Thompson v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

PRISCILLA J. THOMPSON, Case No. 1:19-cv-644

Plaintiff, Cole, J.

Bowman, M.J.

v.

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

REPORT AND RECOMMENDATION

Plaintiff Priscilla J. Thompson filed this Social Security appeal in order to challenge

the Defendant’s finding that she is not disabled. See 42 U.S.C. §405(g). Proceeding

through counsel, Plaintiff presents two claims of error for this Court’s review. As explained

below, I conclude that the ALJ’s finding of non-disability should be AFFIRMED, because

it is supported by substantial evidence in the record as a whole.

I. Summary of Administrative Record

In February 2016, Plaintiff filed an application for Disability Insurance Benefits

(“DIB”), alleging disability beginning July 23, 2015. She alleges disability based upon

diabetes, sleep apnea, learning complications/memory/concentration, secondary

insomnia/sleep disorder, anxiety/depression/stress, diverticulitis, hysterectomy/hormonal

imbalance, high cholesterol/high triglycerides, navel hernia/unable to lift, and arthritis in

her hands and back. (Tr. 21, 61). Plaintiff has a high school education, and worked for

approximately twenty years as an assistant insurance underwriter prior to leaving that

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had several unsuccessful work attempts as a receptionist, an administrative assistant,

and a cashier. (Id.) Plaintiff’s claim was denied initially and upon reconsideration, leading

her to request an evidentiary hearing before an ALJ.

On April 11, 2018, Plaintiff appeared with counsel and gave testimony before ALJ

Christopher Tindale; a vocational expert also testified. (Tr. 31-56). Plaintiff was 57 years

old on the alleged disability onset date, but subsequently changed age categories to

“closely approaching retirement age,” and was 60 years old at the time of the ALJ’s

adverse decision. (See Tr. 15-26). The ALJ determined that the only severe impairments

Plaintiff has are diabetes mellitus, obesity, mood disorder, and anxiety disorder. (Tr. 18).

Plaintiff does not presently dispute the ALJ’s determination that none of her impairments,

either alone or in combination, met or medically equaled any Listing in 20 C.F.R. Part

404, Subpart P, Appendix 1, such that Plaintiff would be entitled to a presumption of

disability. (Id.)

The ALJ found that Plaintiff retains the residual functional capacity (“RFC”) to

perform a restricted range of medium work, subject to the following limitations:

[S]he is limited to simple and complex tasks in a work environment free of

fast production rate or pace work. She can have occasional contact with

the public and supervisors, and only occasional and superficial contact with

co-workers, with superficial contact defined as no tandem tasks. She is

limited to only occasional changes in the work setting and only occasional

decision making required.

(Tr. 20). Considering Plaintiff’s age, education, and RFC, and based on testimony from

the vocational expert, the ALJ determined that Plaintiff could still perform a “significant

number” of jobs in the national economy, including the representative jobs of packer,

cleaner, or material handler. (Tr. 26). Therefore, the ALJ determined that Plaintiff was

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decision as the final decision of the Commissioner.

In her appeal to this Court, Plaintiff argues that: (1) the ALJ improperly weighed

the opinion evidence; (2) the ALJ improperly evaluated her subjective complaints; and (3)

the ALJ presented an improper hypothetical to the vocational expert. Plaintiff argues that

the referenced errors led to the improper determination by the ALJ that she could perform

work at the “medium” exertional level. Had the ALJ instead limited Plaintiff to “light” or

“sedentary” work, she would have been entitled to an age-related presumption of disability

under Grid Rule 202.06, 20 C.F.R. Part 404, Subpart P, Appendix 2.

II. Analysis

A. Judicial Standard of Review

To be eligible for benefits, a claimant must be under a “disability.” See 42 U.S.C.

§1382c(a). Narrowed to its statutory meaning, a “disability” includes only physical or

mental impairments that are both “medically determinable” and severe enough to prevent

the applicant from (1) performing his or her past job and (2) engaging in “substantial

gainful activity” that is available in the regional or national economies. See Bowen v. City

of New York, 476 U.S. 467, 469-70 (1986).

When a court is asked to review the Commissioner’s denial of benefits, the court’s

first inquiry is to determine whether the ALJ’s non-disability finding is supported by

substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.”

