The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
PAMELA L. MITCHELL,
Plaintiff,
Civil Action 2:19-cv-4973
v. Judge James L. Graham
Magistrate Judge Chelsey M. Vascura
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
REPORT AND RECOMMENDATION
Pamela L. Mitchell (“Plaintiff”), brings this action under 42 U.S.C. § 405(g) for review
of a final decision of the Commissioner of Social Security (“Commissioner”) denying her
application for supplemental security income. This matter is before the undersigned for a Report
and Recommendation (“R&R”) on Plaintiff’s Statement of Errors (ECF No. 9), the
Commissioner’s Memorandum in Opposition (ECF No. 11), Plaintiff’s Reply (ECF No. 12), and
the administrative record (ECF No. 8). For the reasons that follow, it is RECOMMENDED that
Plaintiff’s Statement of Errors be OVERRULED and that the Commissioner’s decision
be AFFIRMED.
I. PROCEDURAL HISTORY
Plaintiff protectively filed her application on April 28, 2014, alleging that she became
disabled that same day. (R. at 264.) Plaintiff’s application was denied initially on July 31, 2014,
and upon reconsideration on November 14, 2014. (R. at 121, 138). A hearing was held on
October 6, 2016, before an Administrative Law Judge (“ALJ”), who issued an unfavorable
determination on January 6, 2017. (R. at 80–107, 139–54.) After Plaintiff appealed the ALJ’s
determination, the Appeals Council remanded the case back to the ALJ. (R. at 155–60.) Upon
remand, the ALJ presided over a hearing on July 5, 2018 (R. at 44–79), and a supplemental
hearing on October 6, 2018 (R. at 80–107). The ALJ subsequently issued a second unfavorable
determination on August 1, 2018. (R. at 12–43.) The Appeals Council declined to review that
second unfavorable determination, and thus, it became final. (R. at 1–6.) Plaintiff seeks judicial
review of that second unfavorable determination.
In this action, Plaintiff alleges that the ALJ committed reversible error when she assessed
Plaintiff’s residual functional capacity (“RFC”).1 Specifically, Plaintiff contends that the ALJ
erred by failing to explain why she did not incorporate into Plaintiff’s RFC a restriction that
Plaintiff was limited to following one-step directions as opined by state agency reviewing
psychologists Karen Steiger, Ph.D. and Janet Souder, Psy.D. (Pl.’s Statement of Errors, ECF
No. 9; Pl’s. Reply, ECF No. 12.) Plaintiff also alleges that the ALJ erred by relying upon
testimony from a Vocational Expert (“VE”) who testified at the July 5, 2018, hearing instead of
relying upon testimony from a VE that testified at the supplemental hearing on October 6, 2018.
II. THE ALJ’s DECISION
On August 1, 2018, the ALJ issued a decision finding that Plaintiff was not disabled
within the meaning of the Social Security Act. (R. at 12–43.) At step one of the sequential
1 A claimant’s RFC is an assessment of “the most [she] can still do despite her limitations.” 20
C.F.R. § 4040.1545(a)(1).
evaluation process,2 the ALJ found that Plaintiff had not engaged in substantially gainful activity
since the alleged date of onset, April 28, 201. (R. at 19.) At step two, the ALJ found that
Plaintiff had the following severe mental impairments: 3 depressive, intellectual, anxiety, and
neurodevelopmental disorders. (Id.) At step three, the ALJ found that Plaintiff did not have an
impairment or combination of impairments that met or medically equaled one of the listed
impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 20.)
At step four, the ALJ set forth Plaintiff’s mental RFC as follows:
Mentally, the claimant retains the capacity to perform simple routine tasks with few
detailed instructions and where changes are introduced slowly and well explained.
She is limited to understanding simple oral instructions, and all instructions must
be given orally. She is limited to work with no more than occasional changes in
2 Social Security Regulations require ALJs to resolve a disability claim through a five-step
sequential evaluation of the evidence. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
Although a dispositive finding at any step terminates the ALJ’s review, see Colvin v. Barnhart,
475 F.3d 727, 730 (6th Cir. 2007), if fully considered, the sequential review considers and
answers five questions:
1. Is the claimant engaged in substantial gainful activity?
2. Does the claimant suffer from one or more severe impairments?
3. Do the claimant’s severe impairments, alone or in combination, meet or equal the
criteria of an impairment set forth in the Commissioner’s Listing of Impairments, 20
C.F.R. Subpart P, Appendix 1?
4. Considering the claimant’s residual functional capacity, can the claimant perform his
or her past relevant work?
5. Considering the claimant’s age, education, past work experience, and residual
functional capacity, can the claimant perform other work available in the national
economy?
See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264
(6th Cir. 2009); Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001).
3 Plaintiff’s allegations of error pertain only to her mental health impairments and restrictions.
Accordingly, the undersigned’s discussion is limited to those issues.
work setting and decision making required. She is limited to goal based work
measured by end result, with no production rate pace work, high or strict production
quotas, and piece rate work.
(R. at 29.)
When assessing this RFC, the ALJ considered the record evidence, including medical
opinion evidence. (Id. 31–36.) The ALJ assigned “partial weight” to the opinions of state
agency reviewing psychologists, Drs. Steiger and Souder. (Id. at 33.) At step five of the
sequential process, the ALJ noted that Plaintiff did not have past relevant work. (Id. at 36.) In
addition, relying on testimony from the VE who testified at the July 5, 2018 hearing, the ALJ
found that given Plaintiff’s age, education, work experience, and RFC, there were jobs in the
national economy that Plaintiff could perform including, for example, flumer, laundry worker,
and car washer. (Id. at 37, 74–75.) The ALJ therefore concluded that Plaintiff was not disabled
under the Social Security Act. (Id. at 38.)
