJ adopted the opinion of a state agency physician but then
failed to incorporate all of the opinion’s information in a hypothetical question to the VE.
Because the hypothetical question inadequately described Ealy’s limitations, the VE’s conclusion
that the hypothetical individual could perform certain work was not substantial evidence that Ealy
could perform that work. Ealy, 594 F.3d at 517.
Here, Avery does not really argue that the ALJ provided an incomplete hypothetical
question to the VE. Instead, she argues that the ALJ should have adopted the limitations from Dr.
Haskins’s opinion into her RFC. As already stated, the ALJ was not required to adopt those
limitations into her RFC and the court would not remand the ALJ’s decision on that basis.
However, because the court is remanding the case for further consideration of the treating source

opinion (which also stated that Avery would have difficulty concentrating and staying on task),
the ALJ should consider all of the medical source opinions and other relevant evidence in
determining Avery’s RFC at Step Four.
VI. Conclusion
Because the ALJ failed to apply proper legal standards in evaluating the weight to assign
to Dr. Griggs’s treating source opinion and may not have considered all the relevant evidence
when determining Avery’s residual functional capacity, the Commissioner’s final decision
denying Avery’s application for SSI is VACATED and the case is REMANDED for further
consideration consistent with this order.
Dated: May 14, 2020

as M\Parker
United States rristtdte ludge

30

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10368412. Public record. Not legal advice.