Richardson v. Perales, 402 U.S. 389, 401 (1971) (additional citation and internal quotation

omitted). In conducting this review, the court should consider the record as a whole.

Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial evidence supports

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evidence also exists in the record to support a finding of disability. Felisky v. Bowen, 35

F.3d 1027, 1035 (6th Cir. 1994). As the Sixth Circuit has explained:

The Secretary’s findings are not subject to reversal merely because

substantial evidence exists in the record to support a different conclusion....

The substantial evidence standard presupposes that there is a ‘zone of

choice’ within which the Secretary may proceed without interference from

the courts. If the Secretary’s decision is supported by substantial evidence,

a reviewing court must affirm.

Id. (citations omitted).

In considering an application for supplemental security income or for disability

benefits, the Social Security Agency is guided by the following sequential benefits

analysis: at Step 1, the Commissioner asks if the claimant is still performing substantial

gainful activity; at Step 2, the Commissioner determines if one or more of the claimant’s

impairments are “severe;” at Step 3, the Commissioner analyzes whether the claimant’s

impairments, singly or in combination, meet or equal a Listing in the Listing of

Impairments; at Step 4, the Commissioner determines whether or not the claimant can

still perform his or her past relevant work; and finally, at Step 5, if it is established that

claimant can no longer perform his or her past relevant work, the burden of proof shifts to

the agency to determine whether a significant number of other jobs which the claimant

can perform exist in the national economy. See Combs v. Commissioner of Soc. Sec.,

459 F.3d 640, 643 (6th Cir. 2006); 20 C.F.R. §§404.1520, 416.920.

A plaintiff bears the ultimate burden to prove by sufficient evidence that she is

entitled to disability benefits. 20 C.F.R. § 404.1512(a). A claimant seeking benefits must

present sufficient evidence to show that, during the relevant time period, she suffered an

impairment, or combination of impairments, expected to last at least twelve months, that

left him unable to perform any job. 42 U.S.C. § 423(d)(1)(A).

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1. No Error in Assessment of Physical RFC Opinion Evidence

Plaintiff first asserts error in the evaluation of the medical opinion evidence

concerning her alleged physical limitations. Social security regulations generally provide

for an order of hierarchy in the evaluation of medical opinion evidence, with the opinions

of treating physicians to be given the most weight, and the opinions of examining

consultants to be given greater weight than the opinions of non-examining consultants.

For claims filed before March 27, 2017, the regulations specify that “[g]enerally,” an ALJ

is required to “give more weight to the opinion of a source who has examined you than to

the opinion of a source who has not examined you,” with the most weight, or “controlling

weight” to be given to treating physicians. 20 C.F.R. § 404.1527(c)(1) and (2). Of note

in this case, no treating physician offered any medical opinions concerning Plaintiff’s

functional limitations. Instead, the medical opinion evidence was offered by several non-

examining agency consultants, one examining consultant, and a physical therapist (“PT”),

all of whom provided opinions dated between May and September 2016.

Based upon her allegations of pain-related impairments, Plaintiff was referred for

a consultative examination by a physical medicine and rehabilitation physician, Gary Ray,

M.D., on May 24, 2016. (Tr. 392-399). His exam revealed mostly normal findings,

including normal ambulation and the ability to reach 100% of a squat position without

difficulty, and normal muscle testing throughout range of motion. One of Dr. Ray’s only

findings on exam was “mild tenderness at the center and right lumbosacral paraspinal

muscle area.” (Tr. 394). However, he found no tenderness on the left, no muscle spasms,

and a negative straight leg raising test. (Tr. 394). Dr. Ray also found no tenderness at

the left shoulder or at the right or left cervical paraspinal muscle areas. (Id.) Aside from

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“possibly mild arthritis of the right third and fourth PIP joints,” based upon “mild

tenderness” and “slight swelling” in two fingers in her right hand. (Id.) Nevertheless,

Plaintiff “had no difficulty gripping and manipulating with the hands.” (Id.)