III. RELEVANT RECORD EVIDENCE
A. Plaintiff’s Testimony
At the hearing on July 5, 2018, Plaintiff testified that her mental health issues prevented
her from working because she had problems staying on task and that she sometimes failed to
complete tasks because she would daydream or do something else. (R. at 56.) Plaintiff testified
that she was taking depression medication and that she received treatment from counselors at
Scioto Paint Valley for mental health issues. (R. at 56.) Plaintiff kept track of her medications
by using a pill box. (R. at 59–60.) She took her medications as prescribed except that she would
forget to do so every once in a while. (R. at 60.)
Plaintiff indicated that her depression caused her to not want to get up and do things and
that it would make her sit and cry a lot and that she “got sick” from her depression. (R. at 57.)
She testified that for the past couple weeks she would wait until her kids were asleep and then
cry nightly when she went to bed. (R. at 58.) She stated that had experienced depression since
her father passed away eight years ago. (Id.) Plaintiff also stated that she was having problems
going outside at night and that she was afraid to ride in vehicles. (Id.)
On a typical day, Plaintiff would wake up around seven in the morning, go to the
bathroom, take her medicine when she remembered, eat, and then do laundry or dishes with her
two daughters who lived with her. (R. at 68-69.) In the afternoon and evenings, she would sit
and watch television and listen to music. (R. at 70.) Sometimes she would play board games.
(Id.) Plaintiff also played Disney and other children’s games with her eight-year old
granddaughter and listened to music on a laptop computer at home. (R. at 65, 66.) Plaintiff
never took care of her granddaughter by herself. (R. at 69.) Plaintiff had a Facebook account
but she did not use it often because it made her eyes hurt. (R. at 66.) She had “a bunch” of
friends on Facebook, and she would share information on Facebook twice a day. (R. at 66.)
Plaintiff’s husband took care of money management when they were together, but the
bank currently did that for her. (R. at 62.) A case manager also used to help Plaintiff by taking
her to doctor appointments, the store, and the bank, but the case manager had retired and a new
one had not been hired. (Id.) Plaintiff’s eldest daughter had taken over calendaring doctor
appointments. (R. at 63.) Plaintiff paid gas, electric, rent, and cable bills on time but would
sometimes forget and pay late. (R. at 71.)
Plaintiff shopped for groceries once a week at a store located approximately four or five
blocks away from her home that she travelled to via bus or rides from friends. (R. at 63-64.) Her
daughters made grocery lists for her. (R. at 64.) Plaintiff had failed her driving test twice and
did not have a driving license. (R. at 67.) Plaintiff indicated that she could read children’s books
and novels with help but that she would have to read things over again. (R. at 49.) Plaintiff took
online classes for a year in early childhood education or teacher assistance from Stratford
University but did not go farther because it was hard. (R. at 52.)
At the hearing on October 6, 2018, Plaintiff testified that she had trouble reading or
watching television but that she needed to re-read or re-watch things in order to understand them.
(R. at 87–88.) Plaintiff also indicated that she had trouble completing tasks like cleaning,
laundry, and dishes and that she had been forgetting to take her medicines and go to doctor
appointments. (R. at 89.) Plaintiff indicated that a service provider at Scioto Paint Valley had
acted like a caretaker and that she had taken Plaintiff to doctor appointments, attended them with
Plaintiff, and kept track of information from those appointments that needed to be provided to
other agencies. (R. at 89–90.) She had also helped Plaintiff pay bills. (R. at 90.) Plaintiff
testified that her depression made her “real bad sick” and that she would get upset and throw up.
(R. at 93.) Plaintiff testified that she would get stressed about bills, her inability to do things that
she used to do, and her daughter who had Downs syndrome. (R. at 93–94.) Plaintiff had
problems cooking. (R. at 98.) Her two daughters, including her daughter with Downs syndrome,
and her granddaughter helped her a lot. (R. at 99.)
B. Records from Scioto Paint Valley Mental Health Center
The record reflects that Plaintiff received assistance from Scioto Paint Valley Mental
Health Center since at least December 4, 2013. (R. at 431.) An assessment done by a social
worker on that date indicated that Plaintiff had recurring depression, generalized anxiety, and
borderline intellectual functioning. (R. at 437.) Plaintiff reported that she separated from her
husband after he abused their eldest daughter and that she had finance, housing, and family
problems and that although she tried to maintain a positive attitude, chaos at home made it
difficult to do so. (R. at 431.) Plaintiff reported that her activities were limited due to open heart
surgery but that she watched movies, listened to music, collected angels and stuffed animals, and
that she enjoyed shopping, going for walks, doing things with others including her granddaughter
and best friend, and that she took care of herself, got along with others, was caring and giving,
and did not let things bother her. (R. at 431, 435.) A mental status examination revealed that
Plaintiff’s thought processes were circumstantial, tangential, racing, and that she had flights of
ideas; she experienced visual and olfactory hallucinations; her attention and concentration and
ability to abstract were impaired; and her intelligence was estimated as borderline. (R. at 438.)
Although Plaintiff’s affect was full, her mood was depressed and anxious. (Id.) Counseling and
community psychiatric support were recommended as well as crises services if needed. (R. at
436.) An individual service plan indicated that Plaintiff’s goals were to gain control over her
emotional/behavioral symptoms so that they would not significantly interfere with her life and to
make a better life for her and her daughters. (R. 626.)
