# Thompson v. Commissioner of Social Security

> District Court, S.D. Ohio · June 22, 2020

URL: https://www.frixlaw.com/law-library/cases/10375728

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** June 22, 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/10375728

## Opinion text

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
1
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
2
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
3
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).
4
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
5
“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
6
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
7
“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.
8
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)
9
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
10
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.
11
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.
12
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.
13
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.
14
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
15
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
16
(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
17
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

18
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).
19

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10375728. Public record. Not legal advice.