During her exam, Plaintiff subjectively reported to Dr. Ray that she could lift no

more than 10 pounds, was able to sit only 15-20 minutes at a time, and stand for 30

minutes, or walk for up to 15-20 minutes. (Tr. 393). Notwithstanding her lack of difficulty

on exam, she also reported difficulty squatting, as well as trouble with bending, ascending

and descending steps. (Id.) Dr. Ray did not fully accept Plaintiff’s subjectively reported

restrictions. However, he still opined that Plaintiff should be restricted to lifting and

carrying no more than 20 pounds, sitting or standing for up to two hours, and ambulating

one hour at a time. In other words, Dr. Ray opined that Plaintiff should be limited to work

at the “light” exertional level. (Tr. 395).

On May 26, 2016, a non-examining consulting physician, Edmond Gardner, M.D.,

reviewed Dr. Ray’s consultative examination report as well as other medical records

submitted by Plaintiff and disagreed with the limitation to “light” work, opining instead that

Plaintiff could perform a full range of medium work. (Tr. 57-65, 69). On reconsideration

on August 17, 2016, a second non-examining consultant, William Bolz, M.D., agreed that

Plaintiff could perform a full range of work at the “medium” exertional level. (Tr. 79, 84).

On September 3, 2016, Susan Clifford, M.D. provided a “medical consultant’s review of

physical residual functional capacity assessment” in which she expressed the same

opinion. (Tr. 441-442).

The only other opinion evidence concerning Plaintiff’s physical limitations was

offered by a physical therapist (“PT”) who performed a one-time Functional Capacity

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in order to support her disability claim. (Tr. 444-458). At that time, the physical therapist

noted that Plaintiff’s work goal was “permanent and total disability.” (Id.) Plaintiff reported

numerous complaints that she had not reported to her primary care physician. The PT

noted that “some inconsistencies were identified for problems reported or exam findings.”

(Tr. 455). The PT also stated that Plaintiff “has had no conservative treatment such as

physical therapy to address her back pain,” and was “deconditioned at present and would

benefit from physical therapy.” (Tr. 458). The PT opined that Plaintiff “should improve

her overall tolerance for activity with appropriate therapy and as such should have

temporary restrictions…until such time as she has completed physical therapy.” (Id.) The

PT assessed “temporary” restrictions for work at the sedentary level, with only occasional

fingering and lifting around seven pounds, and “seldom” standing or walking. (Tr. 458).

Ultimately, the ALJ accepted the opinions of the non-examining consulting

physicians who reviewed Plaintiff’s records and determined she could perform “medium”

level work, rejecting the more limited functional opinions of Dr. Ray or the PT. Plaintiff

argues that this was error for several reasons.

I find no error. Though frequently litigated, both regulations and case law make

clear that an ALJ may give the greatest weight to the opinions of even a non-

examining consultant in appropriate circumstances. See SSR 96-6p, 1996 WL 374180

at *3 (July 2, 1996); accord Miller v. Com'r of Soc. Sec., 811 F.3d 825, 834 (6th Cir. 2016).

This case presents such a circumstance.

Plaintiff first complains that the ALJ “erred in failing to note the medical specialties”

of the non-examining consulting physicians. According to Plaintiff, a code next to Dr.

Bolz’s signature reflects that he is an orthopedist by training. She argues (without citation

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“lessens the weight assigned to him.” (Doc. 10 at 1-2).1 The evaluation of medical

opinions includes consideration of many factors, including a physician’s specialization.

However, an ALJ is not required to perform an exhaustive, step-by-step analysis of each

factor in weighing medical source opinions. See Biestek v. Com’r of Soc. Sec., 880 F.3d

778, 785 (6th Cir. 2017) (aff’d on other grounds, 139 S. Ct. 1148). Included among the

relevant factors to be considered is familiarity with SSA programs. See 20 C.F.R. §

404.1527(c)(2)-(6). Here, the fact that Dr. Bolz had specialized orthopedic training does

not diminish the fact that under SSR 17-2p, 2017 WL 3928306 at *3 (March 27, 2017), he

was a state agency consultant. Such consultants are considered to be a “highly qualified

medical sources who are also experts in the evaluation of medical issues in disability

claims under the [Social Security] Act.” Id.; see also, SSR 96–6p, 1996 WL 374180, at *2

(July 2, 1996) (same).