Notes from December 2013 through May 2015 indicate that Plaintiff met regularly with a
qualified mental health specialist (“QMHS”) who helped Plaintiff access community support
services (R. at 466, 465, 464, 461, 460, 459, 456, 453, 452, 451, 448, 447, 446, 443, 441, 549,
543, 531, 519, 525, 519, 628, 616) and assisted her with her application for SSI benefits
including reminding Plaintiff to inform her attorney that she had been working (R. at 465, 462,
461, 460, 457, 454, 451, 449, 448, 447, 446, 441, 545, 543, 533, 531, 527, 519, 618). At
appointments, Plaintiff also discussed employment issues and opportunities and that
transportation and obtaining care for her disabled adult daughter while she was working
constituted employment barriers. (R. at 456, 453, 443.) At several appointments, the QMHS
wrote that Plaintiff was easily distracted (R. at 527, 525, 523) or hard to keep on task (R. 448,
521) when filling out forms or interacting with other potential service providers. Other
appointment notes indicate that it was observed or reported that Plaintiff had difficulty staying on
topic or concentrating or that she was distracted or distractable. (R. 447, 618, 617, 615, 613.) In
addition, Plaintiff was upset and stressed, nervous, and anxious at several appointments because
her eldest daughter allowed her boyfriend to stay at the family home for extended periods (R. at
455, 454, 446, 445, 444), stressed and concerned at another appointment because her daughter
was scheduled for medical testing (R. at 537), anxious about a surprise housing inspection (R. at
616), stressed when several family members were home sick or about family issues (R. at 615,
612), and just anxious (R. at 613). Nevertheless, the notes routinely indicate that Plaintiff’s
mood was “ok” (R. at 461, 454, 442, 551, 545, 543, 541, 531, 527, 521, 519, 628, 619, 618, 614,
611 ) or “good” (R. at 466, 465, 464, 462, 460, 456, 453, 452, 451, 443, 441, 440, 551, 549, 547,
539, 535, 533, 529, 525, 613) and that she was appreciative of (R. at 466, 464, 460, 549, 547,
537, 531, 529, 527, 615, 614, 611) or receptive to (R. at 465, 462, 456, 455, 454, 453, 452, 451,
447, 446, 444, 442, 551, 545, 543, 541, 539, 533, 523, 521, 519, 628, 619, 618, 617, 613, 611,
610) the support she received at appointments.
Plaintiff returned to Scioto Paint Valley Mental Health Center in March 2016, and met
with an LPC at that time. (R. at 605.) In treatment notes and individual service plans from
March and April 2016, the LPC wrote that with regard to mood, Plaintiff was alert and oriented,
maintained appropriate eye contact, displayed appropriate affect, and that she stated that she was
doing “alright.” (R. at 605, 604.) Plaintiff reported that she was stressed about a conflict with a
neighbor and frustrated that her husband continued to visit and associate with their eldest
daughter, with whom Plaintiff continued to have conflict. (R. at 605.) Plaintiff reported that she
only had “me time” to take care of herself after others were asleep but that she enjoyed walking
to stores and the library, going to church, and visiting with family and friends. (Id.) Plaintiff
also reported that spent time with her granddaughter, read, and listed to music to address feeling
depressed and stressed. (Id.) Plaintiff expressed a desire to pursue vocational opportunities that
would allow her to bring her disabled daughter with her such as early childhood education. (Id.)
During a June 4, 2016 individual service plan review, Plaintiff agreed to see a psychiatrist
for an initial evaluation, meet with a psychiatric nurse as necessary, and to practice medication
compliance by maintaining and keeping her appointments. (R. at 600, 599, 680–81.) During
that same review, Plaintiff stated that she wanted to continue going to counseling because it
helped her with her goals. (Id.) Plaintiff missed two subsequent appointments that month
because she was feeling unwell on June 7, 2016, and because her daughter’s step-grandfather had
serious medical issues on June 13, 2016. (R. at 594.)
Another assessment was done by the LPC on November 22, 2016. It again indicated that
Plaintiff had recurring depression, generalized anxiety, and borderline intellectual functioning.
(R. at 642.) At that time, Plaintiff reported that she had completed the 12th grade and was taking
on-line classes through Stratford University. (R. at 639.) Plaintiff also reported that her learning
style was “[h]ands-on” and that she liked to “read the instructions and stuff.” (Id.) Plaintiff
indicated that she experienced limitations because of her physical issues, including pain in her
hips, legs, back, and chest, and that she was fatigued easily especially since recovering from a
heart attack. (R. at 629, 642.) Plaintiff stated that she felt nervous, anxious, frightened, worried,
or on edge all the time; she experienced anxiety all her life; and noticed that her depression
worsened when she was stressed. (R. at 642.) Plaintiff coped with such feelings by reading,
watching movies, and listening to music. (Id.) She also went for walks when she could, hung
out at the library with her girls, attended ballet classes and school programs with her
granddaughter, went to the park, spent time with her girls and animals, walked her dog when she
could, and made things with her granddaughter at home. (R. at 638.) Plaintiff’s lawyer told her
that she had a lot of problems when she was in school. (R. at 642.) A mental status examination
revealed that that Plaintiff’s thought processes were circumstantial, tangential, racing, and that
she had flights of ideas; her attention and concentration and ability to abstract were impaired;
and her intelligence was estimated as borderline. (R. at 643.) Although Plaintiff’s affect was
full, her mood was depressed and anxious. (Id.) A cross-cutting symptom measurement
instrument indicated that Plaintiff had not experienced any problems with memory (e.g., learning
new information) or location (e.g., finding your way home) during the previous two weeks. (R.
at 646.) Counseling, community psychiatric support, and as-needed crisis services were
recommended, and information about other psychiatric support was offered. (R. at 640.)
At individualized service plan reviews performed on November 22, 2016, December 2,
2016, and June 1, 2017, Plaintiff indicated that her goals were to keep receiving the same
services that she was already receiving, trying to get into programs to keep her busy, help other
people, and look for a better future. (R. at 675.)
On June 30, 2017, the LPN wrote that Plaintiff conveyed a pleasant mood and congruent
affect; her speech was clear and coherent; her behavior was interactive; and she was alert and
oriented. (R. at 654.) Plaintiff’s attention and concentration was also intact. (Id.) Plaintiff
failed to attend an appointment on July 12, 2017. (R. at 656.)
On August 24, 2017, Plaintiff described her mood as “not real good” but “not real bad,”
and reported that she was stressed about where she lived. (R. at 658.) The LPN wrote that
Plaintiff’s eye contact was good, her speech was clear and coherent, her demeanor was
comfortable, and she was alert and oriented. (R. at 658.) Her attention and concentration,
however, was somewhat impaired that day. (Id.) On October 5, 2017, Plaintiff’s mood was
euthymic, her affect was full, her speech was coherent, and her thought processes were mostly
goal-oriented although tangential at times. (R. at 660.) Plaintiff was also cooperative, alert, and
oriented. (Id.) The LPN encouraged Plaintiff to reach out to her primary care physician about
medications and explained that medication management services could not be provided until
Plaintiff attended four scheduled appointments. (Id.) On October 12, 2017, Plaintiff indicated
that her mood was “off and on” and that she “got moody;” she was stressed again about where
she lived; and she was lacking energy. (R. at 663.) Plaintiff failed to attend, however, an
appointment on October 17, 2017. (R. at 666.)
On October 30, 2017, the LPN wrote that Plaintiff reported that she was good and that
her affect was congruent. (R. at 670.) Plaintiff’s speech was clear and coherent, her demeanor
was polite and cooperative, she was alert and oriented, and her thought processes were mostly
goal-oriented although circumstantial at times. (Id.) Plaintiff’s attention and cooperation were
also intact. (Id.) Plaintiff did not attend an appointment on November 7, 2017. (R. at 673.)
On February 28, 2018, Plaintiff reported that she had “off and on” stress but that she was
“pretty good” and had been able to “go do stuff” that she had wanted to do. (R. at 686.) Plaintiff
reported that she was still “fighting SSI” and was scheduled to see a judge soon, she was seeing a
new doctor, and taking her medications. (Id.) The notes also indicate that Plaintiff’s care was
transferred from the LPN to another service provider at Scioto Paint Valley Mental Health
Center who made at least two unsuccessful attempts to contact Plaintiff about continuing her
services there. (R. at 688, 697.)
C. Relevant Records from Donald Fouts, D.O.4
Plaintiff sought treatment from Donald Fouts, D.O. from January 29, 2014, until March
31, 2016. Although Plaintiff sought treatment for her physical ailments from Dr. Fouts, notes
indicate that his examinations during this period included a psychological assessment and that
those examinations revealed that Plaintiff was alert and cooperative, she had normal mood and
affect, and that her attention span and concentration were normal. (R. at 502, 493, 487, 481, 579,
572, 566, 559.)
D. Medical Opinions
1. Consultative Examiner Marc W. Miller, PhD.
On July 28, 2014, consultative examiner Marc W. Miller, PhD., examined Plaintiff. (R.
at 474–785.) Dr. Miller wrote that Plaintiff’s appearance and grooming was average, her
hygiene was fair, and that Plaintiff was cooperative, friendly, and mannerly. (Id. at 476.)
Plaintiff smiled frequently and was, at times, somewhat silly. (Id. at 476.) Dr. Miller also noted
Plaintiff’s immaturity. (Id.) Although she was anxious throughout the interview, he noted no
impulsivity or animated or pain behaviors. (Id.) Plaintiff’s eye contact was good, and her
psychomotor response was normal. (Id.) Plaintiff’s speech was fast, and she tended to ramble
and needed to be redirected, but her speech was intelligible, receptive skills were good, and she
initiated conversations frequently. (Id.) Although Plaintiff related issues with depression and
low libido, her energy levels were fair, her mirth response was good, and she had no suicidal
thoughts, tearfulness or crying. (Id.) With regard to anxiety, Plaintiff had issues with her mind
racing, excessive worry, nightmares, nail biting, and irritability, but no teeth grinding or panic
4 Because Plaintiff raises claims that pertain only to her mental health impairments and
restrictions, the undersigned’s summary of Dr. Fouts’ records is limited to those issues.
attacks. (Id.) Plaintiff was alert and oriented times 4 at a basic level, she could recall 3 out of 3
items in a period of five minutes, and she knew her birthdate, age, and address. (Id.) Although
she had difficulty supplying details about her biographical information, her memory appeared to
be adequate for someone with low intellectual capabilities. (Id.) Her organizational skills were
good; her problem-solving skills were moderate; and her concentration was fair to poor. (Id.)
Plaintiff had difficulty with abstract thinking. (Id. at 477.) She could follow one-step directions
and operate a computer at a basic level but she could not multi-task or read a newspaper. (Id.)
Dr. Miller estimated that Plaintiff’s intellect was in the borderline range. (Id.) Plaintiff had no
suspiciousness or mistrust, no auditory or visual hallucinations, and no obsessions/compulsions.