Plaintiff’s next complaint, that the consultants whose opinions the ALJ accepted

did not have access to her complete record, also fails to persuade.2 See,

generally, Blakley v. Com’r of Soc. Sec., 581 F.3d 399, 409 (6th Cir. 2009). The only

records cited by Plaintiff in support of this argument are those that relate to her elevated

A1C levels for diabetes, and a single record in which she was diagnosed with plantar

fasciitis in her right foot in December 2017. I find no Blakley error, because the ALJ

discussed all relevant records. See Gibbens v. Com’r of Soc. Sec., 659 Fed. Appx. 238,

1Plaintiff makes a similar complaint about the non-examining medical consultant, Dr. Clifford, who Plaintiff

asserts is a pediatrician by specialty training. However, the ALJ did not specifically discuss or rely upon

Dr. Clifford’s opinion.

2It is worth noting that Dr. Ray, the one-time examining consultant whose opinion Plaintiff urges this Court

to adopt, had access to the least complete record.

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entire record” and “was informed by both [the state agency consultant’s] assessment and

the findings of [a prior] complete physical examination, as well as medical evidence later

entered into the record.”).

For example, Plaintiff now claims that her plantar fasciitis would have prevented

her from standing the number of hours required to perform medium work. However, the

ALJ found that Plaintiff’s right foot plantar fasciitis (along with several other diagnoses)

did not cause “more than minimal limitation in the claimant’s ability to perform basic work

activities” and was “nonsevere.” (Tr. 18). The ALJ additionally explained “[i]t is not clear

that the claimant’s plantar fasciitis lasted 12 months, and there are few complaints,” with

normal musculoskeletal findings on exam. (Id). The ALJ’s analysis of Plaintiff’s plantar

fasciitis is substantially supported by the record as a whole.

The undersigned similarly finds no error in the ALJ’s analysis of Plaintiff’s diabetes-

related records. Plaintiff was diagnosed with Diabetes Mellitus Type 2 in August 2009,

long before her July 2015 alleged disability onset date. (Tr. 286). Her Hemoglobin A1C

level (a measure of average blood sugar) has varied through the years,3 but shortly before

the consulting physicians’ records review, on February 15, 2016, her A1C had increased

to 8.3% and on May 20, 2016, it was 8.4% (Tr. 418). Contrary to Plaintiff’s assertion that

the non-examining consultants were unaware of her elevated A1C, they specifically

referenced her 8.3% elevated A1C. (Tr. 61). However, in sharp contrast to Plaintiff’s

testimony in which she claimed blurred vision, nausea, and frequent urination resulting

from her diabetes, there are no clinical or objective records reflecting any complications

3In 2014, her A1C was recorded at 5.5, 6.0 and 6.2. (Tr. 324, 327, 330). A few months prior to her alleged

disability onset date, in February 2015, her A1C was 5.6, a reading within “normal range.” (Tr. 326)

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reflected that Plaintiff’s “diabetes was without complications, including consistent normal

monofilament exams and no complaints of ulcers, motor or sensory disturbances, no

dizziness and of frequent urination and she did not wish to start on an insulin regimen

despite elevated A1c.” (Tr. 23).

Under the umbrella of her claim concerning the opinion evidence, Plaintiff argues

that the ALJ erred by stating that “an A1C level below 8 was normal.” (Doc. 6 at 7).

However, the ALJ’s opinion contains no such statement. Rather, the opinion states only

that Plaintiff’s “diabetes is not noted to be uncontrolled with her A1c below 8.” (Tr. 23).

The ALJ also accurately pointed to records that reflected Plaintiff’s “poor compliance with

[diabetes] medications.” (Id.)

The ALJ’s summary of the record provides no grounds for reversal. Most of

Plaintiff’s records state that her diabetes was “controlled” with most A1C findings below

8. The ALJ specifically acknowledged her occasional A1C readings above 8, including in

February and November 2016. (Tr. 22-23). On November 21, 2016, Dr. Samaan briefly

diagnosed Plaintiff’s Type 2 diabetes as “uncontrolled” based upon her elevated A1C of

8.3% (Tr. 488). At that same visit, he prescribed a new medication, which proved

effective in reducing her A1C below 8 and restoring the “controlled” diagnosis. In

February 2017 her A1C had decreased to 7.8% (Tr. 480), by May 23, 2017 it had

decreased further to 7.5% (Tr. 475), and remained stable in August 2017, (see Tr. 469

reflecting A1C of 7.6%) through December 2017. (See Tr. 464, reflecting A1C of 7.5%).