(Id.) She had poor coping skills and difficulty with insight but her social adaptation was good
and she got along with others. (Id.) Plaintiff had no hobbies and stayed home but she attended
church regularly, watched television, prepared meals for herself, her daughter with downs
syndrome, and her granddaughter, and did laundry, cleaning, and dishes. (Id.) She would shop
with her daughter and granddaughter and managed her money with help from her caseworker.
(Id.)
Dr. Miller opined that Plaintiff had difficulty dealing with stress and pressure in a work
environment. (Id. at 478.) In addition, Dr. Miller opined that Plaintiff had some difficulty
understanding, remembering, and carrying out instructions. (Id. at 477.) Dr. Miller also opined
that Plaintiff had some difficulties with regard to maintaining attention span and concentration,
and that this could be due to Plaintiff’s anxiety issues. (Id. at 478.) He further opined, however,
that Plaintiff had no difficulty interacting with coworkers, supervisors, and the public, and noted
that Plaintiff was very friendly and enjoyed social interaction. (Id.)
2. State Agency Reviewers Drs. Steiger and Souder
On August 1, 2014, state agency reviewing physician Dr. Steiger reviewed Plaintiff’s file.
(R. at 116–18.) Dr. Steiger opined that due to Plaintiff’s understanding and memory limitations,
Plaintiff was moderately limited with regard to her ability to understand and remember detailed
instructions. (R. at 117.) Dr. Steiger also opined that due to Plaintiff’s adaptation limitations,
she was moderately limited with regard to her ability to respond appropriately to changes in the
work setting. (R. at 118.) In addition, Dr. Steiger opined that due to her sustained concentration
and persistence limitations, Plaintiff was moderately limited with regard to her ability to carry
out detailed instructions; maintain attention and concentration for extended periods; make simple
work-related decisions; and complete a normal workday and workweek without interruptions
from psychologically based symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods. (R. at 117.) Dr. Steiger elaborated on
Plaintiff’s concentration and persistence capacities and limitations in the narrative discussion
section5 of the form that she used to record her assessment:
Last FSIQ was 59; it is estimated that she is functioning in the borderline range of
intelligence. She knew her age, DOB, address. Memory was adequate for low
intellectual abilities. Concentration was fair to poor. Moderate problem solving
and good organizational abilities. She was able to spell world in reverse w/ no
errors. She was able to respond to 1 of 2 proverbs. She was not able to compare
like items. She is able to follow one-step directions but was unable to multi-task.
(Id.) (emphasis added). Dr. Steiger wrote in the “additional explanation text box” of the
form: “[Plaintiff] would be able to perform SRTs in a slow paced work environment. She
should not be expected to perform effectively under stress.” (R. at 118.)
5 The form used by Dr. Steiger explicitly indicates that the RFC assessment appears in that
narrative discussion section and that any other assessment information deemed appropriate
should appear in the additional explanation text box. (R. at 116.)
On August 1, 2014, state agency reviewer Dr. Souder reviewed Plaintiff’s file. (R. at
132–35.) Dr. Souder opined the same limitations as Dr. Steiger, including that “[Plaintiff] would
be able to perform SRTs in a slow paced work environment. She should not be expected to
perform effectively under stress.” (R. at 135.) Unlike Dr. Steiger, however, Dr. Souder opined
that Plaintiff also had social interaction limitations, although she was not significantly limited
with regard to any aspects of that domain. (R. 118, 134.)
IV. STANDARD OF REVIEW
When reviewing a case under the Social Security Act, the Court “must affirm the
Commissioner’s decision if it ‘is supported by substantial evidence and was made pursuant to
proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009)
(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. §
405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial evidence is
defined as ‘more than a scintilla of evidence but less than a preponderance; it is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’” Rogers, 486
F.3d at 241 (quoting Cutlip v. Sec’y of Health & Hum. Servs., 25 F.3d 284, 286 (6th Cir. 1994)).
Although the substantial evidence standard is deferential, it is not trivial. The Court must
“take ‘into account whatever in the record fairly detracts from [the] weight” of the
Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002)
(quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, “if
substantial evidence supports the ALJ’s decision, this Court defers to that finding ‘even if there
is substantial evidence in the record that would have supported an opposite conclusion.’”
Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d 270, 273
(6th Cir. 1997)).
Finally, even if the ALJ’s decision meets the substantial evidence standard, “a decision of
the Commissioner will not be upheld where the [Social Security Administration] fails to follow
its own regulations and where that error prejudices a claimant on the merits or deprives the
claimant of a substantial right.” Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir.
2007).
V. ANALYSIS
As noted, Plaintiff raises two allegations of error. First, Plaintiff contends that the ALJ
committed reversible error by failing to adequately explain why she did not incorporate into
Plaintiff’s RFC a one-step direction limitation opined by state agency reviewers Drs. Steiger and
Souder. Plaintiff next contends that the ALJ erred when she relied on testimony from one VE
instead of another VE at step five of the disability analysis. (Pl.’s Statement of Errors, ECF No.
9; Pl’s. Reply, ECF No. 12.) These contentions are discussed in turn.
A. The ALJ Did Not Err By Failing to Explain Why a One-Step Direction
Limitation Was Not Incorporated Into Plaintiff’s RFC.
Plaintiff alleges that the ALJ failed to adequately explain why she did not incorporate
into Plaintiff’s RFC a one-step direction limitation opined by Drs. Steiger and Souder given that
the ALJ assigned their opinions partial weight. (Pl.’s Statement of Errors, ECF No. 9; Pl’s.
Reply, ECF No. 12.) The undersigned does not find that the ALJ’s discussion warrants remand.
A claimant’s RFC is an assessment of “the most [she] can still do despite [her]
limitations.” 20 C.F.R. § 416.945(a)(1). An ALJ must consider all symptoms and the extent to
which those symptoms are consistent with the objective medical evidence. 20 C.F.R.
§ 416.929(a). Although an ALJ must consider and weigh medical opinions, the RFC
determination is expressly reserved to the Commissioner. Ford v. Comm’r of Soc. Sec., 114 F.
App’x. 194, 198 (6th Cir. 2004).
“Under the regulations, ALJs ‘must consider findings of [s]tate agency medical and
psychological consultants,’ but ALJs ‘are not bound by any findings made by [s]tate agency
medical or psychological consultants.’” Renfro v. Barnhart, 30 F. App’x. 431, 436 (6th Cir.
2002) (quoting 20 C.F.R. § 404.1527(f)(2)(i)).6 “[T]he opinions of non-examining state agency
medical consultants have some value and can, under some circumstances, be given significant
weight.” Douglas v. Comm’r of Soc. Sec., 832 F.Supp. 2d 813, 823–24 (S.D. Ohio 2011). This
occurs because the Commissioner views such medical sources “as highly qualified physicians
and psychologists who are experts in the evaluation of the medical issues in disability claims
under the [Social Security] Act.” Id.; 20 C.F.R § 416.927(d),(f).7 “Consequently, opinions of
one-time examining physicians and record-reviewing physicians are weighed under the same
factors as treating physicians including supportability, consistency, and
specialization.” Douglas, 832 F.Supp. 2d at 823–24. Nevertheless, “there is no legal
requirement for an ALJ to explain each limitation or restriction he [or she] adopts or, conversely,
does not adopt from a non-examining physician’s opinion, even when it is given significant
weight.” Price v. Comm’r of Soc. Sec., 2:18-cv-128, 2019 WL 396415, at *2 (S.D. Ohio Jan. 31,
2019) (quoting Smith v. Comm’r of Soc. Sec., No. 5:11-cv-2104, 2013 WL 1150133, at *11
(N.D. Ohio March 19, 2013) (citing Ford, 114 F. App’x. at 198.))
6 Section 404 .1527 applies to claims, like Plaintiff’s, that were filed on or before March 17,
2017.
7 Section 416.927 applies to claims, like Plaintiff’s, that were filed on or before March 27, 2017.
Plaintiff specifically contends that the ALJ discredited the opinions from state agency
reviewers Drs. Steiger and Souder only because they were not stated in vocationally relevant
terms. (Pl’s Statement of Errors, ECF No. 9, at PAGE ID # 753; Pl’s Reply, ECF No. 12, at
PAGE ID # 773.) Thus, Plaintiff reasons, the ALJ deemed all their opined limitations
substantively credible and it was error for the ALJ to omit any of them from Plaintiff’s RFC,
including the one-step direction limitation that they had opined, without additional explanation.
(Id.) The undersigned is not convinced, however, that the ALJ discredited Drs. Steiger’s
Souder’s opinions only because they were not stated in vocationally relevant terms or that she
deemed all their opined limitations substantively credible. (Pl’s Statement of Errors, ECF No. 9,
at PAGE ID # 753; Pl’s Reply, ECF No. 12, at PAGE ID # 773.) Instead, the undersigned
concludes that the weight that the ALJ assigned to these opinions was based on their consistency
with the record evidence.
Specifically, at step three, the ALJ determined that Plaintiff’s mental impairments did not
meet or medically equal a Listing. (R. at 21.) In making that determination, the ALJ considered
the paragraph B criteria— whether Plaintiff’s mental impairments or combination of the same
resulted in an extreme limitation in one or a marked limitation in at least two of several domains
including concentrating, persisting, or maintaining pace. (Id.) The ALJ also explicitly
concluded that Drs. Souder’s and Steiger’s opinions were inconsistent with the record evidence
in that they opined greater limitations in that domain than generally evinced by the record. (R. at
26.) The ALJ explained:
[Drs. Steiger and Souder] opined that Plaintiff has moderate difficulties with regard
to maintaining concentration, persistence, and pace . . . . These opinions are
inconsistent with the totality of the evidence, as discussed above, which documents
little or no limitations in concentrating, persisting, or maintaining pace. In light of
claimant’s education, childhood IQ scores, enrollment in on-line college classes,
presentation at different times, admitted and demonstrated abilities for following
one-step and written instructions, handling changes in routine, thoroughness,
taking directions, and eagerness for learning new skills, and activities involving
significant concentrating, persisting, or maintaining pace, as discussed above, the
evidence could support a determination that she has no or only mild limitations in
concentrating, persisting, or maintaining pace. However, in extending the benefit
of all reasonable doubt and in light of the claimant’s adult IQ scores, the BDD
assessments are entitled to significant weight in concentrating, persisting, or
maintaining pace. Accordingly, it is determined that the claimant has moderate
rather than no or only mild limitations in concentrating, persisting, and pace.
(Id.) (emphasis added). In short, the ALJ explained that Drs. Steiger’s and Souder’s opinions
about Plaintiff’s moderate limitations in concentration, persistence, and pace limitations were
inconsistent with the record evidence but that she tipped the balance in Plaintiff’s favor given
Plaintiff’s adult IQ scores and nevertheless concluded that she was moderately limited in this
area.
Contrary to Plaintiff’s contentions, the ALJ also did not indicate that she discounted Drs.
Steiger’s and Souder’s opinions only because they were not stated in vocationally relevant terms.