On March 5, 2018, her A1C again had risen slightly to 7.7%. Noting that Plaintiff’s

diabetes was again “uncontrolled,” (Tr. 498), Dr. Samaan spoke to Plaintiff about the

possible need to add insulin injections, which she did not want to add at that time. (See

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reflecting brief periods of “uncontrolled” diabetes, Dr. Samaan made medication changes

that more consistently resulted in a “controlled” diabetes diagnosis. (Tr. 302-311). Far

more importantly than any diagnosis, however, her treating physician’s records reflect no

complications at all from her diabetes. (See, e.g., Tr. 317, 476, 481). The non-examining

agency consultants, as well as the ALJ, reasonably relied upon this substantial evidence

reflecting that Plaintiff’s diabetes was not disabling and did not limit her to work at less

than the “medium” exertional level.

Plaintiff argues that if only the ALJ had accepted Dr. Ray’s limitation to light work

and/or the PT’s restriction of sedentary work rather than the medium exertional level

found by the non-examining consulting physicians, she would have been entitled to a

presumption of disability based upon Grid Rule 202.06. However, the ALJ reasonably

explained he gave Dr. Ray’s opinion “little weight” because it was “not consistent with

[the] lack of diagnostic studies of back or neck pain or arthritis of the hands and minimal,

mild findings on physical examinations….” (Tr. 22). The ALJ additionally reasoned that

Dr. Ray’s restriction to light work “appears to be based, at least in part, on [Plaintiff’s]

subjective complaints and Dr. Ray noted some inconsistent effort.” (Id). The stated

reasons are well-supported on the record presented.

Plaintiff makes much of the fact that her primary care physician referred her to the

physical therapist for a functional assessment because Dr. Samaan “did not want to

complete” RFC forms. (Doc. 6 at 3). However, the fact that a treating physician refers

his patient for a one-time assessment by a physical therapist does not mean that her

4 Plaintiff asserts that it was error for the ALJ to have referenced Plaintiff’s decision not to use insulin. (Doc.

6 at 7). I find no error. The ALJ accurately summarized the medical record on this issue.

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as an “acceptable medical source” under social security regulations. See SSR 06-03p;

20 C.F.R. § 404.1527(c). Here, the ALJ’s reason for giving the PT’s FCE opinion “little

weight” as “not consistent with the longitudinal record,” (Tr. 23), is substantially supported

by the record as a whole. The ALJ noted that Ms. Crothers was a physical therapist who

performed a one-time exam and pointed out that even she suggested that her “sedentary”

functional restrictions were designated to be only “temporary.” (Id.)5

In contrast to the opinions of Dr. Ray and the PT, the ALJ gave the opinions of Drs.

Gardner and Bolz “significant weight” because “the record shows that [Plaintiff’s] severe

physical impairments of obesity and diabetes cause very little symptoms or restrictions

based on the consistently normal physical exam findings and lack of diagnostic studies.”

(Tr. 24). For the reasons discussed, substantial evidence supports the ALJ’s analysis.

2. No Error in the Assessment of Plaintiff’s Subjective Complaints

Notwithstanding the lack of support for diabetes-related limitations, Plaintiff insists

that her diabetes would prevent her from being able to sustain medium work based upon

her subjective testimony about her fatigue and frequent urination. (Tr. 43, 45). However,

the ALJ determined that Plaintiff’s subjective complaints about the intensity, persistence

and limiting effects of her symptoms were “inconsistent” and “do not support the existence

of” any limitations beyond those determined by the ALJ’s physical RFC assessment for

medium work. (Tr. 22). Plaintiff now argues that the ALJ erred in his adverse

credibility determination.

5Plaintiff cites Shaw v. AT &T Umbrella Ben. Plan No. 1, a case involving disability benefits under ERISA,

for the proposition that the functional capacities evaluation constitutes “objective evidence” to support her

claim. Shaw does not aid Plaintiff in this case, because the ALJ’s analysis was supported by other

substantial (and equally “objective”) evidence that Plaintiff was not limited to sedentary work.

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SSR 96-7p, was clarified in SSR 16-3p 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, 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 id. at *11. Under SSR 16-3p, 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., 2017 WL 5180304, at *7–8; see also 20 C.F.R. §§ 404.1529(c), 416.929(c) and

former SSR 96–7p.