Rather, the ALJ indicated that she restated certain limitations opined by Drs. Steiger and Souder
in more vocationally relevant terms and then credited their opinions to the extent that they were
consistent with the record. (R. at 33.) The ALJ also explicitly referenced her discussion of the
paragraph B criteria at step three and again noted that the record evidence could support a
finding that Plaintiff was less limited than opined by Drs. Steiger and Souder. (Id.) The ALJ
wrote:
Although restatements were made into vocationally more relevant terms, the
opinions of [Drs. Steiger and Souder] are entitled to partial weight in assessing the
claimant’s mental functional limitations and restrictions as of the application date
. . . . The claimant’s limitations to performing simple routine tasks with no more
that occasional changes in work setting and decision making required and few
detailed instructions where changes are introduced slowly and well explained,
accommodate [Drs. Steiger’s and Souder’s] assessments that she is limited to
performing simple routine one- and two-step directions with occasional changes
fully explained and is incapable of multitasking . . . . These opinions are consistent
with the totality of the evidence, including the “paragraph B” criteria, as discussed
above, which documents no more than moderate limitations in . . . concentrating,
persisting, or maintaining pace . . . . and could support determinations that the
claimant is less limited in these areas. These opinions are consistent with the
claimant’s education, childhood IQ scores, enrollment in online college classes,
admitted and demonstrated abilities for following one-step and written instructions
. . . . handling changes in routine, thoroughness, taking directions, and eagerness
for learning new skills . . . presentation at different times, activities involving . . .
concentrating, persisting, or maintaining pace . . . . This evidence does not
reasonably justify greater reduction of the claimant’ mental residual functional
capacity, and could support a determination that she is less mentally limited than
set forth above as of the application date. However, in extending the benefit of the
doubt and in light of the claimant’s adult IQ scores, it is determined that she is
limited to only simple oral instructions in the workplace. These opinions are not
credibly contradicted, as no acceptable medial source within the meaning of the
Regulations credibly opined as to the existence of additional or greater mental
functional limitations and restrictions as of the application date . . . Accordingly,
[Drs. Steiger’s and Souder’s] mental residual functional capacity assessments are
each overall entitled to partial weight in assessing the claimant’s mental functional
limitations and restrictions as of the application date.
(Id.) (emphasis added). In short, ALJ did not discount the opinions because they had not been
stated in vocationally relevant terms. Rather, she credited the opined limitations that were
consistent with the record while noting that the record could also support a finding that Plaintiff
was perhaps not as limited as these experts had opined. This discussion sufficiently described
the ALJ’s analysis of Drs. Steiger and Souder’s opinions.
Plaintiff notes that the ALJ included in Plaintiff’s RFC a limitation to performing “simple
routine tasks with few detailed instructions where changes are introduced slowly and well
explained,” and that she indicated that she did so in order to “accommodate [Drs. Steiger’s and
Souder’s] assessments that she is limited to performing simple routine one- and two-step
directions with occasional changes fully explained and is incapable of multitasking.” (Pl’s
Statement of Errors, ECF No. 9, at PAGE ID # 753; R. at 29, 33.) Plaintiff correctly notes that
Drs. Steiger and Souder did not, however, opine that Plaintiff was able to follow two-step
directions, and that they instead opined that she was capable of following one-step directions.
(Pl’s Statement of Errors, ECF No. 9, at PAGE ID # 753.) But when crafting Plaintiff’ RFC, the
ALJ did not determine that Plaintiff was capable of following two-step directions. Indeed, the
ALJ did not even determine that Plaintiff was capable of following one-step directions. Rather,
the ALJ concluded that Plaintiff could perform simple routine tasks with few detailed
instructions. That conclusion is supported by substantial evidence given that both Drs. Steigler
and Souder also opined that Plaintiff was capable of performing simple routine tasks. (R. at 118,
135.) The ALJ was not required to adopt verbatim every limitation that Drs. Steigler and Souder
opined even if their opinions were given partial weight. See Reeves v. Comm’r of Soc. Sec., 618
F. App’x. 267, 275 (6th Cir. 2015) (ALJ was not required to incorporate consulting physician’s
balancing, avoidance of hazards and vibration, and left arm feeling limitations into RFC even
though ALJ gave great weight to that physician’s opinions where those restriction were not
supported by the record).
Moreover, other substantial record evidence supports the ALJ’s determination that
Plaintiff was not as impaired with regard to concentration, persistence, and pace limitations as
these experts had opined. For example, the record reflects that Plaintiff engaged in activities that
required concentration, including watching movies (R. at 431, 642) and reading (R. 605, 642).
The record also reflects that Plaintiff took on-line classes through Stratford University for at least
one year. (R. at 639, 52.) Plaintiff also reported that she liked written instructions. (R. at 639.)
The record also indicates that Plaintiff told her mental health service providers that her
limitations and disabilities were due to her physical impairments (R. at 431, 629, 642) and that
she identified lack of transportation and day care for her adult disabled daughter as her other
barriers to employment (R. at 456, 453, 443). The records also contain numerous treatment
notes indicating that Plaintiff’s attention and concentration were intact. (R. at 654, 670, 502,
493, 487, 481, 579, 572, 566, 559.)
Plaintiff additionally asserts that because the ALJ inaccurately stated that Drs. Steiger
and Souder opined that she was capable of following two-step directions, the ALJ must have
misread their opinions. The undersigned notes, however, that the ALJ indicated at least six times
in her written determination that Plaintiff demonstrated the ability to follow one-step directions.
(R. at 22, 23, 25, 26, 33, 35.) In so doing, she cited the opinion from consultative examiner Dr.