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corresponding elimination of the term “credibility” from the text in order to avoid “character

analysis,” SSR 16-3p was not intended to substantially change existing law. See Banks

v. Com'r of Soc. Sec., Case No. 2:18-cv-38, 2018 WL 6060449 at *5 (S.D. Ohio Nov. 20,

2018) (quoting explicit language in SSR 16-3p stating intention to “clarify” and not to

substantially “change” existing SSR 96-7p), adopted at 2019 WL 187914 (S.D. Ohio Jan.

14, 2019). Thus, it remains the province of the ALJ and not the reviewing court, to assess

the consistency of subjective complaints about the impact of a claimant’s symptoms with

the record as a whole. See generally Rogers v. Com'r, 486 F.3d 234, 247 (6th Cir. 2007).

The elimination of the word “credibility” from SSR 16-3p can be semantically

awkward in applying prior case law, insofar as virtually all of the case law interpreting the

former SSR 96-7p uses the catchphrase “credibility determination.” Nevertheless, the

essence of the regulatory framework remains unchanged. Therefore, courts agree that

the prior case law remains fully applicable to the renamed “consistency determination”

under SSR 16-3p, with few exceptions. See Duty v. Com'r of Soc. Sec., 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.”).

Turning to that case law, it is clear that a reversal of the Commissioner’s decision

based upon error in a credibility/consistency determination requires a particularly strong

showing by a plaintiff. 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. Com'r of Soc. Sec., 127 F.3d 525, 531 (6th Cir.

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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 where there are inconsistencies and

contradictions among the medical records, her testimony, and other evidence. Warner v.

Com'r of Soc. Sec., 375 F.3d 387, 392 (6th Cir. 2004).

Plaintiff argues that the ALJ should have placed greater emphasis on factors that

would have supported a more favorable credibility finding, such as her prior work record.

However, the fact that some evidence might be found to support Plaintiff’s claim does not

provide grounds for reversal as long as substantial evidence supports the ALJ’s

determination. The present record provides ample support for the ALJ’s finding that the

Plaintiff’s complaints of debilitating fatigue, pain, and other extreme limitations in her

ability to sit, stand, and walk were not consistent with the record. See Walters, 127 F.3d

at 532 (“The absence of sufficient objective medical evidence makes credibility a

particularly relevant issue, and in such circumstances, this court will generally defer to the

Commissioner’s assessment when it is supported by an adequate basis.”). Contrary to

her subjective complaints, the medical evidence reflected mostly normal findings, with no

complications from her diabetes.

Plaintiff asserts that the ALJ improperly assumed that “not taking Insulin means

that the diabetes is not significant.” (Doc. 6 at 8). Reviewing the ALJ’s opinion as a whole

and in context, the undersigned finds no error. The ALJ referenced medical records that

confirmed that Plaintiff’s variable blood sugar control was at times tied to medication

noncompliance, and that her treating physician had suggested insulin on at least two

occasions in order to help her gain better control of her diabetes but she had not wanted

to start that medication. (Tr. 24, citing Tr. 460-489). Despite her periodically elevated

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nausea, vomiting, diarrhea or dizziness. (Tr. 23). Although Plaintiff was consistently

diagnosed with diabetes and obesity, her treating physicians noted no complications or

symptoms associated with those conditions. (Id.)

The ALJ pointed out that Plaintiff had numerous physical and psychological

complaints that were not substantiated by her treatment records. Besides objective

findings and medication, the ALJ also properly considered the level and type of treatment

that Plaintiff sought and obtained in determining whether she was disabled. For example,

she attempted to establish primary care with Dr. Cubbison in February 2016 in order to

pursue her disability claim. (Tr. 22, 376-80). The ALJ noted that despite obtaining

referrals for various diagnostic studies, the record did not reflect that she had followed up

with those studies, nor was she prescribed any medications. (Tr. 22). Instead, Dr.

Cubbison’s exam notes reflect normal findings, as did many other clinical records. Id.

The ALJ considered other inconsistencies, such as Plaintiff testifying that she could not

lift even a gallon of milk and could sit or stand less than an hour, which testimony was

undermined by her reports to Dr. Samaan of injuring her arm when she was doing a lot

of lifting at home and exercising. (Tr. 24).

Plaintiff complains about the ALJ’s evaluation of her daily activities but again I find

no error. See 20 C.F.R. § 404.1529(c)(3)(i). The ALJ noted that Plaintiff performed many

daily activities such as caring for her dog, preparing meals, making the bed, doing laundry,

washing dishes, driving, shopping for groceries, shopping on-line for gifts, and attending

church twice per week, and had no difficulty with personal care. (Tr. 24). The ALJ did

not err by relying on Plaintiff’s activities of daily living and household chores alone as a

basis for the nondisability determination, but appropriately considered them in the context

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(6th Cir. 2016) (“The ALJ contrasted Sorrell’s ability to do daily activities with her reports

of pain—noting that Sorrell is “able to prepare simple meals, perform various household

duties with breaks, handle personal care, drive, and shop”); Bogle v. Sullivan, 998 F.2d

342, 348 (6th Cir. 1993) (a claimant’s ability to perform household and social activities on

a daily basis is contrary to a finding of disability). Accordingly, the ALJ’s evaluation of

Plaintiff’s subjective complaints is substantially supported.

3. The Vocational Expert’s Testimony Constitutes Substantial Evidence

Plaintiff’s final claim is mostly cumulative. She asserts that the ALJ improperly “left

out the supported limitation to light work from Dr. Ray and the limitation to sedentary work”

from the physical therapist. (Doc. 6 at 10). She maintains she would miss additional days

of work based upon her alleged fatigue and that she would need frequent bathroom

breaks. However, an ALJ is required to include only the limitations that he determines

are supported by the record. See Casey v. Sec’y of HHS, 987 F.2d 1230, 1235 (6th Cir.

1993). A VE’s testimony in response to an accurate hypothetical question constitutes

substantial evidence to support a non-disability determination. See Smith v. Halter, 307

F.3d 377, 378 (6th Cir. 2001). For the reasons discussed, I find no error in the RFC

limitations as determined by the ALJ.

In a final attack on the vocational expert’s testimony, Plaintiff argues that the VE’s

testimony here does not constitute substantial evidence based upon a portion of the

testimony elicited on cross-examination. In questioning the VE, counsel first confirmed

that under the relevant definition of medium unskilled work; Plaintiff would only be

required to stand six hours per day. (Tr. 53). Plaintiff’s counsel then followed up by asking

if the representative “cleaner” position would require eight hours of standing, whereupon

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you’re in meetings and things.” (Tr. 53).

Based upon the DOT descriptions for all three job titles that the VE offered as

“representative” positions, Plaintiff speculates that none of those jobs would include 2

hours per day of “meetings.” However, the VE did not strictly limit Plaintiff’s sitting to

attending meetings, but did unequivocally testify that someone with Plaintiff’s RFC

limitations at the “medium” level (including postural limitations) could perform a significant

number of jobs in the national economy. To the extent that Plaintiff questions the

referenced job descriptions listed in the DOT, the VE also testified that to the extent that

there were topics not addressed by the Dictionary of Occupational Titles, his testimony

was based upon his professional experience. (Tr. 50-51). Therefore, the undersigned

finds no reversible error in the ALJ’s reliance upon the VE’s testimony.

III. Conclusion and Recommendation

For the reasons explained herein, IT IS RECOMMENDED THAT Defendant’s

decision be AFFIRMED as supported by substantial evidence, and that this case be

CLOSED.

/s Stephanie K. Bowman

Stephanie K. Bowman

United States Magistrate Judge

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SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

PRISCILLA J. THOMPSON, Case No. 1:19-cv-644

Plaintiff, Cole, J.

Bowman, M.J.

v.

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

NOTICE

Pursuant to Fed. R. Civ. P 72(b), any party may serve and file specific, written

objections to this Report and Recommendation (“R&R”) within FOURTEEN (14) DAYS of

the filing date of this R&R. That period may be extended further by the Court on timely

motion by either side for an extension of time. All objections shall specify the portion(s) of

the R&R objected to, and shall be accompanied by a memorandum of law in support of

the objections. A party shall respond to an opponent’s objections within FOURTEEN (14)

DAYS after being served with a copy of those objections. Failure to make objections in

accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S.

140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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