Miller finding that Plaintiff was capable of following one-step directions, which had been
reviewed by Drs. Steiger and Souder. (R. at 22, 25.) Thus, the undersigned is not convinced that
the ALJ misunderstood the opinions. Instead, the undersigned finds that the ALJ considered all
the opined limitations, restated them in generally more vocationally relevant terms, and then
adopted the limitations that she deemed credible in light of their consistency with the record
evidence. That consideration was appropriate. Douglas, 832 F.Supp. 2d at 823–24 (explaining
that consistency is one of the factors used to weigh opinions from reviewing physicians).
For all these reasons, the undersigned concludes that this assignment of error does not
warrant remand.
B. VE Testimony
Plaintiff also alleges that the ALJ committed reversible error because she relied upon
testimony from the VE who testified at the July 5, 2018 hearing instead of testimony from the
VE who testified at the October 6, 2018 hearing. (Pl’s Statement of Errors, ECF No. 9, at PAGE
ID # 755.) Specifically, at the July 5, 2018 hearing, Plaintiff’s counsel asked the VE if someone
with the same age, education, background, work experience, and RFC as Plaintiff but with an IQ
score of 59 was employable. (R. at 76, 77.) The VE at that hearing testified that she was not
qualified to interpret IQ scores. (R. at 76.) Similarly, at the October 6, 2018 hearing, Plaintiff’s
counsel asked the VE who testified then if someone with Plaintiff’s profile but with an IQ in the
upper 60s was likely to be successfully employed. (R. at 106.) The VE at that October 6, 2018
hearing testified that in his experience, there would need to be some kind of accommodation.
(Id.) At step five of the disability analysis, the ALJ concluded that the opinion from the VE who
testified at the earlier July 5, 2018 hearing was entitled to significant weight and she relied on
that opinion to find that there were significant jobs in the national economy that Plaintiff could
perform. (R at 38.) The ALJ also concluded that the testimony from the VE who testified at the
later October 6, 2018 hearing was entitled to no weight because “the regulations, DOT, and SCO
do not provide that IQ scores comparable to or the same as [Plaintiff’s] automatically result in
any specific functional limitations and restrictions, including to accommodated rather than
competitive work.” (R. at 38.) Plaintiff asserts that the ALJ erred and that she should have
relied upon the testimony from the VE who testified at the later October 6, 2018 hearing.
A vocational expert testifies on the basis of a claimant’s “residual functional capacity and
. . . age, education, and work experience” and assesses whether the claimant “can make an
adjustment to other work.” 20 C.F.R. § 416.920(a)(4)(v). The vocational expert’s testimony is
directed solely to whether, given a claimant’s age, experience, and education, along with the
ALJ’s assessment of what she “can and cannot do,” there exist a significant number of
employment opportunities for her in the regional and national economies. The vocational expert
is not expected to evaluate the claimant’s medical conditions in making this determination.
Indeed, vocational experts are not required to have any medical training, so any evaluation of
medical evidence they perform would be outside their area of expertise.
An ALJ may rely on a VE’s response to a hypothetical question only if the question
accurately portrays a claimant’s physical and mental impairments. Ealy v. Comm’r of Soc.
Sec., 594 F.3d 504, 516 (6th Cir. 2010). The ALJ is required to incorporate only those
limitations that she has deemed credible. Casey v. Sec’y of Health & Human Servs., 987 F.2d
1230, 1235 (6th Cir.1993). In this case, the ALJ discussed Plaintiff’s IQ scores at step two of the
disability analysis and explicitly described why the record demonstrated that Plaintiff’s
functional abilities were more robust than her adult IQ scores might indicate. (R. at 22.) The
ALJ noted that even though Plaintiff’s IQ adult score was 59, her childhood IQ score was over
70, she attended classes through 12th grade, she indicated that she enjoyed following written
instructions, and she described herself as able to follow instructions and that she was eager to
learn new skills. (Id.) The ALJ thus concluded that Plaintiff was able to perform simple routine
tasks with few detailed instructions with changes were introduced slowly and well explained; she
could follow simple instructions delivered orally; she could perform work where no more than
occasional changes in work setting and decision making were required; and that she could
perform goal-based work with no production rate pace work, high or strict production quotas,
and piece rate work. (R. at 29.) The hypothetical posed by the ALJ to the VE who testified on
July 5, 2018, adequately incorporated all these limitations that the ALJ had credited. (R. at 73–
74.) Accordingly, the ALJ did not commit reversible error when she relied upon that testimony.
For these reasons, the undersigned does not conclude that the ALJ committed reversible
error when she relied upon testimony from the VE who testified on July 5, 2018.
VI. RECOMMENDED DISPOSITION
In sum, from a review of the record as a whole, the undersigned concludes that
substantial evidence supports the ALJ’s decision denying benefits. For all the foregoing reasons,
it is RECOMMENDED that the Court OVERRULE Plaintiff’s Statement of Errors
and AFFIRM the Commissioner of Social Security’s decision.
VII. PROCEDURE ON OBJECTIONS
If any party objects to this R&R, that party may, within fourteen (14) days of the date of
this R&R, file and serve on all parties written objections to those specific proposed findings or
recommendations to which objection is made, together with supporting authority for the
objection(s). A Judge of this Court shall make a de novo determination of those portions of the
R&R or specified proposed findings or recommendations to which objection is made. Upon
proper objections, a Judge of this Court may accept, reject, or modify, in whole or in part, the
findings or recommendations made herein, may receive further evidence or may recommit this
matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the R&R will result in a
waiver of the right to have the District Judge review the R&R de novo, and also operates as a
waiver of the right to appeal the decision of the District Court adopting the R&R. See Thomas v.
Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
/s/ Chelsey M. Vascura___
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE